Canada: Human Rights Challenges And Internationally Educated Professionals: Mihaly v. APEGA

In Mihaly v. The Association of Professional Engineers, Geologists and Geophysicists of Alberta, 2014 AHRC 1, an Alberta Human Rights Tribunal, recently held that the Association of Professional Engineers and Geoscientists of Alberta (APEGA) discriminated against Ladislav Mihaly, an internationally educated engineer (“IEE”), by imposing certain requirements before it would register him to practice as a professional engineer in Alberta.  The Tribunal’s decision is a matter of considerable importance for all regulators, many of which are receiving an increasing number of licensing applications from graduates of foreign institutions.  James T. Casey, QC, of Field Law represented APEGA before the Tribunal. 

APEGA is mandated by Alberta’s Engineering and Geoscience Professions Act to regulate the engineering profession in Alberta.  As part of that statutory mandate, APEGA imposes standards upon those who wish to register to practice the profession of engineering in Alberta.  Applicants for registration are required to demonstrate that they have acceptable academic qualifications, have four years of acceptable engineering experience (including one year of equivalent Canadian engineering experience), and that they have knowledge of Canadian engineering ethics and the Canadian engineering regulatory regime. To demonstrate competence in this latter category all applicants for registration with APEGA are required to pass the National Professional Practice Examination (the “NPPE”)

APEGA accepts that graduates of Canadian engineering degree programs that are accredited by Engineers Canada meet its academic qualification standards.  In addition, APEGA has entered Mutual Recognition Agreements (“MRA”) with several countries and recognizes graduates from engineering programs from those countries.  As well, Engineers Canada maintains a list of foreign engineering degree programs known as the Foreign Degree List (the “FDL”).  The FDL contains information regarding the nature and content of the engineering programs at foreign institutions not covered by an MRA.  However, since the information on the FDL has not been subject to an accreditation process similar to that applied to Canadian engineering programs or programs in MRA countries, APEGA previously required an applicant who was educated at an FDL institution, and who could not otherwise demonstrate their academic competence, to confirm their academic qualifications by writing three technical exams. More recently, APEGA began requiring such applicants to pass only one exam: the Fundamentals of Engineering Exam (the “FE Exam”) which is a one-day examination offered several times a year at a reasonable cost.  The afternoon portion of the FE Exam focuses on the IEE’s area of engineering specialty.   Depending on the educational qualifications and experience of the IEE, the Board of Examiners of APEGA may waive the requirement to pass the FE Exam. 

The Complainant, Mr. Mihaly, received his engineering education in Slovakia.  He eventually applied for registration with APEGA. Given that his engineering program was on the FDL, he was considered eligible for registration provided he passed confirmatory examinations and passed the NPPE Exam that all applicants are required to take regardless of where they received their education.  Mr. Mihaly failed the NPPE examination three times and never attempted the FE Exam.  Rather, in August 2008, Mr. Mihaly filed a complaint with the Alberta Human Rights Commission alleging that APEGA discriminated against based upon his place of origin by refusing to consider his foreign obtained academic credentials equivalent to an accredited Canadian engineering degree.

Before the Human Rights Tribunal, APEGA argued that the Tribunal had no jurisdiction over Mr. Mihaly’s complaint as the Alberta Court of Queen's Bench, in Grover v. Alberta (Human Rights Commission), 1996 CarswellAlta 1149 (ABQB) (affirmed by the Court of Appeal on other grounds), had held that the place a person receives their academic qualifications is not a prohibited ground of discrimination under the Alberta Human Rights Act. In other words, place of academic qualifications does not equate to place of origin.

APEGA also argued that while its assessment of academic qualifications and engineering experience draws distinctions among applicants, those distinctions were not discriminatory, in that they are not based upon stereotypical or arbitrary assumptions that perpetuate disadvantage.  Rather, they are based upon an objective assessment of the content contained in particular academic engineering programs, combined with an individual assessment of the applicant’s academic qualifications and engineering experience.   

Ultimately, the Tribunal held that it had jurisdiction over Mr. Mihaly’s complaint.  The Human Rights Tribunal held that place of academic qualifications serves as a proxy for place of origin.  The Human Rights Tribunal found that the process used to assess Mr. Mihaly was discriminatory since it was insufficiently individualized and created undue barriers for the registration of IEE’s such as the Complainant. Finally, the Tribunal held that APEGA’s requirement that all applicant’s acquire one-year of Canadian engineering experience was not justified, and the standards it sought to assure could be met through other means.

The Tribunal ordered APEGA to pay Mr. Mihaly $10,000 in general damages, and directed APEGA to undertake an individual assessment of Mr. Mihaly’s qualifications, including: (1) a review of his transcripts and experience in direct consultation with his Slovak and Czech post-secondary schools to determine core engineering areas from which he could be exempted; (2) permitting Mr. Mihaly to challenge assigned examinations in areas from which he is not exempted; (3) establishing a committee, including IEEs, to investigate options, such as alternate methods of assessment, to appropriately assess the qualifications of Mr. Mihaly “with a view to correcting any perceived academic deficiencies”; (4) attempting to match Mr. Mihaly with a mentor, preferably with a similar background; (5) directing Mr. Mihaly to resources within the profession that will allow him to network with other IEEs; and (6) directing Mr. Mihaly to community English language resources.

Field Law is of the view that the decision contains many serious errors of law and APEGA has filed an appeal.   While there are many grounds of appeal, some of the key arguments are:

  1. Place of educational qualifications does not equate to place of origin under the Alberta Human Rights Act.

  2. The Human Rights Tribunal erred in its conclusions regarding the nature of the examinations and came to these conclusions in a procedurally unfair way by not raising the issue at the hearing.

  3. Requiring IEE’s to pass the one-day FE Exam, which is an examination used around the world to test entry-level competence for engineers, does not constitute discrimination.  Nor is the requirement to have one year of Canadian engineering experience discriminatory.

  4. The requirement for the Complainant to pass the NPPE examination, which is required of all applicants regardless of where they received their engineering education, is not discriminatory.

  5. The registration requirements are reasonable and justifiable and in accordance with APEGA’s statutory obligation to protect and serve the public by ensuring that all applicants have entry-level competence.

  6. The Human Rights Tribunal made many findings that were either not in evidence or contrary to all the evidence presented at the hearing.

  7. APEGA’s system to assess IEE’s is fair, balanced and individualized as is demonstrated by APEGA’s excellent track record in assessing and registering a large volume of IEE’s every year.  A high proportion of IEE’s, in fact, are not required to pass any confirmatory examinations based on the individualized assessment of their education and experience.

It is expected that the appeal will be heard in December 2014.  James T. Casey, Q.C. and Michael Wall of Field Law will be representing APEGA on the appeal. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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