Fair Access to Work – Removing the ‘Canadian Experience’ Employment Barrier

On July 15, 2013, the Ontario Human Rights Commission launched a new policy on removing the ‘Canadian experience’ barrier in recruiting. A requirement for Canadian experience, even when implemented in good faith, can be an impenetrable barrier in recruiting, selecting, hiring or accrediting, and may result in discrimination.

What does this mean?

As explained by the OHRC, some employers believe they have good reason to choose applicants who have worked in Canada for some types of jobs. Some use “Canadian experience” rules out of habit or because they think it makes things easier (tracking down references, for example). Other employers might use it on purpose as a way to keep out people because of their race, ethnicity, religion or their country of origin.

After conducting a survey last October, the OHRC found that many newcomers turn to unpaid work such as volunteering, internships or low-skilled “survival jobs” to meet the requirement for Canadian experience. They also face obstacles when trying to get professional accreditation since some regulatory bodies will not admit new members without prior work experience in Canada. As a result, they end up in jobs that do not correspond to their education, skills and experience.

Chief Commissioner Barbara Hall stated:

Ontario attracts highly skilled immigrants from all over the world…but if they have to meet a requirement for Canadian experience, they are in a very difficult position; they can’t get a job without Canadian experience and they can’t get experience without a job. In most cases, that is discrimination under Ontario’s Human Rights Code.

According to the Ontario Office of the Fairness Commissioner, (OFC) in a report titled: A Fair Way to Go: Access to Ontario’s Regulated Professions and the Need to Embrace Newcomers in the Global Economy, in 2012, 15 of the 38 regulated professions in Ontario currently require Canadian work experience. Six of them specifically ask for Ontario experience as part of the licensing criteria. However, 23 professions had no such requirement (page 16). A useful description of Canadian work-experience requirement by profession as of August 31, 2012, is illustrated in figure 2 on page 17 of the report.

This report shows that regulators have varying perspectives on the relevance and necessity of Canadian-experience requirements and demonstrates that there is no common understanding of the skills employers or regulatory bodies are trying to assess when they impose a requirement that applicants have Canadian experience.

This can be extremely frustrating for newcomers who may be qualified for a position or professional accreditation, but who have not yet worked in Canada, and are not given a chance to prove their qualifications. Many newcomers feel that the approach of many Canadian employers is ‘arbitrary and often needlessly penalizes them for their lack of Canadian experience and credentials.

The new policy sets out the OHRC’s position that a strict requirement for Canadian experience is discriminatory, and can only be used in rare circumstances. The onus is on the employer or the regulatory body to show that a requirement for people to have work experience in Canada is bona fide and reasonable. An organization will not be able to show this unless they can show that they have taken a flexible approach, assessed the individual’s other types of experience, and weighed this against other requirements.

Employers and regulatory bodies need to ask applicants about all of their previous work; where they got their experience does not matter. The policy also tells employers and regulatory bodies how to develop practices, policies and programs that do not result in discrimination.

The policy suggest that where an applicant lacks Canadian experience for reasons related to a Code ground, employers and regulatory bodies should look at other available information to make a reasonable and fair assessment.

The Ontario Human Rights Code prohibits employment and professional association membership requirements that may have an adverse effect on people based on Code grounds, including race, ancestry, colour, place of origin and ethnic origin. The policy states:

Newcomers should be able to access job opportunities that match their education, skills and experience, and be given the opportunity to contribute meaningfully to their new homeland.

How does the legal profession assess legal education and professional experience of foreign lawyers?

The National Committee on Accreditation (NCA), which is a standing committee of the Federation of Law Societies of Canada, assist Canadian law societies evaluate the legal education and professional experience of individuals who obtained their credentials outside of Canada or in a Canadian civil law program.

The NCA sets out the requirements an applicant must complete before he or she is qualified to enter the Lawyer Licensing Process in Ontario and elsewhere in Canada. In many cases, NCA candidates (after paying a fee) are either required to attend a common law Canadian law school for further studies or to write challenge examinations in specified legal subjects (there are at least four core exams: (i) foundations of Canadian law, (ii) constitutional law, (iii) administrative law, and (iv) criminal law. There is a fee for each exam plus the cost of textbooks). Whichever route is taken, NCA candidates must achieve an unconditional pass in courses and examinations to qualify for the Certificate of Qualification.

According to the NCA, they apply a uniform standard on a national basis so that applicants with common law qualifications obtained outside of Canada do not need to satisfy different entrance standards to practice law in the different provinces and territories of Canada except Quebec. The NCA does not assess the legal credentials of individuals who want to apply to and become members of the Barreau du Québec or the Chambre notaires du Québec. They have their own evaluation procedures.

The NCA certificate does not give foreign-trained lawyers the right to work in Canada. After completion of the NCA certification and requirements, the next step is admission to a provincial or territorial Bar to complete the provincial/territorial Bar admission program which includes Bar exams and articling.

According to the NCA’s most recent statistics, there was a 34 percent jump in the number of applications between 2008 and 2009. However, it seems that a high number of applicants fail. According to the 1999-2009 NCA statistics, only 1,708 out of 4,515 applicants received certificates of qualification; this is approximately 38 percent.

In 2012, the Federation of Law Societies of Canada was one of the professional overseers that agreed to take action to address OFC recommendations to reduce barriers to employment for newcomers. Some of the steps the NCA took were to reduce the number of National Committee on Accreditation courses required of internationally trained applicants and added new exemption possibilities to the need for Canadian experience (Source: OFC report).

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Comments

  1. Does it make a difference to the analysis of the appropriateness of requiring Canadian expeerience, whether the person to be permitted to work here will work for an employer, i.e. under supervision and in a structured framework of practices, or whether the person will be an independent service provider with individual clients from the general public?

    Can one argue that the independent professional may need Canadian experience to be able to serve clients competently, in some cases (not necessarily in all – the regulator should have to show a reasonable case that this is true)? There may be assumptions, understandings or tacit acceptances of how things are done that will affect whether the professional will be able to be effective.

    I very much doubt that any reputable regulator or employer asks for Canadian experience in order to exclude foreigners. But looking at regulators in particular, not just every employer of any size or disposition, it may be that there are circumstances that would justify insisting on a reasonable amount of Canadian experience.

    Is a requirement of a competence in the local language (mainly English in Canada outside Quebec) reasonable? Again I am thinking of a regulated professional with an independent practice, not an employee. If a person can find clients who speak the same language, why should it matter? Does it depend on how much the person has to deal with public authorities, or even other members of the public?

  2. “I very much doubt that any reputable regulator or employer asks for Canadian experience in order to exclude foreigners. ”

    Maybe not directly. On the other hand, there are regulators out there that still have a blended regulatory / advocacy function. Those organizations have a vested interest in protecting the economics of those already in the profession, and hard examination (and rejection) of foreign credentials is one of the easiest ways to do that.

  3. In Ontario, at least, the Fairness Commissioner has been all over the regulators to clean up their admission standards and ensure fair and transparent standards and open appeal rights. There can be few left who systematically keep out foreigners, and some, like the professional engineers, over half of whose annual total of licensees are foreign-trained.

  4. Engineers are a good example of best practice because they split out the advocacy function a few years back and the commitment of PEO to regulating in the public interest became very clear. But I wouldn’t assume its the same across the board.

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