Ever since the mathematics proficiency test for Ontario teacher candidates was found to be discriminatory for racialized (and other, e.g., candidates whose first language was not English or French) candidates in Ontario Teacher Candidates’ Council v. The Queen, 2021 ONSC 7386 (CanLII), regulators have wondered how their own entry-to-practise examinations might be challenged. The recent Ontario Court of Appeal case provides some guidance. In Shaulov v. Law Society of Ontario, 2023 ONCA 95 (CanLII), a candidate to become a lawyer completed most of the registration requirements except for the Barrister Licensing Examination, which he failed for the maximum number of attempts. The candidate sued, alleging discrimination in the structure, process, and method of evaluation of the examination. [See the June 6, 2022, blog for a discussion of the lower court decision].
The Court upheld striking the action on most of the grounds raised as disclosing no reasonable cause of action. In particular, there was no possible infringement of s. 7 of the Canadian Charter of Rights and Freedoms as membership in a profession is not protected under the concepts of life, liberty and security of the person within the meaning of that provision. Further, no basis was pleaded to establish discrimination on the basis of race, ethnic and cultural background under either s. 15 of the Charter or under the provisions of the Ontario Human Rights Code, but the candidate was permitted to amend this part of his claim.
However, the Court found that the candidate should also be permitted to proceed with properly particularized pleadings as to whether the examination was discriminatory in a broader sense. There was a possibility that the candidate could establish that the structure and contents of the examination discriminated against applicants who come from a different ideological, cultural, and linguistic background. The Court did not expand on these concepts, but they may relate to the candidate’s background with different legal systems and where his first language was not English or French. The Court further suggested that there could be some leeway in the particulars required of the candidate at this early stage in the litigation process, especially where the regulator limited access to the examination materials. The Court left open the possibility that greater access to the examination materials may become available during the civil discovery process.
While the Court emphasized that the candidate had achieved very limited success, the decision leaves regulators with a level of uncertainty as to when their registration examinations might be challenged on the basis of discrimination.