Foreign-Trained Workers, Access to Regulated Professions, and Public Safety: What Canadian Human Rights Law has to Teach

الملخص

This paper examines how Canadian human rights law can inform the design of mutual recognition agreements (MRAs) for professional qualifications concluded under transnational trade agreements, such as the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union. While these instruments establish procedural frameworks for MRAs, they do not ensure compliance with domestic equality guarantees. The paper’s objective is to identify how anti-discrimination norms, grounded in the principle of substantive equality, should guide Canadian professional regulators when negotiating and implementing MRAs.

It first sets out the analytical framework for assessing discrimination under Canadian human rights law, as articulated by the Supreme Court of Canada. It then examines leading decisions on discrimination in access to regulated professions, with particular attention to foreign-trained professionals, before applying this framework to typical features of qualification recognition processes and to existing MRAs, including those adopted under the Québec–France Agreement.

The analysis shows that conditions frequently imposed on foreign-trained candidates – such as additional examinations or internships, rigid experience thresholds, and limited opportunities to demonstrate equivalence – may create adverse effects based on individuals’ place of origin, and therefore trigger a duty to justify these measures as bona fide, proportionate, and reasonably necessary to protect public safety. The paper concludes that MRAs should incorporate evidence-based compensatory measures, preserve meaningful individualized assessments of equivalence, and include mechanisms for periodic review to identify and correct systemic barriers, thereby promoting both professional mobility and substantive equality of opportunity.