In its substantive written decision, the Alberta Court of Queen's Bench has reversed a 2014 decision
of the Alberta Human Rights Tribunal (the "Tribunal") in The Association of Professional
Engineers and Geoscientists of Alberta v. Milhaly, 2016 ABQB 61.
The Case
Mr. Milhaly, born and educated in the former Czechoslovakia, arrived in Canada in 1999 with his foreign
engineering credentials and work experience. Upon arrival, he applied to the Association of Professional
Engineers and Geoscientists of Alberta ("APEGA") to register as a Professional Engineer.
Upon reviewing Mr. Milhaly's application and supporting documents, APEGA informed Mr. Milhaly that
he would be required to write the National Professional Practice Exam ("NPPE"), required
by all applicants, and would also be required to take three (3) confirmatory exams and take a course
or pass an equivalency exam (i.e. the Fundamentals of Engineering Exam — 'FE Exam') by a prescribed
deadline. Mr. Milhaly's application proceeded slowly over the course of the next several years and
ultimately, Mr. Milhaly failed the NPPE three times and never wrote any of the required confirmatory
exams.
Shortly thereafter, Mr. Milhaly filed a complaint with the Alberta Human Rights Commission, alleging
that APEGA had discriminated against him on the basis of place of origin by denying his registration
as a professional engineer. The Tribunal agreed with Mr. Milhaly, finding that APEGA's assessment and
eligibility criteria (in Mr. Milhaly's case, the requirement to complete confirmatory exams and take
a course or the FE exam), without a more individualized assessment and options tailored to Mr. Milhaly,
amounted to discrimination which could not be justified under the Alberta Human Rights Act (the
"Act").
The Tribunal went further, ordering APEGA to appoint a committee which would be responsible for investigating
options to individually assess Mr. Milhaly's qualifications (including a waiver of one or more of the
required exams), assign an engineering mentor to Mr. Milhaly who could help integrate Mr. Milhaly into
the profession, direct Mr. Milhaly to networking resources and to assist Mr. Milhaly with increasing
his fluency in English.
Given the breadth and the potential impact of the Tribunal's order, it is unsurprising that APEGA
chose to appeal the Tribunal's decision. APEGA appealed on a number of grounds, including whether there
had been a breach of procedural fairness, jurisdiction of the Tribunal, the correct test for prima facie
discrimination and whether it was unreasonable for the Tribunal to hold that APEGA's criteria could
not be justified. On the first two grounds of appeal, the Court sided with the Tribunal. On the latter
two issues, however, the Court came to a very different conclusion.
On the issue of prima facie discrimination, the Court found that the Tribunal had applied the correct
test, namely the Supreme Court of Canada's ("SCC") Moore test. According to the
Moore test, a complainant must show the following to establish prima facie discrimination:
- They have a characteristic that is protected from discrimination;
- They have experienced an adverse impact; and
- That the protected characteristic was a factor in the adverse impact.
In its analysis, the Court also observed the following:
- Discrimination is not limited to rules and practices based only on the listed protected characteristics
— it can also occur where a neutral rule/practice has an adverse impact and the protected characteristic
is a factor in that adverse impact (for example, although language is not a protected ground, terminating
someone's employment due to language difficulties could establish enough of a nexus between the
language difficulties and that person's place of origin such that it establishes prima facie discrimination).
- While arbitrariness and perpetuation of stereotypes are relevant considerations in determining
whether there is a link between a protected characteristic and the adverse impact, these considerations
are not required a part of the Moore test.
At the outset, the Court held that the Tribunal's finding that APEGA's policies were based on discriminatory
assumptions was unreasonable and not supported by the evidence. The evidence showed that APEGA's accreditation
system was comprehensive and complex, and the distinction between accredited and non-accredited engineering
programs was not based on an assumption of inferior academic qualifications (but rather, a lack of
knowledge about the non-accredited programs).
While the Court did find that Mr. Milhaly's place of origin was a factor in the adverse impact that
he suffered (given the close link between his place of origin and the place of his education), it pointed
out that the Tribunal's finding was that the adverse impact related to Mr. Milhaly's place of origin
was the requirement to complete the confirmatory exams, and that this, in addition to the requirements
to write the NPPE and have Canadian work experience) perpetuated disadvantage and constituted substantive
discrimination. The Court took issue with this finding, noting that the Moore test had not been properly
applied or addressed with respect to the NPPE and Canadian work experience requirements, that there
was no evidence or basis for the finding that these requirements (which applied to all applicants,
not just foreign) constituted adverse impact discrimination, and that there was no finding or evidence
that established that these requirements had an adverse impact based on place of origin or constituted
prima face discrimination.
The Court then moved on to consider whether APEGA had a reasonable and justifiable defence under the
Act, both in relation to the confirmatory exams and also the NPPE and Canadian work experience. With
respect to the NPPE and Canadian work experience requirements, the Court held that because no
prima facie discrimination had been established for these requirements, the Tribunal had no jurisdiction
to find that the requirements were not justified under the Act. Because the Court had found that the
confirmatory exams were prima facie discriminatory, it turned to the SCC's well-established Meiorin
test (which effectively looks at why a purpose or standard was implanted and whether reasonable accommodation
of an individual was possible in the circumstances) to see if the breach was reasonable and justifiable
in the circumstances.
Before delving into its analysis, the Court pointed out that employers do not have a duty to change
their working conditions in a fundamental way — rather, they only have a duty (to the point of undue
hardship) to ensure that it arranges an employee's workplace/duties in a way that will enable
the employee to do his or her work. In this case, the Court found that there was no evidence that APEGA
could or should be expected to be proactive and reach agreements with non-accredited institutions or
countries, no evidence that confirmatory exams were assigned based on perceived academic deficiencies
and no evidence that the FE Exam or confirmatory exam requirement would have a disproportionate impact
on foreign-trained graduates. The Court further found that that impugned exams were designed to test
the knowledge expected of engineering graduates, and that possession of entry level engineering competence
was reasonable necessary to safe practice as a professional engineer. Finally, the Court tackled the
accommodation measures that were ordered by the Tribunal. In finding the measures to be unreasonable,
the Court noted that the Tribunal went far beyond the scope of discriminatory conduct found (or even
alleged) and failed to consider the efficiency and cost impacts to APEGA in trying to implement such
measures.
In sum, the Court held that while Mr. Milhaly had established prima facie discrimination caused by
APEGA's confirmatory exam and FE Exam requirements, the evidence clearly established that these APEGA
requirements were reasonable and justifiable under the Act.
The Takeaway
This decision was ultimately a win for APEGA, and for professional regulators as a whole, as it established
that regulators are not expected to alter their mandate in a fundamental way provided that their entrance
standards for foreign-trained professionals (those which differ from standards required for Canadian-trained
professionals or professionals from accredited institutions) are based on evidence and not discriminatory
assumptions.
For non-regulator employers, this decision serves as an important reminder that care should be taken
when setting specific job requirements or requiring completion of certain courses or testing as part
of the job application or promotion process. Specifically, consider why a certain requirement is being
implemented, whether it is necessary for the position, whether there is room for accommodation (if
needed), and whether the requirement (although seemingly neutral or compliant with the Act) might have
an adverse impact that is linked to a protected ground (i.e. requirement for a Canadian degree or work
experience).
