In Association of Professional Engineers and Geoscientists
of Alberta v. Mihaly, 2016 ABQB 61, Madam Justice J.M. Ross
ruled that it is not discriminatory for the Association of
Professional Engineers and Geoscientists of Alberta
("APEGA") to require an internationally educated engineer
to write a confirmatory examination to assess whether the applicant
possesses entry level competence to practice engineering in
Alberta. The Court also found that it was not discriminatory to
require the applicant to write a practice examination when all
applicants are required to do so.
Mr. Ladislav Mihaly was born and educated as an engineer in the
former Czechoslovakia. After immigrating to Canada, Mr. Mihaly
applied to APEGA for registration as a Professional Engineer. Mr.
Mihaly was required to write a series of examinations to confirm
his academic qualifications and experience as part of his
application; however, Mr. Mihaly failed one examination three times
and refused to attempt one of the confirmatory examinations. As a
result, he was denied registration as a professional engineer with
The Alberta Human Rights Tribunal found that APEGA had
discriminated against Mr. Mihaly on the grounds of his place of
origin in relation to his application to be registered as a
professional engineer as a result of APEGA's assessment of his
APEGA appealed the Tribunal's decision. Madam Justice Ross
held that the Tribunal's decision was unreasonable and that it
had to be reversed. Madam Justice Ross found that the Tribunal made
findings of fact not supported by the evidence, failed to take into
account relevant evidence, and made unreasonable interpretations of
the evidence. She went on to find that portions of the
Tribunal's findings of discrimination were based on the
application of the wrong legal test and a lack of evidence to
support the finding.
Madam Justice Ross held that the requirement to write
confirmatory examinations was reasonable and justifiable. She
concluded that APEGA's system of assigning confirmatory
examinations is consistent with its role under the legislation and
the statutory objective of ensuring that engineers have entry-level
competence. Madam Justice Ross also concluded that the
Tribunal's decision on accommodation was "rife with
logical errors", findings of fact not supported by the
evidence, and failures to take into account relevant
Based on these findings, Madam Justice Ross reversed the
Tribunal's decision and refused to remit the matter back to
This decision is important for regulators as it establishes
regulators do not need to fundamentally alter entrance standards
for foreign trained professionals if those standards are based on
evidence and are not based on discriminatory assumptions.
Regulatory bodies should not be expected to change their mandate in
a fundamental way to accommodate a foreign trained
James T. Casey, QC and Michael Wall of Field Law represented
APEGA in this matter. Field Law will be providing a more detailed
analysis of this decision in a future edition of Perspectives
for the Professions as Madam Justice Ross made a number of
legal and factual findings that are of importance to
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