In Ontario Teacher Candidates’ Council v. The Queen, 2021 ONSC 7386, the Ontario Divisional Court confirmed that the standardized math test that all candidates must pass to become certified teachers in Ontario is a violation of the Charter of Rights and Freedoms (the Charter) due to the evidence that it stops the entrance of racialized candidates into the teaching profession.
Background
In order to become a certified public school teacher in Ontario, teacher candidates are required to obtain a qualification certificate. Candidates must receive this certification from the Ontario College of Teachers (the College) by meeting the specific criteria outlined in the Ontario College of Teachers Act (OCTA).
In recent years, statistics have shown that math scores of students in Ontario have declined. In order to address this trend, the provincial government passed legislation to amend section 18(1)(c) of the OCTA, which specified that the College will issue a certificate of qualification to a teaching candidate who successfully completes “any prescribed examinations relating to proficiency in mathematics that are required for the issuance of the certificate”, among other requirements.
In order to satisfy the legislative requirement, the provincial government implemented a standardized math test called the Mathematics Proficiency Test (MPT), which aspiring teachers must pass to obtain their certification.
Prior to the institution of the MPT, the general accreditation process of provincial teachers did not have a mathematic competency requirement, and therefore, it was the decision of the faculty whether candidates were required to demonstrate math proficiency in order to complete their initial teacher education program.
The MPT and racialized candidates
In 2019, during the implementation process of the MPT, the Education Quality and Accountability Office (the EQAO) reviewed and concluded that the standardized math testing had a “serious impact on racial diversity within the teacher pool”. The EQAO found that current research did not support the widespread implementation of standardized teacher testing at this time, in part because of bias against marginalized groups. The EQAO suggested that increasing required math courses at an earlier stage in teacher education was a way in which the provincial government could address the declination of math scores among students.
In a field test conducted by the EQAO, demographic data showed that candidates who identified as belonging to non-White ethno-racial groups failed at a significantly higher rate than White candidates did. The demographic data from the first administration of the MPT between May 10 and June 26, 2021 showed that success rates differed “significantly across race categories”. Candidates who identify as Indigenous and Black had 20 per cent lower success than those of White candidates.
Commencement of litigation
The Ontario Teacher Candidates’ Council (OTCC) brought an application for judicial review of the MPT, arguing that the MPT violated the rights of prospective teachers under section 15 of the Charter. The OTCC advanced the argument that the implementation of the MPT discrimination against racialized teaching candidates.
The decision
The Court found in favour of the OTCC in that the MPT violated the section 15 rights of aspiring teachers. The Court declared that section 18(1)(c) of the OCTA was of no force or effect.
Section 15 of the Charter states that every individual in Canada must be treated equally, regardless of “their race, religion, national or ethnic origin, colour, sex, age, or physical or mental disability”. The government’s laws and programs must not discriminate against individuals on any of these enumerated (or analogous) grounds.
In its analysis, the Court noted that the integral issue in this application was whether the MPT had a disproportionate adverse impact on entry to the teaching profession for racialized teacher candidates and if so, whether such impact could be justified under section 1 of the Charter.
The Court found that the evidence pointed to significant disparities in success rates of standardized testing based on race, including statistical evidence of racial disparities with respect to the MPT specifically. In making this finding, the Court accepted the data gathered during the field test, the first administration of the MPT and the statistical success rates of candidates as evidence. The Court found that the MPT had serious deleterious effects on diversity within the teaching population.
The Court concluded that the MPT breached the section 15 rights of prospective teachers. Nonetheless, the Charter provides a saving mechanism whereby section 1 of the Charter allows a law or state action to limit a right guaranteed under the Charter. Where the law or state action has a pressing and substantial legislative goal and there is proportionality between the goal and the means to achieve it, the violation of rights ought to be upheld.
In its analysis of section 1 of the Charter, the Court found that though the MPT promoted a pressing and substantial objective and was rationally connected to that objective, the MPT did not minimally impair the rights of racialized teaching candidates. The provincial government had not met the burden of showing proportionality between the furtherance of their goal and the actions taken to achieve the goal.
Specifically, the Court rejected the government’s arguments that there were no reasonable and available alternatives to the MPT. In fact, the Court found there were reasonably available alternatives to the MPT that on their face appear to be less impairing and at least as effective in achieving the goal of improving student achievement in math. Alternatives included requiring a minimum number of hours of math instruction or a math courses within the teacher education program, requiring an undergraduate math course as an admissions requirement for teacher education programs.
What’s next?
The decision confirms that the College must revert to granting a certification of qualification to prospective teachers without the completion of the MPT, so long as other all teacher certification requirements are met.
Although the government may yet appeal the Divisional Court’s decision to the Court of Appeal, no such appeal had been filed as of August 15, 2022.
