Canada: Confirmatory Exams For Foreign-Trained Engineers Is Not Discriminatory: Engineering Regulator Successfully Appeals Alberta Human Rights Tribunal Decision

In its substantive written decision, the Alberta Court of Queen's Bench has reversed a 2014 decision of the Alberta Human Rights Tribunal (the "Tribunal") in The Association of Professional Engineers and Geoscientists of Alberta v. Milhaly, 2016 ABQB 61.

The Case

Mr. Milhaly, born and educated in the former Czechoslovakia, arrived in Canada in 1999 with his foreign engineering credentials and work experience. Upon arrival, he applied to the Association of Professional Engineers and Geoscientists of Alberta ("APEGA") to register as a Professional Engineer. Upon reviewing Mr. Milhaly's application and supporting documents, APEGA informed Mr. Milhaly that he would be required to write the National Professional Practice Exam ("NPPE"), required by all applicants, and would also be required to take three (3) confirmatory exams and take a course or pass an equivalency exam (i.e. the Fundamentals of Engineering Exam — 'FE Exam') by a prescribed deadline. Mr. Milhaly's application proceeded slowly over the course of the next several years and ultimately, Mr. Milhaly failed the NPPE three times and never wrote any of the required confirmatory exams.

Shortly thereafter, Mr. Milhaly filed a complaint with the Alberta Human Rights Commission, alleging that APEGA had discriminated against him on the basis of place of origin by denying his registration as a professional engineer. The Tribunal agreed with Mr. Milhaly, finding that APEGA's assessment and eligibility criteria (in Mr. Milhaly's case, the requirement to complete confirmatory exams and take a course or the FE exam), without a more individualized assessment and options tailored to Mr. Milhaly, amounted to discrimination which could not be justified under the Alberta Human Rights Act (the "Act"). The Tribunal went further, ordering APEGA to appoint a committee which would be responsible for investigating options to individually assess Mr. Milhaly's qualifications (including a waiver of one or more of the required exams), assign an engineering mentor to Mr. Milhaly who could help integrate Mr. Milhaly into the profession, direct Mr. Milhaly to networking resources and to assist Mr. Milhaly with increasing his fluency in English.

Given the breadth and the potential impact of the Tribunal's order, it is unsurprising that APEGA chose to appeal the Tribunal's decision. APEGA appealed on a number of grounds, including whether there had been a breach of procedural fairness, jurisdiction of the Tribunal, the correct test for prima facie discrimination and whether it was unreasonable for the Tribunal to hold that APEGA's criteria could not be justified. On the first two grounds of appeal, the Court sided with the Tribunal. On the latter two issues, however, the Court came to a very different conclusion.

On the issue of prima facie discrimination, the Court found that the Tribunal had applied the correct test, namely the Supreme Court of Canada's ("SCC") Moore test. According to the Moore test, a complainant must show the following to establish prima facie discrimination:

  • They have a characteristic that is protected from discrimination;
  • They have experienced an adverse impact; and
  • That the protected characteristic was a factor in the adverse impact.

In its analysis, the Court also observed the following:

  • Discrimination is not limited to rules and practices based only on the listed protected characteristics — it can also occur where a neutral rule/practice has an adverse impact and the protected characteristic is a factor in that adverse impact (for example, although language is not a protected ground, terminating someone's employment due to language difficulties could establish enough of a nexus between the language difficulties and that person's place of origin such that it establishes prima facie discrimination).
  • While arbitrariness and perpetuation of stereotypes are relevant considerations in determining whether there is a link between a protected characteristic and the adverse impact, these considerations are not required a part of the Moore test.

At the outset, the Court held that the Tribunal's finding that APEGA's policies were based on discriminatory assumptions was unreasonable and not supported by the evidence. The evidence showed that APEGA's accreditation system was comprehensive and complex, and the distinction between accredited and non-accredited engineering programs was not based on an assumption of inferior academic qualifications (but rather, a lack of knowledge about the non-accredited programs).

While the Court did find that Mr. Milhaly's place of origin was a factor in the adverse impact that he suffered (given the close link between his place of origin and the place of his education), it pointed out that the Tribunal's finding was that the adverse impact related to Mr. Milhaly's place of origin was the requirement to complete the confirmatory exams, and that this, in addition to the requirements to write the NPPE and have Canadian work experience) perpetuated disadvantage and constituted substantive discrimination. The Court took issue with this finding, noting that the Moore test had not been properly applied or addressed with respect to the NPPE and Canadian work experience requirements, that there was no evidence or basis for the finding that these requirements (which applied to all applicants, not just foreign) constituted adverse impact discrimination, and that there was no finding or evidence that established that these requirements had an adverse impact based on place of origin or constituted prima face discrimination.

The Court then moved on to consider whether APEGA had a reasonable and justifiable defence under the Act, both in relation to the confirmatory exams and also the NPPE and Canadian work experience. With respect to the NPPE and Canadian work experience requirements, the Court held that because no prima facie discrimination had been established for these requirements, the Tribunal had no jurisdiction to find that the requirements were not justified under the Act. Because the Court had found that the confirmatory exams were prima facie discriminatory, it turned to the SCC's well-established Meiorin test (which effectively looks at why a purpose or standard was implanted and whether reasonable accommodation of an individual was possible in the circumstances) to see if the breach was reasonable and justifiable in the circumstances.

Before delving into its analysis, the Court pointed out that employers do not have a duty to change their working conditions in a fundamental way — rather, they only have a duty (to the point of undue hardship) to ensure that it arranges an employee's workplace/duties in a way that will enable the employee to do his or her work. In this case, the Court found that there was no evidence that APEGA could or should be expected to be proactive and reach agreements with non-accredited institutions or countries, no evidence that confirmatory exams were assigned based on perceived academic deficiencies and no evidence that the FE Exam or confirmatory exam requirement would have a disproportionate impact on foreign-trained graduates. The Court further found that that impugned exams were designed to test the knowledge expected of engineering graduates, and that possession of entry level engineering competence was reasonable necessary to safe practice as a professional engineer. Finally, the Court tackled the accommodation measures that were ordered by the Tribunal. In finding the measures to be unreasonable, the Court noted that the Tribunal went far beyond the scope of discriminatory conduct found (or even alleged) and failed to consider the efficiency and cost impacts to APEGA in trying to implement such measures.

In sum, the Court held that while Mr. Milhaly had established prima facie discrimination caused by APEGA's confirmatory exam and FE Exam requirements, the evidence clearly established that these APEGA requirements were reasonable and justifiable under the Act.

The Takeaway

This decision was ultimately a win for APEGA, and for professional regulators as a whole, as it established that regulators are not expected to alter their mandate in a fundamental way provided that their entrance standards for foreign-trained professionals (those which differ from standards required for Canadian-trained professionals or professionals from accredited institutions) are based on evidence and not discriminatory assumptions.

For non-regulator employers, this decision serves as an important reminder that care should be taken when setting specific job requirements or requiring completion of certain courses or testing as part of the job application or promotion process. Specifically, consider why a certain requirement is being implemented, whether it is necessary for the position, whether there is room for accommodation (if needed), and whether the requirement (although seemingly neutral or compliant with the Act) might have an adverse impact that is linked to a protected ground (i.e. requirement for a Canadian degree or work experience).

About BLG

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions