Ontario Appeals Court Ruling Against Mandatory Math Tests For Teachers

Ontario Teacher Candidates’ Council v The Queen, 2021 ONSC 7386 [Ontario Teachers] has made headlines as Premier Doug Ford’s provincial government continues their education reform plan—this time, to the detriment of teacher aspirants.

 

Ontario Teachers concerns the provincial government’s implementation of a standardized math test called the Mathematics Proficiency Test (“MPT”), which all teacher candidates must pass to become certified teachers in the province. While the Ontario Teacher Candidates’ Council (“the Applicants”) take numerous issues with the MPT, the case addresses the test’s constitutionality. Specifically, the Applicants submit that the requirement to write the MPT violates candidates’ s. 15 equality rights under the Charter of Rights and Freedoms (“the Charter”) by adversely impacting racialized teacher candidates’ entry into the profession.

The Superior Court of Ontario (“ONSC”) held that the MPT did, in fact, violate s. 15 of the Charter and could not be justified under s. 1. The ONSC found that the mandatory test adversely affected racialized teacher candidates (Ontario Teachers, para 4). The provincial government (“the Respondent”) has appealed this decision to the Ontario Court of Appeal, submitting that the threshold used by the ONSC judges in making out a claim for discrimination under s. 15 was too low.

Facts

Public school teachers in Ontario require a qualification certificate before they can teach. They receive this certificate from the Ontario College of Teachers, which establishes certain criteria that teacher candidates must meet under the Ontario College of Teachers Act (“OCTA”), in order to receive accreditation. Relevant to the present case is the newly amended subsection 18(1)(c) of the OCTA, which came into force in April 2019. This provision states that the Ontario College of Teachers will issue a certificate of qualification to a candidate who has fulfilled certain requirements, including successfully completing “any prescribed examinations relating to proficiency in mathematics that are required for the issuance of the certificate” (Ontario Teachers, para 9).

Math scores amongst Ontario students have declined in recent years. To help boost math scores, the Respondent began a four-year math strategy, which included the implementation of the MPT (Ontario Teachers, para 39). The MPT assesses teacher candidates on “foundational math skills” common to curriculums throughout Grades 3 to 9 (Ontario Teachers, para 28). 

However, initial assessments of the MPT revealed issues. In 2019, the Ontario Education Quality and Accountability Office (“EQAO”) found that the MPT, and standardized testing for teachers generally, had a “serious impact on racial diversity within the teacher pool” (Ontario Teachers, para 21). As an alternative, the EQAO suggested that increasing the “quality and quantity” of required math courses at an earlier stage in teacher education was “one of the most helpful” steps the Respondent could take towards improving student math scores (Ontario Teachers, para 21). Despite this suggestion, the provincial government continued the implementation of the MPT. In early 2020, approximately 4000 teacher applicants participated in a field test before the MPT’s formal launch. The data from the test revealed that candidates belonging to “non-White ethno-racial groups” failed at a much higher rate than their White colleagues (Ontario Teachers, para 33).  

The first and only official run of the MPT highlighted these racial disparities. Teacher candidates identifying as Black or Indigenous had success rates nearly 20% lower than their White counterparts (Ontario Teachers, para 35). Additionally, French-speaking candidates scored much lower than English-speaking candidates, and candidates speaking a language other than English or French scored even lower (Ontario Teachers, para 35). While teacher candidates are permitted to take the MPT as many times as they need to pass, they must pay a fee for subsequent attempts (Ontario Teachers para 36).

The Applicants initiated a s. 15 Charter challenge against the Respondent, alleging that the MPT requirement adversely discriminated against racialized teacher candidates. The Respondent submitted that the MPT was the only viable option to boost teacher expertise and confidence in mathematics. They rejected other options, such as imposing an admission requirement at the undergraduate level, because such options would interfere with the “independence and flexibility of Faculties of Education, which have their own governance structures and set their own program and admission requirements” (Ontario Teachers, para 40). 

The ONSC Decision

The Applicants Successfully Establish a Prima Facie Breach of s. 15

In assessing the Applicants’ evidence, Justices Backhouse and Nishikawa first acknowledged that a lack of racialized teachers could have ramifications at all stages of education. They recognized that only 13% of Ontario teachers are racialized, which results in a lack of role models for racialized students. In turn, these dynamics create a “vicious cycle—because students do not see themselves represented, they do not aspire to become teachers” (Ontario Teachers, para 67). The ONSC found the potential impact on racialized students was relevant to determining a prima facie breach of s. 15 because it is these students who go on to attend teacher’s college and then form the pool of teacher candidates who would be required to take the MPT (Ontario Teachers, para 69).

The ONSC quoted the recent Supreme Court decision clarifying s. 15 rights, Fraser v Canada 2020 SCC 28 [Fraser] in finding that the data from the MPT field test, the test’s first administration, and the pass rates of racialized candidates revealed “clear and consistent disparities in how a law affects a claimant group” (Ontario Teachers, para 86 quoting Fraser, para 63). In assessing the impact of the MPT, the ONSC found that “the failure rate of Black or Indigenous teacher candidates to White teacher candidates was three to one” (Ontario Teachers, para 69). These were troubling statistics, especially given that there were nearly 10 times as many White test-takers as Black test-takers, and less than 0.5% of test-takers were Indigenous (Ontario Teachers, para 76). The majority also rejected the Respondent’s position that teacher candidates who initially fail the MPT have higher success rates on subsequent attempts, because this position failed to consider the additional burdens of time, money and energy that racialized candidates would disproportionately experience (Ontario Teachers, para 79). The ONSC further found that a large portion of candidates did not retake the test, and that the Respondent had no plans of following up with these individuals (Ontario Teachers, para 83). The ONSC rejected the Respondent’s claim that further time and testing was required to gain more accurate results on racial disparities, because “this [wa]s akin to suggesting that more racialized candidates must attempt and fail the MPT” (Ontario Teachers, para 85).

Justices Backhouse and Nishikawa ultimately held that the MPT imposed burdens on racialized candidates that had the effect of reinforcing, exacerbating or perpetuating disadvantage (Ontario Teachers, para 4). As a result, the ONSC determined that the MPT and the regulations requiring its implementation violated s. 15 of the Charter

The Breach Cannot be Justified Under s.1

After establishing a prima facie breach of s. 15 of the Charter, the ONSC considered whether the breach could be justified under s.1. They held that while the MPT furthered a pressing and substantive objective and was rationally connected to that objective, the MPT did not minimally impair the rights of racialized candidates (Ontario Teachers, para 107). Therefore, the infringement could not be justified under s. 1 of the Charter

Crucial to the “minimally impairing” portion of the ONSC’s infringement analysis was the existence of “reasonably available alternatives to the MPT” that appeared to be less impairing and were “at least as effective in achieving the goal of improving student achievement in math” (Ontario Teachers, para 4). As the ONSC aptly summarized:

 

[T]he Respondent cannot discharge its burden by imposing an option which breaches equality rights, and then make some effort to mitigate the negative effects, if options are available that would not breach equality rights in the first place (Ontario Teachers, para 136).

 

The ONSC stated that imposing a math course requirement before admission into teacher’s colleges, or in teacher’s colleges themselves would be a reasonable alternative to the MRP and would be less likely to impair teacher candidates’ rights under s. 15 (Ontario Teachers, para 156). After performing this analysis, the ONSC held that the legislative provisions enabling the MPT were of no force and effect (Ontario Teachers, para 7).

 Ontario “Schools” Teachers Once More

The government’s appeal of the Ontario Teachers outcome is the latest domino to fall in a series of disagreements between the Ford government, Ontario teachers and teacher unions. Notably, teachers unions vocalized their opposition to the MPT by questioning why arts or kindergarten teachers needed to pass a secondary school-level math test. The bad blood between the Ford government and teacher’s unions can be traced back as far as 2019, when the unions protested against the government’s announcement for larger class sizes, which would result in job losses for teachers. The following year, the Ontario teachers staged a walkout in protest of the province’s cuts to education. Most recently, the parties have been embroiled in tense discussions surrounding the re-opening of public schools following a deadly wave of the COVID-19 Omicron variant. The appeal of Ontario Teachers will undoubtedly further tensions between the Ford government and publicly-funded provincial teachers, with little hope for reconciliation.

A Bleak Future for Standardized Testing?

The holding in Ontario Teachers raises questions about how other provincially-administered standardized tests would fare against a s. 15 Charter Challenge. Justices Backhouse and Nishikawa relied heavily on evidence suggesting that “significant disparities in success rates” existed based on race within standardized testing environments (Ontario Teachers, para 3). Moreover, the EQAO literature review found that standardized testing for teachers had a “serious impact on racial diversity within the teacher pool” (Ontario Teachers, para 21). 

To what extent do racial disparities exist and impair professional hopefuls undergoing other forms of standardized testing? Applying the reasoning of Ontario Teachers, one can easily conceive of a situation in which a racialized student faces increased barriers in taking or re-taking these standardized examinations. In turn, a “vicious cycle” could exist that results in underrepresentation in these professional fields. Should the ONCA uphold the decision in Ontario Teachers, the court’s recognition of systemic limitations in standardized tests is a step forward in the eventual abolishment of these outdated assessments of merit.

 

Henna Mohan

Henna Mohan is a third-year law student at Osgoode Hall Law School and one of the Managing Editors of TheCourt.ca for the 2022-2023 year. Having previously majored in English Literature at Queen’s, she is fascinated by the ways in which language shapes and limits the law, along with its ability to make the law more accessible to the public. Henna has contributed to her love of community-building at Osgoode through her involvement in a human rights legal clinic, inter-student mentorship opportunities and through and several off-campus volunteer initiatives. Her legal interests include public and constitutional law, Indigenous rights, and art law. Upon graduating, Henna will article at a public law litigation boutique in Ottawa.

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