Foreign-trained Professionals Have Some Much-Needed Leverage.

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The Fair Access to Regulated Professions Act

Foreign-trained Professionals Have Some Much-Needed Leverage.

July 28, 2009

Each year, thousands of foreign-trained skilled professionals come to Canada seeking a better life, bringing with them years of education and practical experience in their field of expertise. However, in many instances, they arrive here only to discover their foreign credentials will not be recognized by the professional associations responsible for issuing the certifications necessary to continue in their chosen profession. Without access to certification, many foreign-trained skilled professionals have no choice but to seek work in an alternative field, often performing manual or unskilled work, to support their families. In attempting to obtain certification, these skilled professionals often encounter frustration, needless bureaucracy, and closed doors.

In 2006, the Ontario Legislature enacted the Fair Access to Regulated Professions Act (“FARPA”), which requires professional associations in Ontario to provide registration practices for foreign-trained professionals that are “transparent, objective, impartial and fair.” By enacting this legislation, the government of Ontario has recognized that, in far too many instances, engineers, accountants, lawyers, doctors, teachers and other professionals who come from abroad face an unnecessarily difficult battle in obtaining certification to continue their chosen profession in Ontario. This is also true for professionals born in Canada who go abroad for university and then return, only to discover their foreign credentials are not readily recognized in Ontario.

Pursuant to FARPA, regulated professions must establish objective licensing requirements for foreign-trained applicants. In assessing an applicant’s foreign credentials, professional associations must do so in a way that is “transparent, objective, impartial, and fair.” Registration decisions must be made within a reasonable period of time, and the association must provide a written response to the applicant, providing written reasons for its decision. The professional association also must provide the right to an internal review or appeal of its decision within a reasonable period of time, and the applicant must be provided the right to present oral or written arguments in support of the appeal. FARPA further provides that an applicant has the right to access the professional association’s records that relate to the application.

If an association fails to abide by FARPA’s requirements, the Office of the Fairness Commissioner is authorized to issue an order to the association compelling it to comply with FARPA. If the association fails to comply with such an order, in addition to other legal remedies that might be available to the applicant, the association could be subject to a fine in an amount up to $100,000.

Take for example a recent immigrant who is a professional engineer in his home country with many years of work experience. When he applies for certification with the Association of Professional Engineers of Ontario, the Association must assess his foreign credentials, including his educational background and work experience, based on criteria that are objective and fair. In other words, the Association must conduct a real assessment of his foreign credentials in light of criteria that have a real relationship to the same minimum requirements imposed on domestically trained applicants – the Association cannot impose greater or different standards on a foreign-trained applicant.

If the Association determines the applicant’s foreign credentials do not meet its criteria for licensing, the Association must provide in writing the basis for its decision, explaining how the criteria have not been met. However, it will not be sufficient to merely state what additional training or education is required. Rather, the Association must state why the additional training or education is required in light of its objective criteria. Moreover, the Association must provide the applicant with an opportunity to appeal and present oral and written arguments in response to the Association’s decision.

In this regard, FARPA can be an extremely effective tool in the hands of a foreign-trained professional. If the professional association has not established real objective criteria, cannot articulate the basis for its licensing decision, or cannot show it has acted fairly and impartially, the association will find itself in violation of FARPA. The applicant will then have a variety of potential remedies at its disposal, including seeking an order from the Office of the Fairness Commissioner and seeking enforcement of legal rights in court. Given that, the ultimate objective for every foreign-trained professional is to be treated fairly and impartially, requiring Ontario’s professional associations to comply with FARPA can go a long way in helping foreign-trained skilled professionals continue in their chosen fields and realize their dream of a better life.

Stephen J. Maddex is an associate in the Commercial Litigation Group in Ottawa. Before joining Lang Michener, he practiced with two large law firms in Houston, Texas, where he gained significant trial experience and appeared in courts all over the state. His practice focuses on U.S./Canada Cross-Border Litigation. For further information regarding FARPA, contact him directly at 613 232-7171 ext. 108 or smaddex@langmichener.ca.

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