To view and/or download the Human Rights Complaint that is before the BC Human Rights Tribunal, please click here.
To view a summary of the complaint, the responses received from the respondents and the case progress and updates, please click on the headings below to be taken to the relevant section of this page. As you scroll down, a scroll to the top button will appear on the bottom right corner of this page which can be used for coming back to the following headings.
The Human Rights Complaints is currently underway. You can see the case progress and updates here.
Overview of the Human Rights Complaint
On June 6, 2020 five brave immigrant physicians filed a Human Rights Complaint challenging the systemic discrimination that immigrants from all but approximately 9 countries face when they immigrate to Canada.
To understand the Complaint, one needs to understand the process to medical licensing.
Definitions and acronyms:
Canadian: Citizen or Permanent Resident of Canada
CPSBC: College of Physicians and Surgeons of British Columbia
Postgraduate medical training: Postgraduate medical training refers to entry level jobs (residency positions) working as resident physicians. The CPSBC mandates postgraduate medical training to ensure that a medical graduate has enough practical experience to ensure public safety before being fully licensed.
Immigrant physicians: In this complaint the immigrant physicians being referred to are ones from countries where their medical training and experience is not recognized by the provincial and national colleges.
There are 4 steps to licensure:
- Medical degree
- Postgraduate medical training (residency training). This is the subject of the Complaint.
- Certification Examinations by national college
- Review of credentials and licensing by CPSBC.
Degrees on the World Health Organization list are accepted by the CPSBC. Almost all immigrant physicians who come to Canada have medical degrees from schools on the World Health Organization list. This is not a barrier.
Postgraduate medical training. CPSBC only accepts postgraduate medical training accepted by the national colleges. National colleges accept the training in 9 or fewer countries so immigrants trained in all other countries must (a) undergo individual assessment; or (b) retake residency training.
- Individual Assessment: is available only in Family medicine for less than 30 practitioners per year. It is not available for the more than 70 CPSBC recognized specialties and sub-specialties.
- Residency Training. Only Canadian citizens and permanent residents can compete for residency positions in Canada by going through the CaRMS Match process. Access to residency training is designed to ensure graduates of Canadian and American medical schools become licensed by creating barriers so graduates of international medical schools cannot compete on the basis of individual merit to access residency training.
Certification and Licensing: Most immigrant physicians do not get to the Certification process, although that too has its barriers. But is not the subject of this case, nor is the review of credentials. The barriers at the access to postgraduate medical training are so great, few get to this stage.
The Human Rights Code
Section 3 of the BC Human Rights Code states:
The purposes of this Code are as follows:
(a)to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;
(b)to promote a climate of understanding and mutual respect where all are equal in dignity and rights;
(c)to prevent discrimination prohibited by this Code;
(d)to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;
(e)to provide a means of redress for those persons who are discriminated against contrary to this Code.
The BC Human Rights Code states that a person cannot be discriminated against in the provision of services (such as education or training), in membership in an occupational association (such as licensing), or in employment on the basis of place of origin, race, or age.
Individual assessments (called Practice Ready Assessments) of immigrant physicians are only available in B.C. in family medicine, only in small numbers, and only if the physicians sign an indenture agreement to work where directed for a period of three years.
Therefore, to become licensed, almost all immigrant physicians from all but a few countries must get a job as a resident physician. Access to residency positions for immigrant physicians is fraught with systemic discrimination which is described in more detail in “Part 2, Markers of Systemic Discrimination”. By way of summary the main markers of discrimination are:
- A mandatory assessment (CAP) which is available in limited numbers for the purpose of reducing the number of international medical graduate applicants to less than 30% of those who would otherwise apply, denying them the right to be considered on the basis of their entire qualifications and attributes. There is no similar culling of graduates of Canadian or American medical schools.
- Restricting immigrant physicians qualified to work as resident physicians to only 16.5% of residency jobs in BC so that the vast majority do not get residency positions and cannot become licensed. By contrast, graduates of Canadian and American medical schools are provided with enough resident positions for all applicants so they are virtually guaranteed licensure.
- Restricting immigrant physicians to the underserviced disciplines with 90% of the 16.5% (52/58) of the positions being in family medicine, and only 6 positions in 3 specialties. By contrast, graduates of Canadian and American medical schools have access to 122 Family Medicine positions and 172 specialty positions in 29 base specialties. Immigrant physicians cannot realistically sub-specialize.
- Access to residency positions is further restricted for immigrant physicians based on how long prior to application they graduated. The effect of this is that older physicians have an even smaller opportunity.
- Forcing immigrant physician to sign indenture agreements as a condition of working as resident physicians for the purpose of forcing them to work in underserviced regions. The positions available to graduates of Canadian and American medical schools are not tied to indenture agreements.
Immigrant physicians face discrimination on the basis of place of origin, race, and age. Immigrants from all but a few (primarily white Commonwealth countries) countries face this discrimination.
The effect of this discrimination is that immigrant physicians from most countries are denied the opportunities available to other Canadians who graduated from Canadian and American medical schools. They are denied the right to compete for jobs for which they are qualified. Because these jobs are a pre-requisite to becoming licensed as members in the medical profession, this systemic discrimination strips most immigrant physicians of their profession.
Further, because graduates of Canadian and American medical schools, and foreigners who purchase residency training are (1) not subject to review of their competency, (2) have to meet a lower standard to get residency positions in comparison to immigrant physicians, and (3) are not subject to competition, the public interest is harmed:
- Protectionism and prohibition against competition for the residency jobs available denies the public the right to the best physicians Canada has to offer.
- Failure to test graduates of Canadian and American medical schools and foreigners whose sponsors purchase residency positions in the same way as immigrant physicians are tested creates a double standard and compromises consistency in quality of care.
- Allowing the 3-5% of graduates of Canadian and American schools who have failed the MCCQE1 (designed to test for critical medical knowledge expected of a graduate) to work as resident physicians compromises public safety.
- Discrimination which subjugates, marginalizes, and excludes any group in the Canadian society promotes prejudice and is unethical, unprincipled, and illegal, all of which is contrary to the public interest.
The systemic discrimination in access to the medical profession for immigrant physicians is a result of a consortium of those involved in the medical profession working together to use the system of regulation for their own improper purposes. The consortium is comprised of the College of Physicians and Surgeons of BC, the Faculty of Medicine of UBC, the BC Ministry of Health, CaRMS, and the Association of Faculties of Medicine of Canada.
Regulation of the profession is supposed to be used for the sole purpose of ensuring public safety. But instead:
- The Faculties of Medicine including UBC which the College allowed to be the sole administrators of postgraduate training beginning in 1993, immediately used, and continue to use, their position to protect their graduates and those of their associates from competition by excluding international medical graduates from fair access to residency positions;
- The profession and the Ministry of Health use their positions to limit the number of physicians who can become licensed to decrease competition on the part of the profession; and to ration health care for the purpose of controlling health care expenditure on the part of the Ministry; and
- The Ministry of Health uses its position to subjugate and marginalize international medical graduates to work in underserviced disciplines and underserviced regions, using them on an if and when needed basis.
A system which subjugates and marginalizes a group to fill the underserviced jobs in underserviced areas without competing with a more powerful, more closely held group makes for efficient administration at decreased cost. A second-class citizenry has its benefits for those in positions of power. It is for this reason that Human Rights Codes exist in free and democratic nations which value freedom and equality.
The essence of the relief sought is to:
- Require all Canadians including immigrant physicians be eligible to compete for all jobs;
- Establish one standard of competence for all Canadians—either all graduates of medical schools on the FAIMER list be qualified to compete for postgraduate training jobs, or all graduates must take the same examinations to be qualified to compete for jobs to work as resident physicians;
- Declare that indenture agreements tied to positions for international medical graduates are null and void;
- Provide representation by international medical graduates on all boards and committees where decisions are made that affect international medical graduates—Nothing about us with out us.
Response of the College of Physicians and Surgeons of BC to complaint
The College alleges that it has always acted in the public interest and that its bylaws contemplate admission of individual practitioners on a case-by-case basis taking into account their education, training, and experience.
The College alleges that it sets standards of practice and ensures that its registrants provide safe, competent, and ethical care to their patients and the public is protected.
The College states that there are two routes available for immigrant physicians: one through recognized residency training and the other through practice ready assessments.
The College states that other than registering applicants, the College has no role in creating, administering, or reviewing the residency matching process, examinations or other paths to licensure for Canadian-trained medical students, internationally-trained medical students, or internationally-trained physicians.
Under the legal framework portion of its Response, the College reviews human rights legislation and sets out the definition of discrimination as “a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits and advantages to other members of society.”
The College denies discriminating against the Complainants on a ground prohibited by the Human Rights Code.
The College does not address the claim that it has a gatekeeper duty to ensure that access to the medical profession is open to all qualified on the basis of individual merit.
The College does not claim to set standards for competence of medical graduates who work as resident physicians and does not address the fact that 3-5% of CMGs work as resident physicians despite failing the MCCQE1 which is designed to determine whether a person has the critical medical knowledge and decision-making ability expected of a CMG.
Response of CaRMS to Human Rights Complaint
CaRMS states in its Response that the British Columbia Human Right Tribunal does not have jurisdiction over CaRMS because CaRMS is a federal undertaking and British Columbia does not have sufficient connection.
CaRMS states it has no authority to make decisions, rules, standards or procedures for the CaRMS Match. CaRMS just provides services pursuant to a commercial agreement with the AFMC.
CaRMS claims it has no involvement in setting standards that are the subject of the Complaint. Standards are alleged to be set by others including the AFMC.
CaRMS states that it has no role in creating the two-steam system.
CaRMS claims no involvement in the CAP requirement imposed in British Columbia on international graduates.
CaRMS claims no involvement with the return of service requirement imposed on international graduates.
CaRMS states that the system does not discriminate against immigrant physicians on the basis of place of origin, but rather on the place of where one received his/her medical degree.
Response of AFMC to complaint
The AFMC Response denies discrimination.
The AFMC claims to operate under Health Canada’s Social Accountability Mandate.
The AFMC admits that it passed a motion which states that residency positions should be protected for graduates of Canadian medical schools.
(This AFMC Motion is set out as one of the headings of eligibility criteria at carms.ca.)
AFMC Response states that the AFMC Motion was made in accordance with the mandate of the AFMC to promote the interests of faculties and their graduates and in particular to promote residency positions for their graduates.
The AFMC states that their motion is not binding on provincial governments which are responsible for funding the residency programs across Canada.
The AFMC states that its Motion did not create the two-stream system.
The AFMC states that the AFMC does not determine eligibility criteria for residency positions.
The AFMC states that the “Province of British Columbia has exclusive authority to make decisions respecting the availability of residency programs, resource allocation for residency programs, and the eligibility criteria for residency positions in British Columbia.”
Response of UBC to Human Rights Complaint
In its Response UBC identifies the eligibility criteria to apply for residency positions through the CaRMS Match and who sets the requirements:
- The College requires that international medical graduates
- Demonstrate that they are Canadian citizens or permanent residents;
- Have a degree from a medical school listed on the World Directory of Medical Schools; and
- Meet English language proficiency requirements.
- The Ministry of Health requires that international medical graduates:
- Take the Medical Council of Canada Qualifying Examination Part 1 (MCCQE1) which is intended to assess whether a candidate possesses the medical knowledge and clinical decision-making ability expected of a medical student who has completed their medical degree in Canada;
- Take the National Assessment Collaboration Examination (NAC OSCE) which is intended to assess whether international medical graduates have the requisite knowledge and clinical skills to enter a Canadian residency program;
- Complete the Clinical Assessment Program (CAP) which UBC claims is intended to assess competence relative to the CanMEDS roles;
- Determines how many international medical graduates can take the CAP each year.
UBC states that it selects who will be allowed to take the CAP based on the MCCQE1, the NAC OSCE and a file review which considers date of graduation and date one has last practiced medicine.
UBC pleads that it is the Ministry of Health which determines that the CaRMS Match should be a two-stream process, the number and types of positions to be filled by international medical graduates and that international medical graduates must sign a “return of service” contract as a condition of getting access to residency positions.
UBC pleads that it does not have the legal authority or discretion to alter or waive the eligibility requirements that are set by the Ministry of Health.
Response of BC Ministry of Health to Human Rights Complaint
The Ministry states that it only has a limited role in what it describes as a complex process by which medical graduates are admitted to the profession. It explains that the two-stream system is a result of pan-Canadian decision-making involving provinces, medical schools, and AFMC.
The Ministry claims to provide no services or employment.
The Ministry in its Response denies that it has discriminated in contravention of the Human Rights Code. The Ministry states the differential treatment is based on medical education and training, not a ground protected under the Human Rights Code.
The Ministry states that if it does discriminate, discrimination is justified.
The objectives and justification for the current system provided by the Ministry in its Response include:
- That the provincial government has paid $300,000 for each UBC medical graduate’s education. Thus, the Ministry claims that the barriers which prevent immigrants from becoming licensed to practice is about providing taxpayers with return on substantial investment made in education of medical students in BC;
- addressing physician supply and distribution issues to meet primary care needs including those living in chronically underserved areas;
- shared commitments to ensure high-quality patient care for BC;
- designating “the appropriate number of positions for IMGs”;
- addressing the physician supply and distribution needs of patients, especially primary care;
- providing the ratio of medical school seats to students as recommended by the AFMC.
The Ministry states that immigrant physicians’ failure to obtain residency positions, is not due to discrimination, but because the process is highly competitive.
The Ministry claims there are (1) many pathways available to foreign educated physicians, and (2) there is no prohibition on their competing for residency positions or gaining admission to the practice of medicine in B.C.
The Ministry claims to fund the CAP but claims to have no role in the process of selecting and screening. Although UBC maintained in its Response that the CAP was mandated by the Ministry, the Ministry does not make this admission in its Response. The Ministry appears to deflect responsibility towards UBC.
The Ministry in its Response states that the Ministry relies on return of service agreements to address physician supply and distribution issues and to help meet the population’s primary care needs. It confirms that the Ministry makes Canadian citizens and permanent resident who are international medical graduates work where and in what discipline the government directs to address maldistribution of physician services. The Ministry provides no similar imposition on graduates of Canadian medical schools whose education was subsidized by the provincial government nor rationale as to why the persons subsidized do not have this responsibility imposed on them.
The Ministry claims that if the Complainant’s relief (stopping segregation and allowing competition of all Canadians on the basis of individual merit) was granted that this would cause the province hardship.
 Systemic discrimination makes access to residency training highly competitive for Canadian citizens and permanent residents who graduated from international schools. In 2020, British Columbia placed in the CMG Stream 294 positions. UBC had 288 graduates. There were 6 more positions than UBC graduates.
 This is a blatantly false statement.
Summary of responses to Human Rights Complaint
- All the Respondents allege that immigrant physicians being denied access in British Columbia to 84% of all residency positions available to other Canadians, and all residency in 25 out of the 29 medical disciplines—even though they are qualified and meet the standards to work in these positions is not discriminatory because “distinguishing” on the basis of medical education is not a protected ground under the Human Rights Code.
- The College, UBC, AFMC, and CaRMS each claimed they played no part in mandating the segregation of access to residency training positions into two streams. They take no responsibility for the system’s eligibility restrictions and requirements which have the effect of:
- excluding most immigrant physicians from becoming licensed in the medical profession;
- excludes immigrant physicians entirely from becoming licensed in all but 4 base specialties;
- prevents immigrant physicians from sub-specializing; and
- requires immigrant physicians to enter into an indenture agreement as a condition of being licensed.
- No Respondent claims full responsibility or ownership for the system’s eligibility restrictions and requirements:
- The College does not identify who is responsible for these eligibility restrictions and requirements.
- CaRMS states that others, including the AFMC, are responsible for these eligibility restrictions and requirements.
- The AFMC states it is the Province of British Columbia which is responsible for these eligibility restrictions and requirements.
- UBC states that it is the Ministry of Health which is responsible for these eligibility restrictions and requirements.
- The Ministry states that it plays a limited role in this system which has the effect of excluding immigrant physicians as set out above. It alleges that this two-stream system which has the effect of excluding most immigrant physicians from licensing is a result of pan-Canadian decision-making involving provinces, medical schools including UBC, and AFMC.
Case progress and updates
20.06.06 Human Rights Complaint is filed.
NOTE: The Complaint filed by five immigrant physicians sets out the details of the alleged human rights violation and the parties alleged to be responsible for human rights violations alleged.
20.09.28 Respondents have all filed their Responses.
NOTE: Responses set out the basis upon which the human rights complaint is going to defended by the Respondents, in this case, the Minister of Health of British Columbia, the University of British Columbia, the College of Physicians and Surgeons of British Columbia, Association of Faculties of Medicine of Canada, and Canadian Matching Services of Canada—CaRMS.
20.12.18 Complainants have listed and disclosed their documents.
NOTE: The human rights process requires that all parties disclose documents which they have which are relevant to the proceedings. This is intended to allow disclosure of information that will put forth all the facts necessary for a fair adjudication of the case. To encourage full disclosure and to ensure that parties feel safe disclosing the documents they may not want the public to have, these documents are confidential to the parties involved in the litigation. They are not open to the public until they are used in the proceedings.
21.01.28 Respondents have listed and disclosed their documents.
21.01.28 AFMC files Notice to Dismiss
NOTE: A Notice to Dismiss is an application brought by a Respondent asking that the case against them be dismissed without going to hearing (trial).
21.04.08 Meeting with Human Rights case manager about whether or not the disclosure of documents by the parties is satisfactory. Deadline of June 4, 2021 set for parties to (1) demand from other parties’ documents, they claim have not been disclosed, and (2) to demand particulars (more details about the claim or defence being relied on) from other parties. Deadline of July 2, 2021 set for production of these additional documents and particulars to be provided.
Currently, the parties are working on reviewing the hundreds of documents that have been disclosed to determine what other disclosure is required for a fair hearing.