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Charter - s.15 Discrimination (2). Ontario Teacher Candidates’ Council v. Ontario (Education)
In Ontario Teacher Candidates’ Council v. Ontario (Education) (Ont CA, 2023) the Court of Appeal considered (an allowed) a Crown appeal of a Charter s.15 declaration against particular 'Math Proficiency Tests' for school teachers on ground of racial discrimination, here on failing the preliminary Charter s.15 onus for inadequate evidence:[7] The July 2021 Data before the Divisional Court provided a preliminary and incomplete basis for assessing the impact of the MPT on entry to the teaching profession. Candidates who had not passed the MPT could rewrite the test an unlimited number of times, and fewer than half of the candidates who would eventually attempt the MPT in 2021 had done so by July 26, 2021. This was an insufficient evidentiary record that failed to discharge the respondents’ onus under s.15(1) of the Charter.
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[10] In short, I am unable to conclude, based on the record before this court, that the MPT has, or will have, a disproportionate impact on the entry to the teaching profession by racialized teacher candidates.
[11] I further find that the MPT is not discriminatory by reinforcing, perpetuating or exacerbating disadvantages distinctly experienced by racialized candidates. I accept the Divisional Court’s finding that there is a significant “diversity gap” in the teaching profession in Ontario. But the uncontradicted expert evidence is that the MPT is designed to test teacher candidates’ knowledge of mathematical ideas that any individual who has completed a high school level education could reasonably be expected to understand. This opinion is confirmed by the fact that over 98% of teacher candidates who attempt the test multiple times (including over 98% of racialized candidates who do so) successfully pass the test. Moreover, in developing the MPT, the EQAO was alive to potential equity concerns associated with a standardized teacher competency test and reviewed all MPT questions for bias and sensitivity to equity issues.
[12] I would therefore hold that the Divisional Court erred in finding that the MPT violated s. 15(1) of the Charter and would set aside the Court’s order on that basis. I do not find it necessary to consider whether, had I found a Charter s. 15 violation, any such breach could have been justified pursuant to s. 1.
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(2) The Divisional Court’s Reasons
[52] The Divisional Court first considered whether the appellants had shown that the MPT infringes s. 15 of the Charter.
[53] Relying on the Supreme Court’s decision in Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1, the Divisional Court indicated that in order to show a prima facie breach of s. 15, an applicant must show that the law or state action:(i) on its face or in its impact creates a distinction based on enumerated or analogous grounds (“Step 1”); and
(ii) imposes burdens or denies benefits in a manner that has the effect of reinforcing, exacerbating or perpetuating disadvantage (“Step 2”). [54] The Divisional Court noted that Fraser confirms that s. 15 protects against adverse impact discrimination, which occurs when neutral laws have a disproportionate impact on members of enumerated or analogous groups. Fraser also provided guidance as to the type of evidence that would be helpful in proving a disproportionate impact on members of a protected group, including evidence about the circumstances of the claimant group as well as evidence about the results produced by the challenged law. This could include statistical evidence showing a disparate pattern of exclusion or harm that is statistically significant and not simply the result of chance. There is, however, no universal measure for what level of statistical disparity is necessary to demonstrate disproportionate impact and the court should not craft rigid rules on this issue.
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F. DISCUSSION: DOES THE MPT VIOLATE S. 15(1) OF THE CHARTER?
(1) Governing Principles
[66] As the Divisional Court explained, it is well established that there are two requirements that must be satisfied by a claimant seeking a finding that a challenged law or state action infringes s. 15(1) of the Charter:(i) the challenged law or state action creates a distinction, on its face or in its impact, on the basis of an enumerated or analogous ground; and
(ii) the distinction imposes a burden or denies a benefit in a discriminatory manner, by having the effect of reinforcing, perpetuating or exacerbating disadvantage: Fraser, at para. 27; Ontario v. G, 2020 SCC 38, 451 D.L.R. (4th) 541, at paras. 40 to 42; R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 398, at paras. 28, 188. [67] Where the claimant alleges that a law which is neutral on its face violates s. 15 because of its adverse effects or impacts, the claimant must show that the law has a “disproportionate impact” on members of a protected group. Such a disproportionate impact can be proven in different ways, including if there are clear disparities in how a law affects the claimant’s group as compared to other comparator groups: Fraser, at paras. 62-63.
[68] The Supreme Court has resisted crafting rigid rules on this issue, other than affirming that the goal of statistical evidence is ultimately to establish “a disparate pattern of exclusion or harm that is statistically significant and not simply the result of chance”: Fraser, at para 59. At the same time, the Court has cautioned about the potential shortcomings of statistical evidence, noting that such evidence may be unreliable: Fraser, at para 60.
[69] Step 2 of the s. 15 inquiry, whether the distinction imposes a burden or denies a burden in a discriminatory manner, will be satisfied if the challenged law creates a distinction that reinforces, perpetuates or exacerbates a disadvantage that exists independently of the impugned distinction: Quebec (Attorney General) v. Alliance du personnel professional et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464, at paras. 25-28. Evidence that a law is based on stereotypes or “prejudicial notions” about members of protected groups, or that it withholds access to benefits or imposes burdens arbitrarily, are relevant considerations, but need not be proven in order to establish discrimination: Sharma, at para. 53. At paras 81, 86-88 and 96-103 the court addressed the evidentiary needs of Charter cases, particularly in statistically-based cases:[81] A sufficient evidentiary record is not a mere technicality. It is essential in all cases and particularly in constitutional litigation, which frequently engages concepts and principles that are of fundamental importance to Canadian society, and which may profoundly affect the lives of Canadians: MacKay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357, at pp. 361-62. ...
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[86] Moreover, the relatively modest difference in the MPT success rate for racialized as compared with White candidates is far smaller than the disparities that have been found in the past to constitute a “disproportionate impact” on a protected group for purposes of analysis under s.15 of the Charter.
[87] For example, in the oft-cited U.S. Supreme Court case of Griggs v. Duke Power Co., 401 U. S. 424 (1971), the requirement that employees have a high school diploma was satisfied by 34% of White employees but only 12% of Black employees, while the requirement to pass standardized tests resulted in 58% of those who identified as White passing the tests, as compared with only 6% of Black identifying individuals. The aerobic fitness requirement in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), could be satisfied by 65 - 70% of men but only 35% of women. In Fraser, the failure of the RCMP’s pension plan to grant job-sharers the ability to buy-back full-time pension benefits disproportionately affected women, since 100% of the participants in the job-sharing program between 2010 and 2014 were women.
[88] In each of these cases, there was what Abella J. described in Fraser (at para. 63) as “clear and consistent statistical disparities in how a law affects the claimant’s group” sufficient to establish a disproportionate impact on the protected group.
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(4) The Respondents Have Not Established that the MPT is Discriminatory, by Having the Effect of Reinforcing, Perpetuating or Exacerbating Disadvantage
[96] Although not strictly necessary to dispose of this appeal, I also find that, based on the record before the court, the respondents have not established that the MPT was discriminatory, in the sense that it demonstrably perpetuated, exacerbated or reinforced the existing disadvantage of racialized teachers in Ontario.
[97] I accept the finding of the Divisional Court that there is a significant “diversity gap” in the teaching profession in Ontario, such that 26% of Ontario students are racialized but only 13% of teachers are racialized. I also accept the Divisional Court’s finding that racialized students, in particular Black and Indigenous students, benefit and perform better when they have racialized teachers. As the Divisional Court noted, a lack of role models in the education system creates a vicious cycle, since students, who do not see themselves represented, do not aspire to become teachers.
[98] Nevertheless, despite the clear evidence of disadvantage associated with their race experienced by the claimant group at all stages of their education, I am unable to conclude, based on the record before the court, that the MPT would reinforce, perpetuate or exacerbate that disadvantage.
[99] Ontario argued that it is not discriminatory to require professionals to demonstrate competence in a subject needed to properly perform their jobs, nor is it a disadvantage. Under step two of the s. 15(1) inquiry, that proposition depends on looking at the actual situation of the claimant group and the potential of the law to worsen their situation: Sharma, at paras. 52, 196 quoting Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at para. 37.
[100] In this case there was expert evidence from Dr. Reid that high-stakes teacher testing has detrimental effects on racial diversity within the teaching population in the U.S. and the U.K. The EQAO literature review revealed a similar concern. However, the EQAO was cognizant of the potential equity concerns associated with a standardized teacher competency test and proceeded with them in mind. To attempt and redress the potential inequities, all the questions on the MPT were screened for bias and sensitivity to equity issues. This resulted in a number of substantive adjustments to the content of the test. For instance, the EQAO allowed more external entities to administer the MPT and altered the assessment format from traditional multiple choice to other close-ended questions, such as drag-and-drop and list ordering problems. It also lowered the difficulty level of the test and sourced the math component for the MPT from the question bank used to test students in Grades 3 to 9, rather than the initially agreed upon Grades 3 to 11 difficulty level. The student math question banks had already gone through an initial review factoring in equity issues. Further, teacher candidates who would become teachers of Native Languages only were given an exemption. These substantive changes to the MPT are relevant to a key issue in step two of the s. 15(1) analysis, namely, whether the MPT requirement responds to the actual capacities and needs of racialized teacher candidates: Taypotat, at para. 20.
[101] Moreover, the frequent administration of the MPT to allow multiple retakes, coupled with only informing the Registrar when a candidate successfully completes the MPT, takes into account the needs of those candidates who may not pass on a first attempt. It must be borne in mind that the MPT is based on questions drawn from EQAO exams administered to Ontario students in grades 3, 6 and 9. It is Dr. Kajander’s uncontradicted expert opinion that the MPT tests mathematical ideas that any individual who has completed a high school level education in Ontario could reasonably be expected to be able to understand. Dr. Kajander’s opinion is supported by the fact that over 98% of candidates who attempted the MPT multiple times in 2021 (including over 98% of racialized candidates who did so) successfully passed the test.[25]
[102] Finally, I note that over the course of 2021, teacher candidates and faculties of education in Ontario were adjusting to the introduction of the MPT by introducing or expanding math instruction within the B. Ed. curriculum. These adjustments can be reasonably expected to improve the mathematical knowledge of teacher candidates in the future, particularly amongst those who may have previously been math-avoidant. It is therefore not unreasonable to expect even higher success rates on the MPT if it were to be administered in future years.
[103] The Divisional Court erred in law by relying on general evidence on standardized testing without regard to the fuller context of the content of the MPT and its administration, as is required at step two of the s. 15(1) inquiry. Had it done so, it would have found insufficient evidence to support a breach of the claimants’ s. 15 rights. . Smith v. Canada (Attorney General)
In Smith v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered comparator issues in the Charter s.15 first stage prima facie discrimination test, here in a challenge to the 11-month limit on retroactive (prior to application) CPP 'disabled contributor’s child benefits' (DCCB):[6] Subsection 74(2) of the CPP provides for the payment of the DCCB for a period of time prior to the application being made. However, subsection 74(2) of the CPP limits the retroactive payment of benefits to the 11-month period prior to the application being received. Mrs. Hume Smith therefore did not receive retroactive payment of the DCCB for each child commencing with the month after the month in which that child was born but rather only received retroactive payments for each child for the 11-month period preceding the month in which her application for these benefits was received. This limitation on the retroactive payment of DCCB to the 11 months preceding the application for these benefits is referred to herein as “the retroactivity cap”.
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[14] In the second Appeal Division decision, the Appeal Division acknowledged that the General Division correctly stated the two-part test for discrimination as set out by the Supreme Court of Canada in Withler v. Canada (Attorney General), 2011 SCC 12, at paragraph 61 (which is set out in paragraph 61 below). The first part of the test requires a determination of whether the retroactivity cap creates a distinction based on an enumerated or analogous ground. Although a claim for discrimination necessarily involves making comparisons between the affected group and others, “the analysis should not become bogged down in a technical search for a specific comparator group” (reasons of the Appeal Division at paragraph 57).
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[61] Both the General Division and the Appeal Division referred to the decision of the Supreme Court in Withler. While the Supreme Court in Withler eliminated the requirement to find a comparator group, it noted that a claim for discrimination still requires a comparison:[61] The substantive equality analysis under s. 15(1), as discussed earlier, proceeds in two stages: (1) Does the law create a distinction based on an enumerated or analogous ground? and (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? (See Kapp [R. v. Kapp, 2008 SCC 41], at para. 17.) Comparison plays a role throughout the analysis.
[62] The role of comparison at the first step is to establish a “distinction”. Inherent in the word “distinction” is the idea that the claimant is treated differently than others. Comparison is thus engaged, in that the claimant asserts that he or she is denied a benefit that others are granted or carries a burden that others do not, by reason of a personal characteristic that falls within the enumerated or analogous grounds of s. 15(1). . Canada (Attorney General) v. Nasogaluak
In Canada (Attorney General) v. Nasogaluak (Fed CA, 2023) the Federal Court of Appeal briefly stated the requirements of a s.15 Charter violation:[77] To prove a violation of section 15(1), a claimant must show that the impugned law or state action (1) creates a distinction based on enumerated or analogous grounds, on its face or in its impact, and (2) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage: R. v. Sharma, 2022 SCC 39 at para. 28; Fraser v. Canada (Attorney General), 2020 SCC 28 at para. 27. . Shaulov v. Law Society of Ontario
In Shaulov v. Law Society of Ontario (Ont CA, 2023) the Court of Appeal granted leave to amend pleadings that alleged culturally discriminatory practices by the Law Society of Ontario. This aspect of the case highlights the importance of the "accept the pleaded facts as true for the purpose of the motion" element of R21.01(1)(b) motions, especially in ambitious context of this particular Charter context:[15] However, I disagree with the motion judge’s narrow characterization of the appellant’s claims against the LSO as based merely on two categories of discrimination. Given the factual matrix pleaded, which the motion judge had to accept as true at the pleadings stage, and the requirement to read the pleadings generously, she should have considered the tenability of the appellant’s discrimination claims from the larger perspective of claims based on discrimination in general, rather than on particular categories of discrimination.
[16] As the appellant ably clarified in his submissions on appeal, at the heart of his s. 15 Charter and Code claims against the LSO is that he was discriminated against by the LSO because of the structure and contents of its licensing examinations, which are alleged to penalize him culturally, ideologically and linguistically. Specifically, the appellant alleges that the ideological, cultural and linguistic orientation of the structure and contents of the LSO’s licensing examinations prevent him, a person from a different ideological, cultural and linguistic background, from succeeding on the examinations. They are discriminatory, according to the appellant, because they do not test his competency to practice law, which was attested to by his articling principal and the LPP lawyers, but discriminate against him because of their alleged inappropriate ideological, cultural and linguistic slant. The appellant maintains that this is not a case where accommodations would have assisted him; rather, there is something fundamentally discriminatory about the structure and contents of the LSO’s licensing examinations.
[17] Moreover, the appellant says that without the discovery process, he is unable to plead further particulars of the alleged discriminatory structure of the licensing examinations. In his statement of claim, he requests an “interim, interlocutory, and permanent injunction” compelling production of documents and information relating to the licensing examinations, including all versions of his written examinations with answer sheets. Counsel for the LSO confirmed during the hearing of the appeal that the appellant would not have access to the examination questions and answers which he says he needs to make his claim, although he could have engaged the LSO procedure to meet and go over his examinations. The rightness or reasonableness of the LSO’s decision not to make available the requested documentation and information, some of which could be confidential or subject to privilege, is not before us. However, it seems to me that if the requested information and documentation was unavailable to the appellant before he started his claim, it would be premature to find at this stage that the appellant’s pleading is fatally defective and cannot be cured by amendment because of a lack of particulars which may be in the LSO’s power to provide through the discovery process.
[18] I return to the fact that these proceedings are at the pleadings stage. While the claims are baldly pleaded and require amendment, the appellant has articulated a basis for his claims against the LSO. It is too early to conclude that the appellant’s claims are doomed to failure and that he will be unable to allege further, material particulars to support his allegations. So long as he pleads a legally tenable claim, he can plead whatever particulars he has at this point and then provide further particulars at his examination for discovery or seek to amend his pleadings once he obtains written and oral discovery from the LSO.
[19] In addition to whatever further particulars the appellant may plead or obtain, it is sufficient at this stage that he pleads discrimination because of the allegedly inappropriate ideological, cultural and linguistic structure and contents of the licensing examinations. It is not necessary at the pleadings stage that he rigidly categorize the bases for the discriminatory effects of the licensing examinations. The motion judge’s decision to narrow the claim to only one category of discrimination was therefore premature, particularly in light of the fact that she granted leave to amend on part of the discrimination claim.
[20] Accordingly, the appellant is granted leave to amend his s. 15 Charter and Code claims against the LSO generally with respect to discrimination and is not limited to pleading discrimination based only on race, culture and ethnic background. . Falkiner v. Ontario (Minister of Community and Social Services)
In Falkiner v. Ontario (Minister of Community and Social Services) (Ont CA, 2022) the Court of Appeal held that receipt of social assistance was an analogous ground of discrimination under Charter s.15:[84] Additionally, however, I consider that the respondents have been subjected to differential treatment on the analogous ground of receipt of social assistance. Recognizing receipt of social assistance as an analogous ground of discrimination is controversial primarily because of concerns about singling out the economically disadvantaged for Charter protection, about immutability and about lack of homogeneity. Because of these concerns, the Divisional Court concluded that receipt of social assistance is not an analogous ground under s. 15 in Masse v. Ontario (Ministry of Community and Social Services) (1996), 1996 CanLII 12491 (ON SCDC), 134 D.L.R. (4th) 20, 35 C.R.R. (2d) 44 (Ont. Div. Ct.), leave to appeal denied without reasons, [1996] O.J. No. 1526 (C.A.); [1996] S.C.C.A. No. 373 (S.C.C.). These concerns have some validity but I think that recognizing receipt of social assistance as a ground of Charter protection under s. 15(1) is justified for several reasons.
[85] First, the main question in deciding whether a ground of discrimination should be recognized as analogous is whether its recognition would further the purpose of s. 15, the protection of [page507] human dignity. See Corbiere, supra. The nature of the group and Canadian society's treatment of that group must be considered. Relevant factors arguing for recognition include the group's historical disadvantage, lack of political power and vulnerability to having its interests disregarded. See Law, supra, and Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1.
[86] Here, the Divisional Court, relying on the record before the Board, found at para. 86 that there was "significant evidence of historical disadvantage of and continuing prejudice against social assistance recipients, particularly sole-support mothers". This evidence showed:-- Single mothers make up one of the most economically disadvantaged groups in Canada.
-- Social assistance recipients have difficulty becoming self- sufficient, in part because of their limited education and lack of employability.
-- Social assistance recipients face resentment and anger from others in society, who see them as freeloading and lazy. They are therefore subject to stigma leading to social exclusion.
-- All sole support parents are subject to stigmatization, stereotyping and a history of offensive restrictions on their personal lives, and these disadvantages are particularly felt by sole support mothers.
-- Sole support parents on social assistance are politically powerless. [87] These findings are reasonably supported by the evidence and I would not interfere with them. They support the conclusion that recognizing receipt of social assistance as an analogous ground of discrimination under s. 15(1) would further the protection of human dignity.
[88] Second, although the receipt of social assistance reflects economic disadvantage, which alone does not justify protection under s. 15, economic disadvantage often co-exists with other forms of disadvantage. That is the case here. The economic disadvantage suffered by social assistance recipients is only one feature of and may in part result from their historical disadvantage and vulnerability. I am comforted in this conclusion by two Nova Scotia decisions: R. v. Rehberg (1994), 1993 CanLII 3399 (NS SC), 111 D.L.R. (4th) 336, 19 C.R.R. (2d) 242 (S.C.) and Dartmouth/Halifax County Regional Housing Authority v. Sparks (1993), 1993 NSCA 13 (CanLII), 101 D.L.R. (4th) 224, 119 N.S.R. (2d) 91 (C.A.). [page508]
[89] Third, immutability in the sense of a characteristic that cannot be changed -- race is an example -- is not a requirement for recognizing an analogous ground. The Supreme Court of Canada has taken a more expansive view of "immutability". A characteristic that is difficult to change, that the government has no legitimate interest in expecting us to change, that can be changed only at great personal cost or that can be changed only after a significant period of time may be recognized as an analogous ground. See Corbiere, supra; Granovsky, supra; Andrews, supra. Receipt of social assistance is a characteristic that is difficult to change, at least for a significant period of time. It fits the expansive and flexible concept of immutability developed in the cases. I thus generally agree with the following observation of the Divisional Court at para. 110:Examined, as it must be, from the perspective of the equity claimant, the status of being a social assistance recipient cannot be changed except over an extended period of time. At the point when the claimant experiences the impugned discrimination, she continues in financial need and cannot change her status except by foregoing state assistance, surely an unacceptable personal cost. The possibility of changing her status at some later time is irrelevant to her experience, and therefore irrelevant to the section 15 analysis. Her status is, therefore 'immutable' as that concept has developed in the authorities cited supra. [90] Fourth, an important indicator of recognition is whether the proposed analogous ground is protected in human rights statutes, which themselves are considered quasi-constitutional. See Miron, supra at p. 496 S.C.R. Here the evidence supporting recognition is compelling. Most provincial human rights codes prohibit, for some purposes, discrimination on a ground related to receiving welfare: discrimination is prohibited on the basis of "receipt of public assistance" in Ontario and Saskatchewan, on the basis of "source of income" in Alberta, Manitoba, Nova Scotia and Prince Edward Island, on the basis of "social condition" in Quebec and on the basis of "social origin" in Newfoundland. [See Note 11 at end of document]
[91] Finally, homogeneity has never been a requirement for recognizing an analogous ground. Thus, though some recipients of social assistance may be more disadvantaged than others, [page509] mere disproportionate disadvantage borne by one or more sub-sets of a group does not militate against recognizing membership in that group as an analogous ground.
[92] The Divisional Court also recognized that social assistance recipients deserved s. 15 protection. The Divisional Court, however, defined the analogous ground more narrowly as sole support parents on social assistance or single mothers on social assistance. The intervenor LEAF supported the Divisional Court's characterization. It seems to me, however, that recognizing the broader or more general category, receipt of social assistance, is preferable. It is more truly analogous to the enumerated grounds, which themselves are general; it conforms to the similar protection accorded to social assistance recipients in human rights legislation; it recognizes a group that is vulnerable to discrimination and that historically has been subjected to negative stereotyping; and it simplifies the equality analysis under s. 15. By contrast, recognizing as analogous a highly specific ground like sole support mothers on social assistance makes the s. 15 analysis, which is difficult enough, unnecessarily complex. Moreover single mothers on social assistance already receive two-fold s. 15(1) protection on the grounds of sex and marital status. What is novel about the respondents' position is that they seek recognition that their status as social assistance recipients is also relevant to the equality analysis. In my view, the most coherent way to achieve this is to recognize receipt of social assistance as an analogous ground.
[93] In summary, the definition of spouse has subjected the respondents to differential treatment on the basis of three prohibited grounds of discrimination: sex, marital status and receipt of social assistance.
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