In 2021, a judge of Ontario’s Divisional Court found that mandatory math competency tests for incoming public school teachers constituted discrimination against racialized teaching candidates. The decision, Petrucci v. Ontario, was a bombshell, representing a highwater mark of judicial DEI countenance. It was deemed a “surrender to, indeed an embrace of, irrationality masquerading as legal doctrine” by constitutional scholar Leonid Sirota. Happily, the decision was overturned unanimously by the Court of Appeal last week, but the whole affair and the tangled equality rights jurisprudence that led to the original outcome bear accounting for. 

In response to falling math scores across Ontario schools, the Ontario government mandated a basic math proficiency test (MPT) for all public school teachers. The MPT barely reached a Grade 9 level, with many questions well below that threshold. The test was screened twice for “bias and sensitivity to equity issues.”

A Divisional Court decision was issued on the basis of one round of the test being administered. It found that the test constituted a form of “adverse impact discrimination”, accepting an assertion that “Black and Latinx teacher candidates are much more likely to fail standardized teacher tests than their White peers,” and that standardized tests are categorically “biased against almost all vulnerable classes of potential teachers other than women”. They reached this conclusion even though it was common ground that teaching candidates were permitted to take the test as many times as needed.

The allegation that standardized tests, whether for students or faculty, contain implicit biases is a familiar one. Staff with the Toronto District School Board’s Mathematics and Numeracy Department have given presentations suggesting that the province’s standardized testing was an example of “white supremacy in K-12 mathematics education.”

The hearing of the appeal, held at Osgoode Hall this fall, was bracing to witness. In one exchange, Justice Monahan remarked, upon hearing that the content of the MPT was biased against non-native English or French candidates, that he felt like he was in Alice in Wonderland absurdist territory. Clearly, basic competence in English or French is a requirement to teach in an Ontario public school.

Counsel for the candidates argued that even the government’s accommodation of multiple test rounds was insufficient and that the disparity in test outcomes created sufficient evidence of discriminatory impact. He argued that to demand more evidence would be “unduly onerous” for the candidates. This was posited due to the excessive burden for racialized candidates of having to “see their white colleagues passing, give up jobs and time with family.” They feared that some candidates who failed the first time would just give up.

With an eventual pass rate for racialized candidates of 93 percent, the court didn’t accept this, as there was no indication that the test served as a meaningful barrier to the diversity of the teaching profession. And thank God. If the standard of a basic test of grade nine math abilities for an educator is too meritocratic for our society, and asking intended teachers who don’t pass right away for a bit of perseverance, things are pretty hopeless. (And I say this as somebody who failed her G2 driving test four times, with considerable humiliation!)

In the result, Justice Monahan found that the test was not discriminatory: candidates who had not passed could rewrite the test an unlimited number of times without prejudice, and the test itself had already been screened for bias. The legal charity I work for, the Canadian Constitution Foundation, intervened and argued that the test, which already made accommodations for racialized groups, was not arbitrary and thus was strongly presumed to not be discriminatory.

The decision is an opportunity to consider how the guarantee of equality under the Charter has metastasized in the last forty years since its adoption and offers a somewhat hopeful check on s. 15’s drift towards creating positive obligations on the state to produce uniform outcomes between all societal groups. From the perspective of the candidates and the Divisional Court, substantive equality demanded that the government fill in any gaps in outcomes between groups, even if that means eliminating the requirement of proving basic skills for those who would educate our children.

Section 15(1) states “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” The landmark case defining the scope of s. 15(1)’s protection, Andrews v. Law Society of British Columbia, guaranteed “equality before and under the law, as well as the equal protection and equal benefit of the law without discrimination” and clarified that its protection “was not a general guarantee of equality.” In other words, it was a negative guarantee of formal equality rather than substantive equality: equality of treatment under the law, free from state distinction, rather than equality of outcomes.

Now-retired Justice Rosalie Abella, however, made it a hallmark of her judicial legacy to entrench a thick conception of substantive equality in which each social group ought to enjoy equal outcomes on every measure of achievement, and a group’s demonstration of unequal outcomes served as prima facie evidence of discrimination.

This view prevailed in the Supreme Court’s 2020 Fraser decision, which found that RCMP officers who opted to switch to part-time work after their maternity leaves were entitled to full-time pension benefits in retirement. Abella found that to hold otherwise would perpetuate historical disadvantages of women, and counselled lower courts, when reviewing laws for discriminatory impact, to disregard legislative intent, as it was not important to show discrimination. Mere “headwinds” against which a certain group might struggle were sufficient.

However, concerns about whether equality doctrine was becoming unwieldy and all-encompassing were addressed in 2022’s R. v. Sharma, which was released after the divisional court’s decision in Petrucci. The majority decision reins in Fraser in a few ways. First, it clarifies that any gap in outcomes between groups does not mean there has been a breach in equality rights, only “disproportionate” gaps. Second, it emphasized that the distinction had to be arbitrary in order to ground a claim of discrimination: “a distinction that is based on an individual’s actual capacities will rarely be discriminatory; but a distinction that fails to respond to the actual capacities and needs of the members of the group will often be discriminatory.”

The proposition upheld by the Divisional Court—that fear of burdening racialized candidates should lead the government to scrap a test meant to boost poor math scores throughout public schools—represents a nadir of bigotry of low expectations. It also threatens to entrench poor math outcomes for all students, including racialized ones, by doing away with the requirement of basic teaching knowledge requirements. Finally, its view of the aptitudes of racialized Canadians is both condescending and unsupported by evidence. A recent study from the Aristotle Foundation, for example, shows many Canadian visible minorities outpacing white Canadians in income and educational attainment. Disparities do not imply discrimination, and it is by fostering a culture of excellence rather than a race to the bottom that society flourishes.

Most of the commentary about the Trudeau government’s recent fall economic update has focused on housing initiatives and debt projections. But the update also proposed significant new regulatory burdens on Canadian businesses to ostensibly lower prices for consumers. However, these proposals are ill-conceived, miss the root causes of the problem, and in some cases simply shift costs from one group of consumers to another.

For starters, the Trudeau government wants to amend the Competition Act, the federal law regulating competition in the marketplace, to establish a “Grocery Task Force” to supervise “big grocers,” stabilize prices, and monitor and investigate practices such as “shrinkflation”—that is, when producers reduce the size of products due to rising production costs.

While the government’s proposals are light on details about enforcement, it’s easy to imagine the difficulty the Competition Bureau, the federal law enforcement agency tasked with enforcing such things, would face in determining, for example, what constitutes shrinkflation. If a grocer changes the packaging size and price of a specific product, is that always shrinkflation? Or is that grocer, in an effort to cover their full costs, simply expanding the range of options for consumers who may opt for lower prices over higher volume?

In reality, if the Trudeau government wants to help lower food prices for Canadians, it would reduce tariffs on imported dairy and other food products and eliminate provincial marketing boards. These costs are passed on to consumers at the checkout line. 

Also according to the economic update, the government plans to crack down on so-called “junk fees” such as roaming charges, excessive banking fees, and airline fees. But how would competition authorities determine when certain fees are “junky” while other fees are legitimately meant to recover costs for services customers desire? Clearly, such judgments would be totally arbitrary. And if the government prohibits specific fees, without helping increase competition in the affected sector, the new fee prohibitions will likely result in increased prices for other transactions involving affected businesses. In an effort to reduce prices for Canadians, the Trudeau government will simply push costs from one consumer—or one transaction—to another. 

It’s also noteworthy that the worst-offending industries, in the government’s eyes, are among the most sheltered from foreign competition. Specifically, in Canada, foreign ownership restrictions in sectors such as media/telecommunications and air transportation are among the most restrictive in the developed world. If the government wants to meaningfully protect consumers, it would scrap direct and indirect restrictions on foreign competition in these industries—for example, eliminate “cabotage” regulations that prevent foreign airlines from operating domestic routes within Canada. More competition in the air means lower prices for Canadian air travellers. 

Finally, the Trudeau government wants to address so-called “planned obsolescence” where manufacturers create demand for more expensive new versions of existing products by deliberately designing products (e.g. smartphones) to wear out or function less effectively over a relatively short period of time. But the concept of planned obsolescence is open to debate since informed consumers in a competitive marketplace will purchase products at the lowest available price with “lifespan” (and other factors) in mind.

Furthermore, planned obsolescence is often—if not always—in the consumer’s best interest. “Value engineering” is a design process meant to use as little material as possible in a product while still delivering an acceptable lifespan. For example, the useful life of a smartphone is limited to a few years due to rapid technological improvements in both software and hardware. It would be wasteful to build a smartphone with a physical lifespan much longer than its useful lifespan. Competition policy bureaucrats in Ottawa are likely ill-equipped to distinguish between efficient and inefficient product obsolescence.

Increasing competition in Canada is a worthy objective. Unfortunately, the Trudeau government’s latest proposals seem more designed to win votes than improve the welfare of Canadian consumers.