* The author is a doctorate student at Université de Montréal and a lawyer for the Human Rights Tribunal of Québec. The opinions expressed in this paper are the personal opinions of the author and do not engage the Tribunal. The author would like to thank his thesis director, professor France Houle, as well as Geneviève St-Laurent and Maria Karellis for their comments.

Foreign-Trained Workers, Access to Regulated Professions, and Public Safety:

What Canadian Human Rights Law has to Teach

By Frederick J. Doucet*

1 INTRODUCTION ................................................................................................................1 2 THE FRAMEWORK OF CANADIAN ANTI-DISCRIMINATION PROVISIONS ....................4 3 THE DISCRIMINATION FRAMEWORK APPLIED TO ACCESS TO REGULATED

PROFESSIONS BY FOREIGN TRAINED PROFESSIONALS .............................................6 3.1 THE PRIMA FACIE CASE OF DISCRIMINATION: WHAT HAS BEEN CONSIDERED AS “SUSPECT”

CONDITIONS AND PRACTICES ...........................................................................................7 3.2 A REASONABLE JUSTIFICATION BASED ON PUBLIC SAFETY .................................................. 11

4 MRAS AND NON-DISCRIMINATION GUARANTEES: UNANSWERED QUESTIONS AND DIFFICULTIES.................................................................................................................. 16

5 CONCLUSION.................................................................................................................. 19

1

1 INTRODUCTION

On October 20th, 2016, after many years of fierce negotiations, the Prime minister

of Canada and the President of the European Council signed the Comprehensive

Economic and Trade Agreement1 (CETA) in the European Capital. This free-trade

agreement between Canada, the European Union (EU) and its member States

aims to create an expanded and secure market for goods and services by reducing

or eliminating various barriers to trade and investment between Canada and

Europe.2 Following that objective, various measures were included in CETA in

regard to trade in services and labour mobility. Amongst those measures, a full

Chapter is dedicated to the question of recognition of professional qualifications,

an issue that is deemed to be one of the main obstacles to migrants’ access to

labour in Canada.3

Indeed, in order to practice a regulated profession in Canada, a person must be

licensed by a province’s professional authority 4 which restricts access to

professions as a mean of ensuring public safety. These foreign-trained

professionals who wish to practice their profession in Canada must therefore have

their qualifications recognized by the competent provincial authority.5 However,

the process to have these qualifications recognized is not without impact, as

professional authorities – more often than not – impose compensatory measures

1 Comprehensive Economic and Trade Agreement (2016), online: <http://international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/ceta-aecg/text-texte/toc-tdm.aspx?lang=eng> [CETA]. 2 Ibid, Preamble. 3 Michael GRANT, Brain Gain 2015: The State of Canada’s Learning Recognition System, Ottawa, The Conference Board of Canada, 2016, p 5; René HOULE and Lahouaria YSSAAD, “Recognition of Newcomers’ Foreign Credentials and Work Experience”, (September 2010) Perspectives on Labour and Income 18, p 20. 4 Professional authorities can take on various identifications throughout Canada. For example, in some provinces, they are referred to as professional associations, while in others they are named professional orders. The expression “Professional authorities” will be used throughout this paper indifferently to simplify the text. 5 In Canada, regulated professions fall under Provincial jurisdiction; Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, s 92(13).

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that foreign-trained professionals must comply with to be fully entitled to practice

their profession.6 In some cases, going through this process can take many years

and, as a result, dissuades many of these professionals from proceeding with the

required steps.7

In order to facilitate trans-Atlantic professional mobility and to bring a solution to

these difficulties, Chapter 11 of CETA, titled Mutual recognition of professional

qualifications, establishes a mechanism that simplifies the recognition of

professional qualifications of skilled workers through the adoption of Mutual

Recognition Agreements (MRA).8 Such a mechanism, which is part of a new wave

of transnational agreements that can be traced back to the end of 1980s Europe9,

fixes in advance the conditions to which all the service suppliers trained on the

territory of a Party to an MRA (the jurisdiction of origin) can exercise a regulated

profession10 on the territory of another Party to the MRA (the host jurisdiction).11

As part of the framework to achieve mutual recognition, Annex 11-A of CETA

contains non-binding guidelines that provide practical counsel to facilitate the

regulator-to-regulator negotiations of MRAs, with respect to regulated professions.

These guidelines propose a four-step process for the recognition of qualification.

6 Frédérick DOUCET and Geneviève ST-LAURENT, "Le droit à l’égalité et l’accès aux professions réglementées : bilan contrasté de la jurisprudence canadienne", to be published [DOUCET and ST-LAURENT]. 7 Ibid; QUÉBEC, COMITÉ INTERMINISTÉRIEL SUR LA RECONNAISSANCE DES COMPÉTENCES DES PERSONNES IMMIGRANTES, Rapport, June 2017, p 6, online: <http://www.midi.gouv.qc.ca/publications/fr/dossiers/RAP_ReconnComp.pdf>. 8 CETA, supra n° 1, s 11.2. 9 France HOULE and Frederick DOUCET, "L’Entente France-Québec sur la reconnaissance mutuelle des qualifications professionnelles : conditions et contraintes imposées aux professionnels", in France HOULE and Hervé A. PRINCE (eds), La reconnaissance mutuelle comme instrument de globalisation juridique, Editions Yvon Blais, 2016, p 135, at pages 138-139 [HOULE and DOUCET (2016)]; Charles-Emmanuel CÔTÉ, "Nouveau chantier transatlantique : l’Entente France-Québec sur la reconnaissance des qualifications professionnelles", (2008) 46 Can YB Int’l L 337, p 338-348 [CÔTÉ (2008)]. 10 CETA defines a regulated profession as "a service, the practice of which, including the use of a title or designation, is subject to the possession of specific qualifications by virtue of legislative, regulatory or administrative provisions”; ibid, s 11.1. 11 HOULE and DOUCET (2016), supra n° 9, at page 139.

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At the first step of the process, the negotiating entities “verify the overall

equivalence of the scopes of practice or qualifications of the regulated profession

in their respective jurisdictions”. 12 To do so, they are encouraged to identify

activities covered by the scope of practice rights as well as the qualifications

required in each jurisdiction, such as the level of education, the level of experience,

and the examinations passed. At the second step, the negotiating entities evaluate

if there are substantial differences in the scope of qualifications or in the scope of

practice.13 In the absence of substantial differences in both scopes, the guidelines

provide that there is an overall equivalence.14 However, if substantial differences

are identified, the negotiating parties may determine compensatory measures to

bridge the gap. The choice of compensatory measures is made at the third step of

the process, and can take various forms, such as an adaptation period15 or an

aptitude test. 16 In all cases, they should be proportionate to the identified

differences that they seek to address. The guidelines also indicate that the

negotiating entities should evaluate the practical experience of the candidates

obtained in the jurisdiction of origin to evaluate if this experience is sufficient to

compensate, in whole or in part, for the substantial differences, prior to deciding

upon a compensatory measure.17 The fourth and last step of the process is the

specification of the conditions for recognition in the MRA draft.18 Before it can be

12 CETA, Annex 11-A, “Step One: Verification of Equivalency”. 13 Substantial differences in the scope of qualifications arise in cases of important differences in the essential knowledge or in the duration or content of the training between jurisdictions. Substantial differences in the scope of practice arise if one or more professional activities do not form part of the corresponding profession in the jurisdiction of origin, if these activities are subject to specific training in the host jurisdiction or if the training for these activities covers substantially different matters from those covered by the applicant’s qualification; ibid, Annex 11-A, “Step Two: Evaluation of Substantial Differences”. 14 Ibid, Annex 11-A, “Step One: Verification of Equivalency”. 15 The Guidelines define an adaptation period as “a period of supervised practice, possibly accompanied by further training, of a regulated profession in the host jurisdiction under the responsibility of a qualified person [that] shall be subject to an assessment”; Ibid, Annex 11-A, “Definitions”. 16 The Guidelines define an aptitude test as “a test limited to the professional knowledge of applicants, made by the relevant authorities of the host jurisdiction with the aim of assessing the ability of applicants to pursue a regulated profession in that jurisdiction”; Ibid. 17 Ibid, Annex 11-A, “Step Three: Compensatory Measures”. 18 Ibid, Annex 11-A, “Step Four: Identification of the Conditions for Recognition”.

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implemented in the corresponding jurisdictions, the drafted MRA must be approved

by the Joint Committee on Mutual Recognition of Professional Qualifications

established under CETA’s section 26.2.1(b).

However, not only must the MRA be consistent with the requirements of CETA,

but it must also respect the Canadian provincial human rights legislation. Indeed,

the professional system, which includes all norms, practices and decisions

adopted by the competent professional authorities, is subject to scrutiny under

provincial human rights legislation, such as the Quebec Charter19, the Human

Rights Codes of Ontario20 and British Columbia21, and the Alberta Human Rights

Act22, all of which prohibit discrimination. Therefore, a deep understanding of

Canadian human rights law is of foremost importance for the relevant authorities

who will engage in negotiating MRAs, as these agreements, once implemented,

can be challenged under provincial human rights laws.

This paper aims to shed some light on the obligations of professional authorities,

to facilitate the negotiation and adoption of MRAs in accordance with Canadian

human rights legislation. It does so through an analysis of the caselaw regarding

claims of discrimination in access to regulated professions (III). This analysis will

immediately follow a brief presentation of the framework applicable to such

claims (II). Finally, the paper will bring attention to the impact of the obligations that

derive from Canadian human rights law in the specific context of MRAs and

underline some difficulties that might arise therefrom (IV).

2 THE FRAMEWORK OF CANADIAN ANTI-DISCRIMINATION PROVISIONS

Before going forward as to what can be learned from Canadian human rights law,

it is fundamental to understand the framework applicable to cases of

19 Charter of Human Rights and Freedoms, RLRQ, c C-12 [Quebec Charter]. 20 Human Rights Code, RSO 1990, c H.19. 21 Human Rights Code, RSBC 1996, c 210. 22 Alberta Human Rights Act, RSA 2000, c A-25.5.

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discrimination. The correct framework to be applied by courts and tribunals, in the

context of claims brought under provincial human rights legislation, was laid out by

the Supreme Court of Canada in Meiorin23 and Grismer24. This framework implies

a two steps analysis.

The plaintiff must first establish, by balance of probabilities, a prima facie case of

discrimination. The expression “prima facie discrimination” describes the plaintiff’s

burden of proof under the discrimination analysis25 and implies the demonstration

of what could be described as a “suspect” prejudicial effect towards members of a

protected group. It is important to stress that “prima facie discrimination” only

amounts to discrimination in the absence of a reasonable justification.

Throughout Canada, in order to make a prima facie case of discrimination, plaintiffs

“are required to show that they have a characteristic protected from discrimination

under the [applicable human right act]; that they experienced an adverse impact

[in the exercise of an activity mentioned in the act]; and that the protected

characteristic was a factor in the adverse impact”.26 It is worth insisting on the fact

that an intention to discriminate is not required in order to establish

discrimination.27

Once a prima facie case of discrimination is made, the onus shifts to the defendant

to prove that his conduct, practices or norms are justified following one of the

defenses provided by the applicable human rights act or developed by the

jurisprudence.28 If the conduct, practice or norm cannot be justified, the court will

23 British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3 [Meiorin]. 24 British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [Grismer]. 25 This expression has been criticized for its ambiguity; Vik v. Finamore (No. 2), 2018 BCHRT 9, para 48-50. 26 Moore v British Columbia (Education), 2012 SCC 61, para 33 [Moore]; Stewart v Elk Valley Coal Corp., 2017 SCC 30, para 24. 27 Andrews v Law Society of British Columbia, [1989] 1 SCR 143, p 174 [Andrews]. 28 Québec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, para 37.

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find it to be discriminatory29 and the defendant can be ordered to change his

conduct, norm or practice, on top of paying damages to the plaintiff(s). Generally30,

the justification analysis implies for the defendant to demonstrate that his norm,

practice or conduct follows a legitimate objective, was adopted in good faith, and

does not go further than what is necessary to reach the objective31.

This framework sets out to achieve substantive equality32, a conception according

to which a conduct, norm or practice “should not because of irrelevant personal

differences have a more burdensome or less beneficial impact on one than

another”.33 In other words, in order to achieve substantive equality, you must

sometimes treat people differently to avoid the adverse impact towards the

members of a protected group. But how does this framework articulate in cases of

discrimination in access to a regulated profession by a foreign-trained

professional?

3 THE DISCRIMINATION FRAMEWORK APPLIED TO ACCESS TO REGULATED

PROFESSIONS BY FOREIGN TRAINED PROFESSIONALS

Over the years, the question of discrimination in access to a regulated profession

by foreign-trained professionals has been raised before courts and specialized

tribunals on a few occasions. Whether or not the claims have been successful,

these decisions give good indications as to what types of conducts, practices, and

norms can be considered as “suspect” and will require a reasonable justification

29 Moore, supra n° 26, para 33 and 49; Mouvement laïque québécois v Saguenay (City), 2015 SCC 16, para 37. 30 Despite a will from the tribunals (and mostly of the Supreme Court of Canada) to harmonize human rights legislation throughout the country, the defenses available can vary from one provincial human rights act to another. 31 Grismer, supra n° 24, para 21. 32 “Substantive equality” (sometimes referred to as “real equality”) is often opposed to another conception of equality referred to as “formal equality”. Under the later, everyone must be treated in the same way, with the same rights and advantages; Michèle RIVET and Anne-Marie SANTORINEOS, “Juger à l’ère des droits fondamentaux”, (2012) RDUS 363, p 374. 33 Andrews, supra n° 27, p 165.

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not to be deemed discriminatory and, therefore, unenforceable (A). The caselaw

also gives some directions as to the justification process and as to what can or

cannot be justified (B).

The following section does not aim at covering the entire Canadian caselaw

regarding discrimination in access to regulated professions by foreign-trained

professionals, as such an exercise has already been conducted recently.34 Rather,

it will focus on key elements and rationales that derive from the jurisprudence.

With a few exceptions, only conclusions from cases that applied the framework as

set out in Meiorin and Grismer are presented in this paper, as the other cases do

not reflect the current state of the law. It is also noteworthy to mention that most of

the decisions we have analyzed were rendered by specialized administrative

tribunals (human rights tribunals for the most part), and that only a few were

rendered by judicial courts in the context of a regular judicial process. The majority

of decisions that were selected also concerned actions brought against

professional authorities. However, in some of those cases, the claims were also

directed against other actors, such as governments, hospitals, and universities, as

they somehow played a role in the admission process to a regulated profession.

Most of the decisions that concerned discrimination in the access to a regulated

profession in an indirect fashion (e.g. cases regarding access to internships

directed against an employer) were dismissed.

3.1 The prima facie case of discrimination: What has been considered as “suspect” conditions and practices

Neiznanski35 can be considered as the first decision in which the framework as set

out in Meiorin and Grismer was applied in the context of discrimination against

34 DOUCET and ST-LAURENT, supra n° 6. 35 Neiznanski v University of Toronto, (1995) 24 CHRR D/187 (Ont Bd Inq) [Neiznanski].

8

foreign trained professionals. 36 This case concerns Dr. Neiznanski, an

ophthalmologist trained at the University of Warsaw in Poland, who had more than

20 years of work experience before arriving to Canada as a refugee. He claimed

he was discriminated against in access to a funded residency position, which was

one of the prerequisites to become licensed to practice medicine in Ontario.

Although the claim was ultimately rejected, the Board of Inquiry of Ontario

underlined, in an obiter, that the conditions to become a licensed physicist in

Ontario, which were modified after Dr. Neiznanski introduced is claim,

discriminated against foreign-trained applicants:

[…] the PIP [Pre-Internship Program] is limited to 24 candidates. In contrast, every graduate from an Ontario medical school is guaranteed the opportunity of an internship position and upon successful completion of the internship, a position in a Residency Program [..]. Even though a foreign-trained person may be as qualified on the basis of objective standards as measured against the Ontario graduate, and may even be better qualified than some Ontario graduates, the foreign-trained person cannot gain access to the licensing process unless he/she is one of the 24 chosen for the PIP. If the foreign-trained physician can gain entry to the PIP, upon successful completion of the PIP the physician can then apply for a Residencey position in any desired specialty. This would mean two more years for a Family Medicine residency or four or more years in other areas of specialization. [...] A foreign-trained Canadian citizen or landed immigrant physician is now discriminated against by the present system for gaining admission to Residency Programs as of 1994, because he/she would be excluded from consideration on the merits (other than through the limited number entry through the PIP). Clearly this approach is unfair to such a candidate and just as clearly this approach means that not all the most qualified persons will become specialists, to the detriment of both the profession and the public.37

The Board further identifies one of the key elements in establishing a prima facie

case of discrimination in the context of access to regulated professions by foreign-

trained professionals. More precisely, the Board proposes that additional

36 The application of the framework in this case by the Board of Inquiry of Ontario (the ancestor of the Human Rights Tribunal of Ontario) could be qualified as “visionary”, as this decision was rendered in 1995, a few years before the Supreme Court of Canada released Meiorin and Grismer; DOUCET and ST-LAURENT, supra n° 6. 37 Neiznanski, supra n° 35, paras 45-48.

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requirements imposed on foreign-trained professionals prior to licensure because

of their foreign educational and experiential credentials can have for effect to

exclude or disadvantage groups on the basis of their place of origin, race, colour

or ethnic origin, as people generally obtain their education or training in their place

of origin.38 In other words, a distinction based on the place of education or training

can amount to forbidden discrimination, as confirmed by other cases.39

An analysis of the caselaw allowed us to identify various distinctions, in the form

of norms, conditions or practices, that create a disadvantage or burden on foreign-

trained professionals. It is important to point out that the courts or tribunals did not

ultimately conclude that there was discrimination or even prima facie discrimination

in some of the cases to which we refer. However, amidst these cases, some can

nowadays be considered as bad law, as the analysis was not conducted under the

correct framework.

Over the years, courts and tribunals have found that charging higher application

fees to foreign-trained professionals40 or imposing territorial restrictions to their

practice 41 are differential treatments. The same has been said of imposing

38 Ibid, para 51; Fernando MATA, “Exploring Linkages Between the Country of Post-secondary Education Completion and Labour Market Activity of Immigrants in Canada”, in CENTRE OF EXCELLENCE FOR RESEARCH ON IMMIGRATION AND DIVERSITY, Working Paper Series n° 08-09, September 2008, p 18; QUEBEC, COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE, Rapport d’enquête systémique sur les médecins diplômés hors du Canada et des États-Unis, Résolution COM-559-5.1.1, September 10th, 2010, p 6 [CDPDJ (2010)]; Bryan SCHWARTZ and Janet VALEL, “Human Rights Legislation and the Recognition of Foreign Credentials”, (2011) 11 Asper Rev Int’l Bus & Trade L 17, p 21; Geneviève ST-LAURENT, "Discrimination fondée sur l’origine nationale par un ordre professionnel : les enseignements de la décision Association of Professional Engineers and Geoscientists of Alberta v. Mihaly, 2016 QBAB 6", (2016) 75 R du B 95, p 109 [ST-LAURENT (2016)]. 39 Bitonti v British Columbia (Ministry of Health) (No. 3), (1999) 36 CHRR D/263 (BC CHR), para 134-162 [Bitonti]; Newfoundland Dental Board v Human Rights Commission et al., 2005 NLTD125, para 32 [Keith]; Association of Professional Engineers and Geoscientists of Alberta v Mihaly, 2016 ABQB 61, para 78 [Mihaly (ABQB)]. 40 Durakovic v Canadian Architectural Certification Board, 2011 HRTO 333, para 32. 41 Forghani c Québec (Procureur général), 1997 CanLII 9991 (QC CA), p 10; Keith, supra n° 39, para 29.

10

compensatory measures (e.g. internships 42 , examinations 43 ), if fulfilling such

measures is not asked of Canadian-trained candidates. Some other conditions

also raise suspicions, such as those related to the fact of not having practiced for

a certain amount of time 44 , or the requirement to have Canadian work

experience.45

Demanding that foreign-trained candidates fulfill the same conditions as Canadian-

trained candidates could also amount to discrimination. Indeed, foreign-trained

candidates are not in the same situation as their Canadian counterparts, as they

might have a different training as well as work experience. In this logic, tribunals

have found that regulatory bodies must provide applicants with the ability to

demonstrate the equivalency of their qualifications.46 This implies that regulatory

bodies cannot unnecessarily ask of foreign-trained candidates that they start their

studies from the beginning, in order to obtain a Canadian diploma, or fulfill all the

other conditions without giving them the chance to demonstrate that their training

and work experience are somehow equivalent. As we will discuss in the next

subsection (B), exceptions to this rule can only occur in very strict circumstances.

However, as the courts had stressed, not all differential treatments that affect

members of a protected group are discriminatory. Such treatments must be

prejudicial.47 The prejudice can take the form of a refusal or an impossibility to

42 Jamorski v Ontario (Attorney general), [1988] OJ No 221 (ON CA); Neiznanski, supra n° 35, para 49; Bitonti, supra n° 39, paras 171-173; Mihaly (ABQB), supra n° 39, para 77. 43 Neiznanski, ibid, para 49; Bitonti, ibid, para 350; LPG v College of Audiologists and Speech Language Pathologists of Ontario, 2009 CanLII 92443 (ON HPARB), para 59 [LPG]; Caliao v College of Nurses of Ontario, 2011 CanLII 90733 (ON HPARB), paras 34-36 [Caliao]; Fazli v National Dental Examining Board of Canada, 2014 HRTO 1326, paras 34-37; Brar and others v BC Veterinary Medical Association and Osbourne (No. 22), 2015 BCHRT 151, paras 913-954 [Brar]; Mihaly (ABQB), ibid, para 77. 44 CDPDJ (2010), supra n° 38, p 7. 45 ONTARIO, ONTARIO HUMAN RIGHTS COMMISSION, "Removing the ‘Canadian experience’ barrier – A guide for employers and regulatory bodies", online: <http://www.ohrc.on.ca/sites/default/files/removing%20the%20canadian%20experience%20barrier_a%20guide%20for%20employers%20and%20regulatory%20bodies_accessible.pdf>. 46 Bitonti, supra n° 39, para 235. 47 Andrews, supra n° 27, p 168-169.

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access the profession48, or even excessive delays in the admission process.49

More recently, in Mihaly, the Court of the Queen’s Bench of Alberta concluded that

imposing conditions to foreign-trained candidates, in the process of assessing their

qualifications, creates in itself an adverse impact. As the Court declares:

[…] having to write examinations is in itself an adverse impact. Persons required to write examinations obviously have to expend time and resources (including, but not limited to, the examination fees) in order to prepare for and write the examinations, which is a form of adverse impact independent from the issue of whether they pass the examinations.50

3.2 A reasonable justification based on public safety

Once prima facie discrimination has been established, the burden of proof falls on

the defendant (in our case, the professional authority) to justify his conduct, norm

or practice. This is usually done by proving that it was adopted in good faith, in an

objective that is rationally linked to its functions, and that it is reasonably necessary

to achieve the objective. The professional authority might also need to establish

that it cannot, in the circumstances, accommodate the members of the protected

group without incurring undue hardship.

The Neiznanski decision is also quite instructive on this step of the analysis, as it

grasps the complexity of the issue and describes the exercise that must be made

by the professional authorities in this particular context. The Board states:

A Respondent to such a complaint would undoubtedly assert a defence that the purported ground of discrimination is 'reasonable and bona fide in the circumstances' […] for the protection of the public interest in respect of society's concerns relating to safety, health and welfare. The Ministry of Health and its surrogates [...] might argue that they cannot access accurately the foreign training and to license the foreign-trained person in these circumstances would jeopardize the public interest. […]

48 Neiznanski, supra n° 35, para 47; Bitonti, supra n° 39, para 190. 49 Andrews, supra n° 27, p 183. 50 Mihaly (ABQB), supra n° 39, para 78.

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Clearly, the maintenance of necessary public standards is a reasonable and bona fide ground for discrimination on the basis of jurisdiction of education or training, but the question then is – can the public interest be protected while at the same time the foreign-trained person's application for licensure is accommodated without undue hardship? Is there available an alternative, less onerous, approach that would ensure the public interest is protected? […] To have a fair system, and one that produces the most qualified specialists, the admissions process should consider all candidates on the merits whatever their place of education or training.51

To this day, only a few decisions have reached the step of the justification.52

Nevertheless, these decisions have clarified certain aspects of the analysis.

It goes without saying that public safety is in itself a legitimate purpose linked to a

professional authority’s functions, as recognized by the jurisprudence.53 One must

note that in some jurisdictions, such as British Columbia 54 , Manitoba 55 and

Quebec56, legislation expressly provides that public safety is their first mission.

In general, professional authorities will not have much difficulty to establish that

their norms, practices or conducts were adopted or applied in good faith, unless

the plaintiff proves there was an intention to discriminate (an element that is not

necessary to demonstrate discrimination). However, without raising any doubt as

to their good intentions, one cannot fully reject the possibility that professional

authorities might act in bad faith. For example, in Brar, the Human Rights Tribunal

of British Columbia concluded that the Veterinary Medical Association of the

province adopted an excessively high English language standard with the intention

to exclude veterinarians of Indo-Canadian origin from the practice of the

profession.57

51 Neiznanski, supra n° 35, paras 53 and 55. 52 DOUCET and ST-LAURENT, supra n° 6. 53 Neiznanski, supra n° 35, para 55; Bitonti, supra n° 39, paras 199-200; LPG, supra n° 43, para 62; Caliao, supra n° 43, paras 33 and 39; Brar, supra n° 43, para 1263; Mihaly (ABQB), supra n° 39, para 113. On a related subject, see also: Gichuru v The Law Society of British Columbia (No. 4), 2009 BCHRT 360, paras 499-502 [Gichuru]. 54 E.g. Legal Profession Act, SBC 1998, c 9, s 3. 55 E.g. The Legal Profession Act, CPLM, c L107, s 3(1). 56 Professional Code, RLRQ, c C-26, s 23. 57 Brar, supra n° 43, paras 1266-1273.

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It flows from our analysis that the jurisprudence is rather clear in regard to the first

two elements of the justification. However, the same cannot be said when it comes

to decide whether the conduct, norm or practice is reasonably necessary to

achieve its purpose. Indeed, two major difficulties arise at this point.

At this step of the justification analysis, the focus is placed upon the means applied

by the professional authorities, which cannot be higher than what is strictly

necessary to ensure public safety.58 However, very little information is available as

to what “public safety” really means59, and as to how far professional authorities

can go in restricting access to regulated professions based on this notion.60 To this

day, very few decisions have directly addressed this question.

Nevertheless, two decisions from the British Columbia Human Rights Tribunal give

some indication as to the level of competence that can be required from candidates

to a profession. The first of those cases concerns Mr. Gichuru, a law student who

was denied membership to the Law Society of British Columbia on the basis of

mental disability (he had suffered from a depression). While confirming that the

Law Society had a statutory responsibility to assess the competence and fitness

of applicants to practice law, the Human Rights Tribunal concluded, basing itself

on Grismer61, that “the Law Society’s standard cannot be an absolute guarantee

of competence to practice law. Instead, it must be something lower, such as

reasonable assurance of competence to practice law”. 62 The Human Rights

58 Grismer, supra n° 24, para 21. 59 DOUCET and ST-LAURENT, supra n° 6. 60 Through the years, the Supreme Court of Canada indicated that the meaning of public safety is for the professional authorities to determine, and that the regulation of professional practice through a system of licensing is directed toward protecting the vulnerable interests of clients and third parties. See: Law Society of British Columbia v Trinity Western University, 2018 SCC 32, paras 34-36 [Trinity Western University]; Green v Law Society of Manitoba, 2017 SCC 20, para 29; Pearlman v Manitoba Law Society Judicial Committee, [1991] 2 SCR 879, p 887. For this reason, the author of this paper is currently conducting a qualitative research with the professional orders of the Province of Quebec, in order to grasp how they understand their mission of ensuring public safety, and how this notion is applied in the recognition of professional qualifications. 61 More precisely, the tribunal refers to the passage of Grismer in which the Supreme Court concludes that the degree of risk that should be tolerated in regard to maintaining highway safety was “reasonable safety”; Grismer, supra n° 24, para 25. 62 Gichuru, supra n° 53, para 497.

14

Tribunal reached a similar conclusion a few years later, in Brar. According to the

tribunal, “[i]t is clear that more than a minimal risk must be established when

implementing a professional standard that must be met in order to practice. The

appropriate goal is reasonable safety”.63

The second difficulty relates to the concept of reasonable accommodation and the

obligations for regulators to adopt standards that are as inclusive as possible.

Indeed, according to the jurisprudence, in order to be “reasonably necessary”, a

norm, practice or decision must incorporate “every possible accommodation to the

point of undue hardship, whether that hardship takes the form of impossibility,

serious risk or excessive cost”.64

In the context of access to regulated professions, tribunals concluded that

professional authorities must accommodate foreign-trained candidates by

providing them with the ability to demonstrate the equivalency of their

qualifications65, unless offering such an opportunity would be impossible short of

undue hardship.66 Indeed, individual assessments, through which the foreign-

trained candidates can demonstrate the equivalency of their qualifications, allow

to waive some (or all) of the conditions that must be fulfilled by the foreign-trained

candidate in order to obtain a license. They can also lead to the imposition of

compensatory measures that aim to correct specific deficiencies identified in the

candidate’s qualifications, and therefore that are adapted to his specific situation.

However, the jurisprudence doesn’t provide much information as to the form these

individual assessments must take. At most, in at least two cases, tribunals hinted

that some sorts of individual testing could impose undue hardship on the

professional authorities. In LPG, a foreign-trained professional, whose first

language was Portuguese, opposed the College of Audiologists and Speech

Language Pathologists of Ontario refusal to consider alternatives evidence of

63 Brar, supra n° 43, para 1264. 64 Grismer, supra n° 24, para 32. 65 Bitonti, supra n° 39, para 235; Neiznanski, supra n° 35, paras 48 and 55. 66 Grismer, supra n° 24, paras 32-33.

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proficiency in English language, instead of the two specific standardized tests

selected by the College. In review of the College’s decision, the Health Professions

Appeal and Review Board wrote:

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. Individual testing would be costly and inefficient such that it would impose undue hardship on the College, and in the Board’s view would not provide a consistent, standardized and objective evaluation as offered by the TOEFL [Test of English as a Foreign Language] and the IELTS [International English Language Testing System] in terms of whether an applicant meets the fluency standard expected of the profession.67

Similarly, in Mihaly, the Court of Queen’s Bench of Alberta reversed the Human

Rights Tribunal of Alberta’s order, according to which the professional authority

had to appoint a committee to assess foreign-trained candidates, as it would

appear to entail a significant dedication of resources:

As the Tribunal contemplated that APEGA [Association of Professional Engineers and Geoscientists of Alberta] could be called upon to provide this assistance for approximately 375 applicants a year, his assessment that this “would not cause undue hardship to the engineering profession nor does it appear to be cost prohibitive with all the dues-paying members” […] is questionable, to say the least. The assessment of the Appeal and Review Board in LPG that individual testing would be costly and inefficient (and would not provide a consistent, standardized and objective evaluation) is much more realistic.68

In the court’s opinion, the opportunity that was offered by the association to foreign-

trained candidate was sufficient, as the practice was coherent to ensure public

protection: the association individually assessed applicants and accepts to waive

examinations for applicants who have completed a graduate degree at a university

67 LPG, supra n° 43, para 70. 68 Mihaly (ABQB), supra n° 39, para 146.

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in Canada or an MRA country, or if they have ten years of progressively

responsible engineering experience.

Despite the Court’s conclusion to that effect, one can wonder whether the

opportunity offered by the association was indeed sufficient. As author Geneviève

St-Laurent noticed, the court only mentions that the association’s practice meets

the objective, without deeper analysis of whether the association investigated

alternative approaches to avoid or limit the negative impact on foreign-trained

candidates.69 Furthermore, one can argue that such a pro-active approach, which

seems to be required by the jurisprudence of the Supreme Court of Canada70,

goes hand in hand with the professional authorities’ duty to ensure public safety.

Indeed, in the recent Trinity Western University case, the Supreme Court of

Canada mentioned that eliminating inequitable barriers to the membership of a

profession promotes competence of its members, improves the quality of the

services offered, and serves to ensure public safety.71

4 MRAS AND NON-DISCRIMINATION GUARANTEES: UNANSWERED QUESTIONS AND

DIFFICULTIES

As was pointed out in the introduction, CETA aims to ensure better mobility of

professionals between Europe and Canada. To this purpose, it establishes a

framework to be followed by the negotiating entities to facilitate the mutual

recognition of professional qualifications. However, the MRAs negotiated and

adopted must not only follow CETA’s framework, as the professional authorities

also have obligations that derive from Canadian human rights law.

69 ST-LAURENT (2016), supra n° 38, p 110-111. 70 Ibid, p. 111; Moore, supra n° 26, para 49; Meiorin, supra n° 23, para 38; Central Alberta Dairy pool v Alberta (Human Rights Commission), [1990] 2 SCR 489, p 518-519. 71 Trinity Western University, supra n° 60, paras 42-44.

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Except in cases when MRAs give automatic recognition of foreign-trained

professionals’ qualifications72, MRAs will impose some level of compensatory

measures to foreign-trained candidates. As we have seen, such conditions will be

likely to be considered suspect, in which case a justification will be required. In

order to do so, professional authorities will have to demonstrate that the measures

contained in their MRAs do not go further than what is necessary to ensure public

safety. In other words, the compensatory measures must be proportionate to the

differences identified in the scope of qualification and the scope of practice

between the jurisdictions partied to a MRA. Whereas the Guidelines contained in

Annex 11-A of CETA do not bind the negotiating entities in this regard, Canadian

human rights law creates an obligation in that matter for professional authorities.

The jurisprudence regarding discrimination in the access to regulated professions

also indicates that professional authorities must offer foreign-trained candidates

the opportunity to demonstrate that their qualifications are equivalent to the ones

of Canadian-trained candidates. This may cause certain difficulties, as MRAs

prefix the conditions to which the foreign-trained candidates can exercise their

profession in the host jurisdiction and leave very little place to individual

assessments, as shown by the MRAs adopted in the last decade in application of

the Québec-France Agreement on the Mutual Recognition of Professional

Qualifications73 (Québec-France Agreement). Therefore, one can wonder if the

procedure provided by such MRAs is inclusive enough.

Indeed, a study of the Québec-France MRAs published in 2016 indicates that only

4 of the 24 professions for which a MRA was concluded offer to waive all of the

compensatory measures based on the professional experience of foreign-trained

72 An overview of the MRAs adopted according to the Quebec-France Agreement (which proposes a framework similar to the one provided by CETA) indicates that automatic-recognition tends to be the exception rather than the rule; HOULE and DOUCET (2016), supra n° 9, at pages 148-149. 73 Entente entre le Québec et la France en matière de reconnaissance mutuelle des qualifications professionnelles (adopted on October 17th, 2008), online: <http://www.mrifce.gouv.qc.ca/Content/documents/fr/2008-12.pdf> [Québec-France Agreement].

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candidates. 74 Certain MRAs also offer to waive some (but not all) of the

compensatory measures based on experience. 75 However, in all cases, the

professional experience only seems to be considered in terms of quantity and not

based on the qualifications and competencies acquired through that experience.

For that reason, in most cases, the candidate’s experience will not be considered

at all if he hasn’t acquired the minimal amount specified in the MRA.76

In the same spirit, it also appears that experience, training, or education other than

those expressly mentioned in the MRAs are rarely considered by the professional

authorities when analyzing applications brought through MRAs. Such a point was

rightfully brought up before the Commissioner for admission to professions on at

least one occasion, in the context of a Québec-France MRA. The Ordre des

Ingénieurs du Québec, the authority supervising the profession of engineer in the

province, refused to consider the additional graduate training (conducted in

Québec) of an engineer trained in France as part of the experiential credit that

would’ve allowed him to benefit from a shorter internship period conditional to

obtaining his full permit. Following this complaint, the Commissioner

recommended that professional authorities take into account the additional training

as part of experiential credits.77 Such elements raise doubts on whether these

MRAs fulfil the obligations that derive from Canadian human rights law, in regard

to the possibility offered to foreign-trained candidates to demonstrate the

equivalency of their qualifications.

74 HOULE and DOUCET (2016), supra n° 9, at pages 153-154. 75 Ibid, at pages 155-157. 76 QUÉBEC, COMMISSAIRE À L’ADMISSION AUX PROFESSIONS, Portrait des mécanismes de reconnaissance des compétences professionnelles. Normes et modalités de délivrance de permis sous la forme d’activités professionnelles qualifiantes (expérience de travail et stages), March 16th, 2016, p 48, online: <https://www.opq.gouv.qc.ca/fileadmin/documents/Commissaire/Portrait_ActProfQualif2016.pdf> [COMMISSAIRE À L’ADMISSION AUX PROFESSIONS (March 2016)]. 77 QUÉBEC, COMMISSAIRE À L’ADMISSION AUX PROFESSIONS, Rapport d’examen de plainte n° 5125-14-002, July 31st, 2015, p 5, online: <https://www.opq.gouv.qc.ca/fileadmin/documents/Commissaire/plaintes/Rapport_5125-14-002.pdf>.

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5 CONCLUSION

Throughout this paper, we have demonstrated that in order to propose MRAs that

will, in the best possible way, facilitate professional mobility between Canada and

Europe without putting at risk public safety, the negotiating entities will need to do

more than simply follow the framework provided by CETA. Indeed, the MRAs

negotiated by Canadian professional authorities must also respect the

fundamental rights of foreign-trained professionals, as guaranteed by Canadian

human rights legislation.

Through an analysis of the Canadian caselaw in matters of discrimination in

access to regulated professions, this paper attempted to put forward some of the

obligations that the relevant authorities must keep in mind when negotiating MRAs.

However, some questions remained unanswered. For example, we have pointed

out that very few information is available as to the form that the opportunity given

to foreign-trained candidates to demonstrate the equivalency of their qualifications

must take. Another difficulty that is worth mentioning is when the obstacles in the

access to a profession are caused by multiple actors implicated in the admission

process, as it often seems to be the case in healthcare professions, where

admission to university courses and internship positions in the health system are

very limited, making it quite difficult to fulfil compensatory measures.78

In conclusion, we would like to stress out that in order to achieve the objective set

forward in CETA, negotiating entities should also take into consideration the

experience from the MRAs adopted in the context of the Québec-France

Agreement for multiple reasons. The Québec-France Agreement and CETA

propose similar frameworks for mutual recognition of professional qualifications,

and the MRAs adopted therefrom are the result of negotiations between relevant

authorities of Parties to CETA. Furthermore, and most importantly, the Québec-

France MRAs have now been applied for almost a decade, and knowledge about

78 For example, see: CDPDJ (2010), supra n° 38; Bitonti, supra n° 39.

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their strengths and weaknesses is available.79 Therefore, professional authorities

should take a good look at the Québec-France MRAs in order to adopt the best

MRAs as possible in the context of CETA, to avoid recreating unnecessary

difficulties.

79 For example, see: HOULE and DOUCET (2016), supra n° 9; CÔTÉ (2008), supra n° 9; COMMISSAIRE À L’ADMISSION AUX PROFESSIONS (March 2016), supra n° 76; QUÉBEC, COMMISSAIRE À L’ADMISSION AUX PROFESSIONS, Rapport de vérification particulière. Mécanisme de reconnaissance des compétences professionnelles de l’Arrangement en vue de la reconnaissance mutuelle des qualifications professionnelles entre le Québec et la France pour la profession de médecin, March 27th, 2015, online: <https://www.opq.gouv.qc.ca/fileadmin/documents/Commissaire/RapportVerif_ARMQcFrMedecins.pdf>; QUÉBEC, COMMISSAIRE À L’ADMISSION AUX PROFESSIONS, Analyse des mécanismes de reconnaissance découlant de l’Entente Québec-France en matière de reconnaissance mutuelle des qualifications professionnelles, June 2017, online: <https://www.opq.gouv.qc.ca/fileadmin/documents/Commissaire/AnalyseMecanismesEntenteQcFr.pdf>.