Leslie Neiznanski v. University of Toronto and John Provan, 1995 CanLII 18166

Neiznanski v. University of Toronto

1995-04-24

Ontario Board of Inquiry

Leslie Neiznanski Complainant

v.

University of Toronto and John Provan Respondents

Date of Complaint: October 2, 1989

Date of Decision: April 24, 1995

Before: Ontario Board of Inquiry, Peter A. Cumming

Decision No.: 95-017

Appearances by: Sharon Folkes Abrahams and Margaret Best (Student-at-law), Counsel for the Complainant Timothy Pinos and Sari Springer, Counsel for the Respondents

RACE, COLOUR AND PLACE OF ORIGIN — entry to medical residency program denied — REASONABLE ACCOMMODATION — duty to accommodate short of undue hardship — DISCRIMINATION — adverse effect discrimination — safety risk as reasonable cause for denying employment — protection based on non-enumerated grounds of discrimination — PUBLIC INTEREST — public safety

Summary: The Board of Inquiry dismisses the complaint of Dr. Leslie Neiznanski who alleged that he was discriminated against because of his place of origin by the University of Toronto and Dr. John Provan when he was terminated from a residency program in ophthalmology.

Dr. Neiznanski is a medical doctor and a Canadian citizen. He was trained as an ophthalmologist at the University of Warsaw in Poland where he had a distinguished twenty-year career. He was posted by his government to Libya for a five-year period, but fell into political disfavour and was forced to flee. He came to Canada as a refugee in the early 1980s. In 1983, he wrote and passed the Medical Council of Canada Evaluation Exam. He then applied for a residency position. Successful completion of a residency would allow him to write the exams of the Royal College of Physicians and Surgeons of Canada, and if he passed, to become licensed to practice in Canada.

Dr. Neiznanski became a resident in the Residency Program in the Department of Ophthalmology at the University of Toronto in 1985, working at the St. Joseph's Health Centre in Toronto.

He was in an unfunded position, having failed to be chosen in the competition for the seven funded positions in part because, being a refugee, his transcript of grades were not available and his references could not be helpful about his ophthalmological ability. Dr. Neiznanski completed his first year of residency but failed his examinations in his second year. He was not allowed to take the third year to complete his residency.

Dr. Neiznanski alleged that he was discriminated against with respect to services and employment because of his age, place of origin, and ethnic origin because of the admissions process, the process of funding persons in the residency program, and his termination from the program.

The Board of Inquiry finds that at the time of his complaint, foreign-trained doctors and Canadian-trained doctors were in open competition with each other for the spaces in Canadian residency programs and for the funded positions. Though Dr. Neiznanski was at a disadvantage because he did not have the same opportunity as Canadian and other western-trained doctors to have exposure during his medical school years to prominent ophthalmologists who could provide him with references, the Board of Inquiry finds that there was no discrimination in the competition for admission or for the funded positions.

While it may be the case that Dr. Neiznanski was unsuccessful in his residency program because he was in an unfunded position and had to work to support his parents and children at the same time as carrying out his residency, the Board of Inquiry finds that Dr. Neiznanski chose to take the unfunded position and cannot be said to have been discriminated against on the basis of his ethnic origin or place of origin because of being in this difficult and stressful position.

The Board of Inquiry also finds that Dr. Neiznanski was terminated from the residency program because he failed exams on a number of occasions. He was evaluated fairly and was unable to meet the standards of the program.

The Board of Inquiry finds that no discrimination occurred, and it dismisses the complaint.

Cases Cited

Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 10 C.H.R.R. D/5719: 9

Bloedel v. University of Calgary (1980), 1980 CanLII 3916 (AB HRC), 1 C.H.R.R. D/25 (Alta. Bd.Inq.): 9

Canada Trust Co. v. Ontario (Human Rights Comm.) (1990), 1990 CanLII 6849 (ON CA), 12 C.H.R.R. D/184 (Ont. C.A.): 9

Canadian National Railway Co. v. Canada (Human Rights Comm.) and Action travail des femmes (1984), 1984 CanLII 5058 (CHRT), 5 C.H.R.R. D/2327 (Can.Trib.): 9

Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd.Inq.): 9

Holden v. Canadian National Railway Co. (1990), 1990 CanLII 12529 (FCA), 14 C.H.R.R. D/12 (F.C.A.): 9

Jamorski v. Ontario (Attorney General) (1987), 1987 CanLII 4341 (ON HCJ), 59 O.R. (2d) 422 (Ont. Div.Ct.): 9, 48

Jamorski v. Ontario (Attorney General) (1988), 1988 CanLII 4738 (ON CA), 64 O.R. (2d) 161 (Ont. C.A.): 48

Lanark, Leeds and Grenville County Roman Catholic Separate School Board v. Ontario (Human Rights Comm.) (1987), 1987 CanLII 4040 (ON HCJ), 8 C.H.R.R. D/4235 (Ont. Div.Ct.); aff'd (1989), 1989 CanLII 5306 (ON CA), 10 C.H.R.R. D/6336 (C.A.): 9

New Brunswick School Dist. No. 15 v. New Brunswick (Human Rights Board of Inquiry) (1989), 1989 CanLII 208 (NB CA), 10 C.H.R.R. D/6426 (N.B.C.A.): 9

Ontario (Human Rights Comm.) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, 3 C.H.R.R. D/781 : 9

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 9

Peel Board of Education v. Ontario (Human Rights Comm.) and Pandori (1990), 1990 CanLII 12504 (ON HRT), 12 C.H.R.R. D/364 (Ont. Bd.Inq.); aff'd (1991), 1991 CanLII 13127 (ON CTGDDC), 14 C.H.R.R. D/403 (Ont. Div.Ct.): 9

Legislation Cited

Canada

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11

s. 1: 48

s. 15(1): 48

Ontario

Health Disciplines Act, R.S.O. 1980, c. 196: 10

R.R.O. 1980, Reg. 488: 10

Human Rights Code, R.S.O., c. H.19: 8

s. 1: 8

s. 5(1): 8

s. 9: 8

s. 11: 8

s. 11(1): 51

s. 11(1)(a): 53

s. 11(2): 54

Ministry of Health Act, R.S.O. 1980, c. 280: 10

R.R.O. 1980: 10

Authorities Cited

Ontario, Task Force on Access to Professions and Trades in Ontario, ACCESS!, (Toronto: Ministry of Citizenship, 1989) (Chair: Peter A. Cumming): 44

INTRODUCTION

1The complainant, Leslie Neiznanski, age 64, a medical doctor, is a Canadian citizen resident in Ontario. He was trained as an ophthalmologist at the University of Warsaw, Poland, and had a distinguished career there over a twenty-year period (Exhibit No. 5A, Tabs 4, 8, 9 and 10). He was then posted to Libya by his government for a five-year term, but after two years fell into political disfavour, ultimately fleeing to Greece and living in refugee camps there and in Austria and Italy.

2Having become a landed immigrant in Canada as a refugee, he first lived in Alberta and then moved to Toronto. Dr. Neiznanski wrote and passed the Medical Council of Canada Evaluating Examination ("MECCEE") (Exhibit No. 5A, Tab 14) in 1983. This exam is taken by the graduates of the sixteen medical schools in Canada at the completion of their undergraduate training. The exam is the first step to be completed in the overall requirements for a graduate of a foreign medical school to become licensed in Ontario. The successful completion of this exam enabled Dr. Neiznanski to seek to be admitted to a residency program.

3A satisfactory performance in the residency program would then allow him to seek to complete successfully the exams of the Royal College of Physicians and Surgeons as a means of qualifying for a licence as an ophthalmologist from the Ontario College of Physicians and Surgeons. At the time, the only other route to that of the residency or specialized training route to becoming licensed in Ontario was through passing a qualification examination, the completion of an internship program and then being licensed by the Ontario College of Physicians and Surgeons. Being an ophthalmologist already, Dr. Neiznanski chose the residency or specialized training route leading to certification by the Royal College of Physicians and Surgeons of Canada as his means to becoming licensed in Ontario. Dr. Neiznanski would also need to successfully complete the qualifying exams of the Medical Council of Canada to be licensed in Ontario. The steps required to be taken by a foreign-trained graduate to obtain a licence to practise medicine in Ontario through the specialty training route at the times relevant to the case at hand are set forth in the flow chart filed as Exhibit No. 15.

4Dr. Neiznanski was admitted under an educational licence (Exhibit No. 5A, Tabs 5 and 15) as of July 1, 1984, as a "Clinical Fellow" in the Department of Ophthalmology, University of Toronto (Exhibit No. 5A, Tab 11). During this year he worked at the clinics of the Toronto General Hospital and St. Michael's Hospital in Toronto.

5On July 1, 1985, Dr. Neiznanski became a "Resident" (Exhibit No. 5A, Tab 16) in the residency program of the Department of Ophthalmology, University of Toronto (Exhibit No. 5A, Tab 12), working at the St. Joseph's Health Centre in Toronto. The content of the training program is determined by the Royal College. The Royal College ultimately certifies a resident as a specialist in ophthalmology following successful completion of the residency training and its examinations. Dr. Neiznanski completed the first year as a resident, and proceeded to take his second year, July 1, 1986, to June 30, 1987, as a resident (Exhibit No. 5A, Tab 13; Exhibit No. 6, Tab 23) with that institution. His position as a resident was at all times an "unfunded position" (Exhibit No. 6, Tab 18), as he had been unsuccessful in obtaining a funded position.

6Unfortunately, Dr. Neiznanski failed the examinations (four units out of eight) in his second year as a resident, and as a consequence he was not promoted to the third and final year of his residency program and his residency was terminated (Exhibit No. 6, Tabs 26, 27 and 28) as of June 30, 1987. Notwithstanding the termination, he was then given a second chance to complete the exams, but was again unsuccessful and was told June 14, 1988 (Exhibit No. 6, Tab 34), that he would not be readmitted into the Department of Ophthalmology and not be allowed to complete his training.

7Dr. Neiznanski then appealed his termination from the residency program to the University of Toronto, Faculty of Medicine, Academic Appeals Committee, and being unsuccessful, appealed further to the Academic Appeals Committee of the Governing Council, University of Toronto, but his appeal was dismissed, June 9,1989 (Exhibit No. 6, Tabs 1 and 2).

8Dr. Neiznanski then filed a complaint under the Ontario Human Rights Code, alleging discrimination. His complaint (Exhibit No. 2) is made in respect of the Human Rights Code, 1981, S.O. 1981, c. 53 as amended. My references shall be to the current legislation in force, R.S.O., c. H.19, proclaimed in force December 31, 1991; the sections under consideration for the purposes of this complaint remain the same in substantive content with just the numbering of the sections in the current Code being different from the 1981 Code. Dr. Neiznanski alleges that he was denied equal treatment with respect to services and facilities and was discriminated against unlawfully in this regard because of his age, contrary to ss. 1 and 9 of the Code. He alleges further that he was denied equal treatment with respect to employment because of place of origin and ethnic origin, in contravention of ss. 5(1) and 9 of the Code. These allegations raise issues that relate to the admissions process, the manner of funding of persons in the residency program, the performance of Dr. Neiznanski, the reasons for his termination from the residency program and a comparison in respect of his situation with that of other residents. The complaint as amended also alleges, in the alternative, constructive or indirect discrimination in the contravention of s. 11 of the Code.

THE LAW

9Counsel for both parties reviewed the applicable law in their submissions. I am mindful of the leading cases that were cited in respect of the issues. I do not intend to refer to the cases specifically, given that the resolution of the issues turns upon the findings of fact that I have made. Cases referred to by counsel included: O'Malley v. Simpsons-Sears Limited, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 [7 C.H.R.R. D/3102]; Andrews v. Law Society of British Columbia(1989), 1989 CanLII 2 (SCC), 10 C.H.R.R. D/5719 (S.C.C.); Holden v. Canadian National Railway Co. (1990), 1990 CanLII 12529 (FCA), 14 C.H.R.R. D/12 (F.C.A.); Ontario Human Rights Commission v. Borough of Etobicoke (1982), 1982 CanLII 15 (SCC), 3 C.H.R.R. D/781 (S.C.C.); Action travail des femmes v. Canadian National Railway Co. (1984), 1984 CanLII 5058 (CHRT), 5 C.H.R.R. D/2327; Ghosh v. Domglas Inc. (No. 2)(1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd.Inq.); Pandori v. Peel Board of Education (1990), 1990 CanLII 12504 (ON HRT), 12 C.H.R.R. D/364 (Ont. Bd.Inq.); aff'd (1991), 1991 CanLII 13127 (ON CTGDDC), 14 C.H.R.R. D/403 (Div.Ct.); Bloedel v. University of Calgary(1980), 1980 CanLII 3916 (AB HRC), 1 C.H.R.R. D/25 (Alta. Bd.Inq.); Lanark, Leeds and Grenville Roman Catholic Separate School Board v. Ontario Human Rights Commission (1987), 1987 CanLII 4040 (ON HCJ), 8 C.H.R.R. D/4235 (Ont. Div.Ct.); aff'd (1989), 1989 CanLII 5306 (ON CA), 10 C.H.R.R. D/6336 (C.A.); New Brunswick School Dist. No. 15 v. New Brunswick (Human Rights Board of Inquiry) (1989), 1989 CanLII 208 (NB CA), 10 C.H.R.R. D/6426 (N.B.C.A.); Jamorski v. Attorney General of Ontario (1987), 1987 CanLII 4341 (ON HCJ), 59 O.R. (2d) 422; and Canada Trust Co. v. Ontario (Human Rights Comm.)(1990), 1990 CanLII 6849 (ON CA), 12 C.H.R.R. D/184 (Ont. C.A.).

10The licensing of physicians, the residency programs, and the funding of the residency positions at the time, were governed by the Health Disciplines Act, R.S.O. 1980, c. 196 and its regulations, in particular, Reg. 488 as amended and the Ministry of Health Act, R.S.O. 1980, c. 280 and its regulations.

THE ISSUES

The Admissions Process to the Ophthalmology Residency Program and its Funded Positions

11At the times relevant to this inquiry the Ministry would provide a block of funds to the University's Faculty of Medicine which would then allocate among the various specialties the funding for a certain number of residency positions in each of the approximately sixty specialties. There are only seven Ministry of Health funded positions for the entry year into the ophthalmology residency program, with about one hundred applicants. Ophthalmology is a popular specialty and it is a difficult residency program to get into because of the intense competition.

12A three-member committee constituted by the Ophthalmology Department at the University of Toronto reviews these applications, selecting twenty for interviews. Selection is based upon a candidate's academic record, references, general curriculum vitae and interest and aptitude. Interviews are then conducted by four teams of three, with each team interviewing each of the twenty applicants, and completing an assessment form (Exhibit No. 6, Tab 7). The twelve interviewers then meet together as a collectivity, discussing each candidate in detail and ranking them.

13It is clear that for the period of time examined as relevant to this inquiry there was not any discrimination in the selection process on any prohibited grounds. (Since June 1993, the Ministry of Health has established a new policy whereby foreign-trained physicians are ineligible for residency program positions — this significant change is not relevant to the case at hand, but will be referred to later.)

14Dr. John Provan, Associate Dean of Postgraduate Medical Education, Faculty of Medicine, University of Toronto and a Professor of Surgery with that Faculty (Exhibit No. 14), testified. Dr. Provan testified that at the time there was no differential or discriminatory treatment in respect of the admissions process to residency positions as between foreign-trained and Canadian-trained applicants nor on the basis of national origin, citizenship or age. Indeed, he said there was no discrimination on any unlawful basis. I accept Dr. Provan's testimony, and it is supported by the extensive data submitted (Exhibit No. 16) at the hearing which indicates that Canadian-trained applicants were often unsuccessful in seeking funded residency positions that went to foreign-trained physicians. Exhibit No. 16 shows that more than 40 percent on average of the 1,100 or 1,200 overall residency positions until 1994 were occupied by foreign-trained physicians. While the data collected in Exhibit No. 16 relates to the years 1990–1995, I accept Dr. Provan's testimony that the data reflects the situation that would exist in the 1980s as well. The selection process for admission into the limited number of funded positions in the residency program is a competitive, objective process. Indeed, there have been many foreign-trained physicians accepted into the ophthalmology residency program. Dr. Clive Mortimer, currently a senior staff ophthalmologist at the Toronto General Hospital and a professor of ophthalmology at the University of Toronto, was ophthalmologist-in-chief at the hospital and chair of the University of Toronto's Department of Ophthalmology in 1984. Dr. Mortimer estimated that about twenty-five of the approximately one hundred applicants each year were foreign-trained.

15The application files for the seven persons selected for funded residency positions in 1985 (Exhibit No. 6, Tabs 10–17) were reviewed in the inquiry. Two of these seven had been trained in Dublin, Ireland, one of whom had been born in Ireland and then gone to the United States. Another person, from Mexico, who was a strong candidate (Exhibit No. 17) was given a funded position for his residency when the Mexican government was not able to fund him and by chance one of the selected applicants for funding dropped out.

16Dr. Neiznanski was not one of the twenty candidates selected for an interview. Being a refugee, his academic transcripts and grades were not available and his references were not helpful in being able to comment specifically about his ophthalmological ability. It was apparent from the testimony of the respondents' witnesses that the references provided by a candidate, in particular from known, respected ophthalmologists, play a significant role in the selection process. Canadian medical students, and other medical students trained in the western world who hope to gain a specialization in ophthalmology, have a much greater opportunity as part of their medical training while in the course of their medical school studies to have contact with prominent ophthalmologists, or by taking elective programs of some duration under the tutelage of well-known ophthalmologists, which provide these students with a means of evaluation to determine their aptitude for the specialty. Some candidates, such as Dr. Neiznanski, are thereby placed at a relative disadvantage. However, this disadvantage is not based upon a prohibited ground, but rather springs from the fortuitous circumstances that shape each individual's life differently. Life may not be fair from one individual to the next, but that does not mean that there has been discrimination within the meaning of the Code. In the instant case, it is clear, and I so find on all the evidence, that Dr. Neiznanski was not offered a funded position in the residency program simply because, on an objective assessment, his application did not place him in the top twenty candidates, let alone in the group of seven chosen for the limited number of funded positions in the residency program from the twenty interviewed. I emphasize — at the times relevant to this inquiry, a foreign-trained physician was given an equal opportunity to apply for access to one of the limited number of funded positions in the residency program of the Department of Ophthalmology, University of Toronto.

17Dr. Mortimer's first contact with Dr. Neiznanski had been when Dr. Neiznanski came to his office in 1983 to introduce himself and seek assistance. This was before Dr. Neiznanski had applied for admission to the ophthalmology residency program. It is clear from all the evidence that Dr. Mortimer went out of his way from that point in time to help Dr. Neiznanski. Because Dr. Neiznanski would have difficulty in being successful in getting a funded position in the residency program in 1985 (when entry positions would next be available), Dr. Mortimer offered him a clinical fellowship position for a year, commencing July 1, 1984 (Exhibit No. 5A, Tab 11; Exhibit No. 8), albeit unfunded. Dr. Mortimer saw this as a means to give Dr. Neiznanski an opportunity to know the Canadian system, integrate himself into it and obtain an evaluation and some contacts that could be helpful as references. This offer of a fellowship was a very exceptional thing to do. Dr. Mortimer said that he felt "very sorry for" Dr. Neiznanski and that he "deserved a chance." Dr. Mortimer had himself been an immigrant physician to Canada and recognized the difficulties they face. Because it was impossible to assess properly and adequately Dr. Neiznanski at that point in time, Dr. Mortimer also hoped that the one-year fellowship might just possibly be enough to enable Dr. Neiznanski to take his Royal College exams in lieu of having to go into the three-year residency program (assuming that he could later gain admittance to a funded position through the competitive process) if the Royal College were to accept his credentials based upon his training in Poland.

18Dr. Mortimer testified that at the end of the one-year fellowship it was clear that the Royal College would require Dr. Neiznanski to retake his training through a residency program. Dr. Neiznanski applied for admission into the residency program (Exhibit No. 16) but, as discussed above, was not chosen as one of the twenty candidates to be interviewed, and hence he was not chosen for one of the seven funded positions. His mentor and benefactor, Dr. Mortimer, was one of the three members of the committee who reviewed the approximately one hundred applicants and chose the twenty interviewees. However, Dr. Mortimer and the Department allowed Dr. Neiznanski into the residency program in 1985 on an unfunded basis to give him, in Dr. Mortimer's words, "a break."

19Dr. Mortimer was very disappointed that Dr. Neiznanski was ultimately unsuccessful in the residency program. Dr. Mortimer even wrote a very favourable character reference (but which made no comment about Dr. Neiznanski's qualifications as an ophthalmologist) for Dr. Neiznanski in respect of his appeal to the Academic Appeals Committee of the Faculty of Medicine (Exhibit No. 5A, Tab 19).

20Dr. Mortimer testified that when Dr. Neiznanski was given an unfunded position in the residency program he discussed with Dr. Neiznanski the difficulties arising by virtue of the position being unfunded, but that Dr. Neiznanski was desperate to get into the program and accordingly was prepared to take the position on this basis if that was the only route available. There were no bursaries available and Dr. Neiznanski had not qualified for the only source of funding available, being from the Ministry of Health of the Ontario Government in respect of the seven funded positions.

21The lack of funding created a very difficult situation for Dr. Neiznanski. However, quite clearly this was not due to any unlawful discrimination on the part of the respondents. As I have said, the selection process was done on a fair, objective, competitive basis with the selection of the twenty for interviews, and the subsequent seven chosen from these twenty for funded positions, being done solely on the merits of the candidates.

22Offering Dr. Neiznanski an unfunded position as an eighth resident was an act of compassion. The Department, and Dr. Mortimer in particular, were acting as the proverbial Good Samaritan in doing so. The fact that this act of compassion was fraught with danger in that the demands upon a resident, who is impecunious, to work in the very demanding and time-consuming residency position and at the same time somehow sustain himself in terms of the necessities of life through other, contemporary employment would make his situation very difficult, if not impossible. However, this very formidable challenge was undertaken by Dr. Neiznanski freely; it was not imposed upon him by anyone else. In his testimony he made much of the fact that his residency position was the only one that was unfunded. However, he did not gain one of the seven funded positions only because he was not good enough on the merits. The choice then given to him was no position at all, or an unfunded position. Clearly there was not any legal obligation to provide funding to him. That is enough for the determination of this issue.

23However, this perhaps incidentally begs the question as to whether there was some moral obligation to provide funding, which underlies the complainant's assertions made at the hearing. When does the moral duty of the Good Samaritan begin and end? Is it enough to give only immediate sustenance at the roadside or must the rescuer provide the disadvantaged person with sustenance for an extended period? While the answer to the moral question is irrelevant to this inquiry, most people would say that Dr. Mortimer and the Department more than met any moral obligations in their treatment of Dr. Neiznanski. Indeed, one might query the fairness of the accusations of the complainant against Dr. Mortimer and the Department when, after the fact of his lack of success in the residency program he turned against his mentor and benefactor, Dr. Mortimer and the Department, who had gone out of their way to give him a chance to prove himself, by then saying that they did not do nearly enough.

24Perhaps it was misguided or naive of Dr. Mortimer to give Dr. Neiznanski an unfunded position in that it is seen, at least in hindsight in Dr. Neiznanski's case, that it is improbable that he could successfully complete his residency given his lack of financial resources and given the problems which were almost an inevitable result. However, this does not mean, of course, that there has been a breach of the Code. One has to feel very sorry for Dr. Neiznanski in his unfortunate predicament, but he is incorrect when he says he "was not treated like a Canadian." Dr. Neiznanski is understandably frustrated by the very unfortunate situation he has found himself in and there is a tragic element to his story. He is a likeable, sincere gentleman who very much wants to pursue his profession. However, it is incorrect and unfair for him to project his understandable regret about his failure onto the respondents.

25Dr. Neiznanski also implied in his testimony that he somehow had a reasonable expectation of gaining a funded position at some point in time after starting out in an unfunded position but there was absolutely no basis for this assertion. He also asserted in his testimony that he was denied "access to education" and that as a Canadian citizen he has a right to funding and that these were the real issues. However, there were only seven new residents funded by the Ontario Government each year and if not chosen through the fair admissions process as one of those seven he is really not in any different position from any other physician (whether Canadian-trained or foreign-trained) who wants to be an ophthalmologist but cannot gain entry to a residency position through the competitive process. Moreover, it should be mentioned that while Dr. Neiznanski was the only unfunded resident in the ophthalmology program in his particular year of entry, it was not uncommon for there to be a few unfunded residents in the overall residency program each year for the several specialties of the Faculty of Medicine.

26Dr. Neiznanski had some savings to initially draw upon in 1984 when he commenced his fellowship position but these limited resources were quickly exhausted. He had obligations to support his parents and children. He testified that he was working seventeen hours a day when he became a resident and found himself in an impossible situation. He said that he did not have sufficient time for study and had to rely simply upon his past knowledge and skills. He said he was very tired all the time and under enormous stress. I accept his evidence as to his financial problems.

27There was no apparent solution to Dr. Neiznanski's dilemma. There was no evidence given as to whether Dr. Neiznanski was eligible for social assistance, and if so that he was aware of this. He had a very difficult time meeting his obligations as a resident while at the same time taking on other, non-medical-related employment so that he could provide for his daily necessaries. Clearly this difficulty added very significantly to the usual burden faced by every resident of doing well enough as a resident to successfully complete the difficult program and related demanding exams.

28It is speculative to venture a guess as to whether Dr. Neiznanski would have been successful if he had not been at the disadvantage of very limited, financial resources if he had received a funded position. However, it is obvious that he would have had a much better chance to be successful. What is clear with certainty is that the admission process for the seven funded residency program positions was conducted without any unlawful discrimination on the part of the respondents. That is the only relevant question to answer for the purposes of this Tribunal in addressing this issue.

Comparison in Respect of Dr. Neiznanski's Treatment with that of Other Residents

29There were three other residents, Drs. Eplett, Zaher and Gonzalez, who failed the second year of the residency program, along with Dr. Neiznanski. Their performances on the examinations in 1986 were about the same as, or worse than, Dr. Neiznanski (Exhibit No. 18). The extensive academic records for these three, together with that of Dr. Neiznanski, were filed as evidence (Exhibit No. 12). However, only Dr. Eplett was in the Royal College stream with Dr. Neiznanski. The other two would not be taking the Royal College exams but rather would be returning to their home countries upon the completion of their residencies.

30Dr. Gonzales was not promoted within the residency program but rather was allowed to take only one further year of training as a research resident before returning to Venezuela (Exhibit No. 6, Tab 37). Dr. Zahir, who had been sent from Syria for training and who would be returning there, and who had demonstrated a good ability to function as a physician (Exhibit No. 6, Tab 39), was allowed to repeat the year provided he successfully met certain minimum requirements (Exhibits No. 6, Tab 38). However, Dr. Breslin testified that Dr. Zahir's residency was also later eventually terminated.

31Dr. Eplett was readmitted into the residency program (Exhibit No. 6, Tab 36) after retaking the exams even though she had done more poorly than Dr. Neiznanski on the oral exams and only marginally better than him on the Ophthalmic Knowledge Assessment Program exam. However, on the written exam she scored an average percentage of 84 percent, and ranked first overall among the residents (which included the third-year residents who also wrote this test). It was because of this exceptional performance that she was readmitted into the residency program. Dr. Neiznanski was not treated unfairly when his treatment is compared to that of other residents.

The Performance of Dr. Neiznanski and the Reasons for his Termination from the Residency Program

32Dr. Provan testified as to the evaluation process for residents. The performance of each resident is evaluated in each sixteen-week rotation. Mid-term evaluations are also required. Dr. Provan described Dr. Neiznanski's problem as being "lack of knowledge" and that this was identified on several occasions. It was felt that he would be unable to reach the required standard such that he could successfully complete the Royal College examinations.

33Dr. Calvin W. Breslin (his curriculum vitae being filed as Exhibit No. 20) testified. He is a professor of Ophthalmology at the University of Toronto, and sits on the committee that sets the multiple choice questions for the Royal College. At the times relevant to this inquiry he was the coordinator for the University's residency program in ophthalmology and ultimately became the Program Director and served as the chief examiner. He was head of the committee that determined promotions within the residency program from one year to the next through the three-year program while Dr. Neiznanski was in the residency program.

34To get the residents ready for the Royal College examinations at the end of the residency program, written, multiple-choice exams, oral exams and an American exam known as the Ophthalmic Knowledge Assessment Program ("OKAP") are utilized each year throughout the residency. As well, In-Training Resident Evaluation ("ITRE") forms are completed at the end of each sixteen-week rotation. Thus, there are four components for assessment utilized each year. The assessment process is rigorous but fair.

35Dr. Breslin reviewed Dr. Neiznanski's performance in his testimony. In his first year on the oral exam (1986) Dr. Neiznanski failed, but just (with a mark of 69 against a pass mark of 70 and a class average of 73 — Exhibit No. 6, Tab 22). On the OKAP (Exhibit No. 21) he ranked in the bottom 27 percent for residents of North America, but three of his fellow residents at the University of Toronto ranked lower. He was allowed to proceed to the second year of the residency program in July 1986 (Exhibit No. 6, Tab 23).

36All nineteen residents (within the overall three-year program) wrote the multiple-choice exam in December 1986, and Dr. Neiznanski ranked seventeen of nineteen (Exhibit No. 6, Tab 24) so that even most of the first-year residents did better than he did. He failed eight of the nine areas of the exam. Dr. Breslin testified that, because Dr. Neiznanski was on probation and doing so poorly, he was then given a make-up oral exam in January 1987 (Exhibit No. 6, Tab 25) by four of the faculty members. Dr. Neiznanski failed three of the four subjects, with only a borderline pass in the fourth. He was given an overall unsatisfactory rating on his ITRE. Dr. Neiznanski was then advised that it seemed there was very little chance of his ever being successful in the Royal College exams and he was advised to leave the program at that time but told that if he did not wish to follow that advice he could still take the year-end oral exams; however, if he failed more than two subjects at that time, his residency would be terminated. Unfortunately, on the oral exam in June 1987, Dr. Neiznanski failed four of eight exams (Exhibit No. 6, Tab 26). As a result, his residency was terminated.

37Dr. Neiznanski pleaded with members of the faculty to give him a further opportunity in respect of the exams and the Department by letter dated November 24, 1987, advised him that he would have that further opportunity (Exhibit No. 6, Tab 29). Modest, minimum results were stipulated clearly as a prerequisite for readmission. Dr. Neiznanski gave his written consent to these conditions. A similar opportunity was given to Dr. Eplett as well at the same time. This chance to retake exams had never been given to anyone else before this occasion.

38Dr. Neiznanski did very poorly on the written exam given December 4, 1987, scoring less than he had the year before and achieving the lowest ranking of all the residents taking the test (Exhibit No. 6, Tab 30). Dr. Neiznanski testified that he did poorly because of the very short notice and the resulting lack of preparation; however, Dr. Breslin testified that the exam cannot be prepared for by way of cramming from books but rather looks to the knowledge that has been gained over the duration of the candidate's residency. Dr. Eplett had been given the same short notice.

39Dr. Neiznanski took the oral exam May 27, 1988 (Exhibit No. 6, Tab 31). While his overall score was below the class average and he ranked last out of seven candidates, failing four of the eight subjects, he did achieve an average of 68.1 percent, being well above the required minimum standard of 60 percent average stipulated by the Department in its letter to him of November 24, 1987. However, on the OKAP he only scored in the 14th percentile, well below the 35th percentile set as a minimum requirement by the Department and far worse than he had done before (Exhibit No. 6, Tab 32). Accordingly, the then Chair of the Department wrote to him on June 14, 1988, advising him he would not be readmitted to the residency program (Exhibit No. 6, Tab 34).

40Considering all the evidence, it is clear and I so find, there was not any unlawful discrimination against Dr. Neiznanski in respect of his evaluation and testing in the program and in respect to the termination of his residency. He was examined fairly and objectively and the results were determined on the academic merits.

The Licensure of Foreign-Trained Physicians

41Ms. Linda Tennant testified. She has been with the Ministry of Health for some twenty years, dealing with the five medical schools in Ontario on policy matters and serving on government committees dealing with the number of residency positions needed in various specialties and the funding for those positions. While government is the source for funding a set number of positions in a given specialty, until 1987 self-funding for residency positions was allowed.

42It has always been the policy that graduates of Canadian medical schools would have access to post-graduate medical training (although not necessarily in the specialization of their choice). Historically, there have been enough funded positions overall for all the specialties collectively such that any given specialty could accept students for the residency positions allocated for that particular specialty considering both domestic and foreign-trained applicants to the positions on a competitive basis and by looking simply at the comparative merits of the applicants within a single pool.

43After 1987, residents and interns could not be employed by hospitals unless the positions were paid positions, this being the result of the collective agreement achieved through bargaining between the union representing the interns and residents and their employers, the hospitals.

44In 1987, a Pre-Internship Program ("PIP") was established as a route for twenty-four foreign-trained applicants to obtain access to internship positions in Ontario hospitals, and the regular, general internship positions were closed to foreign-trained students. (See generally, Exhibit No. 13.) Dr. Dimitrios G. Oreopoulos, a well-respected Professor of Medicine at the University of Toronto, testified as to the general problems encountered by foreign-trained physicians in becoming licensed in Ontario (Exhibit No. 5C, Tab 1) and the findings of the ACCESS! Report of the Task Force on Access to Professions and Trades in Ontario, 1989, relating to the medical profession were entered into evidence (Exhibit No. 5C, Tabs 2, 3 and 4, and Exhibit No. 4). The internship route to licensing was not in issue in the case at hand.

45However, as mentioned above, until 1994, residency positions in the specialties were still open to foreign-trained physicians on a competitive basis. Decisions were implemented by the Ministry of Health in 1993 to reduce class sizes at medical schools in Ontario, to reduce the postgraduate funding for residency positions and to limit the access to these fewer positions to only Canadian-trained physicians. Dr. Neiznanski's situation related to the period 1983–1988. As such, the following comments are not applicable to his personal situation.

46The underlying premise to these changes in 1993 is that the health care system is publicly funded, the costs of the system have continued to increase in a time of limited resources for governments and that supply management (of the number of physicians) is one way to help government in controlling the costs due to the ever-increasing demand for services. Therefore, at the present time, for the foreign-trained physician who is a Canadian citizen or a landed resident, the only route to a licence to practise in Ontario is through the PIP.

47However, as noted, the PIP is limited to twenty-four candidates. In contrast, every graduate from an Ontario medical school is guaranteed the opportunity of an internship position and upon successful completion of the internship, a position in a residency program (although not necessarily in the particular residency program that the applicant prefers). The point is, the system discriminates against the foreign-trained applicant. Even though a foreign-trained person may be as qualified on the basis of objective standards as measured against the Ontario graduate, and may even be better qualified than some Ontario graduates, the foreign-trained person cannot gain access to the licensing process unless he/she is one of the twenty-four chosen for the PIP. If the foreign-trained physician can gain entry to the PIP, upon successful completion of the PIP the physician can then apply for a residency position in any desired specialty. This would mean two more years for a Family Medicine residency or four or more years in other areas of specialization.

48It is clear from the data in Exhibit No. 16 filed in this hearing, which shows the number of foreign-trained graduates accepted into residency positions over Canadian-trained applicants for the years from 1990 to 1994, that on a competitive basis some foreign-trained persons would be selected each year on the merits over some Canadian-trained persons. Foreign-trained physicians occupied about 500 of the 1,100 or 1,200 residency positions in the past but this will fall to less than one hundred (made up of the PIP graduates) shortly. A foreign-trained Canadian citizen or landed immigrant physician is now discriminated against by the present system for gaining admission to residency programs as of 1994, because he/she would be excluded from consideration on the merits (other than through the limited number entry through the PIP). Clearly, this approach is unfair to such a candidate and just as clearly, this approach means that not all the most qualified persons will become specialists, to the detriment of both the profession and the public. One would expect that sooner or later this new discriminatory practice in the selection of physicians for residency positions will be challenged under both human rights legislation and the Canadian Charter of Rights and Freedoms [Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11]. There has been a court decision which has considered the application of the Charter to the problems of foreign-trained physicians in seeking to obtain access to licensing in Ontario, but this case dealt with the PIP situation and not the general prohibition upon foreign-trained physicians obtaining residency positions imposed as of 1994. See Jamorski v. Attorney General For The Province of Ontario, supra, in which Hughes J. held that the PIP does not infringe s. 15(1) of the Canadian Charter of Rights and Freedoms, and even if the policy and regulations were an infringement, it would be justifiable under s. 1 of the Charter. This decision was affirmed on appeal, the appeal of the foreign-trained physicians being dismissed (1988), 1988 CanLII 4738 (ON CA), 64 O.R. (2d) 161 (Ont. C.A.).

49One issue in any case challenging under the Code the post-1993 policy of excluding foreign-trained physicians from any consideration for residency positions will be whether or not there has been discrimination on a prohibited ground. "Place of education or training" is not among the prohibited grounds of the Code. Because of their foreign educational and experiential credentials, candidates for licensure in Ontario may be required to complete additional academic evaluations, examinations or experience requirements prior to licensure, as seen with the PIP. If these more onerous licensing requirements are set simply because of the licensing authority's concern over the place of education or training, they are therefore not prohibited by the Code. If the only ground of discrimination is characterized as a "place of education or training," then there would seem to be no redress under the Code (as no prohibited ground is present) on the basis of direct or indirect discrimination — and even if the licensure requirements are unreasonable.

50To bring himself/herself within a class of people entitled to the protection of the Code, an individual must be able to demonstrate that the requirement, qualification or factor in question, based on place of education or training (not in itself a prohibited ground) has the effect of discriminating against the individual on the basis of a prohibited ground (place of origin). This effect is not easily seen, as the requirement that an applicant be Canadian-trained discriminates against foreign-trained individuals generally, including citizens and residents of Canada. As well, although place of training and place of origin are generally one and the same, there will be individuals who trained in a country other than their place of origin. Thus, Canadian citizens born and raised in Canada, but who train abroad, could not effectively argue that they have suffered constructive discrimination.

51Constructive or indirect discrimination describes the unequal treatment that foreign-trained people often receive. Ostensibly, they are discriminated against on the basis of their foreign credentials. However, the effect often is to exclude groups linked to their place of origin, race, colour, or ethnic origin. People generally obtain their education or training in their place of origin. Thus, place of education or training can generally be used as a proxy for place of origin. A candidate who has recently gained Canadian citizenship or landed immigrant status and who was excluded from consideration for a residency position because s/he is foreign-trained could complain that s/he is constructively or systematically discriminated against on account of place of origin, in contravention of s. 11(1) of the Code.

52Arguably, there is a disparate impact on the basis of a prohibited ground, such that the threshold standard has been met to allege constructive discrimination under s. 11. If constructive discrimination results, why are the unequal requirements (place of training) utilized? Is the exclusion of foreign-trained physicians (who are Canadian or landed immigrants) necessary to protect the public interest?

53A respondent to such a complaint would undoubtedly assert a defence that the purported ground of discrimination is "reasonable and bona fide in the circumstances" (s. 11(1)(a)) for the protection of the public interest in respect of society's concerns relating to safety, health and welfare. The Ministry of Health and its surrogates administering the selection process for entry to the residency program might argue that they cannot assess accurately the foreign training and to license the foreign-trained person in these circumstances would jeopardize the public interest.

54Such an asserted defence that a requirement is "reasonable and bona fide in the circumstances" cannot succeed unless " . . . the needs of the group of which the person is a member cannot be accommodated without undue hardship . . . considering the cost, outside sources of funding, if any, and health and safety requirements, if any" (s. 11(2)).

55Clearly, the maintenance of necessary public standards is a reasonable and bona fide ground for discrimination on the basis of jurisdiction of education or training, but the question then is — can the public interest be protected while at the same time the foreign-trained person's application for licensure is accommodated without undue hardship? Is there available an alternative, less onerous, approach that would ensure the public interest is protected? The obvious answer to this question, as seen from the case at hand, is that the residency program itself will only graduate those residents who meet the medical profession's standards and those who successfully complete the residency program must then pass the Royal Society's exams. To have a fair system, and one that produces the most qualified specialists, the admissions process should consider all candidates on the merits whatever their place of education or training.

CONCLUSION

56For the reasons given, I have no hesitation in finding on all the evidence that there was no unlawful discrimination against Dr. Neiznanski, and his complaint must be dismissed.