Canada: Restoring the Balance: Lessons from the Human Rights Appeal of Mihaly v Association of Professional Engineers and Geoscientists of Alberta 2016 ABQB 61

We had earlier provided clients with a brief summary of the Mihaly decision in an e-blast sent out on January 27, 2016.^[1] This article is a follow-up and includes some of the top lessons for regulators and their legal counsel.

When it comes to internationally-educated applicants to the profession, regulators know they walk a fine line between ensuring reasonable access and maintaining standards for public safety.

That's why the decision in the appeal of Mihaly comes as welcome respite. In Mihaly, the Court of Queen's Bench overturned a decision of the Alberta Human Rights Tribunal that held it was discriminatory for APEGA, the provincial regulatory body for engineers and geoscientists, to deny registration to a foreign-trained applicant who had failed, and then refused, to write his registration exams. In doing so, it restored the balance that had been lost when the Tribunal prioritized the needs of an individual applicant over the regulator's need to protect the public.

As Madam Justice J.M. Ross stated in her appeal ruling, "regulatory bodies should not be expected to change their mandate in a fundamental way" when fulfilling their duty to accommodate.

The following are some of the top lessons that regulators and their legal counsel can learn from  Mihaly:

1. Place of education may be a protected ground under human rights legislation.

Under s. 3 of the Alberta Human Rights Act,^[2] discrimination is only prohibited on certain grounds, such as race, religious beliefs, colour, gender, disability, age, ancestry, place of origin, and more. In order to invoke the jurisdiction of the Tribunal, the complainant must show that the alleged discrimination was related to one of these protected characteristics. The requirement of a protected characteristic is also an element of the test of discrimination.

Older case law in Grover^[3] had held that place of post-secondary education was not included in the protected ground of "place of origin." Notwithstanding this, Justice Ross held that in this case, there was a sufficient connection between Mr. Mihaly's place of education and his place of origin in the Slovak Republic. Accordingly, Mr. Mihaly's place of education was a protected characteristic and the Tribunal had jurisdiction to consider the complaint.

As a result, regulators may still be subject to claims of systemic discrimination based on their systems to assess internationally educated graduates. Given that Mr. Mihaly has appealed the decision, we intend to argue before the Court of Appeal that place of higher education cannot serve as a proxy for place of origin.

2. It is not discriminatory to distinguish between education programs of different countries if the distinctions are based on actual knowledge of the programs.

The Tribunal had found that APEGA had made discriminatory assumptions by waiving exam requirements for international applicants from foreign countries with which APEGA had a Mutual Recognition Agreement ("MRA"), but not waiving exam requirements for international applicants from countries without an MRA.

The Court held that this was not supported by the evidence, which showed that there was a comprehensive process for reaching an MRA with a country or institution, which required comprehensive evaluation and assessment of the country or institution's degree programs. As such, distinctions between MRA and non-MRA countries and institutions were not based on discriminatory assumptions, but actual knowledge of the programs.

3. It is not discriminatory to require international applicants to meet the same entry-level competency requirements other applicants must meet, such as a standard exam and one-year Canadian experience.

The test for discrimination is a two-step process, which asks firstly whether there is facial or prima facie discrimination and, if so, whether the prima facie discrimination is justifiable. The test for prima facie discrimination is whether 1) the complainant has a characteristic that is protected from discrimination; 2) the complainant experiences an adverse impact; and 3) the protected characteristic was a factor in the adverse impact. The test of justification requires the defendant to prove that 1) it adopted the standard for a purpose that is rationally connected to the function performed; 2) the standard was adopted in good faith; and 3) the standard was reasonably necessary to accomplish the purpose.

The Tribunal had held that APEGA's standard registration requirement of the standard practice exam and the one-year Canadian experience requirement was prima facie discrimination that was not justifiable, and which perpetuated stereotypes and disadvantages.

On appeal, the Court rejected this, finding that imposing the same entry-level requirements on international applicants as Canadian applicants was not prima facie discrimination. It noted that while Mr. Mihaly had failed the exam three times, there was no evidence to show that was because of his place of origin, since there was no evidence of adverse impact on other international applicants. Moreover, while Mr. Mihaly complained of difficulty finding work, he did not cite his place of origin as the reason, but rather the fact that employers did not want to hire "engineers with more than six years' experience in junior positions."

It should be noted here that standard entrance requirements could be prima facie discriminatory if there was evidence of an adverse impact on a group with a protected characteristic. In that case, the analysis would proceed to the next step of determining if the prima facie discrimination was justifiable.

4. It is justifiable to require international applicants to write special confirmatory exams to establish entry-level competency to protect public safety.

The issue here concerned not the standard practice exam that all applicants had to write, but special confirmatory exams that were required of international applicants whose education credentials were from institutions that had not been accredited or deemed substantially equivalent to Canadian accredited institutions.

The Tribunal had found that the requirement of confirmatory exams was prima facie discrimination because it forced immigrant professionals into lower paying jobs outside of engineering and also rested on the discriminatory assumption that international applicants' qualifications were inferior to those of Canadian applicants. Moving to the test of justification, it then found that confirmatory exams were not reasonably necessary because the applicants could be individually assessed and should not be required to write a standardized "one size fits all" confirmatory examination.

On appeal, Madam Justice Ross agreed that there was prima facie discrimination due to the adverse impact of the confirmatory exam on international applicants, which was connected to the protected characteristic of place of education. However, she rejected the notion that the requirement rested on a discriminatory assumption that international applicants had inferior academic qualifications. Rather, she stated, the requirement arises because APEGA does not have sufficient knowledge of the engineering program to make an assessment.

She then went on to hold that in the absence of knowledge about whether the educational qualifications provided entry-level competency, it was justifiable in the circumstances for APEGA to require confirmatory exams. As she stated, "possession of entry level engineering competence is, obviously, reasonably necessary to safe practice as a professional engineer."

5. The duty to accommodate does not require the regulator to fundamentally alter its standards or act outside of its role.

In order to justify a prima facie discriminatory standard, the regulator is required to show it has accommodated the complainant to the point of undue hardship or, to put it another way, it could not accommodate the complainant further because doing so would cause undue hardship.

In this case, the Tribunal had held that because APEGA had the option of undertaking an individualized assessment instead of requiring Mr. Mihaly to write standardized confirmatory exams, it had not met its duty to accommodate and therefore had not established that the confirmatory exams were reasonably necessary and justified. The Tribunal then ordered APEGA to establish a committee to develop alternative approaches to assess Mr. Mihaly, including exemptions from exams, the offer of courses and programs, and the provision of assistance, guidance and a mentor to help him progress and integrate into the profession.

On appeal, the Court held that the Tribunal had gone too far in what it was asking of APEGA. For one thing, such measures were costly and inefficient, which is a factor in determining "undue hardship." More importantly, however, such measures resulted in APEGA "fundamentally altering its standards and being required to act outside of its regulatory role."

6. Standardized testing is not mutually exclusive with individual assessment.

The Supreme Court in Meiorin^[4] held that the possibility of individual testing and assessment is a factor that should be considered in determining if the employer or regulator has met the duty to accommodate. Based on this, the Tribunal held that APEGA had not done enough to individually assess Mr. Mihaly, and therefore its "one size fits all" confirmatory exams were not reasonably necessary.

On appeal, the Court held that APEGA individually assessed Mr. Mihaly, as with all applicants, when it considered whether he met the requirements to allow it to waive the confirmatory exams. Mr. Mihaly did not. In such case, the standardized confirmatory exams were not only a reasonably necessary measure, but were a valid tool for determining entry-level competency. As Madam Justice Ross wrote, citing with approval LPG on standardized tests:

Standardized tests are widely used in the professional regulatory environment to provide an objective assessment of qualifications, skills, knowledge and other matters, including language proficiency. As noted by the College, requiring applicants to demonstrate fluency by way of standardized, widely used and recognized tests helps ensure that the process of determining fluency is independent, objective, transparent, fair and impartial.^[5]

The lesson here is that regulators should conduct an individualized assessment of each applicant's credentials, but where that assessment leads to a reasonable conclusion that it is appropriate and necessary to require a standardized test to assess whether the applicant possesses entry-level qualifications, then Mihaly is strong authority that the imposition of the standardized test is not discriminatory.

7. The international applicant has a reciprocal duty to assist the regulator in finding accommodation.

The Tribunal had held that APEGA's duty to accommodate Mr. Mihaly included providing him with an exemption from some exams, but also the option to "challenge specific examinations" where he was not granted an exemption.

On appeal, the Court held that the Tribunal's ruling in this regard revealed its fundamental error in failing to consider Mr. Mihaly's reciprocal obligation to assist in the search for accommodation. It held that Mr. Mihaly had not met that obligation when he refused to even attempt the exams.

8. Human rights complaints remain areas of high risk for regulators.

Complex human rights complaints remain areas of high risk for regulators given the increasing number of such complaints, the complexity in defending "systemic" complaints of discrimination, and the high threshold to establish accommodation to the point of undue hardship once prima facie discrimination is found. In addition, outcomes before human rights tribunals can be highly unpredictable. In the Mihaly case, the Human Rights Tribunal ruled in Mr. Mihaly's favour, but was overturned by the Court of Queen's Bench which described the Tribunal decision as follows:

The Tribunal's reasons leading to his conclusion that APEGA could have accommodated Mr. Mihaly and others sharing his characteristics are rife with logical errors, findings of fact that are not supported by the evidence, and failures to take into account relevant considerations. From the Tribunals' unreasonable interpretation of the [Regulation] to his unsupported assumption that the [confirmatory exam] disproportionately excludes foreign trained engineers from being registered with APEGA, to his failure to appreciate that demonstrated entry level engineering competence is reasonably necessary to safe practice as a professional engineer, and his failure to consider relevant factors in the assessment of undue hardship, it is clear that his conclusion regarding accommodation falls outside the range of acceptable outcomes that are defensible in light of the facts and law; and as such was unreasonable...^[6]

Given this level of risk, and the obligation to comply with human rights principles in the regulatory process, regulators should ensure that regulatory decision makers in their organization are trained to have a high level of human rights literacy. A few things regulators may wish to consider include:

• an internal review of procedures identifying where there is human rights risk;
• amendment to procedures if appropriate;
• whether procedures are individualized, rigorous and accessible to applicants;
• whether any requirements are potentially prima facie discriminatory; and
• if a requirement is prima facie discriminatory, would the Regulator be able to justify the provision?

Regulators should also consider adopting a proactive strategic response to reduce the risk from complaints to human rights tribunals. See for example the suggestion below. 

9. Human rights issues should be raised and dealt with in the regulatory process if possible.

Mr. Mihaly did not raise his human rights concerns with APEGA in the registration process so APEGA did not have an opportunity to address the concerns before his complaint to the Human Rights Commission. As a general strategy, we recommend that regulators who have a human rights issue raised in the regulatory process should have the regulatory decision-maker rule on the human rights issue. The ruling by the regulator can properly balance human rights issues with the fundamental obligations of the regulator to ensure public safety.  If the applicant is dissatisfied with the ruling and then files a complaint with the Human Rights Commission, the regulator can take the position that the complaint cannot proceed because the issue was already decided in the regulatory process.

For more on this topic, see our previous Perspectives for the Profession articles, "Professional Regulators Must Address Human Rights Issues: Burden or Blessing" (June 2012) and "Did the SCC Flip Flop on Finality" (September 24, 2013).^[7]

10. Self-represented complainants present additional challenges.

Mr. Mihaly was self-represented before the Human Rights Tribunal. In our opinion, the Mihaly decision is a case study in how Tribunals can make serious mistakes in self-represented situations and also the challenges to legal counsel in hearings with self-represented individuals.

For example, the Tribunal found that APEGA erred in processing Mr. Mihaly's application based on a particular interpretation of the Regulation that was not argued by Mr. Mihaly and which APEGA was never given the opportunity to address. In our opinion, this serious error arose because the Tribunal stepped outside of its judicial role and instead became an advocate for the complainant by trying to think of the arguments that could have been made. 

On appeal, the Court of Queen's Bench found the Tribunal's interpretation of the Regulation unreasonable, although it did not find the Human Rights Tribunal had failed to accord APEGA procedural fairness in denying it an opportunity to address the issue. Given that Mr. Mihaly has appealed, we anticipate raising that issue before the Court of Appeal for further consideration. 

Counsel for regulators appearing before a Tribunal with a self-represented individual may invite the Tribunal to identify issues of potential concern that the opposing party has not raised so that the regulator's counsel can comment on it. This proactive approach, while somewhat unusual, may lessen the chance the Tribunal may rule on an issue never addressed before it.

Self-represented complainants present additional challenges in human rights matters by often generating considerable personal sympathy. A powerful narrative has taken hold in our society of the fully qualified internationally educated professional forced to drive a taxi because the regulator will not recognize their credentials. This narrative is over-simplistic and a full exposition of the issue is beyond the scope of this paper. In our opinion, however, the sympathy generated by such a narrative definitely affected the outcome in Mihaly, even when there was no factual foundation in the particular case for such a narrative.

Regulators need to work hard to impress their own narrative on the public's consciousness:  "We welcome applicants from around the world.  We have an individualized, fair, cost-effective and accessible assessment process for internationally educated graduates that determines in a rigorous way if the applicant possesses the entry level competencies required to practice in our province.  In this way, we ensure that we meet our statutory obligations of protecting the public by ensuring that all applicants possess entry-level competency while also providing a fair opportunity to internationally educated applicants to be registered in our jurisdiction."

Conclusion

The appeal decision in Mihaly does not provide professional regulators with complete protection in establishing systems to assessing foreign applicant's credentials. Rather, it recognizes that both the international applicants' interest in accessing the profession and the regulator's interest in protecting the public must be balanced in determining a fair, transparent and non-discriminatory regime for international applicants. The Court of Queen's Bench decision goes a long way to restoring a proper balance in making this assessment. 

Mr. Mihaly has filed an appeal to the Court of Appeal so that Court is expected to provide further guidance on the issues in due course. 

James T. Casey, Q.C. and Michael Wall of Field Law acted for APEGA before the Human Rights Tribunal and on the appeal.