In response to declining math scores from students and growing pressure from parents, the government of Ontario decided to test its teacher candidates' mathematics abilities.

Bill 48, the Safe and Supportive Classrooms Act, 2018, passed in 2019, led to teacher candidates being required to pass a standardized math proficiency test (MPT) to become licensed.

On December 17, 2021, the Ontario Divisional Court found that the MPT infringed the equality guarantee in section 15 of the Canadian Charter of Rights and Freedoms (the "Charter"). The infringement could not be justified by section 1.

The decision, Ontario Teacher Candidates' Council v The Queen, 2021 ONSC 7386, means that the Ontario College of Teachers now must grant certification to teacher candidates who have not yet passed the MPT but have otherwise met all teacher certification requirements.

The Province has sought leave to appeal the decision. If leave is granted, the appeal will be heard by the Ontario Court of Appeal.

A primer: Teaching in Ontario

Teachers must be certified by the Ontario College of Teachers to teach in the province. Section 18(1) of the Ontario College of Teachers Act ("OCTA") sets out the conditions under which the Registrar of the College will issue a certificate to teach in publicly funded schools.

Typically, teacher candidates complete a three or four-year undergraduate degree and then a two-year initial teacher education (ITE) program. The ITE generally takes the form of a bachelor of education. There are core program requirements for the ITE programs but no common math education curriculum. Some faculties require candidates to demonstrate math proficiency to complete their ITE program. Others do not.

All certified teachers in Ontario may be assigned to teach math up to Grade 6. To be qualified to teach math beyond Grade 6, a teacher must have a certificate with qualifications in Intermediate Division Mathematics and/or Senior Division Mathematics. However, a teacher without a qualification in Intermediate or Senior Division Mathematics may be asked to teach math in those divisions.

Bill 48 amended section 18(1) of the OCTA to add a subsection (c), requiring teacher candidates to "successfully complete any prescribed examinations relating to proficiency in mathematics." The MPT was designed to fulfil this statutory requirement.

How did a math test for teachers lead to a Charter challenge?

Section 15 of the Charter, commonly called the "equality rights" section, states that every individual in Canada – regardless of their race, religion, national or ethnic origin, colour, sex, age or physical or mental disability – must be treated equally. Governments must not discriminate on any of these enumerated grounds in their laws or programs, or on any grounds found to be 'analogous' to those listed.

Laws or programs that are found to discriminate, however, may still be justified under section 1 of the Charter so long as certain requirements are met.

The Ontario Teacher Candidates' Council argued that the MPT requirement infringed their section 15 Charter rights and the infringement was not justified under section 1. They argued that the MPT had an adverse impact on teacher candidates from racialized groups and perpetuated the historic disadvantage racialized individuals experienced in the Ontario education system. The Council argued that the statistical data from the administration of the MPT showed that the test acted as a barrier that disproportionately excluded members of minority racial groups from certification.

The decision

The Divisional Court sided with the teacher candidates that the MPT infringed section 15 of the Charter and the infringement could not be justified under section 1. The Court declared that section 18(1)(c) of the OCTA – which contained the requirement that teacher candidates "successfully complete any prescribed examinations relating to proficiency in mathematics" – was of no force or effect.

The Court relied on the following to determine that the MPT infringed section 15:

  • The MPT imposed burdens on racialized teacher candidates that have the effect of reinforcing, exacerbating or perpetuating disadvantage. The court agreed with the following evidence in this respect:
    • Social science evidence showed that racialized teacher candidates experience disadvantages associated with their race at all stages of their education. This was especially pronounced with respect to Black and Indigenous teacher candidates. In particular, the social science evidence from other jurisdictions showed that high-stakes licensure testing for teacher certification disproportionately excludes candidates from minority racial groups.
    • Quantitative evidence (testing data from the administration of the MPT) showed significant disparities in success rates based on self-identified racial characteristics and this evidence corresponded with the extant social science research. In particular, the MPT showed a disproportionate impact on racialized teacher candidates and this impact was most pronounced for candidates who identified as Black or Indigenous.
    • Qualitative evidence was provided by written testimony from teacher candidates, including a racialized teacher candidate who passed the MPT on his third attempt, despite demonstrating the mathematics knowledge required by the test. Notably, the Court commented on the fact that while it would have been helpful to have more evidence from teacher candidates, the fact that there was only one may reflect the stigma of disclosing failure on the MPT.

The MPT acted as an unequal barrier to entry into the teaching profession that tended to exclude more racialized teaching candidates. As a result, the MPT imposed burdens and denied benefits in a manner that had the effect of reinforcing or perpetuating disadvantage.

After determining that the MPT infringed section 15, the Court found that the infringement was not justified because it was not minimally impairing, i.e., the MPT was not the least burdensome way to achieve the goal of improving student achievement in math. The Court agreed with the applicant teacher candidates that there were reasonably available alternatives that appeared to be less impairing and at least as effective as the MPT in achieving this goal. For example, requiring a minimum number of hours of math instruction in Bachelor of Education programs; requiring an undergraduate math course as an admissions requirement for Bachelor of Education programs; or waiting to see the effect of the other parts of the four-year math strategy implemented by Ontario (of which the MPT was only one initiative).

Though not necessary to make its decision on whether the infringement of section 15 of the Charter was justified, the Court also found that the MPT's deleterious effects (the disproportionate effects on racialized teacher candidates) outweighed any salutary effects of encouraging teacher candidates and faculties of education to focus more on math skills.

Why is this decision important?

Apart from being a win for Ontario's teacher candidates and a removal of one of the many structural barriers that impede racialized Ontarians, the decision is notable because it is the most recent decision from Ontario to address the Supreme Court of Canada's decision in Fraser v Canada (Attorney General), 2020 SCC 28.

Fraser is an important decision from the Supreme Court on systemic (or structural) discrimination and on the kind of evidence that courts should look for to determine if a seemingly neutral law or policy disproportionally impacts members of a protected group. Showing a disproportionate impact is one of the elements that can lead to establishing that a law or policy infringes section 15 of the Charter.

The Supreme Court Fraser determined that there are two types of evidence that are helpful to proving a disproportionate impact:

  1. Evidence about the circumstances of the claimant group. For example, evidence about the physical, social, cultural or other barriers faced by the claimant group. This evidence may come from the claimant, expert witnesses, or through judicial notice.
  2. Evidence about the results produced by the challenged law. For example, statistical evidence which is helpful to establishing "a disparate pattern of exclusion or harm that is statistically significant and not simply the result of chance" (Fraser at para 59).

In Ontario Teacher Candidates', the Divisional Court followed the Supreme Court's analysis in Fraser in its consideration of both the evidence of the circumstances of the teacher candidates and the results produced by requiring the MPT. The decision furthers the discussion on structural discrimination and the Charter's role in removing systemic barriers to equality.