Originally appeared in McMillan LLP August 2013 employment and labour relations bulletin, as well as Lexology and Mondaq.

Auhor: Lai-King Hum¹
August 2013

It is the classic Catch-22 situation: you need Canadian experience to get a job in Canada, and you need a job in Canada to get Canadian experience. Whether job-hunting or applying for professional accreditation in Ontario, the “Canadian experience” conundrum gives rise to a seeming paradox.

Employers and regulators have argued that discriminating against those without Canadian experience is not prohibited, and that such experience can be gained through supplementary training. Rather, the requirement is a means of being discriminating in selecting candidates with the best qualifications for the Canadian market, with high standards of competence and performance.

The OHRC disagrees. On July 15, 2013, the Ontario Human Rights Commission (“OHRC”) released its Policy on Removing the “Canadian Experience” Barrier (“Policy”). The Policy outlines the OHRC’s position that requiring Canadian experience is prima facie discrimination under Ontario’s Human Rights Code (“Code”). The Policy has been lauded by some for eliminating in one fell stroke the Gordian-knot of “Canadian experience”, said to be the most common barrier to integration into the Canadian job market for newcomers.

background

High rates of underemployment and unemployment amongst recent immigrants to Canada because of the Canadian experience barrier are cited to justify this Policy. The Policy also points out that to get the requisite Canadian work experience, some newcomers turn to volunteer positions or unpaid internships – situations which are fraught with their own problems.²

Discrimination itself is only prohibited if the discrimination is based on a prohibited ground. Sections 5 and 6 of the Code lists the following specific grounds for employment and vocational associations:

Employment
(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (1); 1999, c. 6, s. 28 (5); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (5); 2012, c. 7, s. 4 (1).

Harassment in employment
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (2); 1999, c. 6, s. 28 (6); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (6); 2012, c. 7, s. 4 (2).

Vocational associations
6. Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

The OHRC position may be summarized as follows:

• A strict requirement of “Canadian experience” is prima facie discriminatory, and may only be used in rare circumstances; and
• The onus is on employers and regulatory bodies to show that a requirement of prior work experience in Canada is a bona fide requirement

As shown below, the OHRC position steps up developments in caselaw and other decisions by courts, human rights tribunals, labour arbitrators, and regulatory decision makers. In doing so, Ontario has become the first province to explicitly forbid, except in rare circumstances, requiring “Canadian experience” as a condition of hiring or for accreditation into a profession.

The OHRC position is based partly on the Supreme Court of Canada decision in Meiorin³, which set out a three-part test to determine when a job requirement which violates human rights legislation may be justified as a bona fide occupational requirement. A bona fide occupational requirement must have all of the following elements:

• The requirement was adopted for a purpose or goal that is rationally connected to the function being performed;
• It was adopted in good faith, in the belief that it is needed to fulfill the purpose or goal; and
• It is reasonably necessary to accomplish its purpose or goal, because it is impossible to accommodate the claimant without undue hardship.

Meiorin involved a complainant who was required to pass a uniform standardized firefighter test, imposed by the government three years after she was hired. She was unable to pass the fitness part of the test, which required her to run 2.5 kilometres in 11 minutes, and lost her job as a result. The court held that the fitness tests were discriminating and inadequate as a measure of ability, and the standards established did not take into account the differences between the physical abilities between men and women.

The Policy makes clear how the Human Rights Tribunal may be expected to deal with applications alleging discrimination based on a requirement for “Canadian experience”. The Policy is not binding on our courts. However, OHRC policies are nonetheless given judicial deference.

What does this Policy mean for employers and profession regulators? The law has already been developing in this area. However, the Policy creates more public awareness. As a result, there is an increased risk of applications to the Ontario Human Rights Tribunal for human rights violations based on “Canadian experience”, and therefore more vigilance required.

employers

The issue of “Canadian experience”, as opposed to foreign work experience, has already been legally considered in the employment context.

For instance, in Clarke Institute of Psychiatry v. O.N.A.⁴, the labour tribunal found that the Clarke Institute of Psychiatry did not recognize nurses’ years of experience outside of Canada when the experience was not from particular countries. This was used to calculate the salary grid level of the employee from the collective agreement. The tribunal held that the lack of recognition of experience from particular countries, in this case, Africa, amounted to discrimination based on country of origin or race. Of significance is that the Institute did not produce any rational or substantive explanation for devaluing experience from Africa.

Employers should also be cognizant that refusing a candidate with no Canadian experience, but extensive non-Canadian experience, on the basis that they are “over qualified” could also be found to be prohibited discrimination. The Canadian Human Rights Tribunal found in Sangha v. Mackenzie Valley Land & Water Board⁵ that an employer who applies a policy against hiring overqualified candidates is discriminating on prohibited grounds. The Tribunal found that visible minority immigrants are disproportionately excluded from higher rings of the job market, and therefore they apply to jobs where their qualifications exceed the job requirements. An employer who establishes a rule against hiring overqualified candidates, although neutral on its face, has a greater impact on the visible minority immigrant candidates. The Tribunal also noted that native-born candidates who are rejected because of over-qualification can seek other work suited to their resumes, but immigrants do not have this option.⁶

profession regulators

Of more significance is the impact that the Policy may have on the professions and their regulatory bodies. There are over 800,000 members of regulated professions in Ontario, and an increasing number of internationally trained and educated applicants.

Earlier this year, the Office of the Fairness Commissioner (Office), with authority created by legislation to oversee the registration practices of profession regulators, released a report “A Fair Way to Go: Access to Ontario’s Regulated Professions and the Need to Embrace Newcomers in the Global Economy”.⁷ Similar to the Policy, the Fairness Commissioner’s report also cites “Canadian experience” as a significant hurdle for all newcomers seeking registration into a regulated profession.

Since the establishment of the Office in 2007, there have been reductions in Canadian experience requirements in the licensing criteria for various professions.⁸ In 2011, out of 38 professions, 26 required work experience, of which 15 continued to require Canadian experience, including 6 that specifically required Ontario experience. These include architects, dieticians, engineers, foresters, general accountants, land surveyors, midwives, physicians and psychologists.

“Canadian experience” in the profession regulation context has also been considered.

In the case of Bitonti v. College of Physicians & Surgeons of British Columbia⁹, the College of Physicians & Surgeons split applicants for licenses to practise medicine into two categories. The first group, having been educated at medical schools in approved countries, was required to have 12 months of an internship at an approved hospital or two years of a residency program. The complainants belonged to the other group, all of whom were graduates of medical schools outside of selected countries. The latter group was required to have two years of post-graduate study, with one year of an internship in Canada. Those in the second group found it very difficult to obtain one year internships in Canada.

In deciding that the College’s practice was discriminatory, the Tribunal analyzed whether the requirement for Canadian experience had a correlation with a protected characteristic, and whether there was an underlying rationale for the rule. The Tribunal found that there was a lack of effort on the part of the College to consider foreign equivalencies,¹⁰ and that there were immediate assumptions based on the country where the medical training took place. The Tribunal also made several suggestions regarding appropriate assessment of foreign credentials.

Following the decision in Bitoni, the College of Physicians & Surgeons in Alberta was found not to have discriminated against an Israeli trained doctor whose application for specialist medicine certification was denied. He was required to pass a specialist certification process, and he failed the second assessment. His argument that the requirements were impossibly burdensome and virtually unattainable by foreign trained graduates was rejected. The Tribunal, in a decision in line with the reasoning in Bitoni, found that there was insufficient evidence that the speciality assessments were discriminatory. The Tribunal also found that the assessments and the six months of training were reasonable and necessary to protect patient safety.¹¹

The different outcomes in the two decisions are illustrative of the “best practices” espoused by the Policy. A test that focuses on the individual’s actual competencies will not be discriminatory, whereas qualification assessments that are based solely on where an individual obtained their work experience without further individualized considerations will likely be found to violate human rights.

conclusion

Given the OHRC release of the Policy, what should employers or regulators do?

The obvious answer is to consider eliminating “Canadian experience” as a requirement for a job or for accreditation purposes. However, where an employer or regulator considers that Canadian experience is essential to maintaining proper standards of performance, then it must be able to show that this requirement is bona fide and not related to any prohibited grounds of discrimination.

Alternatively, employers and regulators may modify the requirement of “Canadian experience”. One suggestion is rather than requiring Canadian work experience, the requirement could be a demonstrated knowledge of Canadian laws particular to the job or profession, and its industry codes of conduct, as applicable, and norms and standards.

Solutions which go beyond a strict requirement of “Canadian experience” will likely impose administrative burdens upon both employers and regulators, as each individual applicant’s work experiences will have to be assessed for foreign equivalencies and accommodation in the form of any additional training. Such individual as opposed to assessments based solely on a preference for education or experience from a particular country will likely be essential to avoiding successful claims of discrimination. The additional administrative burden related to such individual assessments are unlikely to meet the threshold of “undue hardship”.

Employers and regulators are also well-advised to maintain records of all applications, and the reasons why a particular applicant is rejected and another chosen. As shown by the case of Rafiq v. Scotia Capital¹², an applicant who was denied a sales position claimed discrimination because his resume contained non-Canadian experience and he was of Pakistani ethnic origin. There was no evidence of discrimination. The determining factor was that the applicant did not have the required prior sales experience. Scotia Capital also provided evidence that two other candidates for the same or similar advertisement had both non-Canadian (Pakistani) experience and sales experience, and were considered better candidates for a sales position.

There are difficulties foreseen with adherence to the Policy. For instance, one of the “best practices” suggestions in the Policy is not to “require applicants to disclose their country of origin or the location of their work experience on their job application form”. How are employers, or regulators, expected to assess or verify credentials or employment history, given the Policy recommendation against requiring such details?

As stated above, though judicial deference will be given to the Policy directive from the OHRC, the Policy is not binding on the courts. It remains to be seen what effect the Policy will ultimately have on employers and regulatory bodies who continue to maintain that “Canadian experience” is a bona fide requirement for employment or licensing.

Employers and regulators who use “Canadian experience” as a criteria for selection are in the meantime put on notice to modify their approaches to hiring and selection of job applicants, and their criteria for accreditation, or be prepared to justify it as a bona fide occupational requirement. They are also advised to seek legal advice on this important development.

Footnotes:

1. With the able assistance of Ke-Jia Chong, then an articling student at McMillan LLP. ↑
2. The OHRC conducted an online survey with more than 1000 respondents, including jobseekers, applicants for professional registration, and employers. The conclusion was that many newcomers end up volunteering or taking unpaid internships in order to meet the “Canadian experience” requirement. See also article: Lai-King Hum, “will work for free!”: employers, beware of offers of free work by unpaid interns, first published in McMillan LLP Employment and Labour Relations Group newsletter, and also in Mondaq and Lexology, July 23, 2013.↑
3. British Columbia (Public Service Employee Relations Commission) v. B.C..E.U., 149 D.L.R. (4^th) 261, 37 BCLR (3d) 317, 1999 CarswellBC 1907 (BCCA), aka Meiorin.↑
4. 2001 CarswellOn 2007, [2001] L.V.I.3193-10, 95 L.A.C. (4^th) 154.↑
5. Tribunal: 2006 CarswellNat 2219, 2006 CHRT 9; and Federal: 2007 CarswellNat 2710, 2007 FC 856.↑
6. Sangha (Tribunal), at para 202.↑
7. See http://www.fairnesscommissioner.ca/index_en.php?page=highlights/afairwaytogo. Faced with increasing numbers of applications from internationally trained and educated applicants for registration into the regulated professions, the role of the Office of the Fairness Commissioner was established by the Fair Access to Regulated Professions Act and Compulsory Trades Act, 2006 (FARPA). FARPA mandates transparency, objectivity, impartiality and fairness in the policies and procedures that regulators use to license applicants in their professions. As part of the Fairness Commissioner’s mandate to ensure that the registration practices of Ontario’s profession regulators are transparent, objective, impartial and fair, the Commissioner regularly audits profession regulators.
   ↑
8. The website for the Office of the Fairness Commissioner contains a list of Ontario’s professions and whether Canadian work experience is required: http://www.fairnesscommissioner.ca/index_en.php?page=about/current_projects/canadian_work_experience.↑
9. 1999 CarswellBC 3186.↑
10. Bitoni, at para 177.↑
11. Gersten v. College of Physicians & Surgeons of Alberta, 2004 AHRC 16 (CanLII).↑
12. 2010 HRTO 607.↑