PARTIAL JUDGMENT RELEASED IN SOCASMA’S CHALLENGE OF ELIGIBILITY RULES FOR RESIDENCY POSITIONS WHICH DISCRIMINATE AGAINST CANADIAN IMGs

The Society for Canadians Studying Medicine Abroad (SOCASMA) has been fighting since 2010 against the roadblocks that Canadians who are graduates of international medical schools (IMGs) face in becoming licensed to practice medicine throughout Canada.  

In the early 1990s the provincial Ministries of Health determined that the best way to control healthcare spending was to ration access to healthcare services by limiting the number of medical graduates who could be licensed to practice medicine.  They slashed medical school seats and residency training positions.  The provinces also instituted multiple layers of barriers to prevent Canadian citizens and permanent residents (Canadians) who are IMGs from becoming licensed to practice.  These barriers are intertwined and found throughout the entire process of licensure.  The barriers to access to residency training are framed into a two-stream system and include (i) limiting IMGs to a small number of entry level jobs (called residency positions) which are a pre-requisite to licensing; (ii) preventing IMGs from competing on individual merit against graduates of Canadian and American medical schools for residency positions; (iii) limiting IMGs in most provinces to only a few medical disciplines; and (iv) forcing IMGs to work where the province directs for several years after becoming fully licensed.  

These government-imposed barriers harm not only IMGs but also the public.  Since this policy was implemented, the gap between need for physician services and the number of physicians that the government bodies allowed to be licensed grew over the years until it reached a critical point where today 6.5 million Canadians are without a primary care practitioner, Canadians are suffering and dying due to delayed access to health care, and Medical Associations are describing the healthcare system as collapsing and in crisis.  

SOCASMA has taken the position that this two-stream system of exclusion of Canadians who are IMGs is not authorized by law; contravenes fundamental principles of administrative law (the law which protects individuals from abuse of government powers); and violates the Charter of Rights. 

The difficulty that SOCASMA encountered when it determined that it should bring legal action in British Columbia was that those institutions involved in the system refused to release, and/or provided contradictory and conflicted information, as to (i) which institution was the decision-maker which implemented this system of exclusion of IMGs, and (ii) through what legal authority.  Answers to these questions are fundamental to holding the responsible parties accountable.

CaRMS initially posted on its website that the regulatory authorities (Colleges of Physicians and Surgeons) set the rules which determined who could apply to work as a resident physician. Then it changed its website to state that the Ministry of Health and UBC made the rules.  At the same time, it published that AFMC sets the eligibility criteria for entry into residency training in Canada.  Although the College has a statutory obligation to ensure public safety, it claimed that it lacks the jurisdiction to establish the qualifications a medical graduate must have to apply to work as a resident physician.  UBC at times said it made these IMG-excluding rules and at other times denied it.  At times the Ministry of Health denied any responsibility, stating that AFMC made the rules.  At other times the Ministry of Health deflected responsibility claiming that it played a role but that the rules were made by a collaborative process involving CaRMS, UBC, and AFMC.

Because of the institutions’ failure to identify authority and responsibility for making these rules, and because of the finger-pointing they engaged in, it was necessary to name in the Petition all the institutions involved:  the College, the Ministry of Health, UBC, AFMC, and CaRMS. 

In response to the Petition filed in the Supreme Court of British Columbia, the Ministry of Health pleaded that the eligibility rules of the two-stream system were established by the Ministry together with other parties.  All other parties denied they had the authority to create the two-stream system and denied responsibility for the rules inherent in it which had the effect of excluding IMGs from becoming licensed.

The BC Supreme Court on March 13, 2024, on application of CaRMS and AFMC, ruled that CaRMS and AFMC did not have the authority to create or impose the two-stream system.  In other words CaRMS and AFMC admitted that they lack the legal authority to make the rules about eligibility criteria to access residency training and the court ruled this to be correct. 

This ruling finds that AFMC and CaRMS do not have the authority to make rules determining the qualifications necessary to compete to work as a resident physician.  Remaining to be determined in this action is who amongst the College, UBC, and the Ministry of Health has the authority to set the qualifications, and whether the current rules are illegal for contravening administrative law principles and the Charter of Rights.  

Click on the following link to access this decision:  Reasons for Judgment Kirschner 24.03.13