TORONTO – The Canadian Constitution Foundation has been granted intervenor status in the Ontario government’s appeal of the decision in Petrucci v. Ontario,2021 ONSC 7386, which found legislation requiring teachers to pass a math proficiency test (MPT) constituted unconstitutional racial discrimination.
In 2018, the Ontario government developed a plan to reverse the decline in student math scores. A key component of the plan was an amendment to the Ontario College of Teachers Act to require that all new teacher candidates successfully complete a MPT before they are certified.
The MPT consists of questions sourced from the standardized tests that are administered to students in Grades 3, 6, and 9, plus a pedagogy component. The tests were reviewed for bias and cultural insensitivity before they were administered. Teacher candidates are also permitted to retake the test if they fail.
A group called Ontario Teachers Candidates’ Council (OTCC) was formed to oppose the math testing requirement. The group argued at Divisional Court that the pass and failure rates of the test varied, and some of those variations could be mapped to racial identity. The Divisional Court ruled that the MPT requirement is unconstitutional and that the disparities in outcome by race showed a violation of section 15(1) of the Charter of Rights and Freedoms, which guarantees the right to equality and freedom from discrimination. The Divisional Court found that the MPT, in its impact, created a distinction between White and non-White candidates, and that the distinction was discriminatory. The Divisional Court held that this limit could not be justified under section 1 of the Charter.
The Canadian Constitution Foundation been granted intervener status to argue about the interpretation of section 15 of the Charter. The CCF will argue that arbitrariness is a key component of the section 15(1) test, and that accommodations made by governments that are responsive to a group’s actual capacities and needs are not arbitrary and will rarely be discriminatory.
“This case reveals the problems with current section 15 jurisprudence and the lack of clarity in the law. The Divisional Court has taken the application of theories on adverse impact discrimination to the extreme, and this somehow led them to the strange conclusion that a math test for Ontario teachers is racist. Clarification of the section 15 test is badly needed,” said CCF Litigation Director, Christine Van Geyn. “In this case, the government has made accommodations for disadvantaged groups. When the government has taken care to accommodate disadvantaged groups, that ought to be taken into account when determining if adverse impact discrimination has occurred or is unjustified,” Van Geyn added.
In the case of the MPT, the government made many accommodations including allowing candidates to re-take the test, focusing only on a minimum level of competency, giving candidates three hours to write a two-hour test, screening the questions for bias and cultural insensitivity, making practice tests available free online, and not sharing information about unsuccessful attempts with the College of Teachers.
The Canadian Constitution Foundation is represented in its intervention by George Avraam, Jennifer Bernardo, and Rono Khan of Baker McKenzie LLP.
