Lalsinghani and another v. Ministry of Attorney General, 2024 BCHRT 303
Date Issued: October 29, 2024
File: CS-001137
Indexed as: Lalsinghani and another v. Ministry of Attorney General, 2024 BCHRT 303
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Ravi Lalsinghani and Preet Rai
COMPLAINANTS
AND:
His Majesty the King in the Right of the Province of British Columbia as represented by Ministry of Attorney General
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Theressa Etmanski
Counsel for the Complainants: Christopher D. Drinovz
Counsel for the Respondent: E. W. (Heidi) Hughes and Joanne Kim
I INTRODUCTION
[1] Ravi Lalsinghani and Preet Rai [ Complainants ] were born and educated in India. They have both been accountants in British Columbia for more than twenty years. They have filed a complaint alleging that the Respondent discriminated against them in employment based on their place of origin by deeming them ineligible for promotions and a salary bonus because they do not hold an active Canadian professional accounting designation or its deemed equivalent.
[2] The Respondent denies discriminating and applies to dismiss the complaint without a hearing pursuant to ss. 27(1)(b), (c), and (g) of the Human Rights Code. The Respondent says that neither place of education nor professional designation is a protected ground under the Code, and furthermore that the Complainants have failed to allege any facts that, if proven, could constitute a contravention of the Code.
[3] I find it most efficient to address this application under s. 27(1)(c). The resolution of this complaint turns on the issue of whether the Complainants have taken out of the realm of conjecture that the Respondent’s policy requiring Tax Auditors to have a Canadian accounting designation, or one deemed equivalent, in order to (a) receive promotions and (b) receive the 6.6% Temporary Market Adjustment, is discriminatory on the basis of the Complainants’ place of origin.
[4] For the following reasons, I grant the application and dismiss the complaint in its entirety. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[5] The following is based on information provided and is largely agreed upon by the parties. I make no findings of fact.
[6] Both Complainants are employed by the Ministry of Finance in the Revenue Division, Consumer Taxation Audit Branch [ Branch ] as Tax Auditors.
[7] The Branch’s Tax Auditors plan and conduct audits of taxpayers who do business in BC. The Branch requires Tax Auditors to have considerable knowledge of financial auditing standards, accounting principles, and strong analytical and research skills to interpret information, apply legislation and establish the evidence to support audit assessments.
[8] Between 2001 and 2006, the Branch’s employment competitions for Tax Auditors introduced a requirement that the successful candidate, whether for promotion or new hire, have an active Canadian professional accounting designation [ Designation Requirement ]. When the Designation Requirement came into effect, the Tax Auditor positions were reclassified, increasing their salaries, to reflect their professional designation. The Respondent says that both Complainants received this salary increase.
[9] In 2006, the Branch allowed, as an alternative to the Designation Requirement, a foreign designation that the Chartered Professional Accountants of British Columbia [ CPABC ] has assessed as equivalent (which the Branch refers to as “deemed equivalent”). As a result, since 2006, the Branch’s competitions for Tax Auditor positions have required that the successful candidate hold the Designation Requirement or its deemed equivalent.
[10] The Respondent says that the Branch supports employees who wish to pursue the Designation Requirement or its deemed equivalent, including by paying for courses and providing leave for examinations, subject to certain conditions.
[11] Both Complainants are members of the BC Government and Service Employees’ Union [ BCGEU ].
[12] The Province and the BCGEU negotiated a Temporary Market Adjustment [ TMA ], which provides for a 6.6% increase in salaries for employees with the Designation Requirement. The Respondent explains that the purpose of the TMA is to attract professionals who possess the Designation Requirement. It is also intended to reflect the additional effort that the employees have undertaken to obtain the Designation Requirement. The Respondent says that those holding deemed equivalent designations are not eligible for the TMA.
[13] Neither of the Complainants have the Designation Requirement or its deemed equivalent.
1. The Role of the CPABC
[14] CPABC is the professional regulatory body for Chartered Professional Accountants in BC. It ensures that Chartered Professional Accountants have the appropriate knowledge, skills and proficiency in the practice of accounting, supports its members in providing leadership in the profession, regulates the competency, fitness and professional conduct of its members relating to the practice of accounting, and establishes professional and ethical standards for the practice of accounting.
[15] Members of the CPABC must comply with its Code of Professional Conduct, as well as complete continuing professional development each year to stay current in the profession. CPABC’s requirements are aligned with those of the International Federation of Accountants.
[16] CPABC is a member of the Chartered Professional Accountants of Canada [ CPA Canada ].
2. The role of CPA Canada
[17] CPA Canada is the national organization supporting the Canadian accounting profession. It is responsible for assessing the qualification for foreign-trained professional accountants and accountants who are members of foreign professional accounting associations.
[18] CPA Canada has entered into agreements with foreign professional accounting associations with various degrees of reciprocity, specifically, Mutual Recognition Agreements [ MRAs ] and Memorandums of Understanding [ MOUs ]. Applicants who are foreign-trained accountants or foreign professional accounting associations are assessed under the applicable agreement. The CPA Western School of Business conducts an individualized assessment of such applicants, including a review of their relevant work experience. Based on that review, exemptions to the requirements for certification by CPABC may be applied.
[19] On November 1, 2017, CPA Canada signed a new trilateral MRA with the accounting bodies from the United States and Mexico, which provided for increased recognition of qualified professional accountants between the three countries.
[20] On November 17, 2018, CPA Canada and the Institute of Chartered Accountants of India [ ICAI ] entered into a MOU on Reciprocal Membership Arrangements. Under the MOU, ICAI members meeting certain criteria will be eligible for membership in a Canadian Provincial CPA Body, subject to passing the CPA Profession’s Common Final Examination and meeting the practical experience requirements.
3. The Complainant, Preet Rai
[21] Mr. Rai was born in Chandigarh, India. In 1983, he earned a Bachelor of Commerce Degree with a Major in Accounting from the Punjab University. In 1990, he received his Chartered Accountant designation from the ICAI, and he remains a member in good standing. He worked as a Chartered Accountant in India for several years before immigrating to Canada in 1995.
[22] Mr. Rai commenced work with the Respondent in 1997. He was hired as a Tax Auditor with the Branch. At that time, it was not a requirement that he meet the Designation Requirement. After the Designation Requirement was introduced in 2001, Mr. Rai was allowed to continue in his position without obtaining it. He says his auditor duties were not altered in any way, nor was he prevented from performing any tasks.
[23] Mr. Rai’s ICAI designation has not been recognized as an equivalent to the Designation Requirement. For this reason, Mr. Rai states that his manager informed him that he is automatically disqualified from competing for higher or supervisory positions within the Branch.
[24] Mr. Rai has never competed for any promotions within the Branch.
[25] The parties agree that Mr. Rai has a pathway to certification by CPA Canada because it has a MOU with ICAI. The Respondent says Mr. Rai took courses to become certified, which the Respondent reimbursed him for. However, Mr. Rai has not completed the Common Final Examination required to obtain his designation. He says he has not been able to do so because of his age, full-time job, and significant family responsibilities.
[26] Mr. Rai has never received the TMA.
4. The Complainant, Ravi Lalsinghani
[27] Mr. Lalsinghani was born in Agra, India. In 1991, he earned a Bachelor of Commerce degree from the University of Delhi. In 1994, he earned a Bachelor of Laws degree from the University of Lucknow. Also in 1994, he earned a CMA degree from the Institute of Cost and Works Accountants of India. The Indian CMA is a professional accounting designation that is governed by the Institute of Cost Accountants of India, of which Mr. Lalsinghani was a member.
[28] Mr. Lalsinghani immigrated to Canada in 1996. Since Canada did not recognize his Indian CMA designation, he says he explored other avenues for attaining a North American accounting designation. He learned that the Colorado State Board of Accountancy recognized his Indian CMA designation pursuant to the terms of a mutual recognition agreement. He subsequently passed the relevant examinations and was granted a Certified Public Accountant designation from the State Board of Accountancy of Colorado in 2003 [ Colorado Designation ]. He says his membership remains in good standing; however, his license is currently “inactive” because he is not a practicing accountant in Colorado.
[29] Mr. Lalsinghani says he subsequently spent considerable time and resources trying to obtain a Canadian designation in accordance with the MRA between the United States and Canada. However, he says he learned that his Colorado Designation would not be recognized under the MRA because he was not resident in the United States when he challenged the designation exams.
[30] Mr. Lalsinghani commenced work with the Respondent in 1999. He was hired as a Tax Auditor with the Branch. At that time, it was not a requirement that he meet the Designation Requirement. After the Designation Requirement was introduced in 2001, Mr. Lalsinghani was allowed to continue in his position without obtaining it. He says his auditor duties were not altered in any way, nor was he prevented from performing any tasks.
[31] In 2004, Mr. Lalsinghani says he applied for a promotion and was told that he was disqualified because his qualifications were not Canadian. He says he wrote to both the Branch Director and the Deputy Minister about the arbitrariness of the Designation Requirement. On August 13, 2004, the Merit Commissioner determined that the Branch’s rational for the Designation Requirement complied with Section 8(1) of the Public Service Act .
[32] In 2006, when the Branch’s policy changed to allow for those with deemed equivalent designations to hold higher level positions, Mr. Lalsinghani says he began applying for promotions with the understanding that his Colorado Designation was a deemed equivalent. The Respondent agrees that the CPABC recognized his Colorado Designation as a deemed equivalent at that time. Mr. Lalsinghani was awarded a temporary appointment as Senior Auditor/Financial Officer, for the period of April to July 2006. This appointment was extended to March 2007.
[33] He was subsequently allowed to compete for the position of Senior Auditor on the basis of his deemed equivalent designation, and he was successfully appointed to this role in March 2007.
[34] Throughout 2008 and 2009, Mr. Lalsinghani competed in competitions for Team Leader and Acting Audit Manager positions. The Respondent considered his applications, but he was not promoted.
[35] In 2014, Mr. Lalsinghani again applied for a Team Leader competition. The Branch’s Competition Panel reviewed his eligibility to compete for this position on the basis of his non-Canadian accounting designation. They determined that he was ineligible to compete as he did not meet the qualifications for the position. Specifically, a United States CPA designation obtained in Colorado was no longer recognized by CPABC as a deemed equivalent.
[36] Mr. Lalsinghani’s understanding of why his Colorado Designation was no longer recognized by CPABC is because it was possible to become certified without meeting the 150 semester-hour requirement. However, he says this should not have been applicable to him because he had 184 semester-hours.
[37] In 2018, Mr. Lalsinghani applied for another Team Leader competition. He says he included with his application additional information to support why his Colorado Designation should be deemed equivalent, including proof of his completion of more than 150 semester hours. Mr. Lalsinghani says the Branch again denied his ability to compete, taking the position that his designation “did not appear current” because it was listed as inactive.
[38] After CPA Canada signed the trilateral MRA in 2017, Mr. Lalsinghani says he understood that he would have an easier path to obtaining a Canadian CPA designation, so he submitted an International Candidate Application Form to CPABC. However, Mr. Lalsinghani says that CPABC said he did not qualify as he does not meet the United States education and work experience requirements. Instead, he was eligible to apply for an “Advanced Standing” Transcript Assessment, which would evaluate his education and work experience. Mr. Lalsinghani says when he looked into this further, he learned that he would have to submit significant information, pass several courses and examinations, and complete 30 months of work experience.
[39] Mr. Lalsinghani says he has not taken the steps required by the CPABC because the cost and time commitment required would be too onerous given his significant family obligations and full-time work with the Branch.
[40] With respect to the TMA, Mr. Lalsinghani says he received it while acting in the temporary Senior Auditor/Financial Officer position, from April 2006 to March 2007. However, he says the Respondent subsequently took the position that he had received the TMA in error during this period, and he has not been given the TMA since.
III DECISION
[41] The Respondent applies to dismiss the Complainants’ complaint on the basis that they have no reasonable prospect of success: Code, s. 27(1)(c). The onus is on the Respondent to establish the basis for dismissal.
[42] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[43] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942 at para. 77 .
[44] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176 at para. 20 ; SEPQA v. Canadian Human Rights Commission, [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [ Hill ] at para. 27 .
[45] To prove their complaint at a hearing, the Complainants will each have to prove that they have a characteristic protected by the Code, they were adversely impacted in employment, and their protected characteristics were a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If they did that, the burden would shift to the Respondent to justify the impact as a bona fide occupational requirement. If the impact is justified, there is no discrimination.
[46] The Complainants allege the Respondent discriminated against them in employment based on their race, ancestry, colour and place of origin. However, throughout their response to this application, they refer only to their place of origin. They have not provided details to describe their race, ancestry or colour. In the absence of further particulars or argument regarding the other grounds previously raised, my analysis here will only focus on the protected characteristic of place of origin.
[47] For the purpose of this analysis, I accept, without finding, that the Complainants are reasonably certain to prove that they have the protected characteristic of place of origin by their shared place of birth of India, and they experienced an adverse impact in employment when the Respondent determined them to be ineligible to compete for promotions or receive the TMA. The remaining question is whether the Complainants have no reasonable prospect of proving that there is a nexus between their place of origin and the adverse impact alleged. For the following reasons, I find that they have not.
[48] The Respondent argues that the Complainants have failed to allege any connection or nexus between their protected characteristics and the Designation Requirement. They say neither place of education nor professional certification are protected grounds under the Code.
[49] For their part, the Complainants say that nationality, and by extension place of origin, has long served as a pretext for discrimination on various prohibited grounds: Andrews v. Law Society of British Columbia , [1989] 1 S.C.R. 143 at para. 68. They say their education, training, and resulting professional designations are closely connected to their place of origin, and are therefore an extension of, or proxy for, place of origin and attract the protection of the Code.
[50] The Complainants rely on the cases of Bitonti v. British Columbia (Ministry of Health) (No. 3) 1999 CanLII 35189, and Mihaly v. Association of Professional Engineers and Geoscientists of Alberta , 2014 AHRC 1 (overtuned on judicial review: 2016 ABQB 61), in support of their position. Notably, both of these cases are distinguishable from the present complaint to the extent that they both relate to service complaints against professional regulatory bodies that determine the requirements for accreditation for professionals educated or accredited outside of Canada. In contrast, the current complaint is in the area of employment against an employer applying the standards determined by another regulatory body. However, I understand the Complainants to be relying on these cases for their interpretation of the legal scope of place of origin, rather than similarities in the specific factual matrixes of the complaints.
[51] The Complainants say both Bitonti and Mihaly are authority for the position that one’s place of origin encompasses one’s place of education, and by applying the reasoning in these cases, place of origin can also encompass one’s place of professional designation.
[52] In Mihaly, the complainant filed a complaint against the Association of Professional Engineers, Geologists and Geoscientists of Alberta ( APEGGA ) after he was denied registration as a professional engineer. Mr. Mihaly was born in the former Czechoslovakia and had earned two master’s degrees there. His complaint was about APEGGA’s requirement that he write three additional examinations to be eligible for registration because his degrees were from abroad. Canadian-trained engineers were not required to take these extra exams.
[53] The Complainants say that although the Alberta Human Rights Tribunal ( AHRT )’s finding of discrimination in Mihaly was overturned by the (then) Alberta Court of Queen’s Bench [ ACQB ] on judicial review, the Court accepted the AHRT’s finding that the complainant’s place of education was “inextricably linked” to his place of origin:
[…] However, there is no dispute regarding the Tribunal’s finding that Mr. Mihaly’s place of education was “inextricably linked” to his place of origin. Mr. Mihaly was born, grew up and was educated in his place of origin. When he immigrated to Canada, he came with his educational background, in the same way he came with his culture and language. (para. 100)
Mr. Mihaly had […] no way of avoiding the adverse impact of having to write confirmatory examinations or the FE Exam, aside from leaving his place of origin to pursue his education. In view of the close link between Mr. Mihaly’s place of origin and the place of his education, and the lack of any real opportunity for him to avoid the adverse impact that arose from being educated in his place of origin, I conclude that Mr. Mihaly’s place of origin was a factor in the adverse impact. (para. 103)
[54] The Complainants say that similarly, their professional designations are “inextricably linked” to India, their place of origin. Mr. Rai obtained his Indian CA in India after four years of undergraduate study in India and completing the necessary courses and two examinations. Mr. Lalsinghani obtained his Indian CMA in India after four years of study and writing the necessary examinations. Mr. Lalsinghani obtained his Colorado Designation in Canada, but he was only able to challenge the United States CPA Examination because of his Indian CMA. In light of this, the Complainants say that when they came to Canada, they did so with their educational and professional backgrounds.
[55] In Bitonti, five foreign medical school graduates alleged that their regulatory body discriminated based on the fact that training requirements distinguished between two categories of physicians: Category I which included graduates from medical schools in Canada, the United States, Great Britain, Ireland, Australia, New Zealand or South Africa; and Category II which included graduates from medical schools anywhere else in the world. Category II students were required to complete two years of post-graduate training in North America, while Category I students were only required to complete one year of rotating internship or have specialized training.
[56] In Bitonti, the Human Rights Council concluded that the distinction between Category I and Category II countries was a distinction based on place of origin within the meaning of the Code. The Council accepted, based on expert evidence, studies, and statistics, that there was a high correlation between place of origin and place of education.
[57] The Complainants say that similar to Bitonti, it is reasonable to infer that one’s place of professional designation is highly correlated to one’s place of origin. Both Complainants are from India and obtained their professional designation there, although Mr. Lalsinghani subsequently earned his Colorado Designation. Conversely, they say that one would expect that the majority of those with a Canadian accounting designation are from Canada. The Complainants have not presented evidence to support this claim; however, they acknowledge that these facts must ultimately be established by expert evidence at a hearing.
[58] The Human Rights Council in Bitonti agreed that place of origin did not include place of medical training, per se. However, the decision accepted that place of origin in a Category II country was protected; place of birth in a defined set of countries is analogous to place of birth in a particular country (at para. 158). The Complainants take a similar position here. They say the Designation Requirement creates two categories: those with Canadian or equivalent designations and those without one. They argue that being from a country that is not Canada and does not have an equivalent designation to Canada is a “place of origin” within the meaning of the Code.
[59] The Complainants say that the differential treatment here is not because of the Complainants’ lack of knowledge or ability. They say they are clearly just as capable as any other Tax Auditor in light of their training and education in India, along with their many years of experience with the Branch. Rather, they say the differential treatment arises solely because of their place of origin and training received there, similar to the circumstances in Bitonti.
[60] Bitonti ultimately determined that it was discriminatory to impose a lower licensing burden on Category I graduates compared to Category II graduates, based on assumptions about the merits of the British medical education system in place in those countries, as opposed to actual knowledge (paras. 176-178). The Human Rights Council expressed concern that there had been no effort to understand the medical education systems anywhere else in the world, and there was no mechanism in place by which graduates from Category II countries could demonstrate that their training met the standards demanded of Canadian doctors. In short, a nexus was established because doctors were assessed not individually, but rather based on stereotypical assumptions about the medical education systems in their places of origin.
[61] I am not persuaded by the Complainants’ reliance on Mihaly and Bitonti to support their position that it is beyond conjecture there is a link between their place of origin and the Designation Requirement or a deemed equivalent. I begin with their submission that their place of education is inextricably linked to their place of origin.
[62] While the decisions in Mihaly and Bitonti each reach a similar conclusion about place of origin encompassing place of education, they do so in different ways. The AHRT and ACQB accepted, without reliance on corroborative evidence, that there was an inextricable link between place of origin and education, similar to one’s culture or language. In contrast, in Bitonti, the Human Rights Council based their findings that there was a correlation between the place of education and place of origin based on the evidentiary record which included expert evidence and statistics. Case law from Alberta is not binding on this Tribunal, whereas cases from the Human Rights Council hold precedential value. Furthermore, I prefer the Human Rights Council’s methodology in Bitonti for establishing a factual framework in circumstances such as the present complaint.
[63] Here, the Complainants are essentially asking the Tribunal to accept their speculation about the correlation between place of education and place of origin as evidence for the purpose of this application. They have not provided expert or statistical evidence in support of this position, as was the case in Bitonti. I see this as a fatal flaw in their argument. On applications to dismiss, the Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942 at para. 77 .
[64] While the evidence before me shows that the Complainants both share their place of university education and place of origin as India, the Respondent has provided evidence from two other Branch employees whose places of origin (India and Hong Kong) are different from their places of university education (Canada and the United Kingdom). These two employees both hold the Designation Requirement or a deemed equivalent. In these circumstances, I am not persuaded that the Complainants’ evidence takes any correlation between their place of origin and their place of education out of the realm of conjecture.
[65] I am similarly not persuaded by the Complainants’ reliance on Bitonti for their position that their place of professional designation is inextricably linked to their place of origin. A foundational issue underlying the finding of a nexus in Bitonti was that the distinction between categories of physicians was made based on stereotypical assumptions about the place of their medical education rather than an individualized assessment of an applicant’s qualifications. The Complainants have not provided any evidence to suggest that this is what occurred here. Rather, the Respondent has presented evidence that the Complainants have an individualized assessment process available to them through CPABC. The Complainants disagree with CPABC’s assessments and say that they are equally as qualified as their peers who meet the Designation Requirement. However, I note that the methodology employed by CPABC when conducting the equivalency assessment of foreign credentials is not at issue in this complaint, and CPABC has not been named as a respondent.
[66] Moreover, I agree with the Respondent that Mr. Lalsinghani’s circumstances illustrate that that the Complainants have no reasonable prospect of proving that their place of professional designation is inextricably linked to their place of origin. Mr. Lalsinghani was born in India but was still able to obtain the Colorado Designation while in Canada.
[67] The Complainants have not provided any other factual foundation to support a link between their place of origin and the Designation Requirement. For these reasons, I find that the Complainants have not taken out of the realm of conjecture that their place of origin has a nexus to the adverse treatment alleged.
IV CONCLUSION
[68] I am alive to the Complainants’ statements that their experiences as outlined in this complaint have been frustrating and hurtful. I do not wish to downplay the at times difficult reality of foreign-trained professionals in Canada. The professional, financial and emotional toll accompanying the immigrant experience has been well documented, and my decision on this application does not seek to deny this reality. I wish the Complainants all the best in their careers and thank them for their work in the public service of this province.
[69] The Respondent’s application to dismiss the complaint without a hearing is granted.
Theressa Etmanski
Tribunal Member