A recent Human Rights Tribunal decision, Mihaly v The Association of Professional Engineers, Geologists and Geophysicists of Alberta, 2014 AHRC 1 (CanLII), (“Mihaly”) about the actions of the Association of Professional Engineers, Geologists and Geophysicists of Alberta (APEGGA), has sparked a fair bit of critical commentary. The issue of recognition of foreign professional credentials has emerged over the past few years, as many are concerned about the number of highly trained individuals who are not working in their chosen fields across Canada.
Mr. Mihaly was born in Czechoslovakia and has Masters degrees from the Slovak University of Technology in Bratislava, and from the Institute of Technical Technology in Prague. APEGGA received his application and asked Mihaly to write the National Professional Practice Exam (NPPE). It tests knowledge of law, ethics, professionalism, professional practice, professional responsibility, and understanding of the governing legislation. Later, APEGGA added three confirmatory exams plus a course in Engineering Economics or the Fundamentals of Engineering Examination (“FEE”) to its requirement. These additional exams were required because the educational institutions Mihaly attended were listed on the Canadian Council of Professional Engineers Foreign Degree List (“FDL”).
After several years of negotiations with APEGGA, and three times failing the NPPE, Mihaly did not write the required additional exams, and on August 5, 2008, filed a complaint with the Alberta Human Rights Commission. He alleged that he was discriminated against when he was denied registration as a Professional Engineer (PEng) and that the requirements imposed upon him by APEGGA for registration were contrary to the Alberta Human Rights Act RSA 2000 c A-25.5 (”AHRA”).
Section 9 of the AHRA provides as follows:
No trade union, employers’ organization or occupational association shall
(a) exclude any person from membership in it,
(b) expel or suspend any member of it, or
(c) discriminate against any person or member,
because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or member.
Section 44(1)(j) defines “occupational association” as meaning:
“occupational association” means an organization other than a trade union or employers’ organization in which membership is a prerequisite to carrying on any trade, occupation or profession;
An individual cannot practice engineering in Alberta unless he/she has been approved for registration as a PEng, licensee, permit holder or certificate holder by APEGGA under the Engineering and Geoscience Professions Act RSA 2000 c E-11. APEGGA admitted Mihaly under the discretionary category of an “Examination Candidate”, thus Mihaly was required to meet the following conditions as set out in the Engineering and Geosciences Professions General Regulation.
13(1) A person who meets the following requirements and applies to the Registrar for registration is entitled to be registered as a professional member:
…
(e) the applicant meets one of the following requirements:
….. After several years of negotiations with APEGGA, and three times failing the NPPE, Mihaly did not write the required additional exams, and on August 5, 2008, filed a complaint with the Alberta Human Rights Commission.
(iii) the applicant is admitted as an examination candidate and
(A) has completed the examinations referred to in section 8(b), and
(B) has obtained at least 4 years of experience in work of an engineering or geoscientific nature that is acceptable to the Board of Examiners;
While APEGGA argued that the Commission did not have jurisdiction to hear a complaint about discrimination based on “place of origin of academic qualifications”, Tribunal Chair Jiwaji concluded that “place of origin” is broad enough to include any adverse treatment based on one’s foreign credentials.
Evidence at the hearing indicated that Internationally Educated Graduates (IEGs) who come from countries that have not entered into Mutual Recognition Agreements (MRAs), with APEGGA (i.e., those in Europe, Africa and Asia), are assessed using an Examination and Experience Standard and the Fundamentals of Engineering (FE) exam. If the applicant has other attributes, such as a Masters or Doctoral degree in Engineering completed at a Canadian institution or a country with which there is a MRA, then APEGA may consider waiving the exams. In addition, exams may be waived if the applicant has ten years of progressively responsible engineering experience acceptable to APEGA. In addition, all applicants are required to pass the NPPE.
Mr. Mihaly alleged that he had been adversely impacted by the APEGGA’s process, in that he had to successfully complete the confirmatory exams and the FEE, while engineering graduates from Canada and those countries with which APEGGA has MRAs do not. This amounts to prima facie discrimination on the basis of place of origin. Chair Jiwaji concluded that the underlying assumption made by APPEGA is that engineers with qualifications from foreign countries with which APEGGA has no MRAs have qualifications that are not equal to Canadian engineering accreditation standards. Further, the complainant need only show that “place of origin” was a factor in the adverse impact experienced by Mihaly. Also, many Eastern European and immigrants from Africa and Asia experience disadvantage and discrimination in the workforce because of language, culture and racial prejudice. The imposition of additional exams and/or requirements without appropriate individualized assessment restricts these immigrants from working in their professions and perpetuates disadvantage in these groups.
Because Chair Jiwaji found that a prima facie case of discrimination was made out, APEGGA had the opportunity under the AHRA to justify its actions under section 11, which provides that a contravention of the AHRA will be deemed not to have happened if “the person who is alleged to have contravened the Act shows that the alleged contravention was reasonable and justifiable in the circumstances.” The regulator must show:
1. Rational Connection: Chair Jiwaji noted that APEGGA’s Board of Examiners had exercised their discretion to place Mihaly in the category of Examination Candidate. This meant that he would have been registered as a PEng if he had satisfied the requirements set out in section 13(1)(e)(iii) of the regulation (above). Since APEGGA assesses the educational qualifications and the experience of international engineers in order to ensure that the public is protected from harm, using the Examination Standard and the Experience Standard as adopted to ensure safety and competency are rationally connected to APEGGA’s functions.
2. Good Faith: Chair Jiwaji held that APEGGA adopted the standards in good faith.
3. Standard IS Reasonably Necessary: Finally, Chair Jiwaji analyzed whether the standards are reasonably necessary to the accomplishment of the legitimate work-related purpose. APEGGA must show that the standards used are reasonably necessary for the accomplishment of protecting the public and ensuring that IEGs perform competently.
Chair Jiwaji noted that in considering whether the Examination Standard is reasonably necessary to accomplish APEGGA’s purpose, one must examine the purpose and process followed in preparing the FDL. The original purpose of the List was to provide Canada Immigration information for its point system to assess the suitability of engineers immigrating to Canada. The FDL process does not look at particular engineering programs at the institutions and assess them. Chair Jiwaji noted that this process is a “poor substitute for directly assessing the education of IEGs who come from many different countries.” It is also insufficient as a measurement of what is required to correct a perceived deficiency as required in the legislation. The imposition of additional exams and/or requirements without appropriate individualized assessment restricts these immigrants from working in their professions and perpetuates disadvantage in these groups. APEGGA must use current, reliable and more detailed information on institutions. The crucial categorization of qualifications must not be based on secondary information using a tool that was originally developed for immigration purposes.
The Fundamentals of Engineering Exam (“FEE”) is prepared in the United States. It parallels the Canadian Accreditation Standard. However, the exam fails to take into consideration an individual’s background, experience and training. Under the regulations, the exams are instituted to correct a “perceived academic deficiency.” Because APEGGA does not perform a meaningful individualized assessment of an engineer’s skills and experience, and the exams chosen are related to the particular engineering discipline the document review indicates the applicant falls under, these are not for the purpose of correcting a “perceived academic deficiency”. Further, the reviews of Mihaly performed by APEGGA were not to identify a deficiency in his academic credentials so that recommendations could be made to cure or correct any perceived deficiency in knowledge and/or training.
Mihaly was also required to take the NPEE, which he took three times and failed. There was no evidence that APEGGA explored any alternatives to the exam or offered any courses or instructions for exam preparation. Once again, there is a “one size fits all” approach like that taken with the FEE, which is particularly unhelpful to foreign trained engineers.
Chair Jiwaji held that APEGGA must explore other evaluation methods that are less discriminatory, yet allow engineers to practice in a competent and reasonably safe manner. APEGGA had not demonstrated that it had properly considered alternatives or that it would suffer undue hardship by exploring or implementing alternatives to the Examination Standard.
With respect to the Experience Standard (“one year Canadian experience”), Chair Jiwaji said that this standard fails to consider the “serious challenges foreign professionals experience when looking for employment in the engineering field when the applicant is not a professional engineer or otherwise”. He concluded that the Examination Standard and the Experience Standard used by APEGGA used to assess educational credentials, without more individualized assessment or exploration of other options constitutes discrimination which cannot be justified under the AHRA.
Chair Jiwaji ordered APEGGA to:
- review Mihaly’s transcripts and experience in direct consultation with his educational institutions in order to better identify his skills and qualifications;
- grant Mihaly the option to challenge specific examinations in areas where he is not granted an exemption by APEGGA;
- form a committee including foreign trained engineers to explore ways to assess and correct any of Mihaly’s deficiencies;
- match Mihaly with a Mentor to help guide him in integrating into engineering;
- direct Mihaly to networking resources with other foreign trained engineers; and
- direct Mihaly to community resources that will increase his fluency and facility in English language.
APPEGA (now APEGA) is appealing this decision to the Court of Queen’s Bench.
At its core, the decision by Tribunal Chair Moosa Jiwaji did not take any power away from APEGA or order it to give Mihaly PEng status. The decision was one about fairness towards foreign engineers in that APEGA should re-evaluate its procedures and systems in determining whether or not they are fair to all.
Portions of this article were published on ABlawg, March 17, 2014 and are reprinted with permission.
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