Examination and experience standards used by professional association admitting foreign graduates were not found discriminatory

An Alberta Human Rights Tribunal found that the Association of Professional Engineers and Geoscientists of Alberta (the “Association”) discriminated against Mr. Mihaly, a Czechoslovakian educated engineer, by requiring him to write examinations to confirm his academic credentials and failing to recognize his education as equivalent to an engineering degree from an accredited university. The tribunal awarded Mihaly $10,000 in general damages and directed the Association reconsider Mr. Mihaly’s application for registration, along with detailed provisions for an individualized assessment of Mr. Mihaly’s qualifications. The Association appealed the tribunal’s decision. Mr. Mihaly cross-appealed. The appeal was allowed and cross appeal dismissed.

Administrative law – Association of Professional Engineers – Competence – Decisions of administrative tribunals – Discrimination – Duty to Accommodate – Engineers – Foreign graduates – Human Rights – Human Rights Tribunal – Judicial Review – Jurisdiction – Licence to practice – Procedural requirements and fairness – Professional governance and discipline – Training requirements

Assn. of Professional Engineers and Geoscientists of Alberta v. Mihaly, [2016] A.J. No. 74, 2016 ABQB 61, Alberta Court of Queen’s Bench, January 26, 2016, J.M. Ross J.

Mr. Mihaly was educated in the former Czechoslovakia where he obtained an engineering degree. Since 1999, he had been seeking registration with the Association of Professional Engineers and Geoscientists of Alberta (Association). The Association required Mr. Mihaly to write exams to confirm his credentials and obtain a one-year Canadian professional engineering experience. After failing two tests and refusing to take others, Mr. Mihaly filed a complaint with the Human Rights Tribunal in 2008, alleging that the Association had discriminated against him based on his place of origin when it denied him registration as a professional engineer.

The tribunal found that the examination and experience standards used by the Association to assess Mr. Mihaly’s education credentials were discriminatory and without sufficient jurisdiction. The tribunal also found that the Association’s policies were based on discriminatory assumptions that the qualifications of engineers trained at non accredited foreign institutions failed to meet Canadian standards and found fault in the use of a standardized examination instead of “more individualized assessment or the exploration of other options”. As a result, the tribunal awarded Mr. Mihaly $10,000 in general damages and asked the Association to reconsider his application. It also ordered the Association to provide Mr. Mihaly with a mentor to help him “network with other foreign engineering graduates facing similar challenges” and “to assist him in increasing his fluency and facility in the use of the English language”. The Association was also ordered to create a committee that “preferably includes engineers who received their qualifications in institutions and countries outside of Canada” in order to individually assess Mr. Mihaly’s qualifications, and possibly include other options for helping him to qualify. These options “may include exemptions from the fundamentals of engineering exam”. Finally, it was suggested that the Association collaborate with universities to offer programs to foreign trained engineers.

The Assocation appealed and Mr. Mihaly cross-appealed the tribunal’s refusal to award him damages for loss of income, seeking an award of $1,000,000 and registration with the Association, or alternatively $2,000,000 if not registered as a professional engineer with the Association.

The appeal was allowed and the cross-appeal dismissed. While the tribunal reasonably concluded that Mr. Mihaly had established prima facie discrimination with regards to the Association’s requirement that he complete standardized examinations, the conclusion that the Association failed to justify these requirements was unreasonable. The Association’s undisputed evidence, to assign confirmatory exams where competence had not been otherwise established was consistent with its statute and regulations, and clearly met the onus to establish the “reasonable and justifiable defence”.

In its decision, the Court first addressed the issues of procedural fairness and jurisdiction, finding that the tribunal had not breached the duty of procedural fairness by basing its decision on a section of the Engineering and Geoscience Professional General Regulation, which was not addressed by the parties or raised during the hearing. The Court further held that the tribunal had jurisdiction over Mr. Mihaly’s complaint, rejecting the Association’s contention that the discrimination based on the place a person receives their education is different than discrimination on the basis of place of origin.

The Court went on to find that while the tribunal articulated the correct legal test to establish a prima facie case of adverse effect discrimination (Moore v. British Columbia (Education), 2012 SCC 61), its application of that test was unreasonable. The tribunal’s finding that the Association assumed that engineers with qualifications from foreign countries without Mutual Recognition Agreements (MRAs), have qualifications that are sub par with Canadian engineering accreditation standards was unsupported by the evidence. The evidence before the Tribunal was clear that the distinction between accredited or equivalent programs is not based on assumptions but on knowledge about the programs. When the Association distinguishes between graduates of known and tested engineering programs as compared with graduates of relatively unknown programs, it is not assuming that the latter have inferior academic qualifications. Equally, it is not assuming that they have a substantially equivalent education. It simply does not have the information to know.

As well, the Court found that the Tribunal’s finding that the Association had failed to reasonably accommodate Mr. Mihaly was unreasonable and fell outside the range of acceptable defensible outcomes. Professional regulators should not be held to onerous accommodation obligations and not obliged to “become proactive” and discuss and negotiate accreditation agreements with other institutions. The directions given by the tribunal for accomodation go beyond the scope of any discriminatory conduct found or even alleged. The direction to appoint a committee to review Mr. Mihaly’s qualifications and assess any perceived academic deficiencies, to consider exempting him from exams, and to provide him with a mentor to guide him into the engineering profession fell outside of the range of acceptable outcomes that are defensible in light of the facts and law and as such was unreasonable.

This case was digested by Lara C. Zee of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at lzee@harpergrey.com or review her biography at http://www.harpergrey.com.

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