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Many employers miss out on excellent candidates and expose themselves to lawsuits because of flaws in their hiring processes. One example can be the choice of criteria they use to assess candidates’ qualifications.
Last May, Professional Engineers Ontario (“PEO”), the licensing and regulatory body for engineers in Ontario, launched a new license application process to comply with legislative amendments introduced in 2021 to the Fair Access to Regulated Professions and Compulsory Trades Act1 (“FARPCTA”). PEO’s new process aims to make “applying for an engineering license more efficient, transparent, and fair for all applicants,”2 whether they are trained in Canada, or in other countries. Among the key changes to the process is the decision to no longer require Canadian work experience from candidates to be licensed in Ontario. Other professional licensing and regulatory bodies in Ontario are expected to do the same.3
This decision is, as Monte McNaughton, Ontario Labour Minister, called it, a “game changer.”4 Indeed, by dropping the Canadian experience requirement, PEO removed a substantial barrier that internationally trained engineers – which represent up to 60% of new applicants to the profession5 – face when trying to obtain their professional license in the province. It also allows PEO to better comply with its obligations under the Ontario Human Rights Code.6 Indeed, as the Ontario Human Rights Commission wrote in 2013:
Basing hiring and accreditation decisions on whether a person has Canadian experience is not a reliable way to assess a person’s skills or abilities. Employers and regulatory bodies should ask about all of the candidate’s relevant trade, professional or other qualifications and prior experience, regardless of where they got it.
A strict requirement for “Canadian experience” may result in discrimination, and should only be used in limited circumstances. Employers and regulatory bodies would have to show that a requirement for Canadian experience is a “bona fide” or necessary requirement.7
The Office of the Fairness Commissioner of Ontario, the independent public body whose mandate includes assessing the regulated professions’ and compulsory trades’ registration processes in Ontario, raised similar concerns, and pressed the regulators who require Canadian experience to explain why the requirement is necessary and relevant in order to be admitted to the profession.8
Dropping the “Canadian experience” requirement is, without a doubt, an important step that professional regulators need to take to improve immigrants’ access to regulated professions. It is also a requirement that employers need to move away from to ensure that immigrants have access to jobs commensurate with their qualifications.9 However, it is far from enough to address the systemic discrimination10 faced by immigrants – who represent the vast majority of foreign-trained professionals in Canada – when it comes to being admitted to a regulated profession and finding a job in their field, not only in Ontario, but throughout Canada.
Indeed, in multiple cases, Tribunals have found that foreign-trained professionals face differential treatment that adversely affects them because of their place of origin when it comes to accessing a regulated profession.11 For example, the following requirements and practices were found to be “suspicious” and potentially discriminatory against immigrants:
- excessively onerous language requirements;12
- charging higher application fees to foreign-trained candidates;13
- the obligation to complete a pre-internship program with limited openings accessible to foreign-trained candidates;14
- imposing measures, such as internships or examinations, to foreign-trained candidates when fulfilling such measures is not asked of Canadian-trained candidates;15
- imposing territorial restrictions to their practice;16and
- refusing to recognize qualifications, blocking access to training programs, or imposing measures based on the time elapsed since a candidate finished his training or last practised the profession.17
Multiple studies and reports, including those of provincial Fairness Commissioners, show that these are only a few examples of the many obstacles faced by immigrants when it comes to obtaining their professional licenses in Canada.18 Research I conducted during my doctorate of law (LL.D.)19 confirms the existence of systemic discrimination in access to regulated professions by immigrants. It also leads to the conclusion that it is more plausible than not that many of these barriers would not pass the high threshold of the “bona fide” or necessary requirement test.20
All levels of government throughout the country are taking steps to fill countless vacant positions in key services (including healthcare)21 which require candidates to hold licenses delivered by professional regulatory bodies. It is clear that this objective will not be achieved unless all the other actors involved in the path that leads to licensure – including professional regulators and employers – conduct an in-depth examination of their requirements and processes to eliminate the barriers faced by foreign-trained professionals… starting with the “Canadian experience” requirement.
Takeaways for regulators and employers
To avoid breaching their obligations under human rights legislation, professional regulators and employers must be able to prove that their job or accreditation requirements:
- relate to the purpose or nature of the profession or the job;
- were adopted honestly and in good faith; and
- are necessary to practice the profession or to do the job, in the sense that:
- there is not a more inclusive alternative that would avoid or reduce the negative effect on foreign-trained professionals; and
- the circumstances of individual applicants are still considered and accommodated as much as possible, unless there are costs or health and safety reasons that would cause undue hardship.22
In the document Removing the “Canadian experience” barrier: A guide for employers and regulatory bodies, the Ontario Human Rights Commission23 lists the best practices that employers and professional regulators should follow to ensure that job or accreditation requirements do not create discriminatory barriers for newcomers. Among those best practices they recommend:
- Examine your organization as a whole to identify potential barriers for newcomers – including job requirements, recruitment practices, and accreditation criteria – and address any barriers through organizational change initiatives;
- Take a flexible and individualized approach to assessing applicants’ qualifications and skills;
- Consider all relevant work experience, regardless of where it was obtained;
- Frame qualifications and criteria in terms of competencies and job- or profession-related knowledge and skills; and
- Retain outside expertise to help eliminate barriers to newcomers.
1 2006, SO 2006, c. 31.
2 “PEO’s new licence application process launches today” (May 15, 2023), Professional Engineers Ontario, online: Click here.
3 While more than 30 regulated professions and trades are affected by the 2021 FARPCTA amendments, it is important to note that the changes do not concern Health professions; Kimberley Molina, “New rules could end ‘vicious circle’ facing foreign-trained professionals” (October 22, 2021), CBC, online: Click here.
4 Jordan Omstead, “Ontario engineer regulator drops Canadian experience qualification” (June 4, 2023), CBC, online: Click here.
6 RSO 1990, c. H.19.
7 “Removing the ‘Canadian experience’ barrier: A guide for employers and regulatory bodies” (2013), Ontario Human Rights Commission, at page 2, online: Click here.
8 “Canadian Work Experience,” Office of the Fairness Commissioner, online: Click here.
9 Supra note 7, at page 3.
10 Systemic discrimination can be defined as “the cumulative effects of disproportionate exclusion resulting from the combined impact of attitudes marked by often unconscious biases and stereotypes, and policies and practices generally adopted without taking into consideration the characteristics of the members of groups contemplated by the prohibition of discrimination”; Commission des droits de la personne et des droits de la jeunesse (Beaudoin et autres) c. Gaz métropolitain inc., 2008 QCTDP 24, at para 36, conf. by 2011 QCCA 1201. See also: “What is discrimination? – Systemic discrimination,” Ontario Human Rights Commission, online: Click here.
11 See Frédérick J. Doucet and Geneviève St-Laurent, “Le droit à l’égalité et l’accès aux professions réglementées : bilan contrasté de la jurisprudence canadienne” (2018) 64:2 McGill LJ 213, at pp. 235-236 (in French only).
12Brar and others v BC Veterinary Medical Association and Osbourne, 2015 BCHRT 151, at paras 1266-1273.
13 Durakovic v Canadian Architectural Certification Board, 2011 HRTO 333, at para 32.
14 Neiznanski v. University of Toronto, 1995 CanLII 18166 (ON HRT), at paras 45-48.
15 Jamorski v Ontario (Attorney general), 1988 CanLII 4738 (ON CA); Bitonti v British Columbia (Ministry of Health) (No. 3), 1999 CanLII 35189 (BC HRT), at paras 171-173; Association of Professional Engineers and Geoscientists of Alberta v Mihaly, 2016 ABQB 61, at para 77.
16 Forghani c Québec (Procureur général), 1997 CanLII 9991 (QC CA), at page 10; Newfoundland Dental Board v Human Rights Commission et al., 2005 NLTD 125 (CanLII), at para 29.
17 Findings of the investigation “based on section 71(1) of the Charter of Human Rights and Freedoms…, for the purposes of reviewing allegations of discrimination in the course of an admission process leading to the postdoctoral training program in medicine” (September 2010), Commission des droits de la personne et des droits de la jeunesse, Resolution COM-559-5.1.1, at pp. 7-8, en ligne : Click here.
18 E.g., see: Hélène Dubois, “Les enjeux de la reconnaissance professionnelle au Québec” (2019) 60(2) Recherches sociographiques 261 (in French only); Marie-Jeanne Blain, Sylvie Fortin, and Fernando Alvarez, “Professional Journeys of International Medical Graduates in Quebec: Recognition, Uphill Battles, or Career Change” (2017) 18:1 JIMI 223; Ruth M. Campbell-Page et al., “Foreign-trained medical professionals: Wanted or not? A case study of Canada” (2013) 3(2) Journal of Global Health 1; Liying Cheng, Melisa Spaling, and Xiaomei Song, “Barriers and Facilitators to Professional Licensure and Certification Testing in Canada: Perspectives of Internationally Educated Professionals” (2013) 14 Int Migration & Integration 733; Office of the Fairness Commissioner, “Academic Requirements and Acceptable Alternatives: Challenges and Opportunities for the Regulated Professions in Ontario” (November 2013), Final Report, Ontario, online: Click here; Commissaire à l’admission aux professions, “Portrait de l’admission aux professions: Stages exigés dans le cadre de l’admission aux professions” (March 2020), Québec, online: Click here (in French only).
19 Frédérick Doucet, La reconnaissance des qualifications des professionnels formés à l’étranger : l’égalité réelle mise en œuvre au Québec?, doctoral thesis, Québec, Faculty of Law, Université de Montréal, 2022, to be published (in French only). My research included empirical qualitative research in which 26 professional licensing and regulatory bodies of Québec participated. For more information on the results from that empirical qualitative research, see: Frédérick J. Doucet, “La mission de protection du public : enquête auprès des ordres professionnels québécois”, International Conference of the CRIMT Partnership, HEC Montréal, October 27, 2018, online: Click here (in French only).
20 Supra note 7, at page 6.
21 E.g., Jim Wilson, “Ottawa launches new immigration selection program” (June 1, 2023), Canadian HR Reporter, online: Click here; “Main d’oeuvre: Québec annonce une réforme du système professionnel” (May 26, 2023), Journal de Québec, online: Click here (in French only); “B.C. announces plan to license more internationally trained doctors” (November 27, 2022), CBC, online: Click here.
22 Supra note 7, at page 6; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC),  3 SCR 3, at para 54.
23 Supra note 7, at pp 10-12.
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