College of Teachers Failed to Accommodate Foreign Trained Applicant

By Brian Hanulik

An important decision was recently issued by the Ontario Superior Court of Justice regarding the accreditation of foreign trained professionals. In Siadat v. Ontario College of Teachers, 2007 CanLII 253 (ON S.C.D.C.) (“Siadat”), Ms Siadat was a Convention refugee from Iran. She appealed a decision of the College’s Registration Appeals Committee (the “Committee”) to deny her request to waive the College’s requirement to produce official documentation regarding her accreditation as teacher, thereby refusing to issue her a Certificate of Registration in Ontario.

The College’s Accreditation Process

In order to teach in Ontario’s publicly funded education system, a teacher must have a Certificate of Qualification from the College. The College is a self-regulatory body with the statutory mandate to licence, govern and regulate the practice of teaching in Ontario.

Under the College of Teachers Act (the “Act”), the College has the power to make regulations. Regulation 184/97 (the “regulation”) covers the requirements for Certification and provides that applicants who are trained outside of Ontario require proof of proficiency in English and French as well as all of the following:

• Evidence of his/her academic or technological qualifications;
• His/her teaching certificate and a transcript of his/her teaching education program;
• A statement from the issuing authority that his/her teaching certificate has not been suspended or cancelled.

Under section 18 of the Act, the Registrar of the College shall issue a Certificate of Qualification and Registration to a person who applies and fulfills the above requirements under the regulation.

Apart from the Act and the regulations, it has been the policy of the College, and the Ministry of Education before it, to require the production only of original documents, with official documents, duly signed and sealed, to be sent directly from the granting institution.

Background of the Applicant

Ms Siadat was born, raised, educated and worked as a teacher for some 16 years in Iran. While teaching High School literature classes in that country, she made comments about authors’ rights to freedom of expression and incurred harassment by the governing regime, leading to a loss of her employment and threats to her life. Ms Siadat fled Iran in advance of a “political trial” and was accepted as a Convention refugee in Canada.

Upon arriving in Canada, Ms Siadat obtained a Community College Certificate in early childhood learning and obtained work in day-care facilities and in assistant or administrative positions in schools.

Her attempts to gain recognition as a teacher from the Ministry of Education and then the College were unsuccessful. The issue was that the originals of her University Degree, her transcripts and the equivalent of her teaching certificate in Iran are all held by the Ministry of Education there, which is in effect, the organization that caused her to flee that country as a political dissident. In her view, not only would Iran not respond to requests to provide the documentation but it might, in response, seek out and harm members of her family who still live in Iran.

Ms Siadat has one original governmental document – a photo identification card issued by the Ministry of Education. She also obtained, through a friend who works in Iran for the Ministry, a handwritten copy of what was purported to be a transcript of her university courses. She also provided photocopies of her degree and the employment order from the Ministry, as well as certified translations of those documents. Further, she provided the College with a personal resume and supporting affidavits from a friend and a relative in support of her application.

The Decision of the Committee

Ms Siadat relied on the above documentation at the hearing before the Committee and provided “social context” evidence as to why she was unable to provide the original documents requested by the College. This was a “paper hearing” and Ms Siadat was not called to testify or be cross-examined.

Following the “hearing”, the College issued decision. Most of the decision outlined Ms Siadat’s prior unsuccessful attempts to obtain a teaching certificate in Ontario and a list of the material that the Committee considered. The actual decision was just over a page in length. There was no discussion about the content of the documents considered, except to say that they were not satisfactory evidence of a previous teaching certificate, undergraduate degree or completion of a teacher education program, and/or professional standing. The Committee’s decision states that the alternative documents provided by Ms Siadat could not be verified or did not constitute acceptable evidence. As such, her application was denied.

Ms Siadat’s request for an individualized method of determining her qualifications for certification was also denied. The Committee decided that the material presented as “social context” did not convince it that she should be treated any differently from other applicants because these other individuals met the requirements of Ontario Certification.

The Decision on Appeal

After considering the arguments of both parties, the Court held that the Committee had failed to meet both its obligation to properly interpret and apply the relevant law, and the obligations to provide adequate reasons for its decision. As such, the decision was rescinded and Ms Siadat’s application was referred back to the Committee for a re-hearing.

The Court held that the requirement for original or certified copies of documents was an internal administrative practice not called for under the Regulations. In terms of addressing the College’s possible concerns regarding the credentials, the Court noted that foreign trained individuals who successfully applied to the College were issued interim certificates, which are limited to specific time periods during which the teacher works under supervision of others. These interim certificates can also be cancelled if the teacher does not perform satisfactorily.

The Court held that the issue was not whether Ms. Siadat had satisfied the College’s requirements for certificate. Rather, it found that two other issues were determinative in this appeal.

First, the Court found that the Committee had failed to properly interpret and apply the provisions of the Ontario Human Rights Code and public policy in rendering its decision. The Court stated that:

It is plain and obvious to me that to insist on original, or government certified documents from her place of origin, is prima facie discriminatory against her, in view of the evidence she has provided. It is no answer for the Committee, or the College Registrar to say that 17,414 other applicants had succeeded in providing these documents and she is the first one who cannot, especially in view of the evidence that the others, who did not provide all the documents, simply had their applications returns to them as incomplete and were not counted among the 17,414. It appears Ms Siadat is the first person to protest that treatment, and appeal to the Committee, and then to this Court as a test case.

As such, the Court held that the Committee had failed to establish that Ms Siadat’s accommodation request was not possible without undue hardship.

Further, the Court considered that the Committee had failed to meet the legal requirement to give sufficient reasons for their decisions. The duty to provide sufficient reasons is a component of procedural fairness. The Court found that the Committee’s decision failed to meet the requisite criteria, specifically that the decision maker set out its findings of fact, the principle evidence upon which those findings were based, address the major points in issue and the reasoning process followed by the decision maker. The Court held that:

The point at issue before the Committee was appropriate accommodation for the Applicant, in view of her status as a Convention refugee, from a place of origin that would not provide her with formally certified documents. The only mention of that was in the “background” section, where the Committee in effect said that it had heard all of this before, and had turned her down; and on the last page, where the Committee said that “the material presented as “social context” does not convince the Committee that the applicant should be treated any differently from other applicants…”

Conclusion

This is an important decision concerning the ongoing hurdles faced by foreign trained professionals who apply for accreditation in Ontario. This decision makes it clear that professional regulatory bodies must consider the provisions of the Human Rights Code when assessing applications and, where appropriate, must consider what, if any, accommodation may be required in the circumstances.

The decision is also important as it reiterates that administrative tribunals, such the various committees at self-regulating professional entities, must provide sufficient reasons for their decisions. In this case, the decision of the Committee at the College of Teachers failed to set out its findings of fact, the principle evidence upon which its findings were based, address the major points in issue and its reasoning process.