At the conclusion of appeals pertaining to Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685 [Peterson], it is maintained that professionals are expected to observe a standard of courtesy while engaging in debate and social commentary. Peterson continues a pattern of Ontario’s courts permitting regulators to moderate the speech of their registrants with respect to controversial commentary, specifically in instances of incivility or misinformation.
Right to expression may be limited where a registrant’s statements are demeaning, degrading, or unprofessional
Peterson identified seven impugned public statements by the registrant, in which he allegedly:
- Encouraged people who expressed concern about overpopulation to commit suicide (stating “You’re free to leave at any point.”),
- Regarding air pollution and child deaths, stated “it’s just poor children, and the world has too many people on it anyways”, and
- Made unprofessional, demeaning, and transphobic comments (e.g., publicly making degrading comments about a former client on a podcast, stating that an individual’s gender-affirming surgery was performed by a “criminal physician”, and commenting that a plus-size model on a magazine cover was “Not Beautiful” and that “no amount of authoritarian tolerance is going to change that”).
The Inquiry Panel recommended no actions be taken regarding the comments that allegedly encouraged suicide, finding that they “could be interpreted as an innuendo, a joke, or parody” and did not rise to the level of being disgraceful, dishonourable, or unprofessional conduct. It found the remaining statements to be “demeaning, degrading, and unprofessional”, and inconsistent with professional standards, policies, and ethics. Such comments may undermine public trust in the psychology profession, and in the College’s ability to regulate the profession in the public interest.
The Panel also considered that the registrant had previously been advised by the College to “offer [his] opinions and comments in a respectful tone in order to avoid a negative perception toward the profession of psychology”, which he had evidently not successfully actioned. As a remedial measure, it directed that he enter a coaching program to “review, reflect on, and ameliorate his professionalism in public statements”, and stated that failure to comply may result in an allegation of professional misconduct. The registrant’s application for judicial review of the Inquiry decision was dismissed, as were his further attempts to appeal to the Ontario Court of Appeal and the Supreme Court of Canada.
The concerns identified with the impugned statements in Peterson were similar to those expressed in a portion of the more recent College of Registered Psychotherapists and Registered Mental Health Therapists of Ontario v Becker, 2024 ONRPDT 7 [Becker], which involved a psychotherapist who had posted comments and shared information that was alleged to be:
- Transphobic (e.g., “There’s not a ‘wide variety of genders’ there’s 2 genders and a wide variety of mental disorders.”)
- Homophobic (e.g., “We need to stop all gay guys until we figure out what’s going on”), and
- Racist (e.g., saying, “He must be A Muslim” as a disparaging remark).
The College’s Discipline Tribunal agreed that the posts made disparaging and scornful comments about gender, sexuality, and ethnicity, which were contrary to the general standards of the profession. Registrants should ensure that they are promoting a safe, supporting, and welcoming environment to all members of the public and, given the importance of communication in the therapeutic relationship of psychotherapy, must convey respect for the dignity of all persons. Degrading, demeaning, and unprofessional communication can undermine public trust in the profession and the College’s ability to regulate it. Unlike in Peterson, other factors involved in Becker ultimately resulted in the registrant being found ungovernable and her certificate of registration being revoked.
A remedial order such as the one made in Peterson is not a disciplinary finding, and the complaints made against the registrant in that matter were never referred to a disciplinary committee. This follows a pattern of inquiry committees opting for remedial measures rather than disciplinary action in matters pertaining to controversial statements. Emerging from the pandemic years, this was also the usual outcome for health profession registrants who spread misinformation.
Pitter and Gill: right to expression may be limited where a registrant’s statements contain misinformation
Pitter v. College of Nurses of Ontario and Alviano v. College of Nurses of Ontario, 2022 ONSC 5513 [Pitter] involved two nurses who made public statements regarding public health measures undertaken during the COVID-19 pandemic, specifically allegations that:
- The COVID vaccine will permanently alter DNA and/or “can track and manipulate the thoughts, movements, and whereabouts of every human being”,
- Masks were neither safe nor effective, and that mandating them was “irresponsible, negligent and dangerous”, and
- Vaccines cause cancer and infertility, and were part of an “agenda” to decrease population.
Their regulator was concerned that these statements were “contrary to public health guidelines and contained what could be harmful misinformation”, and directed that the registrants each attend a specified continuing education and remediation program.
More recently in Gill v. Health Professions Appeal and Review Board, 2024 ONSC 2588, a physician was investigated following multiple complaints about their tweets criticizing COVID measures, the majority of which resulted in no action as they were overly vague, not “verifiably false” at the time they were made, and/or did not constitute “outright misinformation”. However, the Panel did decide to discipline the registrant for three statements that were demonstrably inaccurate:
- There is no medical or scientific reason or the lockdown,
- Vaccination is not necessary, and
- Contact tracing, testing, and isolation is “ineffective, naïve, and counterproductive”.
In its decision to dismiss the physician’s application for judicial review, the court affirmed that the College was not trying to stop its members from criticizing government policies, but was justified in “drawing the line at using misinformation to do so”. The registrant in Gill was ordered to appear to be cautioned with respect to her social media usage – a measure that was also remedial in nature.
A remedial caution decision was also recently affirmed in Polidoulis v. Health Professions Appeal and Review Board, 2024 ONSC 5262 [Polidoulis], which involved a family physician who made public statements criticizing her Greek Orthodox church for stopping the use of a shared communion spoon in response to the COVID pandemic, and instead having the congregation use individual spoons. The physician posted open letters and statements online, alleging:
- There is no evidence that contagions such as influenza or Spanish Flu have ever been shown to be spread through “Traditional methods of distributing Holy Communion”, and
- The “Traditional practice of the Eucharist in the Orthodox Church is the longest ongoing longitudinal observational study ever conducted” and “proves beyond a shadow of a doubt that the Holy Eucharist is, indeed, incorruptible and does not transmit disease”.
The registrant argued that even though she had identified herself as a “front-line physician” and signed as an “MD” in her communications, she had not written the communications in her capacity as a physician and was only expressing her views on religion. Her objection to using multiple spoons instead of a communal spoon was a religious, not medical, objection.
The Inquiry Panel found that her statements were “open to misinterpretation” and could be received as carrying medical or scientific authority, but accepted that she had not intended to use her position to suggest that public health measures about COVID transmission in religious services were not warranted. It decided on a caution “with respect to being mindful of her tone and clarity in conveying public health-related information, the impact on her audience of her status and position of trust as a physician and the responsibility it entails.” The registrant’s application for judicial review of the decision was dismissed.
Conclusion and commentary
Upon first receiving complaints from the public about controversial statements, regulators in Ontario have generally issued formal and informal cautions for registrants to take greater care with their words (Peterson,Gill, and Polidoulis). In cases where this advice is not appropriately heeded (Peterson), or where the potential consequences of the registrant spreading misinformation are severe (Pitter), regulators would impose a more onerous remedial consequence of mandating completion of specific education, with possible disciplinary action to follow if it was not completed to the regulator’s satisfaction.
Though not covered in this blog, disciplinary decisions for spreading misinformation do exist, where registrants were reprimanded and suspended from practice until their remedial education was complete (see College of Audiologists and Speech-Language Pathologists of Ontario v. Berge, 2024 ONCASPD 5). Engaging in uncivil discourse or spreading misleading information may also, when considered alongside other impugned conduct, constitute professional misconduct and support removal of licensure (Becker, also see Trozzi v College of Physicians and Surgeons of Ontario, 2024 ONSC 6096).
While the pathway of consequences from remedial to disciplinary follows a reasonable escalation in severity and demand on a registrant (in terms of time, resources, and level of public notice), it remains inconsistent exactly when a controversial statement becomes professionally problematic. The panel in Pitter raised concerns with a statement that “Big pharma doesn’t want doctors to treat with Hydroxychloroquine”, while the panel in Gill determined it was not “verifiably false” to say that hydroxychloroquine was an “existing effective defence” against COVID as there did exist a “reasonable study” that indicated early treatment with hydroxychloroquine could reduce mortality in COVID patients. This standard also creates an extra onus on panels to be arbiters of scientific fact, and can pose issues during periods such as the pandemic, when scientific studies were initially scarce but actively progressed at a rapid pace, and public interest favoured minimizing unqualified speculation while research was emerging.
It is also notable that in Peterson, some comments that were acknowledged to be “provocative and inflammatory” were not subject to regulatory moderation because they could be interpreted as being “an innuendo, a joke, or a parody”. In contrast, another regulator in Ontario had decided earlier this year that innuendo on social media can in fact be unprofessional (see Chaban v. Royal College of Dental Surgeons of Ontario, 2024 ONSC 1075), and the impugned statements in Polidoulis, which were deemed “open to misinterpretation”, were actioned upon. The Panel in Peterson did not detail why his alleged comments encouraging suicide might be construed as dark humour, but ones about air pollution impacting “just poor children” and that the world had “too many people on it anyways” could not. It is notable that the former statements were written tweets, whereas the latter one was an oral statement on a podcast, where there would presumably have been more cues as to the sprit in which it was provided. In this way, Peterson introduces a further onus on panels to assess whether a statement could have been said in an unserious manner (and therefore not subject to regulatory moderation), which can be particularly difficult to parse in written forums where nuances of speech do not always translate well.
Peterson opens by affirming that individuals who join a regulated profession do not lose their Charter-protected right to freedom of expression, but must abide by the rules of their regulatory body that may limit that freedom. As the case law develops, we are seeing guidelines as to how those limitations are applied, though assessing whether certain commentary is subject to regulatory moderation presents certain challenges for regulators. Overall, the consensus for how to speak as a professional seems to remain what we’ve all grown up hearing: tell the truth, and be respectful.
Sabrina Zhu