Discrimination of Foreign-trained Professionals: the ‘Canadian experience’

May 16, 2016

Canada is a diverse country. Many people arrive here hoping to practice the profession in which they were trained abroad. However, there are often barriers to doing so.

A recent decision out of Alberta considered this issue in The Association of Professional Engineers and Geoscientists of Alberta v. Milhaly, 2016 ABQB 61.

The Case

Mr. Milhaly was trained as an engineer in Czechoslovakia.  After moving to Canada, he wished to become an engineer in Alberta. When Mr. Milhaly applied to be qualified as an engineer, the regulating body of engineers required him to write a National Exam that all applicants must write. In addition to this, he was required to write several confirmatory examinations because his credentials were not from a recognized university.  After he applied for reconsideration, the body further found that Mr. Milhaly did not have the necessary one year of Canadian professional engineering experience which all applicants must have but which Mr. Milhaly stated he could not obtain due to his foreign-trained status.

Mr. Milhaly brought a human rights application and was successful. The matter then went to the Alberta Court of Queen’s Bench for review.

The Court confirmed that Mr. Milhaly experienced discrimination because:

  • place of origin is a protected human rights ground;
  • place of training is closely tied to place of origin;
  • he experienced an adverse impact because he was required to write the confirmatory examinations;
  • and his place of origin was a factor in this requirement.

The court then found that despite the discrimination, the requirements to write the confirmatory examinations and have Canadian experience were reasonable and justifiable in the circumstances under the Alberta Human Rights Act.

The Court highlighted that the regulatory body’s accreditation system was comprehensive and complex and distinctions between Mr. Milhaly and Canadian trained engineers were not based on an assumption of inferior training or qualifications, but rather a lack of knowledge about his specific academic institution. The Court found the application of the National Examination and the one year of experience were reasonable as all applicants were required to meet these requirements.

Lessons

The court confirmed that general standardized examinations that are required for all applicants are not discriminatory and neither is requiring foreign-trained applicants to obtain one year of Canadian experience, even if that is difficult to acquire.

As this was an Alberta court decision, it is conceivable that the Human Rights Tribunal of Ontario may decide this issue differently. This is especially possible given the Ontario Human Rights Commission’s policy conflicts with the decision of the Alberta court.

The Commission’s policy on ‘Removing the Canadian Experience Barrier’ emphasizes that a strict requirement for Canadian experience is on its face discriminatory and should be applied in very limited circumstances. The Ontario Human Rights Tribunal often applies the Commission’s policies when it decides cases.

If you are a foreign trained professional in Ontario, and you have been treated differently than your Canadian peers, a lawyer at MacLeod Law Firm can assist you. Please contact us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

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