The following is being distributed at the request of the Human Rights Commission:  

The Human Rights Commission comments upon the decision of the Newfoundland and Labrador Supreme Court, Trial Division which confirmed the ruling of Judy Morrow, acting as a Board of Inquiry.  In her decision released on October 14, 2004 Ms. Morrow ruled that the Newfoundland Dental Board discriminated against nine foreign-trained dentists when it refused to grant them general licences prior to July 1, 2001 .  

The nine dentists had come to Newfoundland in the late 1970s and 1980s and were granted provisional licences by the Dental Board to practice in specific geographic locations.  There were never any restrictions on the scope of practice offered by the dentists to the public.  The Dental Board had negotiated a Mutual Recognition Agreement with other governing dental bodies across Canada which provided national mobility for dentists who held general licences on or before July 1, 2001 .  The nine dentists had lobbied the Dental Board to exercise its discretion to convert their provisional licence to general licence prior to that date.  

The Dental Board�s position was that despite the fact they held unrestricted clinical licences, the dentists would have to undergo an expensive educational undertaking outside the province in order to have their licences converted.  The dentists declined this offer but in February 2003 the Government of Newfoundland and Labrador amended the Dental Regulations so as to convert their provisional licences to general licences but this was too late for them to avail of the mobility benefits of the Mutual Recognition Agreement.  

The dentists filed complaints with the Human Rights Commission and a Board of Inquiry was subsequently convened in January and March, 2004.  The board ruled that the Dental Board had the discretion to grant the dentists a general licence prior to July 1, 2001 and its failure to do so had an adverse effect (lack of national mobility) on them because of their national origin.  While the Dental Board may not have intended to discriminate against the dentists, the imposition of a condition that they undergo an educational undertaking - when the Dental Board acknowledged their competency - discriminated against them.  

As a remedy, the Board of Inquiry ordered the Dental Board to circulate a copy of its decision to other dental boards in Canada and to assist the dentists in being grandparented with national mobility.  In the alternative, the Dental Board is to initiate a review of the terms of the Mutual Recognition Agreement so as to negotiate mobility rights for the dentists or if necessary, file a complaint under the dispute resolution provisions of the Agreement on Internal Trade.  

The Dental Board appealed all aspects of the Board of Inquiry decision.  The Supreme Court rejected the Dental Board�s appeal in its entirety and in doing so stated:  

�I conclude that the Board of Inquiry correctly interpreted s.6(1) of the Code and that the Board�s finding of discrimination was based upon reasonable findings of fact.  The Dental Board did not establish any defence to the claim of discrimination.  The condition that the Second Respondents undergo additional study and examination was not necessary for public safety since they held clinically unrestricted licences and the Dental Board had no concerns about their competency. In the circumstances the Dental Board could have reasonably concluded it had conducted an  �alternative evaluation process�, as discussed in the MRA, when granting the provisional licences, by confirming the Second Respondents had passed comprehensive examinations when they completed their dental studies and were licenced to practice in the United Kingdom.  The Dental Board should have maintained focus upon the competency of the Second Respondents, rather than on the fact other dentists might complain about having had to complete the NDEB certification process.  The AIT and MRA negotiations meant that the Dental Board had to revisit its previous approach to licencing and avoid discriminating by adverse effect in the new circumstances.�  

The decision once again confirms that discrimination can occur in the absence of bad faith or an intention to discriminate.  A neutral rule which treats everybody equally can have unintended but adverse effects on certain groups in society.  

Media contact:  Barry Fleming, Executive Director, Human Rights Commission, (709) 729-2709 , 1-800-563-5808  

2005 08 04                                                        10:55 a.m.