September 18, 2011

Bitonti and White – Human rights considerations in the assessment of foreign applicants

Administrative Law
Human Rights
Professional Regulation
Registration and Fitness

Professional regulators are acutely aware nowadays of substantial equivalence issues in registration processes, given especially the emphasis of government on international mobility. For example, the B.C. Health Professions Act now expressly permits a college to pass a bylaw authorizing a registration committee to consider if a person’s knowledge, skill and abilities are “substantially equivalent” to the entry standards set by the college’s bylaws (s.19(1)(m.4)). The Health Professions Review Board has further interpreted such discretion as one to be exercised even where a bylaw sets out an apparently-mandatory practice requirement: HPRB Decision No. 2009-HPA-0033(a). In assessing substantial equivalence of skills with respect to foreign-trained applicants, however, regulators must take care to develop processes and impose requirements that do not, contrary to human rights law, unlawfully discriminate against applicants on the basis of ethnic origin.

The decision of the BC Human Rights Tribunal in Bitonti v. College of Physicians & Surgeons of British Columbia (1999) confirms that regulators must take the Human Rights Code into account when assessing foreign qualifications. The more recent Ontario Human Rights Tribunal decision in White v. National Accreditation Board further clarifies how a system of assessing the equivalency of foreign-training (in that case for purposes of granting “advance standing” to foreign-trained lawyers) may comply with human rights law. These cases together indicate any categorical treatment of applicants should always have a clear evidential basis, with an opportunity for applicants to establish equivalency.

1. Bitonti v. College of Physicians & Surgeons of British Columbia (1999)

This BC Human Rights Tribunal decision holds that when a regulator imposes additional requirements on particular categories of foreign applicants they can potentially fall afoul of the Human Rights Code by discriminating based on place of origin.

Bitonti involved five graduates of foreign medical schools that jointly filed a human rights complaint against the College of Physicians & Surgeons of British Columbia (the “College”) and various other institutions and employers related to their profession, alleging that the system for training and licensing medical practitioners in BC discriminated against graduates of medical schools of particular countries outside North America. The College’s Rules permitted foreign-trained doctors to obtain licensure by complying with certain requirements which were different as between “Category I” graduates of medical schools in various English-speaking countries and “Category II” graduates of medical schools from other countries. Category II graduates were required to complete two years of post-graduate training in a Category I country, while graduates of Category I schools were only required to complete one year of rotating internship or have completed specialty training.

No prima facie direct discrimination was found since the policy was aimed at place of training rather than place of origin. However, the Tribunal noted a high correlation between an applicant’s place of training and their place of origin and found a prima facie case of adverse effect discrimination on that basis, as Category II applicants had an additional burden placed on them that Category I applicants did not. In particular, the Tribunal took exception to broad assumptions that Category I graduates only required one year of post-graduate training in a designated country, whereas Category II graduates would require at least two. It was also noted that no mechanism was left for graduates from Category II to demonstrate the equivalency of their training to the standards demanded for Canadian doctors. [229] The Tribunal recognized the difficulties around determining equivalency of training, but found that the strict application of the College’s categorical requirements constituted discrimination on the basis of place of origin, and was not reasonably necessary. [235]

Bitonti v. College of Physicians & Surgeons of British Columbia, [1999] B.C.H.R.T.D. No. 60

2. White v. National Committee on Accreditation (2010)

In the 2010 decision of White v. National Committee on Accreditation, the Ontario Human Rights Tribunal discusses Bitonti and other relevant jurisprudence in ruling on when differential treatment of categories of foreign applications can be justified.

White involves the decision of a national committee set up to evaluate the equivalency of the legal training and professional experience of those with foreign legal credentials who are seeking admission to the Canadian common law bar, the National Committee on Accreditation (the “NCA” or the “Regulator”). The complainant was an applicant from Russia who alleged discrimination based on ethnic origin and place of origin with respect to the NCA’s decision to deny her the benefit of any equivalency for her Russian law degree and experience working as both a lawyer and a professor of international law within Russia.

In defending their decision, the NCA took the position that Bitonti was no longer good law on this issue, or was at least distinguishable based on a subsequent decision of the British Columbia Human Rights Tribunal in Agduma-Silongan v. University of British Columbia, [2003] B.C.H.D.T.D. No. 22, as well as a Charter challenge against the Law Society of Alberta (Veale v. Law Society of Alberta, [2001] A.J. 1535). In Agduma, UBC’s assessment of foreign credentials was challenged under the Code based on their differential treatment of the complainant’s education in the Philippines. The Tribunal distinguished the circumstances from Bitonti, however, on the basis that in that case the differential treatment was based on assumptions without any proven evidentiary basis whereas UBC’s policies were based on various resources regarding the merits of international education systems. In White, Ontario’s Tribunal found that similar to Agduma, the NCA’s categorical treatment of applicants was based on evidence from research and evaluation rather than simply assumptions. Ultimately, however, the Tribunal decided it did not need to resolve the difficult question of whether the assessment of foreign credentials to determine equivalency was prima facie discriminatory. Even assuming an adverse effect because of ethnic origin, the Tribunal found such adverse effect was justifiable, given (1) the standard was adopted for a rational purpose, (2) the standard was adopted in an honest and good faith belief that it was necessary, and (3) the standard was reasonably necessary to accomplishing the regulator’s purpose, or in other words, the regulator had made sufficient efforts to accommodate foreign-trained lawyers.

The Tribunal found the assessment was not based assumptions about the superiority of the Canadian legal system, but based on research and evaluation of the legal systems of other jurisdictions, and any applicant could demonstrate his or her legal training to be equivalent to some or all aspects of the training provided by a Canadian law school. [39] The applicant could not establish the regulator failed to adequately or appropriately consider the education and experience she obtained in Russia. [43] Accordingly, the regulator’s decision that the applicant did not qualify for advanced standing was not discriminatory. [45]

White v. National Committee on Accreditation, [2010] O.H.R.T.D. No. 1897