Bonkerstown Bypass

Last week, the Court of Appeal for Ontario issued its decision in Ontario Teacher Candidates’ Council v Ontario (Education), 2023 ONCA 788. The case was the appeal from the notorious “math is racist” decision of the Divisional Court,  Ontario Teacher Candidates’ Council v The Queen, 2021 ONSC 7386, about which I blogged here. The Court of Appeal, contrary to the Divisional Court, holds that the math and pedagogy test (the Math Proficiency Test [MPT]) that aspiring teachers are required to take in Ontario does not discriminate against non-white candidates. But the decision’s scope is very limited. It is based on additional evidence that was not available to the Divisional Court, and while it provides useful guidance on assessing evidence in cases alleging violations of the Charter’s equality guarantee, it neither calls into question the legal framework applicable to such cases (which in fairness, is not the Court of Appeal’s role) nor points out the Divisional Court’s public law mistakes.

Justice Monahan, writing for the unanimous court, sets out the basis for the decision quite succinctly:

What matters, according to Justice Monahan, is whether the white and non-white test-takers are able to enter the teaching profession at similar rates, not the outcome of any particular test attempt. There is no evidence that having to retake the test is a material disadvantage; there is no need to wait any significant amount of time before resitting; no harm ― no foul. This is sensible so far as this particular arrangement is concerned, but note how little the decision really matters for the future: in effect, the test is upheld because failure has no meaningful consequences. The test isn’t really much of a test.

Justice Monahan’s comments about statistical evidence in discrimination cases are worth noting, but they too might turn out not to be very consequential. He points out that “the number of candidates who had self-identified as members of racialized groups” in the data considered by the Divisional Court

was quite small, representing a fraction of the total number of MPT test takers in 2021. Moreover, because the absolute numbers were small, relatively small changes in the numbers would have an outsized impact on the success rate (expressed in percentage terms) for racialized candidates. [71; footnote omitted]

Justice Monahan adds that “the Divisional Court did not explain why it was appropriate to draw firm conclusions about the impact of the MPT on racialized teacher candidates in Ontario from such a small sample size”. [71] But that is not fair. The Divisional Court did address this concern. It wrote that demanding more extensive data

is akin to suggesting that more racialized candidates must attempt and fail the MPT to accumulate the data necessary to show a disproportionate impact. The fact that a greater adverse impact could be demonstrated over time does not mean that there is no adverse impact now. While evidence is necessary, it cannot be that a claimant group must wait years before it is in a position to challenge a regulation that it alleges is discriminatory. [Div. Ct., 85]

Of course, the flaw in this reasoning is that it presumes that early trends will simply continue. We know now that they did not, and this might have been anticipated in the circumstances, as the resit attempts allowed groups that were not initially as successful as others to catch up. But then again, the catching-up would presumably not have happened if there had in fact been some deep problem with the test. As I wrote in my post about the Divisional Court’s decision, “[t]here is a logic to” saying that “it cannot be that a claimant group must wait years before it is in a position to challenge a regulation that it alleges is discriminatory”, though “but “that’s because we are used to thinking of constitutional violations that are more concrete and immediate than what spreadsheets capture”.

In other words, a difficult question arises here: how does a court faced with a disparate impact discrimination claim balance the need for sufficiently robust data to support it against the concern about making people wait and suffer discrimination? It is the Court of Appeal that doesn’t explain why it disposes of this question as it does, even as it chides the Divisional Court for its alleged failure to explain itself. The explanation, I suspect, is implicit: facts are stubborn things, as John Adams long ago pointed out, and once the more complete data are admitted into evidence, it would take a peculiarly bloody-minded court to ignore them. But of course this too doesn’t give future litigants and courts a great deal of guidance.

Perhaps this is because the Court of Appeal is simply stuck with a legal framework foisted on it by the Supreme Court, and could not resolve the paradoxes that this framework throws up even if it tried. The difficulties I have just outlined are inherent in allowing statistics to ground claims of unconstitutional discrimination even if no one can offer a plausible hypothesis about how these statistics have come to be. A general invocation of “systemic racism/sexism/discrimination” isn’t an explanation of course ― it simply begs the question. Getting rid of disparate impact claims entirely would of course solve these problems. Short of that, one might at least require a claimant to explain exactly how the system works to produce this specific set of disparate outcomes. Statistical evidence would then be no more than useful supporting evidence, rather than the foundation of the claim, and its weakness would be less of a concern. In any case, these are things for the Supreme Court to think about.

What the Court of Appeal could and should have done better with is the basic question of the issue in this case and, relatedly, the standard of review and the eventual remedy. Justice Monahan describes the issue as “[d]id the Divisional Court err in finding a prima facie breach of s. 15(1) of the Charter … and [d]id the Divisional Court err in holding that any infringement of s. 15(1) caused by the MPT is not justified under s. 1 of the Charter?” [64] But this is ambiguous as to the nature or cause of the alleged “prima facie breach” or, to use more textually grounded language, limitation of the s 15(1) right. Is the claim that s 15(1) is limited and eventually breached by the specific test that was administered to would-be teachers, or to the statutory provisions authorized it?

The distinction doesn’t just matter for the sake of intellectual rigour. Under existing Supreme Court precedent, it makes a difference to the standard of review. If only the actual test that was administered is at issue, it should arguably be reviewed as a discretionary decision, and thus subject to deference under Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 and its progeny. If the statutory provisions themselves were being challenged, then correctness review was in order. The Court of Appeal follows the Divisional Court in applying correctness review, but doesn’t explain whether and why the provisions authorizing a test were being challenged despite the evidence dealing almost exclusively with the test that was actually administered and its outcomes. And of course, if the Court of Appeal had upheld the Divisional Court’s findings, the proper remedy would also have turned on the nature of the claim. As I wrote in my post about the Divisional Court’s decision, I don’t think there was a basis for invalidating the legislative provisions enabling the test, and yet the Divisional Court did just that. It looks like the Court of Appeal could have done the same, and we are none the wiser as to why.

The Court of Appeal’s decision is, obviously, better than the alternative. That alternative, as I wrote in my post, was “desperately sad”:

The Court notes that one problem with the relative paucity of minority teachers is that, at least in the United States, “non-Black teachers had significantly lower expectations of educational attainment for Black students than Black teachers”. [68] Yet its ruling manifests and perpetuates exactly this sort of soft bigotry of low expectations. We can’t expect, it says, “racialized” candidates to succeed on a standardized test twice vetted for sensitivity and bias. … This presumption that letting members of minority groups cut corners is the only way they can succeed is what disregards the constitutional mandate of equality ― not holding them to the same standard as everyone else.

But the survival of this particular test, for no more compelling reason than that it doesn’t ultimately prevent any significant number of people ― of whatever race ― from becoming teachers, isn’t exactly a cause for joy. The contrary outcome would have been bonkers, but the Court of Appeal doesn’t, and in fairness can’t, prevent it from occurring in a future case. It merely bypasses, for now.