Language Proficiency Requirements Are Not Discriminatory

Ever since the notorious decision of Brar and others v. B.C. Veterinary Medical Association and Osborne, 2015 BCHRT 151 (CanLII), regulators have been uncertain as to when their language proficiency requirements could be seen as discriminatory towards internationally trained applicants.

An application for registration by a teacher hopeful in British Columbia indicates that language proficiency requirements, absent evidence to the contrary, can constitute valid registration requirements.

The matter began with a decision of the British Columbia Human Rights Tribunal: Harun-ar-Rashid v. Ministry of Education (Teacher Regulation Branch), 2021 BCHRT 75 (CanLII). The applicant applied for a certificate in BC. Initially he was told that he would not have to demonstrate language proficiency because of his five years of teaching experience elsewhere in Canada. However, communications between representatives of the regulator and the applicant raised concerns about his English-language proficiency. He was required to pass a proficiency test. The applicant refused. He initiated a series of challenges culminating in a human rights complaint. He argued that the language proficiency requirement was used as a pretext to discriminate against him on several bases including ancestry, colour, place of origin, and race.

The Tribunal dismissed the complaint. Even though other provinces did not require such evidence of language proficiency, there was no evidence that the requirement was based on stereotypes or that it was unduly onerous or unattainable by certain groups of people. The applicant was assessed individually and there was a basis for credible concerns about his language proficiency. There was also no evidence of bias by the regulator; the applicant’s case was based on speculation.

The applicant sought judicial review, which was dismissed on the basis that it disclosed no reasonable claim for judicial review: Harun-ar-Rashid v British Columbia (Human Rights Tribunal), 2022 BCSC 965 (CanLII). On further appeal on various grounds, including that the Superior Court Judge was biased, the matter was also dismissed: Harun-ar-Rashid v. British Columbia (Human Rights Tribunal), 2023 BCCA 276 (CanLII).

Language proficiency requirements are not necessarily discriminatory.

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