Law Times

Page 8 September 9, 2013 Law Times • Focus On Human Rights Law Integrating immigrants Canadian experience requirement discriminatory: OHRC BY MARG. BRUINEMAN For Law Times T he Ontario Human Rights Commission has released its take on Canadian experience as an employment or accreditation requirement in a bid to help remove barriers to finding appropriate work for immigrants. In its recent policy on removing the Canadian experience barrier, the commission characterizes requiring immigrants to have Canadian work experience, which can take the form of volunteering or other unpaid work, as prima facie discrimination. The onus, it maintains, will be on employers and regulatory bodies to show that a requirement for prior work experience in Canada is a bona fide requirement. Employers, the commission suggests, shouldn't require applicants to have prior work experience in Canada to be eligible for a specific job or discount an applicant's foreign work record. It referred to studies showing that newcomers looking for jobs or trying to get professional accreditation often come across a demand for Canadian experience. Ottawa lawyer Paul Champ applauds the commission for labelling the Canadian experience requirement as discriminatory. He describes it as a barrier that's a real problem. Employers, he says, don't place an equal value on foreign education and experience compared to that obtained in Canada. "These studies show routinely that immigrant Canadians do very poorly in the Canadian labour market," says Champ. Not only does the resulting unemployment or underemployment depress the individual, it's also detrimental to the workforce, he argues. And newcomers often face a catch-22 situation that requires Canadian experience to get Canadian experience. Champ points to tribunal decisions where employers have demonstrated that qualifications from some other countries weren't of equal value. Law societies have also been able to prove that a law degree from another country wasn't comparable to a Canadian one. But there have been decisions that found the assumption of a lower value to be discriminatory. In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, the Supreme Court set out a standard for deeming a defence to discrimination to be reasonable with a threepoint test: that it relates to the function performed and is adopted in good faith and reasonably necessary. "Statistically, there is no question there is systemic discrimination with new Canadians' experience," says Champ. "Too often, they're unemployed or underemployed." The policy represents how the commission thinks the Human Rights Tribunal of Ontario and the courts should apply the Human Rights Code when it comes to this issue, says chief commissioner Barbara Hall. The commission intends to closely follow the issue with an eye to intervene in future cases and possibly launch a public inquiry. Proving discrimination based on Canadian experience will be difficult as employers can simply reject applications without stating why, says Stuart Rudner. Publicizing cases can sometimes serve to educate the public, Hall believes. Businesses are already responding, seeking copies of the policy, and requesting presentations and training. Some employers have removed the requirement. The commission has been aware that the requirement for Canadian work experience has been a barrier for newcomers to Canada and decided to examine it as a stand-alone issue. "The response was phenomenal," says Hall. "Many more people were experiencing it than we expected. "We will be looking closely at the regulated professions that have Canadian experience requirements and meeting with them and listening to what they have to say." The commission maintains that barriers in the recruitment, selection, and hiring of employees or in the accreditation process of the regulatory bodies may result in systemic discrimination. And it points to ensuring substantive equality by looking at the impact of laws, policies or actions on disadvantaged groups. "Responses to the OHRC's survey show that many newcomers turn to unpaid work (e.g. volunteering or internships) or 'survival jobs' — low-skill work outside of their field of expertise — to meet the requirement for Canadian experience," the report states. It cites the 1999 British Columbia Human Rights Tribunal ruling in Bitonti v. British Columbia (Ministry of Health): "It cannot be in anyone's interest to continue to accept into this country some of the best and brightest individuals from around the world, and to then make it virtually impossible for them to use the skills that they bring with them." Stuart Rudner of Rudner MacDonald LLP says there's a legitimate concern that some employers use Canadian experience as a proxy for place of origin, ethnic origin or race and indirectly doing what they can't otherwise do. But, he points out, accommodation is an option in legitimate circumstances where Canadian experience prerequisites are bona fide. "In limited circumstances, this will be viable. However, an employer will have to come up with a compelling rationale and appropriate supporting evidence. Where they can, the requirement will not be a breach of the Human Rights Code. Of course, the reality is that many employers never explicitly state this type of requirement but simply reject applications that do not meet their particular criteria," says Rudner. Applicants' names as well as the nature and location of their background and experience could lead employers to assume characteristics such as their race and reject their application with no reason given. In that situation, says Rudner, it can be virtually impossible to prove discrimination. The message is that employers should assess applicants on an individual basis. The challenge for employers in moving away from requiring Canadian experience is how to assess work experience gained in other countries, says David Bannon of Norton Rose Fulbright Canada LLP. Bannon doesn't see the commission's policy as problematic, especially since the Canadian economy relies heavily upon newcomers and the skills they bring with them. "But in applying the policy, I can see difficulty for employers in certain circumstances," he says. "Where it gets difficult for an employer is how do you assess the experience people got out of country? It's going to be difficult for employers to make individual assessments of the experience the policy calls for." But while discrimination is a problem, Canadian experience does have legitimate value, says Arthur Zeilikman of Zeilikman Law. "Experience counts and in my mind, Canadian experience should not be regarded as immediately discriminatory. The fact is Canada is one of the most developed countries in the world and certain occupations demand a high standard of performance," he says. Those trained in countries where the required standards are lacking should have to present the necessary skills and education, he says, adding that the individualized approach to integrating new Canadians could be problematic. He points to professions like engineering, architecture, and medicine as examples that don't lend themselves to subjective criteria. "Of course, individuals whose education and skills satisfy Canadian standards should not be turned away simply because they do not have Canadian experience. However, if their education falls short of Canada's general expectations in the workforce, then Canadian experience should not be viewed as a pejorative when employment is refused on that basis," he says. Ron Franklin of Franklin Law thinks the commission got it right. "Overall, I believe that the OHRC's position will give stakeholders a real incentive to take a second look at their criteria and focus on more objective ways to assess an applicant's skill set and qualifications," he says. "Some professionals who I have met feel truly aggrieved about what they believe are outright discriminatory practices but also believe that it would be futile to challenge professional bodies because of their perceived legitimacy and resources." The commission's policy, he adds, may encourage them to openly challenge regulators' requirements where they believe that they're discriminatory. LT What happens now that s. 13 is on the way out? BY MARG. BRUINEMAN A For Law Times fter a private members' bill put an end to the hate-speech provisions of the Human Rights Act this spring, what happens next? What other pieces of legislation exist to defend against hate speech? Are they necessary? "Right now, we don't know what's going to happen," says Yosie Saint-Cyr, an employment and labour lawyer with First Reference Inc. who has been closely following the demise of s. 13 of the Human Rights Act. "Was it the right thing to do for the government to repeal s. 13? We really, really, really don't know. I know a lot of people are waiting." In calling the legislation flawed, Alberta Conservative MP Brian Storseth put forward the bill that passed the House of Commons last summer. It received Senate approval this spring and will take effect after a one-year phase-in period. During the process, several groups came to the defence of s. 13. The Canadian Bar Association described it as an important tool to combat the spread of hate messages www.lawtimesnews.com See CCLA, page 9

• Cover