Keith v. Canada (Human Rights Commission)

Keith v. Canada (Human Rights Commission)
Court (s) Database
Federal Court Decisions
Date
2018-06-22
Neutral citation
2018 FC 645
File numbers
T-1773-17
Decision Content
Date: 20180622
Docket: T-1773-17
Citation: 2018 FC 645
Ottawa, Ontario, June 22, 2018
PRESENT: The Honourable Mr. Justice Brown
BETWEEN:
ARTHUR KEITH
Applicant
and
CANADIAN HUMAN RIGHTS COMMISSION
Respondent
and
CANADIAN ARMED FORCES
Respondent
JUDGMENT AND REASONS
I. Nature of the Matter
[1] This is an application for judicial review of a decision by the Canadian Human Rights Tribunal [the Tribunal] made on October 19, 2017. The Tribunal dismissed the Applicant’s complaint against the Canadian Armed Forces [CAF].
[2] The Applicant is an American-born and American-trained psychiatrist. The CAF requires its psychiatrists to be accredited by the Royal College of Physicians and Surgeons of Canada [RCPSC] whose accreditation is recognized across Canada. The Applicant unsuccessfully attempted to pass the RCPSC accreditation process; as a result, he is not accredited by the RCPSC. However, the Applicant has obtained recognition (as opposed to accreditation) in Ontario as a psychiatrist by the College of Physicians and Surgeons of Ontario [CPSO].
[3] The Applicant alleges that CAF’s requirement that its psychiatrists be accredited as specialists by the RCPSC discriminates on the grounds of “national origin” contrary to section 7 of the Canadian Human Rights Act, RSC 1985, c H-6 [the CHRA]. The Applicant also alleges that the RCPSC accreditation requirement is not a bona fide occupational requirement [BFOR] per paragraph 15(1)(a) of the CHRA.
[4] The Tribunal dismissed his complaint on both grounds.
[5] The Applicant submits that the CAF’s requirement of RCPSC accreditation precludes qualified specialists of non-Canadian origin – which he claims to be – from being considered for employment by the CAF. He also says it subjects him to discriminatory exclusion from employment opportunities, i.e., discrimination having an adverse effect.
[6] The Respondent’s position is that the CAF is made up of individuals who move from base-to-base across the country, and by adopting the RCPSC standard, the CAF ensures psychiatrists attending to CAF members and personnel meet a Canada-wide recognized standard for proficiency in psychiatry. The uncontested evidence was that the CAF needed to have a psychiatrist in one part of the country to be the same as – at least have a basic minimum similarity to a psychiatrist in any other part of the country. Continuity of and a common standard of psychiatric care was important to the CAF. The Respondent submits that the RCPSC accreditation requirement is not discriminatory, and in any event that it is a BFOR.
[7] For the following reasons the application is dismissed.
II. Background Facts
[8] The Applicant is an American-born physician who received his medical training and specialty training in psychiatric medicine in the U.S. He completed his residency in psychiatry in the U.S. in 1983. He was certified in the U.S. as a specialist in psychiatry by the American Board of Psychiatry and Neurology [ABPN] in 1987. He was a physician with the U.S. Armed Forces from 1979 until 1986.
[9] In 1988, he moved to Canada. In 1991, he became a permanent resident and in 1995, he obtained Canadian citizenship.
A. Applicant’s attempt to obtain RCPSC accreditation
[10] In 1989, while residing in the U.S., and in an effort to obtain Canadian recognition in psychiatry, the Applicant applied to the RCPSC for accreditation (also known as fellowship) as a specialist in psychiatry. At that time, the RCPSC was the only entity in Canada to grant specialist accreditation. The Applicant did not reside in Canada nor was he seeking employment with the CAF at that time.
[11] The RCPSC recognized most of the Applicant’s American training. However, it determined he needed to take three extra steps to be accredited: (1) to pass a written examination; (2) to complete a six-month residency in child psychiatry; and (3) to pass an oral examination in psychiatry.
[12] He passed the written exam component of the RCPSC process on his second attempt. He completed the required child psychiatry residency.
[13] However, while the Applicant undertook the oral exam in psychiatry on three separate occasions, he was unsuccessful each time. After his third attempt, his eligibility for the oral examination expired. To complete the oral examination and by extension, to become RCPSC-accredited, he needed to apply to the Credentials Committee of the RCPSC to renew his eligibility. This he chose not to do.
B. Applicant’s work in Ontario and dealings with the CPSO
[14] In 1992, the Applicant obtained a general medical licence to practice medicine as a non-specialist in Ontario from the CPSO. At that time, the CPSO, as Ontario’s medical licensing body relied exclusively on specialist certification conferred by the RCPSC to grant specialist recognition, which the Applicant did not have.
[15] From 1993 to 1998, the Applicant worked in Ontario as a staff psychiatrist and forensic psychiatrist in health care facilities that did not require RCPSC specialist accreditation.
[16] After a further period of practice in the U.S., the Applicant returned to Ontario in 2003, where he again worked as a psychiatrist. He continued doing this sort of work until he retired in 2015.
[17] In 2004, the Applicant sought to be recognized as a psychiatrist by the CPSO. At that time, the CPSO was working towards establishing a mechanism for “recognizing” (not “accrediting” as is the case with the RCPSC) foreign-trained medical doctor specialists without requiring them to be accredited by the RCPSC.
[18] In 2007, the Applicant obtained specialist recognition in psychiatry from the CPSO through a “functional assessment” procedure designed for foreign-trained specialists like the Applicant. He was one of the first to obtain such recognition. Further particulars of the CPSO are provided starting at paragraph 32 of these Reasons.
[19] Notably, the new CPSO process did not involve passing exams as required by the RCPSC.
[20] It is also worth noting that, according to the Applicant, the ABPN certification process he underwent to assess his competence in psychiatry in the U.S. was based on examinations similar to the RCPSC accreditation process.
[21] At all material times, CPSO specialist recognition was not accepted by all provinces, nor was any other provincial recognition of specialists accepted by all provinces.
[22] On the other hand, RCPSC specialist accreditation in psychiatry was recognized across Canada.
[23] The Tribunal found that CPSO specialist recognition was not equivalent to accreditation by the RCPSC:
The CPSO specialist status is not equivalent to a fellowship with the RCPSC. The CPSO register provides doctor-specific information about physicians in Ontario, including whether a physician is a specialist and the body that accredited the physician’s specialty.
III. The RCPSC and the CPSO
A. The RCPSC
[24] At the time of the Applicant’s complaint to the Tribunal, physicians in Ontario could obtain specialist recognition in two ways: (1) specialist accreditation (fellowship) with the RCPSC, or (2) specialist recognition by CPSO. For completeness, there is a third method for family physicians available from the College of Family Physicians of Canada; it is not relevant to this application.
[25] The nature and scope of recognition by the RCPSC and CPSO differ.
[26] The RCPSC is the national body that accredits specialists across Canada in all branches of medicine and surgery. A physician accredited as a specialist by the RCPSC is recognized as such across Canada.
[27] The RCPSC also had responsibility for accrediting university programs that trained physicians for their specialty practices across Canada. The RCPSC administered oral and written exams to obtain RCPSC accreditation, accredited residency programs at medical schools across Canada, and ensured that the training and evaluation of medical and surgical specialists met appropriate standards. Upon completion of postgraduate medical education, all physicians in Canada were required to write the RCPSC certifying examinations in order to become specialists.
[28] As noted above, when the Applicant applied to the CAF, the recruiting standard in force required psychiatrists to have RCPSC accreditation in psychiatry. However, there was an exception for those accredited by the Collège des Médecins du Québec [the CMQ]. The CAF accepted CMQ accreditation because the CMQ differed from other provincial licensing bodies: the CMQ encompasses both a licensing body and a certification body. Importantly, the CMQ and RCPSC harmonized their respective requirements for accreditation/certification.
[29] When the Applicant applied for RCPSC accreditation in 1989, all physicians, regardless of their national origin or where they received their training, were required to take the standardized RCPSC written and oral examinations to be accredited. It was the oral component of these standardized RCPSC examinations in psychiatry that the Applicant failed to pass on three occasions.
[30] The same situation prevailed when the Applicant unsuccessfully applied to the CAF in 2008, which application led to his complaint to the Tribunal at issue today: all physicians, regardless of their national origin or where they received their training, were required to take the standardized RCPSC written and oral examinations to become accredited with the RCPSC.
[31] In 2010, the RCPSC created a new practice eligibility route to accreditation for those physicians whose training was not recognized and who could not access the regular accreditation examinations. Under this new process, the RCPSC would perform a practice-based assessment of a physician to determine if he or she should be recognized as a specialist. However, the Applicant has not attempted to avail himself of this new way to obtain RCPSC accreditation.
B. The CPSO
[32] The CPSO is the provincial governing body that regulates the practice of medicine in Ontario. I should note that the practice of medicine is a matter of provincial jurisdiction. The CPSO issues certificates of registration to physicians, allowing them to practice medicine. However, without agreement with another jurisdiction, CPSO certificates are only valid in Ontario. More generally, medical certificates or licences to practice medicine issued by any province of Canada are not automatically transferrable between all provinces.
[33] The CPSO also recognizes areas of specialization in Ontario, such as psychiatry. Since the regulation of medicine in Canada is a provincial matter, once again CPSO recognition is only valid in Ontario, unless another province agrees to adopt or accept CSPO’s recognition; not all do.
[34] In addition, the CPSO maintains provincial standards of practice, investigates physician-related complaints by patients, and is responsible for discipline matters involving physicians who have committed misconduct.
[35] In 2004, the CPSO adopted a new individual “functional assessment” comprised of a physician-specific and occupation-based assessment to recognize specialists who were unable to pass the RCPSC’s requirements, including those whose foreign training was not recognized by the RCPSC, and those who, like the Applicant could not pass part, or all, of the RCPSC’s examinations.
[36] Some other provinces also developed functional assessments for specialist recognition. However, when the Applicant went through the CPSO recognition process, the provinces had not standardized these assessments, and the specialist recognition process in one province was not automatically recognized in another.
[37] As noted, the Applicant was recognized as a specialist by CPSO in 2007 under its “functional assessment” policy. This procedure consisted of CPSO reviewing the Applicant’s education, training, experience and foreign certification. It also involved input by survey from his supervisor and colleagues together with an in-person, on-site practice assessment. The CPSO’s functional assessments did not involve oral or written examinations, a difference between CPSO recognition and RCPSC accreditation.
[38] The Applicant passed the CPSO functional assessment procedure; he was therefore recognized in Ontario as a specialist in psychiatry. Such CPSO recognition entitled him to practice as a specialist in psychiatry in Ontario and in some other provinces on the same basis as RCPSC-accredited specialists.
IV. The Applicant’s Application for Employment to the CAF
[39] Calian Ltd. [Calian] is a corporate contractor that provides health service professionals to the CAF. It does this by recruiting, hiring and managing qualified health service providers. However, it is the CAF, not Calian that determines job requirements for CAF positions. The CAF selects successful candidates from among those identified by Calian.
[40] Within this context, the CAF tasked Calian to recruit civilian psychiatrists at two CAF bases in Canada: one in Cold Lake, Alberta and the other in Petawawa, Ontario. For both positions, the CAF required the successful recruit to be accredited in psychiatry by the RCPSC.
[41] In early 2008, the Applicant applied for both positions, notwithstanding he lacked the required RCPSC accreditation in psychiatry. He knew he needed RCPSC accreditation, and knew he did not have it. His position was – and is – that the CAF’s RCPSC accreditation requirement contravenes the CHRA such that he did not have to comply with it.
[42] The Applicant was informed by Calian recruiters that Calian would hire him if his credentials were acceptable to the Department of National Defence. Calian presented the Applicant’s candidacy to the CAF notwithstanding the Applicant lacked RCPSC accreditation. Calian recruiting staff asked the CAF to waive the RCPSC accreditation requirement for the Applicant.
[43] In this connection, numerous emails were sent by Calian’s Deputy Program Manager to the CAF in support of the Applicant’s application. On July 15, 2008, senior Calian staff met with one Major Tremblay of the CAF to discuss the Applicant’s candidacy.
[44] However, the CAF declined to exempt the Applicant from the required RCPSC accreditation in psychiatry. Colonel Boddam, Ret., CAF’s practice leader for Psychiatry and Mental Health, considered the Applicant’s candidacy, but determined the Applicant did not meet the requirements of the position because he did not have RCPSC certification in psychiatry as the posting required. In August 2008, the Applicant was informed by Calian that his application would not proceed further because he did not have the required RCPSC accreditation for the positions.
V. Applicant’s Litigation History
A. Against the CPSO
[45] In December 2008, the Applicant filed an application with Ontario’s Human Rights Tribunal [the HRTO] pursuant to section 34 of Ontario’s Human Rights Code, RSO 1990, c H 19 against the CPSO, alleging that certain actions by the CPSO amounted to discrimination on the grounds of place of origin and citizenship.
[46] The Applicant alleged that CPSO’s failure to individually assess his qualification as a specialist between 1992 and 2007 and its reliance on specialist accreditation by the RCPSC amounted to discrimination on the grounds of place of origin and citizenship because it undervalued his American training. By an interim decision, the HRTO held that the allegations relating to the pre-2007 conduct were untimely and could not be heard: Keith v College of Physicians and Surgeons of Ontario, 2010 HRTO 2310.
[47] In Keith v College of Physicians and Surgeons of Ontario, 2013 HRTO 1646, the Applicant took issue with a public register maintained by the CPSO which provides doctor-specific information about physicians in Ontario, including whether the physician is a specialist and the body that accredited the physician’s speciality. In the Applicant’s submission to the HRTO, he alleged the CPSO register discriminated against CPSO specialists on the basis of place of origin because most CPSO specialists are foreign-trained. The HRTO dismissed his complaint; it concluded the distinction on the register between RCPSC and CPSO specialists was not discriminatory in that there was no evidence it resulted in any adverse treatment or disadvantage. The Applicant did not appeal.
B. Complaints under the CHRA
[48] The Applicant also applied to the Canadian Human Rights Commission [the Commission] for relief. In February 2009, he filed an amended complaint against the CAF alleging discrimination on the basis of national origin. The Commission undertook an investigation and dismissed the complaint for want of jurisdiction. The Commission simultaneously dismissed a similar complaint the Applicant had made against Correctional Service Canada [CSC]. Both the CSC and CAF required RCPSC accreditation for psychiatrists they hire; the Applicant was turned down by both because he lacked RCPSC certification, and notwithstanding by then he had CPSO recognition.
[49] The Applicant sought judicial review of both Commission decisions. In 2011, Justice O’Reilly dismissed both applications. In doing so, Justice O’Reilly found the Commission was correct to conclude that the Applicant’s “quarrel” was against the RCPSC and not the CAF. As a result, Justice O’Reilly concluded the Commission was without jurisdiction to investigate the Applicant’s complaint against the CAF: Keith v Canada (Correctional Service), 2011 FC 690.
[50] In 2012, the Federal Court of Appeal upheld Justice O’Reilly’s decision in respect of the CSC. However, the Federal Court of Appeal allowed the Applicant’s appeal in respect of his complaint against the CAF. Per Mainville JA, it concluded the Commission did have jurisdiction to consider the Applicant’s complaint against CAF: see para 81 of Keith v Canada (Correctional Service), 2012 FCA 117:
[81] I am however well aware that in light of the findings of the Commission leading to the dismissal of the complaint against the Correctional Service, the investigation of the complaint against the Canadian Forces may be somewhat supererogatory. However, the Commission must be held to its very conscious choice of treating both complaints separately under distinct statutory processes. The Commission was well aware that both complaints were pending before it, but chose to treat them separately. For some unknown reason, it did not rely on the evidence gathered in its investigation of the complaint against the Correctional Service for the purpose of deciding the complaint against the Canadian Forces.
[51] Hence, the Applicant’s complaint was returned to the Commission. In 2013, the Commission referred his complaint against the CAF to the Tribunal. The Tribunal conducted an inquiry and held an eight-day hearing. Having considered the matter, the Tribunal dismissed the Applicant’s complaint in October 2017. This decision is the subject of the current application for judicial review.
VI. Decision
[52] The Tribunal concluded that the CAF’s hiring practice did not discriminate on the grounds of national origin. It also concluded, in obiter, that the CAF’s hiring practice was a BFOR. The Tribunal dismissed the Applicant’s complaint.
VII. Issues
[53] The Applicant submits the following issues for determination:
(1) Did the Tribunal err in its assessment of discrimination by:
a) Misapprehending the law and misapplying it to the facts to find that the Applicant’s foreign education and training did not serve as a proxy for the protected ground of national origin (i.e. place of origin);
b) Taking a formal (sic) equality approach and making determinate errors of fact to rule out adverse impact; and
c) Improperly inferring intention into the contribution leg of the prima facie analysis?
(2) Did the Tribunal err in its application of the BFOR test by failing to properly apply the Meiorin analysis and by relying on evidence that could not reasonably lead to a finding of undue hardship?
(3) Did the Tribunal breach the applicant’s right to procedural fairness by holding it against the Applicant that no evidence was led on whether the RCPSC certification is discriminatory when this issue was not properly before it?
[54] In my view, there are two determinative issues:
(1) Whether the Tribunal acted reasonably in finding that the CAF’s requirement that all psychiatrist practitioners be RCPSC accredited was not prima facie discriminatory.
(2) Whether the Tribunal breached procedural fairness.
VIII. Standard of Review
[55] In Dunsmuir v New Brunswick, 2008 SCC 9 at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a standard of review analysis is unnecessary where “the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.” The Federal Court of Appeal has also confirmed that reasonableness is the standard of review for decisions of the Tribunal involving interpretation of its home statute: Adamson v Canada (Human Rights Commission), 2015 FCA 153 at para 30, and more generally, see Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 at para 27. Reasonableness is the standard of review for the first issue.
[56] In Dunsmuir at para 47, the Supreme Court of Canada explained what is required of a court reviewing on the reasonableness standard of review:
… A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[57] When reviewing for reasonableness, this Court should only interfere if the Tribunal’s conclusions fall outside the range of possible and acceptable outcomes that are defensible on the facts and law. As a result, there may be multiple possible outcomes that meet the Dunsmuir standard for reasonableness. In addition, it is well-established that on judicial review, courts must refrain from reweighing and reassessing the evidence considered by the decision maker: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 64.
[58] In this connection, the Tribunal has considerable and specialized expertise. As such the Tribunal’s decision is entitled to “considerable deference”: Stewart v Elk Valley Coal Corp, 2017 SCC 30 at para 20. Tribunal decisions come to this Court on judicial review are not de novo hearings.
[59] A Tribunal under the CHRA is charged with weighing and assessing the evidence. The Supreme Court of Canada has ruled that Tribunals such as this have the “mandate and expertise to make factual findings relating to discrimination”: Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at para 25. See also Lévis (City) v Fraternité des policiers de Lévis Inc., 2007 SCC 14 at para 112.
[60] As to questions of procedural fairness, Tribunal decisions are reviewed on the correctness standard: Mission Institution v Khela, 2014 SCC 24 at para 79. In Dunsmuir at para 50, the Supreme Court of Canada explained what is required of a court reviewing on the correctness standard of review:
… When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.
[61] The Supreme Court of Canada also instructs that judicial review is not a line-by-line treasure hunt for errors; the decision should be approached as an organic whole: Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34. Further, a reviewing court must determine whether the decision, viewed as a whole in the context of the record, is reasonable: Construction Labour Relations v Driver Iron Inc, 2012 SCC 65; see also Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62.
IX. Analysis
A. Issue 1 – Tribunal’s Application of the Moore Test for prima facie discrimination
[62] The Supreme Court of Canada sets out the test for prima facie discrimination in Moore v British Columbia (Education), 2012 SCC 61 [Moore], which is the controlling authority at para 33:
[33] As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.
[63] I will deal with the three-part test one part at a time.
(1) Did the Applicant, as required, show that he had a characteristic protected from discrimination under the CHRA?
[64] The Tribunal correctly relied on Moore for its test for prima facie discrimination.
[65] I did not hear the Applicant argue he was discriminated on the basis of his national origin as such (per se). National origin is a prohibited ground of discrimination under subsection 3(1) of the CHRA:
Prohibited grounds of discrimination
Motifs de distinction illicite
3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
3 (1) Pour l’application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe, l’orientation sexuelle, l’identité ou l’expression de genre, l’état matrimonial, la situation de famille, les caractéristiques génétiques, l’état de personne graciée ou la déficience.
[Emphasis added.]
[Je souligne.]
[66] Instead, the Applicant submitted he was discriminated against on the basis of his education, which, he submits, serves as a proxy for the prohibited ground of “national origin” discrimination.
[67] The Tribunal subscribed to the discussion of origin of education as a proxy for “place of origin” (“national origin” in the CHRA context) found in Grover v Alberta (Human Rights Commission), [1996] AJ No. 667 (Alta QB), aff’d 1999 ABCA 240 [Grover]. The Tribunal stated:
[46] I subscribe to the opinion expressed in Grover v Alberta (Human Rights Commission), [1996] AJ No. 667 (Alta QB) and affirmed [1998] AJ No 924 (Alta CA) in discussing origin of education as an extension of “place of origin”, the Court stated at paragraphs 47-48 that “it must give a fair, liberal but faithful interpretation to the phrase “place of origin’. That phrase – place of origin of a person – cannot be stretched to include the place where a person received their PhD degree”.
[68] While the Applicant criticizes Grover and the Tribunal’s acceptance of it, I find Grover is useful; I take it to establish a starting point in the Moore analysis. In other words, to determine if a complainant has a characteristic that is protected against discrimination, one first looks at the statute – in this case the CHRA. I am not persuaded this was an objectionable or unreasonable approach to interpreting the Tribunal’s home statute.
[69] Therefore, the inquiry in this case should focus on “national origin” or, where that is not made out, on a proxy for “national origin.” That is what the Tribunal did; the process is defensible. The Tribunal agreed, saying at para 45 that “the extension of ‘place of origin’ to include place of foreign education may be appropriate in some circumstances.”
[70] To the point of the reference to Grover, the CHRA does not prohibit discrimination on the ground of country of education; there is no basis to criticize the Tribunal’s finding in this regard which makes the same point:
… One cannot automatically apply the principal that foreign education is an extension of foreign birth. It is not absolute; otherwise it would also be a separate heading for discrimination under the CHRA. While the Tribunal has wide discretion in interpretation, it is entitled to limit what otherwise might apply in a case of dissimilar facts.
[71] While the Applicant argued before the Tribunal that his American medical education was an accepted proxy for “place of origin”, the Tribunal disagreed. The Tribunal did not accept that “merely born and educated outside of Canada” leads to discrimination having an adverse impact and is therefore “automatically protected” under the CHRA on the record in this case. In my view this inquiry must be both context and fact-dependent, and it was in this case.
[72] The Tribunal in this connection, and appropriately in my view, turned to the evidence. On the record, the Tribunal did not accept the Applicant’s submission that his U.S. education served as a proxy for national origin. The Tribunal referred to Bitonti v College of Physicians & Surgeons of British Columbia, [1999] BC HRTD No. 60 [Bitonti]. The Tribunal stated at para 44:
[44] I do agree that one’s place of origin, may well serve as an appropriate ground for finding discrimination in the work force and in society as a whole, and therefore an appropriate prohibition under the CHRA. However, I do not subscribe to the theory that merely born and educated outside of Canada leads to discrimination having an adverse impact and therefore automatically protected under the CHRA.
[45] While the extension of “place of origin” to include place of foreign education may be appropriate in some circumstances, such as educational degrees from some third world university. I agree that automatic extension of the definition of “place of origin” was not the intention of Bitonti, and the finding expressed in Fazil is the proper interpretation. There was no evidence before the Canadian Human Rights Tribunal (“Tribunal”) that RCPSC certification process was more onerous due to Dr. Keith’s American birth and education.
[Emphasis added.]
[73] I am unable to fault the reasonableness of this finding. To put it in context, the Applicant took the position before the Tribunal that: “[H]uman rights jurisprudence has consistently held that place of training is a proxy for place of origin” (see paragraph 134 of the Applicant’s Submissions to Tribunal).
[74] With the greatest respect, this submission by the Applicant was not well-founded when he made it to the Tribunal. And, it is less well-founded now.
[75] While the Applicant cited Bitonti as authority for this submission to the Tribunal, a review of Bitonti confirms that the British Columbia Human Rights Tribunal [BCHRT] did not make the finding the Applicant attributed to it. Instead, the conclusion in Bitonti was based on the case before it, which included statistical data. In Bitonti, the BCHRT reasonably stated at para 145 that it was for the tribunal, “to give such weight and draw such inferences from [the evidence] as I find appropriate in the circumstances.” The BCHRT’s conclusion in Bitonti, at para 147 was that, based on the evidence before it, “the correlation between place of origin and place of graduation is high.” In other words, the Tribunal only reached the conclusion that there was high correlation after it considered and analysed the evidence before it.
[76] In this connection, the Applicant also drew the Tribunal’s attention to Mihaly v The Association of Professional Engineers, Geologists and Geophysicists of Alberta, 2014 AHRC 1 [Mihaly Tribunal]. In Mihaly Tribunal the Alberta Tribunal held at para 171, “on these facts”, i.e., on the evidence before it, that the complainant’s educational credentials were a “proxy for [his] place of origin”. However, the Mihaly Tribunal decision was set aside on appeal: The Association of Professional Engineers, Geologists and Geophysicists of Alberta v Mihaly, 2016 ABQB 61 [Mihaly Queen’s Bench]. Mihaly Tribunal thought the complainant faced discrimination because as a foreign-trained engineer from a non-accredited engineering program, he was required to meet more onerous standards than those from accredited engineering programs. To the contrary, Mihaly Queen’s Bench ruled there was no discrimination where a requirement to take and pass exams applied to all individuals wishing to be registered as professional engineers, regardless of where they were educated or whether they graduated from an accredited engineering program.
[77] Of particular relevance to the case at bar, Mihaly Queen’s Bench held, at para 106: “[w]hile there was evidence that Mr. Mihaly failed the [NPPE] examination three times, there was no evidence that this was in any way related to his place of origin.”
[78] I note the importance of considering and analysing the evidence before the Tribunal to determine the first step of Moore: whether or not a complainant has a characteristic protected from discrimination under the CHRA.
[79] As stated in para 45 of the Tribunal’s Decision, quoted at paragraph 72 above, the Tribunal in the present case agreed with the interpretation of the first part of the Moore analysis set out in Fazli v National Dental Examination Board of Canada, 2014 HRTO 1326 [Fazli]. In Fazli, an Afghanistan-trained dentist failed to meet the respondent’s requirements for certification. He alleged discrimination because of place of origin, a prohibited ground, relying on education as a proxy. Mr. Fazli’s application was dismissed by the Tribunal. The Tribunal considered the evidence, and concluded Mr. Fazli had not “established any differential and disadvantageous treatment that he may have experienced as a result of having graduated from a non-accredited dental program constituted discrimination against the applicant based on his place or origin.”
[80] At paras 37-40, the Tribunal in Fazli, found:
[37] To the extent that graduates from non-accredited dental programs experience any disadvantage in the respondent’s system, the respondent submits and I agree that such disadvantage is linked to the individuals’ place of study or training, not their place of origin. Place of study or training is not a prohibited ground of discrimination under the Code. Neiznanski v. University of Toronto, (1995) 24 CHRR D/187 at para. 49 and 50, as cited in Durakovic v. Canadian Architectural Certification Board, 2011 HRTO 333 (CanLII).
[38] To be fair, the applicant acknowledges this. However, he submits that place of training can be a proxy for place of origin, because people tend to get training in their place of origin. Neiznanski, above; Mihaly v. The Association of Professional Engineers, Geologists and Geophysicists of Alberta, 2014 AHRC 1 (CanLII).
[39] In circumstances where more onerous certification or licensing requirements are imposed based on negative assumptions about an individual’s place of training, it may be appropriate to find discrimination based on place of origin. For example, in [Bitonti], a case heavily relied upon by the applicant, the BC Human Rights Tribunal found that it was discriminatory for the BC College of Physicians and Surgeons to give preferential treatment to medical school graduates from Canada, the United States, Great Britain, Ireland, Australia, New Zealand and South Africa, as compared to medical school graduates from anywhere else in the world, based on assumptions about the merits of the British medical education system in place in those countries, as opposed to actual knowledge.
[40] In the case at hand, however, the evidence does not establish that the respondent imposed more onerous certification requirements on the applicant based on any assumptions about Afghanistan or any other countries.
[Emphasis added.]
[81] I make three observations regarding Fazli. First, Fazli, as with the Tribunal decision before this Court, was fact-based. Second, Fazli properly recognizes that place of education may – not always or consistently – be a proxy for place of origin, such that discrimination based on place of education may be a proxy for and thus support a complaint based on discrimination on national origin. There is no disagreement with this.
[82] The third point from Fazli is its general proposition that place of education may be a proxy for national origin discrimination, if more onerous certification or licensing requirements are imposed on certain groups of individuals, particularly if those more onerous requirements are based on negative assumptions about the group’s place of training.
[83] The Tribunal adopted this approach, and in doing so found against the Applicant. The Tribunal concluded, at para 45, that “[T]here was no evidence before the Canadian Human Rights Tribunal (“Tribunal”) that RCPSC certification process was more onerous due to Dr. Keith’s American birth and education.” In other words, the Applicant failed to establish the first part of the Moore test. In my view this was neither an unreasonable assessment of the evidence nor an unreasonable approach to the interpretation of its home statute.
[84] The Tribunal also concluded that the Applicant provided no evidence that his ABPN certification was inferior to the RCPSC accreditation. Had there been such a finding it might have created the proxy between place of origin and place of education, but that was not the evidence:
[47] I do not accept that the policy of the CAF requiring RCPSC certification was based on discriminatory assumptions and no evidence was provided to the Tribunal that Dr. Keith’s ABPN and certification was inferior to RCPSC certification and therefore creating the extension of “place of origin” with “place of education”. Dr. Keith argued that they were substantially similar.
[48] Further if place of training is to serve as a proxy for place of origin, then the emphasis, must be on the place of training to extend the place of origin to include place of training. No evidence was advanced by the Complainant that American trained physicians are substantially of American origin, therefore equating American trained as therefore American or therefore foreign trained.
[85] The Tribunal ruled:
[51] The CAF required all medical applicants to pass and acquire the RCPSC credentials. Similar to Mihaly [Alberta Court of Queen’s Bench], the Complainant did not provide any compelling evidence that his national origin was a factor in any disadvantage that he may have had obtaining RCPSC certification.
[...]
[53] Whether Canadian born or foreign born, the CAF required all doctors to be certified by the RCPSC. The Respondent Counsel correctly, in my view, stated that there was no evidence that the requirement to take the RCPSC certification was in any way related to place of origin. Whether he was Canadian, American or other, CAF required the same qualification.
[54] I found no compelling evidence that Dr. Keith was treated differentially as a result of his educational qualification from any other party as a result of being American. I do not find that his place of origin resulted in an adverse effect on his ability to