In a recent decision, the Alberta Human Rights Tribunal found the Association of Professional Engineers, Geologists and Geophysicists of Alberta discriminated against a complainant when he was denied registration as a Professional Engineer.

The complainant was born in Czechoslovakia and held two Masters degrees. He first applied to the Association in 1999, and after reviewing his education, work experience, and references, the Association determined that in addition to passing the National Professional Practice Exam (NPPE), the complainant had to complete three confirmatory examinations and a course in Engineering Economics by May 2001. Confirmatory exams were required of all applicants with degrees on the Foreign Degree List (FD List), a list compiled by the Canadian Council of Professional Engineers. After failing the NPPE three times, the complainant brought a complaint of discrimination against the Association on the ground of place of origin.

The Tribunal found that applicants whose degrees came from institutions on the FD List were automatically required to write additional exams because the Association has less knowledge about, and therefore less confidence in, the institution from which the foreign engineer graduated. The Tribunal said the complainant was discriminated against because he had to complete a series of examinations that were not required of graduates from Canada and those countries with which the Association has Mutual Recognition Agreements (MRAs). In the Tribunal’s view, the discrimination was related to his place of origin because the Association assumed engineers with qualifications from foreign countries with which it has no MRAs, have lesser qualifications than graduates from Canada or MRA institutions.

The Tribunal also found that the imposition of additional exams and requirements without individualized assessment restricted the ability of immigrants to work in their respective professions and perpetuated disadvantage in these groups. Applying the analysis fromMeiorin, the Tribunal found that the standard was adopted for the purpose of safety, that the purpose was rationally connected to the function being performed, and that the standard was adopted in good faith. However, the Association was unable to establish that requiring FD List graduates to write standardized examinations, without an individualized assessment, was necessary. Rather, the Tribunal concluded, the Association had not explored options and alternatives or incorporated accommodation for foreign engineers in its processes to the point of undue hardship. Accordingly, the complaint was upheld and the Tribunal awarded the complainant $10,000 in general damages. The Tribunal also directed the Association to individually assess the complainant and assist him in obtaining registration.

This case is significant because it marks a sharp departure from past human rights decisions which have held that differentiating between candidates based on their qualifications is not discriminatory. The decision threatens to inflict significant costs on professional regulatory bodies by imposing the obligation to accommodate otherwise unqualified candidates. We understand that the Association plans to appeal the Tribunal’s decision. While the Alberta Tribunal’s decision is not binding on the British Columbia Tribunal, the appeal of this matter will no doubt be of considerable interest to organizations in BC.

Milhaly v. The Association of Professional Engineers, Geologists and Geophysicists of Alberta

If you have any questions concerning the information presented in this article, please contact Paul Fairweather, Partner.

Share