Canada: Alberta Court Determines APEGA's Registration Examinations Are Not Discriminatory

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 APEGA.

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 educational credentials.

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 considerations.

Based on these findings, Madam Justice Ross reversed the Tribunal's decision and refused to remit the matter back to another Tribunal.

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 professional.

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 regulators.

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