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Professionals - Public Statements (Freedom of Expression)
Part 2
. Trozzi v College of Physicians and Surgeons of Ontario [professional freedom of expression]
In Trozzi v College of Physicians and Surgeons of Ontario (Div Court, 2024) the Divisional Court dismissed a JR, here against a decision and penalties [ie. it "revoked his licence to practise medicine in Ontario"] imposed by the Ontario Physicians and Surgeons Discipline Tribunal that found the applicant doctor had engaged "in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional" and "incompetent" ["as defined by subsection 52(1) of the [Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act"] over a COVID dispute.
Here the court (despite a questionable title) considers the contentious issue of a doctor's 'freedom of expression' in light of their professional regulation:(a) This Appeal is not about Freedom of Expression Generally.
[4] It is important to note at the very outset that this appeal is not about Dr. Trozzi’s freedom to express himself generally to the public. Dr. Trozzi is and remains free to express his political views and his scientific views to the public. He is free to express “his truth” whether it includes objectively verifiable facts, minority views, objectively incorrect facts, deception, or conspiracy theories. He can do so as often and as loudly as he wishes.
[5] No one is prohibiting Dr. Trozzi from expressing himself to the public.
[6] But expression can also create legal obligations. For example, if we tell lies about a person to the pubic, he or she may be entitled to sue for libel or slander. If we make statements that discriminate against a person based on his or her race or sex or another prohibited ground, we may be held liable under the Human Rights Code.
[7] Freedom of expression is not a magic mantra that frees us from responsibility and accountability for our lawful obligations. If a law violates freedom of expression and is not a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society, it may be struck down as unconstitutional under the Charter of Rights. But in cases where valid laws might penalize expression, the freedom of expression gives people the ability to choose to express themselves knowing that they may be held accountable for doing so.
(b) This Appeal involves applying Valid Regulations to a Doctor’s Expression.
[8] In this case, Dr. Trozzi does not challenge the validity of the law that enables and requires the College to license physicians or that governs the College’s ability to discipline them. From a constitutional perspective there is also nothing wrong with the authority of a regulator to revoke a doctor’s licence when he or she has engaged in professional misconduct. This is not a case of a law itself being unconstitutional because on its face it violates freedom of expression as guaranteed by the Charter of Rights.
[9] In this appeal, Dr. Trozzi has been accused of professional misconduct partly because of things he has written online. (He was also accused of giving vaccine exemptions in an incompetent manner and failing to cooperate with the College in its investigation). But there is no doubt that he has lost his licence due, in part at least, to things he wrote. He says that the valid, general disciplinary regulations are being applied against him in a way that undermines his freedom of expression. I agree with him. More significantly, the tribunal also agreed that its findings of professional misconduct impacted adversely Dr. Trozzi’s freedom of expression.
[10] The Supreme Court of Canada has ruled that when the exercise of statutory discretion under a general, valid, regulatory law negatively affects a person’s rights or fundamental freedoms, then, when the regulator decides how to exercise its discretion, it must consider the effect on the individual’s right or freedom that is engaged. According to the Supreme Court of Canada, the question then, is whether, on balance, the harm to Dr. Trozzi is out of proportion to the public good achieved by the objectives of the regulatory law.[1]
[11] No one says that Dr. Trozzi cannot write what he has written. The issue is whether he ought to be allowed to continue to be a licenced physician in Ontario in light of the things that he wrote. Does the very significant negative impact on Dr. Trozzi by revoking his licence to practise medicine due to the words he expressed outweigh the public interest advanced by the application of professional regulation to him?
[12] The tribunal answered this question with a resounding “no”. For the reasons that follow, I agree and would dismiss Dr. Trozzi’s appeal.
....
[40] Dr. Trozzi submits that the tribunal erred in not acting on Dr. Gardam’s evidence that minority views can become a majority views one day. Dr. Trozzi submits that minority views, and even lies, can fall within the purposes of freedom of expression. That may be so, but the converse does not necessarily hold true. That is, freedom of expression does not necessarily apply well or with much vigour to protect a regulated professional’s right to lie to his vulnerable client base. . Trozzi v College of Physicians and Surgeons of Ontario
In Trozzi v College of Physicians and Surgeons of Ontario (Div Court, 2024) the Divisional Court dismissed a JR, here against a decision and penalties [ie. it "revoked his licence to practise medicine in Ontario"] imposed by the Ontario Physicians and Surgeons Discipline Tribunal that found the applicant doctor had engaged "in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional" and "incompetent" ["as defined by subsection 52(1) of the [Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act"] over a COVID dispute.
In these quotes the court considers the issue of penalty for professional conduct in a Charter freedom of expression context:[64] The tribunal also considered Doré and the need to balance Dr. Trozzi’s rights against the public interest in considering the penalty to be assessed against Dr. Trozzi. The tribunal concluded that Dr. Trozzi was “ungovernable” due to matters beyond his public statements. In addition to findings of incompetence and lack of cooperation, some of his public statements expressly rejected the legitimacy of the College as regulator. The tribunal also noted that Dr. Trozzi continued to make the same types of statements even after being found to be committing professional misconduct.
[65] In light of its finding that Dr. Trozzi was ungovernable, the tribunal turned to consider the penalty of revocation of his licence. It considered the seriousness of the penalty to Dr. Trozzi as follows,[6] The penalty of revocation has undeniably serious professional consequences for a registrant. It means that the registrant may no longer engage in the practice of medicine. As the College observes, however, it is not necessarily the permanent exclusion of a registrant from the profession. A registrant whose certificate of registration has been revoked may apply for reinstatement after one year (in the case of revocation because of sexual abuse, after five years). In a reinstatement hearing, the former registrant has the onus to justify reinstatement of their certificate: Margaliot v. College of Physicians and Surgeons of Ontario, 2022 ONPSDT 20 at para. 11. Notwithstanding the possibility of reinstatement, we recognize the severe impact of revocation on a registrant.
[7] Revocation will prevent the registrant from espousing his views as a registered member of the profession. The penalty of revocation does not prohibit the registrant from expressing his views about COVID-19 but he will not be able to do so with the appearance of authority that comes from holding a certificate of registration. [66] The tribunal concluded,[37] We considered whether a penalty other than revocation would give effect to the registrant's Charter rights while still achieving public protection objectives. Apart from disputing the College's request for revocation, and despite being invited to by the panel, the registrant made no submissions on an appropriate penalty or terms, conditions and limitations that might protect the public. Neither party provided any basis for believing that a suspension accompanied by terms, conditions or limitations could achieve the purposes of a penalty order in this case. The evidence before us leaves us with no faith that a suspension of the registrant's certificate, even with terms, conditions, or limitations, will lead to insight or a willingness to accept the authority of the College.
[38] Given this, we find no other reasonable possibilities that would give effect to Charter protections more fully, while fulfilling statutory objectives. We find the circumstances of this case distinguishable from those considered by the Court of Appeal in Lauzon in determining that the removal of a justice of the peace from office was not justified. In its decision, the court emphasized the importance of the constitutional dimensions of judicial independence underpinned by the separation of powers, as well as the importance of judicial impartiality. Removal of a judicial officer for writing an opinion piece which the court described as "truthful speech if intemperately expressed," has systemic implications for the justice system that are far removed from the circumstances before us. In addition, in deciding whether removal from office was a proportionate response, the court found relevant the fact that there was no repetition of the impugned behaviour after the complaints were made, showing that the JP understood her duties.
[39] The type of speech in the case before us, with its deliberately inflammatory dissemination of misinformation designed to dissuade the public from following public health measures during a pandemic, is very different from the types of views expressed by the JP in Lauzon. The regulatory context, impact on the public's health, and the registrant's actions following our finding of misconduct also distinguish the two cases.
[40] In supplemental written submissions on the application of Doré to the issue of penalty, the registrant argues that he has "an absolute right to express minority opinions, which obviates the penalty of revocation” and that regulation of his expression cannot be justified unless the College can link his statements to the threat of clear and immediate physical harm. We did not accept these same arguments in the previous stage of this proceeding, and we reject them here. In the professional regulatory context before us, the registrant's right to freedom of expression is subject to a Doré proportionality analysis, balancing that right against statutory objectives. . Trozzi v College of Physicians and Surgeons of Ontario
In Trozzi v College of Physicians and Surgeons of Ontario (Div Court, 2024) the Divisional Court dismissed a JR, here against a decision and penalties [ie. it "revoked his licence to practise medicine in Ontario"] imposed by the Ontario Physicians and Surgeons Discipline Tribunal that found the applicant doctor had engaged "in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional" and "incompetent" ["as defined by subsection 52(1) of the [Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act"] over a COVID dispute.
Here the court reviews the Dore/administrative Charter s.1 balancing analysis in a professional-regulation/'freedom of expression' dispute:[47] The tribunal recited the correct case law and determined that it was required to conduct a “robust proportionality analysis”. It first considered the statutory objectives at play. It then balanced those objectives against the impact on Dr. Trozzi’s freedom of expression.
[48] The tribunal recognized that the general public lacks the specialized knowledge held by professionals in a regulated field like doctors. Moreover, the public necessarily places great trust in professionals to guide them. The tribunal recited the Supreme Court of Canada’s decision in Pharmascience Inc. v. Binet, 2006 SCC 48 at para. 36 noting that the vulnerability of the public imposes serious and onerous obligations on regulators to oversee the competency and honesty of the members of the regulated profession.
[49] The tribunal wrote that “[i]t is hard to imagine a more pressing statutory objective than protecting the public during a public health emergency.”
[50] Dr. Trozzi objects to the tribunal setting out its understanding of two important statutory objectives arising from the public health emergency caused by the global pandemic:. protecting the public interest in the context of the pandemic, by preventing the spread of harmful misinformation;
. maintaining the integrity and reputation of the profession and promoting trust in the profession by rejecting unprofessional and uncivil discourse. [51] Dr. Trozzi submits that the tribunal derived its two statutory objectives out of thin air. They are not written in the statute, the Code, or any regulation. He submits this was an error of law.
[52] I disagree. The primary statutory obligation set out in the statute and by the Supreme Court of Canada is for regulators to protect the vulnerable public from dishonest or incompetent professionals on whom they are told they can rely. The tribunal put specific context to the basic obligation by stating it in terms of a global pandemic response based on the evidence before it. The tribunal considered it vital in a pandemic in particular to protect the public from the spread of disinformation by its regulated professionals and to maintain the integrity of the profession by rejecting unprofessional and uncivil discourse. Neither objective is surprising or beyond the scope of the issues already covered in the Code and the Professional Misconduct Regulation.
[53] The tribunal then accepted a large and liberal understanding of Dr. Trozzi’s rights. It found,[85] The member's right to express his views on COVID-19 is thus protected by the Charter, however distasteful, wrong or hateful others may find those views. A finding of professional misconduct would affect his fundamental right to freedom of expression. It would also have a chilling effect on other members who might be deterred from giving expression to their own views. The impact on this fundamental right must be considered in deciding whether a finding of professional misconduct arising out of the member's expressive activity is justified. [54] The tribunal set about its balancing by first considering the nature of the statements in issue on the evidence before it. It assessed specifically public statements by Dr. Trozzi categorized as:a. The pandemic is a hoax;
b. COVID-19 vaccines are dangerous; and
c. Effective alternative treatments for COVID-19 have been deliberately suppressed. [55] The tribunal then considered the evidence that Dr. Trozzi’s statements were harmful to the public. Dr. Trozzi submits that the tribunal erred in accepted that his statements caused harm when there was no evidence of any specific individual being harmed by him or by pandemic misinformation.
[56] The tribunal heard evidence of Dr. Noni MacDonald who was qualified as an expert in vaccinology and the public health impacts of misinformation. She testified about a peer reviewed study referred to as “Fault Lines” in which she had participated. The findings of the study included:. Science and health misinformation contributes to a "decline in trust, including trust in scientific, government, and healthcare workers and institutions.”
. It also leads to inaction or delayed public policy action.
. "Messaging is more influential if it is repetitive and simple, provides a clear and unambiguous explanation for some event or circumstance (such as a conspiracy theory), and appears to come from a trusted, credible source."
. There is robust evidence on the impact of science and health misinformation on vaccine hesitancy.
. "Misinformation contributes to a lack of adherence to public health measures and to vaccine hesitancy, which can result in vaccine-preventable disease outbreaks, increased healthcare costs, and elevated risk to the health and well- being of vulnerable populations."
. "Misinformation - as estimated by the proportion of those who reported believing that COVID-19 is a hoax or exaggerated - contributed to vaccine hesitancy in over 2.3 million people in Canada between March 1 and November 30, 2021." Eligible people went unvaccinated, increasing the number of cases of COVID- 19, hospital admissions, intensive care visits, deaths and hospitalization costs. [57] The tribunal concluded,[106] We accept that the consequences of the spread of misinformation about COVID-19 are real and significant. Further, the impact of misinformation is magnified when it comes from a physician (in the words of the report, a "trusted, credible source"). Berge highlighted the "power imbalance between health practitioners and patients that arises because of the superior knowledge of the former." On this theme, the Tribunal recently stated in College of Physicians and Surgeons of Ontario v. Rona, 2022 ONPSDT 45 at para. 13:Since physicians hold a unique position of authority and public trust, their words and actions have the potential to significantly influence public perceptions and behaviour. Members of the public are more likely to perceive a physician's Twitter feed as providing a balanced and reliable source of scientific information, and to give significant weight to health care information provided by physicians, given their profession. [107] We conclude that by spreading misinformation about COVID-19, the member's actions had the potential to contribute to the socioeconomic and health impacts discussed in Fault Lines. To the extent the member intended to dissuade members of the public from following public health advice, and whether it can be proven that he caused a specific case of COVID-19, hospitalization or death, his communications contributed to the overall environment of misinformation discussed in that report. [58] The tribunal also found that Dr. Trozzi caused harm to specific people by republishing an article that clearly and groundlessly implied that 80 named health care professionals died because of COVID-19 vaccines. The article was found to have caused trauma to the families of the deceased professionals.
[59] After concluding that Dr. Trozzi’s acts constituted professional misconduct, the tribunal then specifically balanced the issues as directed by Doré.
[60] It started by finding that Dr. Trozzi’s statements were protected but were not high-value speech. It held,[127] Likewise, the member's far-fetched conspiracy theories, unfounded accusations of criminal conduct and reckless rhetoric lie far from the core values underpinning members' expressive rights. Beyond their inflammatory and intemperate tone, they go beyond reasonable scientifically informed debate and use his position as a physician to attempt to dissuade the public from following authoritative public health recommendations during a pandemic. During what has been described as the "defining public health issue of our time" (Gill at para. 315), his communications contribute to real harm to the public good. [61] Dr. Trozzi submitted before the tribunal and then again before us that his statements were high value political speech. But once again, context is everything. As noted at the outset, Dr. Trozzi’s right to make his political statements is undeniable. He is free to stand at a Canadian Hyde Corner or to run for office and make whatever statements he wishes (subject to applicable laws of course).
[62] But as noted by the tribunal, Trozzi was not speaking as a politician but as a licenced physician. In fact, he held himself out as one of the “tiny percent” of doctors in the world who were brave and honest enough to speak out. In rejecting his submission that he was engaged in highly protected political speech the tribunal held,First, although some of his statements attack public health officials and the College, they cannot be separated from the overall theme of his communications which is to undermine the scientific basis for public health measures taken during the pandemic. The member speaks as a "scientist and doctor" providing "objective, accurate and scientific information" about the pandemic. Second, to the extent there exist areas of reasonable, scientifically informed debate about public health measures taken during the pandemic, the member's communications are not within that realm. [63] The tribunal concluded its balancing process with the following findings,[130] We have identified the fundamental importance of expressive rights, the negative effects a finding of professional misconduct would have on the member's freedom of expression, and the potential for such a finding to create a chilling effect on the exercise of the Charter right by others. The positive benefits to the public good of a finding a finding [sic] of professional misconduct include the prevention of the spread of harmful misinformation intended to undermine public health measures during the pandemic. It would also promote confidence in the College's ability to regulate the profession in the public interest by showing that the College can take steps to protect the public during the pandemic. A finding of professional misconduct would serve to maintain the integrity and reputation of the profession and promote trust in the profession during a public health emergency.
[131] A finding of professional misconduct does not impair the member's freedom of expression more than is necessary to achieve the objectives of protecting the public interest in a global pandemic, maintaining the integrity and reputation of the profession and promoting trust in the profession. It does not impair his right to engage in debate, even heated debate, about public health measures during the pandemic and the science underlying those measures. It does impair his ability to engage in speech which is misleading, inflammatory and contributes to harm to the public during a public health emergency, lending that speech credibility because of his medical training and profession.
[132] In light of the statutory objectives, a finding of professional misconduct is a proportionate response relative to the impact on the member's freedom of expression. We have considered whether there are other reasonable possibilities that would give effect to Charter protections more fully while still furthering those objectives and find none. The College would not be fulfilling its responsibility to regulate the profession in the public interest if it did not take action to investigate and deter such conduct. While recognizing that the impact of our finding on the member's Charter rights is significant, in our view, in these circumstances, the statutory objectives are paramount and the effect on expressive rights is no more than necessary. . Gill v. Health Professions Appeal and Review Board
In Gill v. Health Professions Appeal and Review Board (Div Court, 2024) the Divisional Court dismissed two JRs challenging CPSO cautionary decisions regarding a doctor's social media COVID comments.
Here the court considers the role of professional monitoring bodies, specifically the CPSO:[75] Balanced against Dr. Gill’s free speech rights was the College’s mandate to regulate the medical profession, which includes ensuring that physicians conduct themselves in a manner aligned with professional ethics. This is made explicit in s. 3(1)5 of the Code, which stipulates that one of the College’s objectives is to “[t]o develop, establish and maintain standards of professional ethics for its members”. In keeping with this object, the College passed its guidance with respect to how physicians should conduct themselves on social media generally, and more specifically, during the COVID-19 pandemic. For ease of reference these policies are reproduced again.
[76] The College’s Statement on Social Media directs that physicians “[p]rotect their own reputation, the reputation of the professions, and the public trust by no posting content that could be viewed as unprofessional.”
[77] The College’s guidance to physicians about how they should be engaging on social media about issues relating to the pandemic reads:Physicians are reminded to be aware of how their actions on social media or other forms of communication could be viewed by others, especially during a pandemic. Your comments or actions can lead to patient/public harm if you are providing an opinion that does not align with information coming from public health or government. It is essential that the public receive a clear and consistent message. The College’s statement on Social Media – Appropriate Use by Physicians outlines general recommendations for physicians including acting in a manner that upholds their reputation, the reputation of the profession and maintains public trust. [78] These policies are specifically referenced in the College’s decisions in which a caution was issued.
[79] In carrying out its objectives, the College must uphold its overriding duty to serve and protect the public interest (Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546, 96 O.R. (3d) 241, at para. 12). The Supreme Court of Canada has repeatedly emphasized the importance of this role and the responsibility it entails. As the Supreme Court put it in Pharmascience v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, at para. 36:The importance of monitoring competence and supervising the conduct of professionals stems from the extent to which the public places trust in them. [80] In this case, the College’s caution decisions found that in the context of a pandemic or public health emergency, misleading or false information about public health interventions could be dangerous to the public. This is because members of the public may give significant weight to doctors’ opinions, which in turn could cause them to ignore public health directives. This could put the public at risk. There is nothing unreasonable about this concern, and is one that has been recognized by courts across the country, including the Supreme Court of Canada. It is not, as Dr. Gill asserts, a “paternalistic” concern based on mere speculation.
[81] Thus, when the College chose to draw the line at those tweets which it found contained misinformation, it did so in a way which reasonably balanced Dr. Gill’s free speech rights with her professional responsibilities. Further, as discussed above, it did so in a manner that offered some protection to the public, but was minimally intrusive to Dr. Gill. In other words, its response was proportionate. . Peterson v. College of Psychologists of Ontario
In Peterson v. College of Psychologists of Ontario (Div Court, 2023) the Divisional Court considered Charter s.2(b) expressive freedom issues in a judicial review of a regulatory order (here, from the College of Psychologists) that imposed a 'specified continuing education or remedial program' ('SCERP') on a member in relation to social media statements. Note that such orders are not viewed as ones of 'professional discipline, but more ones of maintaining professionalism - particularly wrt non-clinical public statements. They tends to have a much more persuasive (even educational) nature, and in these days of social media, culture wars and COVID they are often quite 'political'.
In these quotes the court reviews the Dore/Loyola doctrine of balancing Charter freedoms in with the administrative mandate of the Psychology Act, 1991, and their interaction with JR standard of review deference ('reasonableness'):Doré and Vavilov – the legal framework
[30] In Doré, the Supreme Court addressed the question of “how to protect Charter guarantees and the values they reflect in the context of adjudicated administrative decisions.” (para. 3.) As the Court elaborated in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293, at para. 57 ("Trinity Western"), the Doré framework is "concerned with ensuring that Charter protections are upheld to the fullest extent possible given the statutory objectives within a particular administrative context."
[31] This requires an administrative decision-maker, such as the ICRC, to proportionately balance Charter rights and values and its statutory objectives. This is a highly contextual inquiry. A decision-maker must first consider the statutory objectives it is seeking to uphold, and then, secondly, “ask how the Charter value at issue will best be protected in view of the statutory objectives.” This requires conducting a proportionality exercise, balancing “the severity of the interference of the Charter protection with the statutory objectives.” However, as with the proportionality test under s. 1 of the Charter, which will be met if the measure falls within a range of reasonable alternatives, “in the context of a review of an administrative decision for reasonableness, … decision-makers are entitled to a measure of deference so long as the decision…‘falls within a range of possible, acceptable outcomes’.” (Doré at para. 56)
[32] The Supreme Court elaborated on the Doré framework in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 ("Loyola"), and Trinity Western, observing that the Doré approach is not to be a “watered-down version of proportionality”, but is to be “robust.” On an application for judicial review, therefore, the role of the Court is to ensure that the administrative decision-maker “proportionately” balanced the impact on Charter rights and the statutory objectives which “gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate” (Loyola, at para. 39).” As the Court stated in Trinity Western at para. 80:Put another way, the Charter protection must be “affected as little as reasonably possible” in light of the applicable statutory objectives (Loyola, at para. 40). When a decision engages the Charter, reasonableness and proportionality become synonymous. Simply put, a decision that has a disproportionate impact on Charter rights is not reasonable. [33] However, it is also clear that the Doré approach still requires deference. A reviewing court need not agree with the outcome, as that would impose a standard of correctness; nor must a decision-maker “choose the option that limits the Charter protection least”; rather, the question is “always whether the decision falls within a range of reasonable outcomes.” (Trinity Western, at para. 81). As Abella J. put it at para. 58 of Doré: “If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable.”
[34] Vavilov does not change the standard of review which remains, clearly, a test of reasonableness, showing deference to, and respect for, decision-makers and their specialized expertise. Rather, Vavilov focuses the reviewing court on “the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome.” As the Court continued at para. 83:The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem. [35] A reasonable decision, we are told in Vavilov at para. 85, “is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.” However, reasons “must not be assessed against a standard of perfection”, they need not include all arguments, nor should they “always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge.” As the Court put it, “‘Administrative justice’ will not always look like ‘judicial justice’ and reviewing courts must remain acutely aware of that fact.” (Vavilov, at paras. 91 -92)
[36] Reasons must be read “in light of the history and context of the proceedings in which they were rendered”, including the evidence and submissions of the parties. As the Court continued at para. 94 of Vavilov, “[t]his may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency.”
[37] Further, the degree of justification found in reasons, like reasonableness review itself, must reflect the stakes of the decision. As the Court stated at para. 133 of Vavilov:Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood. At paras 38-49 the court applies the case facts to this law, and then continues:[50] High standards are imposed on members of the College of Psychologists who, like members of other regulated professions, take on responsibilities to their profession and to the public. As the Supreme Court observed in Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 SCR 513, at para. 36, “[t]he importance of monitoring competence and supervising the conduct of professionals stems from the extent to which the public places trust in them.”
[51] Even when “off duty”, courts have recognized that members of regulated professions can still harm public trust and confidence in their profession by their statements and conduct. As the British Columbia Court of Appeal put it in Kempling v. British Columbia College of Teachers, 2005 BCCA 327, 255 DLR (4th) 169, at para. 43, citing the Supreme Court in Ross: “When a teacher makes public statements espousing discriminatory views, and when such views are linked to his or her professional position as a teacher, harm to the integrity of the school system is a necessary result.”
[52] A similar situation arose recently in Pitter v. College of Nurses of Ontario and Alviano v. College of Nurses of Ontario, 2022 ONSC 5513, 164 OR (3d) 433, in which two nurses spoke out on social media and at a public gathering against masks and vaccines during the COVID-19 pandemic. Both identified themselves as registered nurses. The College of Nurses’ ICRC identified concerns with certain statements which were misleading and spread what could be dangerous misinformation. As this Court held, at para. 14:Given its statutory mandate, it was reasonable for the ICRC to be concerned about the Applicants’ statements. As the committee noted, in their public statements, both Applicants identified themselves as health professionals. Ms. Pitter publicly identified herself as a nurse practitioner and Ms. Alviano publicly identified herself as a registered nurse. This not only put the public at risk of being guided by false information, but also risked impacting the reputation of the profession. [53] In Pitter, the Court upheld the ICRC’s direction that the nurses be cautioned and attend remedial education through a SCERP.
[54] Many other professional discipline cases have involved situations in which a member’s misconduct in their personal life, or outside the immediate context of practising their profession, has nevertheless resulted in regulatory action. As observed by Copeland J. (as she then was) in Dr. Jha at para. 119:It is well-established that actions of members of a profession in their private lives may in some cases be relevant to and have an impact on their professional lives – including where the conduct is not consistent with the core values of a profession and/or where there is a need for a regulated profession to maintain confidence of the public in the profession and not be seen to condone certain types of conduct by its members: Wigglesworth at pp. 562-563; Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420 at paras 97-98; Re Cwinn and Law Society of Upper Canada (1980), 1980 CanLII 1694 (ON SC), 1980 CanLII 1964, 28 O.R. (2d) 61 (Div. Ct.), leave to appeal refused 28 O.R. (2d) 61n (C.A.); Adams v. Law Society of Alberta, 2000 ABCA 240, 82 Alta. L.R. (3d) 21. [55] Like the legal profession, the health professions recognize limitations on free expression to maintain "boundaries of civility" and professionalism: Ontario (College of Physicians and Surgeons of Ontario) v. Waddell, 2020 ONCPSD 9; Rathe v. College of Physicians and Surgeons of Ontario, 2013 ONSC 821; Ontario (College of Physicians and Surgeons of Ontario) v. Wright, 2018 ONCPSD 19.
[56] Here, the Panel of the College of Psychologists’ ICRC – an expert body - reviewed its Code and Standards and expressed concern that Dr. Peterson’s public statements, insofar as they contained degrading and demeaning language, may be inconsistent with its professional standards and could undermine public trust in the profession. The court continues with the Charter balancing - in light of the statutory objects of the Psychology Act, 1991 [paras 57-67] and the Vavilov 'reasonableness' JR standard of review [paras 68-76]. The case attracted a lot of media attention.
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