The Ontario Court of Appeal has determined requiring teacher candidates to pass a math proficiency test does not violate the Canadian Charter of Rights and Freedoms. “We are pleased that the court has clarified that it is not racist to require teachers to be competent in basic math,” said Canadian Constitution Foundation (CCF) Litigation Director Christine Van Geyn in a press release. “The Divisional Court decision had taken adverse impact discrimination too far and stretched theories of substantive equality beyond their limits.” Van Geyn said this decision “better reflects what the guarantee of equality under the Charter actually means.”The Court of Appeal overturned the 2021 Ontario Divisional Court case Ontario Teacher Candidates Council and Sara Petrucci vs. Ontario, which had found equality rights guaranteed under the Charter of Rights and Freedoms were violated because of the tests. Results from field testing and early sittings of the test suggested a disparity in outcomes between different racial groups. In an unanimous decision, Court of Appeal Justice Patrick J. Monahan found the Divisional Court erred when it decided the test for establishing discrimination had been met. To establish discrimination, an applicant must show the challenged law or state action creates a distinction on the basis of an enumerated ground and that it imposes a burden or denies a benefit in a discriminatory manner. The CCF argued as an intervener if a government crafts and implements a law to accommodate an impacted group as the Ontario government did, it is not arbitrary. Non-arbitrary laws will seldom be discriminatory. Monahan said 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. By the time the data was collected, many had not attempted a rewrite, so it could not be established people from certain racial groups would be blocked from becoming teachers. While there is a diversity gap among Ontario’s teachers, he found the test did not worsen disadvantages because it was designed to test knowledge high school graduates would be expected to know and had been developed with sensitivity and bias issues in mind. The CCF was represented in this case by Baker McKenzie lawyers Jennifer Bernardo, George Avraam, and Rono Khan. “The Court of Appeal’s decision is grounded in well-established principles about the proper scope and application of Section 15,” said Bernardo. “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.” CCF Executive Director Joanna Baron thanked the lawyers for their work on this file. “We also thank our donors who make this kind of litigation possible,” said Baron. The CCF had been granted intervenor status in the Ontario government’s appeal about math tests for teachers in September. READ MORE: Civil liberties group to intervene in Ontario teachers’ math test appeal“This case reveals the problems with current Section 15 jurisprudence and the lack of clarity in the law,” said Van Geyn. “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.”
The Ontario Court of Appeal has determined requiring teacher candidates to pass a math proficiency test does not violate the Canadian Charter of Rights and Freedoms. “We are pleased that the court has clarified that it is not racist to require teachers to be competent in basic math,” said Canadian Constitution Foundation (CCF) Litigation Director Christine Van Geyn in a press release. “The Divisional Court decision had taken adverse impact discrimination too far and stretched theories of substantive equality beyond their limits.” Van Geyn said this decision “better reflects what the guarantee of equality under the Charter actually means.”The Court of Appeal overturned the 2021 Ontario Divisional Court case Ontario Teacher Candidates Council and Sara Petrucci vs. Ontario, which had found equality rights guaranteed under the Charter of Rights and Freedoms were violated because of the tests. Results from field testing and early sittings of the test suggested a disparity in outcomes between different racial groups. In an unanimous decision, Court of Appeal Justice Patrick J. Monahan found the Divisional Court erred when it decided the test for establishing discrimination had been met. To establish discrimination, an applicant must show the challenged law or state action creates a distinction on the basis of an enumerated ground and that it imposes a burden or denies a benefit in a discriminatory manner. The CCF argued as an intervener if a government crafts and implements a law to accommodate an impacted group as the Ontario government did, it is not arbitrary. Non-arbitrary laws will seldom be discriminatory. Monahan said 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. By the time the data was collected, many had not attempted a rewrite, so it could not be established people from certain racial groups would be blocked from becoming teachers. While there is a diversity gap among Ontario’s teachers, he found the test did not worsen disadvantages because it was designed to test knowledge high school graduates would be expected to know and had been developed with sensitivity and bias issues in mind. The CCF was represented in this case by Baker McKenzie lawyers Jennifer Bernardo, George Avraam, and Rono Khan. “The Court of Appeal’s decision is grounded in well-established principles about the proper scope and application of Section 15,” said Bernardo. “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.” CCF Executive Director Joanna Baron thanked the lawyers for their work on this file. “We also thank our donors who make this kind of litigation possible,” said Baron. The CCF had been granted intervenor status in the Ontario government’s appeal about math tests for teachers in September. READ MORE: Civil liberties group to intervene in Ontario teachers’ math test appeal“This case reveals the problems with current Section 15 jurisprudence and the lack of clarity in the law,” said Van Geyn. “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.”
