Fazli v. National Dental Examining Board of Canada, 2014 HRTO 1326

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sher Fazli Applicant

-and-

National Dental Examining Board of Canada Respondent

DECISION

Adjudicator: Sheri D. Price
Date: September 8, 2014
Citation: 2014 HRTO 1326
Indexed as: Fazli v. National Dental Examining Board of Canada

APPEARANCES

Sher Fazli, Applicant
Antony Drake, Student-at-law

National Dental Examining Board of Canada, Respondent
Gregory Kane, Counsel

Introduction

1The respondent, the National Dental Examining Board of Canada (“NDEB”), is the organization responsible for certifying dentists as having met the standard of competence required in order to be licensed to practice dentistry in Canada.

2The applicant is from Afghanistan. He graduated from Kabul University with a degree in dentistry in 1983 and practiced dentistry in Afghanistan, Pakistan and India before immigrating to Canada with his family in 1998. The applicant also has a medical degree from Kabul University.

3Since arriving in Canada, the applicant has made extensive efforts to become certified by the respondent as qualified to practice dentistry in Canada. However, the applicant has consistently failed to meet the respondent’s requirements for certification.

4On July 26, 2013, the applicant filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent has discriminated against him with respect to membership in a vocational association because of his place of origin, contrary to s. 6 of the Code.

5In particular, the applicant alleges that the respondent’s differential treatment of graduates from non-accredited versus accredited dental programs constitutes discrimination on the basis of place of origin. In addition, the applicant, whose first language is Dari, alleges that the respondent’s requirement that he demonstrate his fundamental knowledge of dentistry by passing examinations in the English language has disadvantaged the applicant because of his place of origin.

6Among other arguments, the respondent denies that differentiating among applicants on the basis of whether they graduated from an accredited or non-accredited program constitutes discrimination on the basis of place of origin. In addition, the respondent submits that the applicant has not established in evidence that he has been disadvantaged by the requirement that he take NDEB examinations in one of Canada’s two official languages, English or French.

7The Application was heard in Toronto on April 29 and June 10, 2014. The applicant testified on his own behalf and the respondent called Dr. Jack Gerrow, the Executive Director and Registrar of the respondent. A number of documents were also entered into evidence.

background

8Shortly after arriving in Canada in 1998, the applicant attempted to become certified by the respondent as having met the requisite standards to practice dentistry in Canada.

9Throughout the relevant time frame, the respondent NDEB has had different certification processes for graduates of accredited dental programs and graduates of non-accredited dental programs.

10Dr. Gerrow testified and there does not appear to be any dispute that accreditation is based on an institution establishing, through a sophisticated and ongoing evaluation process, that its educational and clinical training programs meet the requirements for accreditation.

11Specifically, the NDEB deems an institution to be accredited when it is approved by the Commission on Dental Accreditation of Canada (“CDAC”), which constantly develops, approves and revises accreditation requirements for programs that educate and train dentists. The CDAC accredits educational institutions that have established that they meet the CDAC’s requirements through a detailed written report and a structured in-depth site visit by the CDAC. Once accredited, a dental educational institution continues to be monitored and re-visited by the CDAC to ensure that CDAC’s requisite standards are maintained.

12The NDEB also recognizes accreditations provided by the CDAC to institutions outside Canada through formal reciprocal agreements with accreditation bodies in other jurisdictions. These reciprocal agreements are premised on the other accrediting body having substantially equivalent accreditation standards and allow the accreditation bodies to participate in one another’s site visits, among other things.

13The NDEB is actively involved with CDAC and appoints one member to each accreditation site visit team. It is also involved in the establishing and ongoing monitoring of reciprocal agreements. Currently, all of the university-based dental programs in Canada are accredited by the CDAC and some, but not all, dental programs in the United States, Australia, New Zealand and Ireland are accredited pursuant to reciprocal accreditation agreements.

14Dr. Gerrow’s uncontradicted testimony was that an individual is treated as having graduated from an accredited dental program only if the institution was accredited at the time of graduation. Accordingly, an individual who graduated in 2010 from a dental program that did not become accredited until 2011 would be treated by the respondent as having graduated from a non-accredited institution.

15A non-accredited institution is a dental program that has not been accredited by the CDAC. There is no dispute that there are no accredited dental programs in Afghanistan and that Kabul University is not accredited.

16In the 1990’s, individuals such as the applicant who had graduated from a non-accredited dental program could be certified to practice dentistry in Canada by passing a written examination administered by the NDEB, as well as three Clinical examinations (Clinical I, II and III).

17The applicant wrote and failed the written examination five times in 1998 and 1999. (The applicant came very close to passing the exam once, in September 1999, when he achieved 64 percent, just short of the passing grade of 65.) The applicant also failed the Clinical I examination in 1998 and again in 1999.

18The NDEB’s Certification Examinations for graduates of non-accredited dental programs was phased out in the late 1990’s. Starting in 2000, in order to be certified by the NDEB, an individual had to successfully complete either an accredited Qualifying Program or an accredited undergraduate dental program.

19The applicant applied to the Qualifying Program at the University of Toronto’s Faculty of Dentistry at some point in the early 2000s, but was unsuccessful in gaining admission because he did not meet the program’s minimum English facility requirement.

20In or around 2000, the applicant obtained work as a dental technician in a lab, making dentures, and continued in that work for a number of years before becoming a registered denturist in 2007. The applicant has been practicing as a registered denturist since that time and has his own clinic.

21In 2011, the NDEB introduced a new process by which graduates from non-accredited dental programs could become certified by the NDEB. Specifically, as of 2011, and as an alternative to completing a qualifying program at an accredited institution, graduates from non-accredited programs could become candidates for certification by successfully completing the NDEB’s Equivalency Process.

22The Equivalency Process is comprised of three examinations: the Assessment of Fundamental Knowledge test (“AFK”), the Assessment of Clinical Skills (“ACS”), and the Assessment of Clinical Judgment (“ACJ”). The AFK is the first examination that an individual undergoes in the Equivalency Process. An individual must pass the AFK before taking the ACS and ACJ examinations.

23Dr. Gerrow testified that the idea behind the respondent’s Equivalency Process is that it allows graduates from non-accredited dental programs to demonstrate that their dental education and/or training is equivalent to that provided by accredited dental programs. Consistent with this, successful completion of the Equivalency Process allows an individual to undergo the Certification Process that is available to graduates from accredited dental programs.

24The Certification Process is comprised of a written examination and the Objective Structured Clinical Examination (“OSCE”). All dentists in Canada, whether they are graduates of an accredited or non-accredited dental program, must successfully complete the Certification Process in order to be certified to practice dentistry in Canada. However, whereas graduates from accredited dental programs (either an undergraduate program or a qualifying or degree completion program) proceed directly to the Certification Process, graduates from non-accredited programs must successfully complete the Equivalency Process before being permitted to go through the Certification Process.

25Following its introduction in 2011, the applicant attempted to become certified under the respondent’s Equivalency Process. He wrote and failed the AFK three times, in February 2011, February 2012 and February 2013.

26The respondent’s by-laws provide that an individual who has failed the AFK three times is not eligible to apply to retake the Equivalency Process.

27In or around April 2013, the applicant requested that the respondent permit him to write the AFK a fourth time on compassionate grounds. Specifically, the applicant informed the respondent that his sister had passed away days before he wrote the AFK in February 2012 and that this had affected his performance on the 2012 test, as well as the 2013 test.

28The respondent denied the applicant’s request. Although the respondent’s by-laws provide for examination results to be voided in certain circumstances on compassionate grounds, in a June 2013 letter to the applicant, the respondent pointed out that such appeals must be made within seven days of the examination in question and the applicant’s April 2013 appeal in respect of the February 2012 examination was well out of time.

29The respondent’s refusal to permit the applicant to retake the AFK means that the applicant no longer has the option of completing the Equivalency Process and proceeding from there to the respondent’s Certification Process. As it currently stands, the only way in which the applicant could become certified by the NDEB would be to complete an accredited Qualifying Program. However, the applicant testified that he is not in a position to invest the significant amount of time and money that would be required to complete a Qualifying Program. Moreover, there does not seem to be any dispute that the applicant is not in a position to make a competitive application to a Qualifying Program.

Analysis and decision

30In order to establish that the respondent discriminated against him because of his place of origin, the applicant bears the onus of proving in evidence that the manner in which the respondent treated him created a disadvantage for him because he is from Afghanistan.

31As noted above, the applicant submits that he was disadvantaged by the respondent’s certification requirements as a result of the fact that he is not a native English speaker and as a result of the fact that he completed his dental studies in his country of origin, Afghanistan. In this way, the applicant submits that both language and place of training are involved in grounding his place of origin claim.

32I address the applicant’s arguments in more detail below.

Differential treatment of graduates from accredited versus non-accredited programs

33The applicant alleges that the respondent’s requirement that graduates from non-accredited dental programs undergo a different process than graduates from accredited programs in order to become certified disadvantaged him because he is from Afghanistan, where there are no accredited dental programs.

34In explaining how he has been disadvantaged by the respondent’s certification processes, the applicant points out that graduates from non-accredited dental programs, such as himself, are required to do more examinations than graduates of accredited programs in order to become certified as qualified dentists, and to pay the additional fees associated with taking such examinations. The applicant submits that the respondent’s requirement that graduates of non-accredited dental programs pay for and pass the examinations in the Equivalency Process (i.e. the AFK, ACS and ACJ) put the applicant and others similarly situated to him at a disadvantage as compared to graduates of accredited programs who are not required to go through the Equivalency Process, but are entitled to proceed directly to the Certification Process examinations (i.e. the written examination and the OSCE).

35The applicant submits that the differing requirements for graduates from accredited and non-accredited dental programs are discriminatory based on the graduates’ place of origin. He submits that all individuals should be permitted to proceed directly to the Certification Process, regardless of whether they have graduated from an accredited or non-accredited program.

36In my view, the applicant has not established that any differential and disadvantageous treatment that he may have experienced as a result of having graduated from a non-accredited dental program constituted discrimination against the applicant based on his place of origin.

37To the extent that graduates from non-accredited dental programs experience any disadvantage in the respondent’s system, the respondent submits and I agree that such disadvantage is linked to the individuals’ place of study or training, not their place of origin. Place of study or training is not a prohibited ground of discrimination under the Code. Neiznanski v. University of Toronto, 1995 CanLII 18166 (ON HRT), 24 CHRR D/187 at para. 49 and 50, as cited in Durakovic v. Canadian Architectural Certification Board, 2011 HRTO 333.

38To be fair, the applicant acknowledges this. However, he submits that place of training can be a proxy for place of origin, because people tend to get training in their place of origin. Neiznanski, above; Mihaly v. The Association of Professional Engineers, Geologists and Geophysicists of Alberta, 2014 AHRC 1.

39In circumstances where more onerous certification or licensing requirements are imposed based on negative assumptions about an individual’s place of training, it may be appropriate to find discrimination based on place of origin. For example, in Bitonti v. College of Physicians and Surgeons of British Columbia, 1999 CanLII 35189 (BC HRT), 36 CHRR D/263, a case heavily relied upon by the applicant, the BC Human Rights Tribunal found that it was discriminatory for the BC College of Physicians and Surgeons to give preferential treatment to medical school graduates from Canada, the United States, Great Britain, Ireland, Australia, New Zealand and South Africa, as compared to medical school graduates from anywhere else in the world, based on assumptions about the merits of the British medical education system in place in those countries, as opposed to actual knowledge.

40In the case at hand, however, the evidence does not establish that the respondent imposed more onerous certification requirements on the applicant based on any assumptions about Afghanistan or any other countries. On the contrary, the evidence clearly establishes that that the respondent’s differential treatment of graduates from accredited programs is based on actual knowledge about the programs garnered through a sophisticated and ongoing process of evaluation of the program. This is not discriminatory. In Jamorski v. Ontario (Minister of Health), 1988 CanLII 4738 (ON CA), 64 OR (2d) 161 at para. 20, the Ontario Court of Appeal explicitly rejected a claim that distinguishing between graduates of accredited and non-accredited medical schools was discriminatory, stating in part:

No one has argued that the practice of medicine or medical education should be unregulated. The protection of the public demands that so essential a public service should be carefully regulated to ensure that only qualified persons are entitled to practise medicine. The appellants are the graduates of a system of medical education which is simply not known to, or monitored by, the Ontario authorities. It would be quite unrealistic to expect the graduates of such an unknown system to be treated in the same way as graduates of systems of medical education which have been carefully assessed and accredited.

41In my view, the above-noted reasoning applies with equal force to the facts of the case at hand. The reason the respondent treats graduates from non-accredited dental schools differently than graduates from accredited schools is not because it makes negative assumptions about the people or places where the non-accredited schools are located or positive assumptions about the people or places where the accredited schools are located. The fact that graduates from accredited schools are permitted to proceed straight to the Certification Process is based on the fact that the accreditation system provides the respondent with knowledge-based assurances that graduates from an accredited dental school will have had to meet certain minimum standards in order to graduate. In the absence of any such knowledge-based assurances about graduates from non-accredited schools, it is not discriminatory for the respondent to give individuals from non-accredited dental programs an opportunity to establish that their dental training is equivalent to that provided by accredited schools by successfully passing through the Equivalency Process.

42Finally, I note that the accreditation system recognized by the respondent does not accredit institutions on the basis of the place where they are located. For example, although the CDAC accredits dental schools in the U.S. pursuant to a reciprocal agreement with its U.S. counterpart, not all dental schools in the U.S. are accredited. Accreditation is institution-specific and depends on the institution having met certain requirements and maintaining certain standards. The fact that accreditation is accorded to specific institutions as opposed to all institutions within a given country or place further undermines the applicant’s claim that differential treatment based on graduation from an accredited school is tantamount to differential treatment based on place of origin.

43For the above reasons, the applicant’s claim that the respondent discriminated against him based on his place of origin by requiring him to meet the certification requirements for graduates from non-accredited dental programs is dismissed.

Disadvantage because applicant is non-native English speaker

44As noted above, the applicant’s representative also advanced the argument that because the applicant is from Afghanistan, he is not a “native” English speaker and that the applicant was disadvantaged by the requirement that he pass the respondent’s examinations in English.

45The applicant’s representative argues that individuals who do not speak English as their first language will perform less well on the respondent’s examinations than native English speakers. Indeed, the applicant’s representative argues that non-native English speakers are more likely to fail the AFK than native English speakers. In this way, the applicant’s representative submits, the rule restricting candidates from writing the AFK more than three times has a disproportionate negative impact on individuals who, like the applicant, do not speak English as their first language.

46In support of this argument, the applicant’s representative points out that the AFK is a six-hour multiple choice exam. The applicant’s representative submits that, in order to complete the exam, individuals are required to work “at speed” to answer very technical questions. Against this backdrop, the applicant’s representative submits that an individual who has difficulties in English, such as the applicant, will be prevented from making a proper showing of his or her fundamental dental knowledge on the AFK.

47I agree with the applicant that although language is not a prohibited ground of discrimination under the Code, it can be a defining characteristic of ethnicity or place of origin and in that sense language can be a “proxy” for another prohibited ground of discrimination under the Code. That said, individuals may be proficient in English or any other language, regardless of their country of origin; and there are cases in which the Tribunal has found that disadvantage resulting from an inability to communicate in a particular language is insufficient to ground a claim of discrimination based on place of origin: Arnold v. Stream Global Services, 2010 HRTO 424.

48However, in the case at hand, it is not necessary for me to address these issues in order to decide the Application. This is because, in this case, the claim that the applicant was disadvantaged by the requirement that he write the AFK in English was not borne out by the evidence presented at the hearing.

49Specifically, when he testified, the applicant denied that the fact that the AFK was in English negatively affected his performance on the AFK. Rather, the applicant testified that he did not perform well on the AFK – despite being well-prepared for it – because the examination itself was very “tricky” and contained questions that he had never seen before, notwithstanding his extensive preparation for the exam. The applicant’s evidence on this point was consistent throughout his testimony in chief, on cross and on re-examination.

50I appreciate the applicant’s candour in acknowledging that it was not the fact that the AFK was in English that caused him concern, but the fact that the exam was “tricky”, by which I understood the applicant to have been saying that the reason he did not perform well on the exam was because of the difficult nature of the questions, not because of a language barrier. That said, the respondent argues, and I have to agree that, the absence of evidence that the applicant was disadvantaged by the requirement that he write the AFK in English is sufficient reason, in and of itself, to dismiss this aspect of the applicant’s discrimination claim.

51Nor is the applicant assisted by Dr. Gerrow’s testimony during cross-examination that, although he practiced dentistry in the French language for a time period, Dr. Gerrow would not perform as well on the AFK in French as he would in English, his first language. The issue before me is whether the applicant was disadvantaged by the requirement that he write the AFK in English. Contrary to the position taken by the applicant’s representative, Dr. Gerrow’s evidence does not assist me in determining this issue.

52In addition, although the applicant’s representative argues that the applicant had the fundamental dental knowledge required to pass the AFK, the evidence does not allow me to draw that conclusion. I have no doubt that the applicant is a very capable and intelligent man and he has certainly demonstrated that he is very hard-working as well. However, there is simply no evidence before me that the training that the applicant received in Afghanistan was equivalent to that provided by accredited dental programs, such that the applicant’s Kabul University training gave the applicant the fundamental dental knowledge necessary to pass the AFK.

53The applicant has provided a July 2004 assessment report, prepared by the International Credential Service of Canada, which states that the medical degree awarded to the applicant by Kabul Medical Institute in 1997 is comparable to a first professional degree in medicine from a recognized university in Ontario. The applicant submits that this establishes that the education and training he received from Kabul University in dentistry is equivalent to a degree from an accredited dental program in Canada. However, I cannot agree. The document in question speaks only to the applicant’s medical degree. It therefore does not assist me in determining whether the dental training the applicant received at Kabul University is equivalent to that provided by an accredited dental program.

54In stating this, I am not suggesting that the applicant’s training in Afghanistan was inferior in any way. It is just that the evidence before me does not allow me to conclude that the applicant’s training in Afghanistan was equivalent to that provided by institutions that are accredited by the respondent.

55For the above reasons, the applicant’s claim that the requirement that he pass the respondent’s examinations in English in order to be certified constituted discrimination against the applicant based on his place of origin is dismissed.

56In the circumstances, it is not necessary for me to address the respondent’s alternative argument that this aspect of the applicant’s claim should be dismissed because the applicant never informed the respondent that he had difficulty writing exams in English or asked for accommodation in this regard.

ORDER

57The Application is dismissed.