Canadian HR Reporter

February 22, 2016

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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CANADIAN HR REPORTER February 22, 2016 2 NEWS Recent stories posted on Check the website daily for quick news hits from across Canada and around the world. WEB O N T H E ACROSS CANADA BlackBerry cuts 200 staff in Ontario, Florida But 'actively recruiting in areas of business that drive growth' Jobless rate hits 2-year high, but trade outlook improves Unemployment rate 7.2 per cent Canada faces 'economic crisis' if gender employment divide remains Women can expect to lose more than five jobs for each one gained: Report Suncor CEO: 1,700 jobs cut in 2015, company 'overachieved' on cost-cutting No more layoffs anticipated this Trudeau commits to fast-tracking $700M in building money to struggling Alberta Premier pushes for changes to EI B.C. union joins First Nations vowing to use law to fight pipelines BCGEU signs declaration in opposition of Northern Gateway Alberta company sentenced to community service after worker injured Executive to serve 200 hours after worker paralyzed AROUND THE WORLD Chinese, Brazilian economies seen stabilizing: OECD 'Tentative signs of stabilization' Applications for U.S. jobless aid rise, but levels still low Numbers suggest employers holding onto workers, looking to hire Wisconsin firm terminates Muslim workers in prayer dispute Seven terminated, 14 resign out of 53 German jobless rate falls to lowest level on record Factors include favourable economic conditions, influx of foreign workers Unpaid and angry, Chinese workers ditch holidays to protest Looking for one year's wages Behind the scenes at HRPA 2016 Ever wonder what your Canadian HR Reporter editors are up to? Check out this behind-the-scenes look at what we do at the annual HRPA conference FEATURED VIDEO Professional regulators relieved by Alberta court's reversal of ruling Tribunal's 2014 decision could have impacted recognition of IEPs BY SARAH DOBSON A RECENT ruling out of Alberta may not have made big headlines but if the appeal had not reversed an earlier ruling, it could have affected professional regulators such as the Human Resources Professionals Association (HRPA) in Ontario or the Ordre des re- sources humaines agréés in Que- bec (CRHA). e Court of Queen's Bench of Alberta reversed a 2014 ruling by the province's human rights tribu- nal that found the Association of Professional Engineers and Geo- scientists of Alberta (APEGA) discriminated against a foreign- trained man who wanted to work as an engineer. Ladislav Mihaly felt the regulator's request that he write confirmatory examinations discriminated against him based on his place of origin, the Slovak Republic. e recent decision is a massive relief for regulators, said James Casey, managing partner at Field Law in Edmonton who represent- ed APEGA in the recent decision. "It's a return to common sense and recognizes the important role of regulators in ensuring public safety. We all want internationally trained professionals with entry- level qualifications to get regis- tered and recognized in Canada but, at the same time, regulators cannot be hamstrung in ensur- ing that they have the entry-level qualifications." The tribunal over-reached a bit in its 2009 ruling, said Claude Balthazard, vice-president of regulatory affairs and registrar at HRPA in Toronto. "The reason (this decision) made so much noise was that it was so far out there and would, if it had held, would have had fair implications for all professional regulators." The case called into doubt whether regulators could use sys- tems of standardized testing to determine whether internation- ally trained professionals have en- try-level competence, said Casey. "e best way to facilitate the recognition of foreign-trained professionals' qualifications in Canada is to develop standard- ized tests that are accessible and at a reasonable cost… so it's very important to regulators that the Court of Queen's Bench did not find that process to be ob- jectionable and found it to be non-discriminatory." The decision reaffirmed that having different registration re- quirements for Canadian-trained applicants and non-Canadian- trained applicants isn't in itself dis- criminatory — as long as the dis- tinctions are justified, said Rebecca Durcan, a partner at Steinecke Maciura LeBlanc in Toronto and HRPA's regulatory counsel. "And that's going to be key — every regulator is going to have to say, 'OK, if we are asking for different requirements, we have to explain why we're doing this, why is this necessary.' If it's simply based on assumptions, 'Oh, well, we don't think they are as good as Canada,' that's not going to hold water because that's not fair to an applicant from a non-Canadian jurisdiction." e court's decision confirms that APEGA's registration pro- cesses are fair, equitable and transparent, said Philip Mulder, director of communications at APEGA. And if the tribunal's decision had stuck, "it had the potential to have a significant impact in a number of areas, including bud- getary but also human resources and I think our ability to act as a regulator, would have been signifi- cantly affected," he said. Background Mihaly applied to APEGA for reg- istration as a professional engineer in 1999. But the association said he had to write a National Profes- sional Practice Exam (NPPE) and, upon passing, three confirmatory exams along with taking a course or an equivalent exam. Over the next couple of years, Mihaly failed three times at pass- ing the NPPE while continuing to press for greater recognition of his credentials and experience. In looking at all the evidence and hearing from witnesses, the Human Rights Tribunals of Alberta determined "certain re- quirements for licensure made of Mr. Mihaly perpetuated disadvan- tage, thus constituting substantive discrimination." In looking at the approved for- eign degree list used by APEGA, the tribunal said it was "a poor substitute for directly assessing the education of IEGs (inter- natinoal engineering graduates) who come from many different countries." As for the exams, they take a one-size-fits-all approach, said the tribunal, which does not usu- ally comment on its cases, ac- cording to Ritu Khullar, managing partner at Chivers Carpenter in Edmonton, who represented the commission in this case. In the end, the tribunal felt the association should explore other ways to evaluate IEGs that are less discriminatory and put a priority on accommodation, rather than placing barriers. In addition to $10,000 awarded in general damages for Mihaly, the court made several orders, includ- ing directing APEGA to review his transcripts and experience in di- rect consultation with the Czech schools, establish a committee to explore individual assessment options and match Mihaly with a mentor. Appeal reverses decision But the Alberta court found the findings of discrimination were not supported by the evidence. "e distinction between ac- credited or equivalent programs and other programs is not based on assumptions but on knowl- edge about the programs. When APEGA distinguishes between graduates of known and tested en- gineering programs as compared with graduates of relatively un- known programs, it is not assum- ing that the latter have inferior academic qualifications. Equally, it is not assuming that they have a substantially equivalent educa- tion. It simply does not have the information to know." As for being more proactive in negotiating agreements with other institutions in other coun- tries, "this endeavour would be well beyond the capacity of most professional regulatory bodies," said the court. While the tribunal concluded the process used by APEGA was based on a presumption that en- gineering programs from eastern European countries were not as vigorous as Canadian programs, such presumption was completely unwarranted, said Casey. "e tribunal had great sympa- thy for immigrants who struggle to… get their qualifications recog- nized in Canada and that sympa- thy, in my view, overrode the rec- ognition of the role of regulators." ONEROUS > pg. 21 CORRECTION A story in the Feb. 8 issue incorrectly stated Fayzullo Fazilov's place of employ- ment. He was an employee of Metron Construction in 2009.

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