The other day I posted on my Facebook page that APEGA (the Association of Professional Engineers and Geoscientists of Alberta) was appealing a decision by the Alberta Human Rights Tribunal (HRT) that ruled that APEGA discriminated against a foreign applicant. I’ve decided to put my full thoughts down on why I believe APEGA is right and why the HRT (sometimes called Star Chambers, or pretend courts, and actually legally referred to as quasi-judicial courts. The ones that tried to censor Macleans magazine and lost, the one that tried Ezra Lavant, the one that generally makes a fool of itself) is wrong.
My thoughts are going to fall into 3 parts: 1st on what I am calling the Superior Jurisdiction principle, 2nd on the difference between unjust and just discrimination and why I believe the HRT misunderstands the difference and erred in their interpretation, and 3rd on why we need to have highly competent engineers and why APEGA made the right decision.
(One quick note if you are following the HRT decision. The HRT talks about APEGGA, which is the former name of APEGA. APEGGA stood for the Association of Professional Engineers, Geologists, and Geophysicists of Alberta).
So, first things first, I’m going to talk about the Superior Jurisdiction principle: When you are a professional from one jurisdiction who is doing work in another jurisdiction, you are obliged to follow the professional rules of the jurisdiction that has the greater requirements. Thats the definition I’m giving. What I mean is that you need to follow the rules in your own jurisdiction and the rules in the one you’re working in, but when there is a difference you have to follow the more stringent ones.
Here’s an example (protip: engineers love examples). An Albertan graduating from an Alberta accredited engineering college (like the U of A or U of C) can automatically enrol in APEGA as an Engineer in Training (EIT). However, if an Alberta engineer wants to work in the US they have to take additional steps (specifically, they have to write the FE – Fundamentals of Engineering – exam). The US has higher requirements for working as an engineer than Canada does, so you have to follow the higher requirements.
Now an opposite example. Many developing nations (such as Africa) have less stringent requirements to work in engineering. If you are a Canadian engineer working in Africa, however, you are still required to fulfill your professional obligations required by engineers in Canada (including ethical rules – such as rules on bribery – and the need to do and track professional development). Just because you are working in a jurisdiction with less requirements doesn’t mean that the requirements of your home jurisdiction can be ignored.
In this particular case, it is apparent that Alberta has more stringent requirements for professional engineers than the former Czechoslovakia. According to this principle I have laid out then, an engineer from that country should have to meet the additional requirements in Alberta before being able to practice as a Professional Engineer here.
Ok, lets move to the second question then, which is about discrimination. Discrimination is not a bad word. We discriminate all the time when we decide what to wear, or what to eat (the discrimination against sugar is serious right now!), or what route to take to work. When it comes to Human Rights legislation, what we are talking about is unjust, or arbitrary, discrimination. This is different then justified, or factual, discrimination. Arbitrary discrimination means that given 2 options, you exclude 1 for superfluous reasons. For example, when choosing between a pink cupcake or a blue one, you choose the blue one because you hate pink. Strictly speaking, there is no reason behind such discrimination against pink, you just don’t like it. But if the pink cupcake has twice as much sugar as the blue one and you want to cut down on sugar, then it would be a justified discrimination against the pink cupcake (not because it’s pink, but because it has more sugar).
When it comes to arbitrary discrimination, what we tend to think of is the Civil Rights movement. African-Americans (people of colour? I’m not up-to-date on what is PC right now) were treated differently because of the colour of their skin, which does not have a discernible affect on anything. There was no justified need to have separate bathrooms or water fountains, for example. It was unjustified discrimination.
What the HRT is talking about though is place-of-origin discrimination. Human rights legislation is always written to be against unjust discrimination, and so we are talking about excluding people because of the country they come from. This is what the claimant argued at the tribunal. However, he and the HRT are wrong (Yes, I am just making that as a statement). APEGA did not discriminate against him because he was from Czechoslovakia, but because the standards for engineering in that country are lower then they are in Alberta. This is a factual, justified discrimination. Just because you practice engineering in another country does not give you the right to practice it in Alberta. We have higher standards, as as my Principle says above, you have to adhere to the higher standards. I believe that the HRT has made a ruling error here in conflating justified discrimination with arbitrary discrimination, and therefore the ruling should be overturned by the court because there was an error in scope. Essentially, the HRT does not have the jurisdiction to rule on justified discrimination, and so the ruling they made is legally invalid.
Ok, now we’re onto the third section: on the need for competent engineers, and comments on the specifics of this case. Professional Engineers in Alberta are given a lot of power and responsibility. It is at their discretion to approve or not approve plans and designs, and if they do give approval they take on the liability for those plans. This is why engineering schools in Canada are accredited, and why there is heavy scrutiny on foreign schools. Some countries we have agreements with to accept their engineering credentials after we have scrutinized them to ensure they have standards as strict as ours. Other countries we do not have agreements with, and engineers from those countries, essentially, have to prove themselves.
One of the questions brought up by the complainant was that Canada has agreements with some, but not all EU countries (sections 55-56). Dr. David Lynch (who is the Dean of Engineering at the U of A) testified that not all European countries had subjected themselves to examination, and neither had the school the complainant had gone to (no. 100). An agreement cannot be made with the whole EU because the different countries do not have the same requirements, and some of them do not meet Canada’s high requirements. The discrimination is not done based on citizenship, but based on the school (ibid).
The further evidence is that the complainant was not at the level required in Alberta. He failed the NPPE (the National Professional Practice Examination, which is on ethics and law) 3 times (no. 66 a, d, e). All engineers (Canadians, Americans, Europeans, ect) are required to pass this exam to be registered as a Professional Engineer. The Complainant also refused to take the FE exam, which would have tested his technical knowledge. APEGA has in the page (if I remember correctly) required certain engineers to take this exam (or one like it) if they are taken before the disciplinary board.
I believe the HRT also erred in it’s assessment (in no. 211), when they criticized the need for foreign engineering graduates to perform just as well as Canadian graduates. I don’t know if the HRT missed the memo on this, but That. Is. The. Whole. Damn. Point. If you want to practice engineering in Canada then you need to be able to practice as well as any engineering graduate from a Canadian school.
The absolute arrogance of the HRT continues (in no. 222) when they complain that APEGA did not “explore any alternatives” to the NPPE or “offer any courses or instructions to assist”. Earth to HRT, Earth to HRT: APEGA does not offer that to any applicants. All Professional Engineers must pass the NPPE regardless of background. The HRT complains (in 223) that this is “particularly unhelpful to foreign trained engineers”. I have some mere news for the HRT: the complainant wants to practice engineering in Canada. If he wants to practice engineering in Canada, he needs to know the rules for practicing engineering in Canada, not the rules in another country.
Here’s the jist of the HRT ruling: APEGA should be required to hold peoples hands when they come to Canada so they can work here. WRONG. The onus on anyone who wants to come and work in Canada is on themselves to acquire the skills (technical, legal, ethical, language, education, etc) needed.
See, here’s the thing about engineering especially as distinct from other careers. If you want to be an engineer, you have to be a self-starter. You have to do the studying yourself for the degree. You have to get your own job. You have to study and understand the ethics and legal stuff needed to pass the NPPE. You have to make the all the applications yourself. Nobody holds your hand in engineering. If you want to be a Professional Engineer, then you have to do it yourself. That is the culture, that is how everyone does it.
Engineers are different because they have high legal requirements and expectations. An engineer has to individually decide whether to approve something, and they have to put their name on it. Along with the legal license, there is a social license that you can see. Society is saying to everyone who has a P.Eng. that “we trust you to make decisions that aren’t going to screw up and get people killed”. Every engineer must be trusted to make these decisions, decisions that sometimes quite literally mean life or death. Missing that little detail, that little nuance, could mean death or serious injury for a construction worker, or an industrial worker, or an office worker, or, God forbid, a member of the public who was at the wrong place at the wrong time. That is why we need extremely competent engineers, that is why the bar is set so damn high.
The entire ruling from the HRT reads like them saying “The bar is so high! You don’t need it that high, do you?”, and that’s probably what pisses me off the most. I just hope that the APEGA appeal goes well and the HRT gets slammed for trying to impose wishy-washy feel-goodness on engineering, which is a profession that deals with facts and science, not making people feel good.