© 2012 FRONTIERFOR CENTRE PUBLIC POLICYPOLICY SERIES OLICYOLICY ERIESERIES NO. 138 • AUGUST 2012 FRONTIERPP CENTRE FOR PUBLIC POLICY SS Admitted but Excluded Removing Occupational Barriers to Entry for Immigrants to Canada By Bryan Schwartz FCPP POLICY SERIES NO. 138 • AUGUST 2012 • ADMITTED BUT EXCLUDED 1 © 2012 FRONTIERFOR CENTRE PUBLIC POLICYPOLICY SERIES About the author Dr. Bryan Schwartz is the Asper Professor of International Business and Trade Law at the University of Manitoba. He holds an LL.B. from Queen’s and a Master’s and Doctorate in law from Yale Law School. He is the author of seven books and over seventy academic articles in a wide variety of areas, including constitutional and international law, law and economics, Aboriginal law, human rights law, and law and literature. He is the inaugural editor of two journals: the Asper Review of International Business and Trade Law and Underneath the Golden Boy, an annual review of legislative developments in Manitoba. Over the years, he has received numerous awards and honours for teaching, research and community service. Bryan is also a practicing lawyer. He has been counsel to the Pitblado law firm since 1994, and appeared many times before the Supreme Court of Canada. He frequently advises governments, organizations and individuals on legal issues involving policy development or legislative reform. FRONTIER CENTRE www.fcpp.org FOR PUBLIC POLICY Email: [email protected] MB: 203-2727 Portage Avenue, SK: 2353 McIntyre Street, AB: Ste. 1280–300, 5th Avenue SW Winnipeg, Manitoba Canada R3J 0R2 Regina, Saskatchewan Canada S4P 2S3 Calgary, Alberta Canada T2P 3C4 Tel: 204-957-1567 Tel: 306-352-2915 Tel: 403-995-9916 The Frontier Centre for Public Policy is an independent, non-profit organization that undertakes research and education in support of economic growth and social outcomes that will enhance the quality of life in our communities. Through a variety of publications and public forums, the Centre explores policy innovations required to make the prairies region a winner in the open economy. It also provides new insights into solving important issues facing our cities, towns and provinces. These include improving the performance of public expenditures in important areas like local government, education, health and social policy. The author of this study has worked independently and the opinions expressed are therefore their own, and do not necessarily reflect the opinions of the board of the Frontier Centre for Public Policy. Copyright © MMXII by the Frontier Centre for Public Policy. Date of First Issue: August 2012. Reproduced here with permission of the author. Any errors or omissions and the accuracy and completeness of this paper remain the responsibility of the author. ISSN 1491-78 deas for a better tomorrow FCPP POLICYI SERIES NO. 138 • AUGUST 2012 • ADMITTED BUT EXCLUDED 2 © 2012 FRONTIERFOR CENTRE PUBLIC POLICYPOLICY SERIES FCPP Policy Series No. 138 • August 2012 Admitted but Excluded Removing Occupational Barriers to Entry for Immigrants to Canada By Bryan Schwartz Table of Contents Title Page Foreword 4 Preface 5 Executive Summary 7 Introduction Bryan Schwartz 10 Chapter 1: Human Rights Legislation and the Recognition of Foreign Credentials Bryan Schwartz & Janet Valel 22 Chapter 2: Effective Foreign Credential Recognition Legislation: Recommendations for Success Bryan Schwartz & Natasha Dhillon-Penner 34 Chapter 3: The Application of Competition Law to Foreign Credential Recognition Bryan Schwartz & Rachel Hinton 52 Chapter 4: All Talk and No Action: Access to Canadian Markets under the General Agreement on Trade in Services Bryan Schwartz & Anne Amos-Stewart, Katrina Broughton 75 Chapter 5: Improving Foreign Credential Recognition through Reform in Immigration Law and Policy Bryan Schwartz & Mark Melchers 127 Chapter 6: Improving Labour Market Integration and Interprovincial Mobility for Immigrants Holding Foreign Credentials Bryan Schwartz & Mark Melchers 145 Chapter 7: Facilitating Credentials Recognition at Frontline Agencies Bryan Schwartz & Mark Melchers 159 Endnotes 174 Appendix A: The Federal Government’s Central Initiatives 204 Appendix B: Provincial and Pan-Provincial Initiatives 207 Appendix C: Standalone Foreign Credential Assessment Services in Canada 210 Appendix D: Reports on Foreign Credential Recognition Issues 212 Note to reader: Some words in this document may appear in blue and are underlined. Clicking on these words will direct the reader to relevant pages within, or online websites or documents using your associated web-browser. FCPP POLICY SERIES NO. 138 • AUGUST 2012 • ADMITTED BUT EXCLUDED 3 © 2012 FRONTIERFOR CENTRE PUBLIC POLICYPOLICY SERIES Foreword he Frontier Centre for Public Policy is pleased to publish this edition of Admitted but Excluded: Removing T Occupational Barriers to Entry for immigrants to Canada. Canada’s future prosperity will depend partly on our ability to attract highly educated and skilled immigrants. Our aging population has already begun to put pressure on government finances and this pressure will grow over time. If we fail to draw in productive new citizens from abroad, it will become increasingly difficult for governments to raise sufficient revenue to provide necessary public services. The results will be a reduction in the quality of public services, and/or much higher taxes on those Canadians who are of working age. Canada’s continued economic success will therefore require policy strategies that make Canada an attractive place for skilled immigrants to live and work. Of particular importance, policymakers must work to remove barriers to entry that currently prevent many eminently qualified professionals from working in the professions for which they are trained. Admitted but Excluded is a series of articles that examines several possible strategies for policy reform that can help promote the appropriate recognition of professional credentials earned in other countries. The paper’s lead author, Bryan Schwartz, is uniquely well qualified to address these issues. Professor Schwartz is a professor of business and trade law at the University of Manitoba. He is an expert on constitutional law, human rights law, and the relationship between the law and the economy. All of these areas of Professor Schwartz’ expertise are closely related to the legal and policy questions surrounding obstacles to occupational freedom for new Canadians. Dr. Schwartz is also a practicing lawyer in this area. He has seen first-hand the impact that unfair barriers to professional practice have on the lives of immigrants. Admitted but Excluded reflects Dr. Schwartz’ deep knowledge of the relevant legal and policy questions, as well as his sensitivity to the emotional and financial strain experienced by immigrants and their families when unfair barriers to entry prevent them from working in the professions for which they are trained. This study outlines a series of strategies for policy reform that can help remove these barriers. This research was recently published in academic journal format as a special edition of the Asper Review of International Business and Trade Law. The authors have formulated and expressed their views as independent scholars, and not on behalf of the Frontier Centre. The Frontier Centre is here republishing this study in e-book format. We are excited to publish this special publication, helping to ensure that its findings and policy recommendations reach a wide audience of policymakers and concerned Canadians. Peter Holle, President, Frontier Centre for Public Policy FCPP POLICY SERIES NO. 138 • AUGUST 2012 • ADMITTED BUT EXCLUDED 4 © 2012 FRONTIERFOR CENTRE PUBLIC POLICYPOLICY SERIES Preface am an academic and a practising lawyer. A series of foreign- trained clients, frustrated and demeaned by the treatment I they received at the hands of occupational regulators, inspired me to organize this collection of essays. I was able to help some individuals achieve their merited licensing status through vehicles such as investigations by human rights tribunals. Others took their talents, training and work ethic to other jurisdictions when faced with the emotional and financial cost of a protracted struggle. Other contests are still in progress. Their struggles helped alert and educate me to a profound problem with national dimensions, and I hope that this academic project will contribute to much needed reform. Recognizing from the outset that the issue of Admitted but Excluded has many legal and policy dimensions, I enlisted the assistance of a number of dedicated and talented students to help me explore them. While I bear responsibility for any errors or shortcomings, I would like to recognize and thank the contributions of the following: • Fanni Weitsman (LL.M. 2009), a gifted, multijural and multilingual visitor from Russia and Israel completed her master’s thesis under my supervision three years ago and then spent her final summer here writing an extensive initial research report on the issues we have addressed in this project. • Janet Valel (J.D. 2011) co-wrote and researched the chapter on human rights legislation as a vehicle for reform. • Natasha Dhillon-Penner (LL.B. 2010) researched and co-wrote the chapter on fair access legislation. • Mary-Ellen Wayne (J.D. 2012) edited the original version of the chapter on fair access legislation and drafted supplementary material to update it. • Rachel Hinton (J.D. 2011) researched and co-wrote the chapter discussing uses of the federal Competition Act as a