Registration and Substantial Equivalence: Inadequate Reasons

Many registration committees must exercise their discretion to assess substantial equivalence when considering aspects of an application for registration made by foreign applicants. In doing so, if committees reject applicants on the basis of a failure to meet substantially equivalent registration requirements then they need to provide sufficient reasons explaining why applicants’ qualifications are not substantially equivalent. It is not sufficient to conduct an assessment of substantial equivalence but then fail to explain why substantial equivalence was not met in the reasons.

The recent decision of the Ontario Superior of Court of Justice in Saba v. Ontario College of Teachers, 2012 ONSC 1734 provides an instructive example of where a regulator’s decision that a foreign applicant’s credentials and background were not substantially equivalent was found to be unsubstantiated and unreasonable.

The applicant, Ms. Saba, had immigrated from France to Ontario, where she applied to the College for registration. At the first instance, her application was rejected by the College Registrar, and this decision was upheld by the College’s Accreditation Committee (the “Committee”) in part, with registration again refused for Ms. Saba. As a result, Ms. Saba appealed the decision of the Committee to the courts.

Registration with the College is governed by Regulations under its enabling statute that set out three categories of requirements for internationally educated teachers: academic requirements, professional requirements and language requirements. Ms. Saba was able to satisfy the first and the last of these requirements by showing she held an acceptable post-secondary degree and she met the linguistic requirements to teach in Ontario. The Committee found, however, that she failed to meet the professional requirements of having “successfully completed a program of professional education that is acceptable to the College and not substantially different from a program accredited in Ontario” (para. 4). The Committee’s decision held that Ms. Saba would need to follow a one year teacher training program such as the Bachelor of Education program offered in Ontario before she could successfully gain registration.

The Committee’s reasons for rejecting Ms. Saba’s application focused on the fact that she had obtained her teaching certificate in France through a program of distance education. This was followed by an aptitude test that could only be taken once an aspiring teacher had three years of teaching experience, and following which an applicant underwent a one year teaching probationary period involving in class observation and an interview with an inspector from the French Ministry of Education.

The distance education program undertook by Ms. Saba was only one of two routes to obtain a teaching certificate in France, with the other route involving a program intergrated with French universities. The College had accepted applicants who had completed this second stream in the past, but the Committee was not satisfied that the distance education program was also equivalent, influenced by the fact that it did not lead to a diploma and the coursework took place online (para. 15).

The court recognized the discretion open to the Committee in making such a determination and reviewed the decision on a standard of reasonableness, taking into account the specialized knowledge and mandate of the Committee. Nevertheless, the court was satisfied that the decision of the Committee was not reasonable in the circumstances (para. 11).

The court noted that nothing in the Committee’s decision showed that they had considered Ms. Saba’s practical experience or reviewed the curriculum of the program she had undertaken, and there was no clear explanation of how this program failed to cover the substantive requirements required under the College’s Regulations (para. 18). The court noted that the Committee had asked Ms. Saba questions on these issues, as reflected in the transcript of their registration hearing, but their decision was silent on them. The issues of whether the program lead to a diploma, was offered online or as distance education, or was associated with a degree granting institution were found to be extraneous issues that did not justify the decision (para. 19). The Committee also failed to consider the three years teaching experience required under the French program, or its similarity to the other teaching program available in France that was considered by the College to be substantially equivalent to Ontario’s programs. On these bases, the court was satisfied that the decision was unreasonable and set it aside, referring the matter back to the Committee to be re-decided based on the substantive equivalency of the professional training Ms. Saba had received.

Saba v. Ontario College of Teachers, 2012 ONSC 1734