TORONTO – The Canadian Constitution Foundation is pleased that the Ontario Court of Appeal (ONCA) has accepted its arguments that requiring teacher candidates to pass a math proficiency test does not violate the Charter of Rights and Freedom’s equality guarantee.
The ONCA has overturned the 2021 Divisional Court decision Ontario Teacher Candidates Council and Sara Petrucci v Ontario, which had found that the section 15 Charter right to equal protection under the law was violated by the mandatory tests because results from field testing and early sittings of the test suggested a disparity in outcomes between different racial groups.
In a unanimous decision, Justice Monahan found that the Divisional Court erred when it decided that the test for establishing discrimination had been met.
To establish discrimination, the claimant must show that the challenged law or state action creates a distinction on the basis of an enumerated or analogous ground—such as race—and that the distinction imposes a burden or denies a benefit in a discriminatory manner.
The Canadian Constitution Foundation argued as an intervener that if a government crafts and implements a law in a way that accommodates an impacted group—as Ontario had done in this case—then the law is not arbitrary, and non-arbitrary laws will rarely be discriminatory.
Justice Monahan wrote that the data before the Divisional Court did not show a discriminatory impact because candidates who had not passed could rewrite an unlimited number of times, and many had not even attempted a rewrite by the time the data was collected such that it was not yet established that people from certain racial groups would be blocked from entering the profession.
Justice Monahan also found that although there is a “diversity gap” in Ontario’s teaching profession, the test did not reinforce, perpetuate or exacerbate disadvantages because the test was designed to test knowledge that high school graduates could reasonably be expected to know, and the test had been developed with sensitivity for bias and equity issues in mind.
“We are pleased that the court has clarified that it is not racist to require teachers to be competent in basic math,” said CCF Litigation Director, Christine Van Geyn.
“The Divisional Court decision had taken adverse impact discrimination too far, and stretched theories of substantive equality beyond their limits,” she added. “Justice Monahan’s decision better reflects what the guarantee of equality under the Charter actually means.”
The CCF was represented in this case by George Avraam, Jennifer Bernardo and Rono Khan from the firm Baker McKenzie.
Jennifer Bernardo, co-counsel in the case, remarked, “The Court of Appeal’s decision is grounded in well-established principles about the proper scope and application of section 15. We especially welcome the Court’s comments at paragraphs 100 and 101, in which they adopted the CCF’s submission that equality-focused considerations built into the MPT were relevant to determining if the test responded to the actual capacities and needs of racialized candidates.”
“We would like to thank counsel for their exceptional work on this file,” said CCF Executive Director Joanna Baron. “We also thank our donors who make this kind of litigation possible.”