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. 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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Last modified: 19-05-24
By: admin