Discriminatory Tests Again

On the heels of Ontario Teacher Candidates’ Council v. The Queen, 2021 ONSC 7386 (CanLII), https://canlii.ca/t/jlcvg, regulators can expect more challenges to their registration examinations on the basis that they are discriminatory.

In one such case, the Court said that any such challenges need to particularize the manner in which the test, or other regulatory action, has a discriminatory impact on applicants for registration: Shaulov v. Law Society of Ontario, 2022 ONSC 2732 (CanLII), https://canlii.ca/t/jp4mf. In that case the applicant (who was actually conditionally registered) failed one of the licensing examinations for the maximum number of times. The applicant sued for damages on the grounds that the examination was discriminatory both on the basis of its unfair impact on those with cognitive disabilities and because of the applicant’s racial / ethnic background.

The Court held that the proceeding could not proceed because no basis for either category of discrimination had been pleaded. In fact, the applicant conceded that they did not have a cognitive disability. The Court was unwilling to allow them to challenge the examination for any impact it might have on those with such disabilities. Similarly, no particulars were provided to support the assertion that the examination had an adverse impact because of the applicant’s race / ethnicity beyond the fact that the applicant was unsuccessful and the applicant’s perception from looking around the examination room that an unusually high number of applicants repeating the examination appeared to be non-white.

The Court also found that the applicant could not challenge the validity and reliability of the examinations on the basis of the liberty and (psychological) security of the person protections conferred under s. 7 of the Charter:

… the rights guaranteed under section 7 are not engaged in the context of written examinations that are part of a regulated profession’s licensing process. The right to liberty is not engaged as the only reason to write the Licensing Examinations is to be able to pursue a profession, which is not a protected interest under section 7. Further, it cannot be said that the Licensing Examinations interfere with the Plaintiff’s ability to make decisions of fundamental personal importance.

The Court did not allow the applicant to challenge the jurisdiction of the regulator to administer the examination or its psychometric validity and reliability in a civil proceeding; such challenges must be made by way of judicial review. The applicant was granted permission to make limited amendments to their claim, so this matter may be considered by the courts again in the future.

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