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Professionals - Public Statements (Freedom of Expression) (2). Rappaport v. Law Society of Ontario
In Rappaport v. Law Society of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed an appeal, here from an appeal denial of the Law Society Tribunal - Appeal Division, that from a finding by the Law Society Tribunal - Hearing Division that the appellant "committed professional misconduct".
Part of the complaint against the appellant were that he "failed to encourage respect for the administration of justice by filing an affidavit that contained personal attacks on McLeod J., and by maintaining the website devoted to the CJC complaint online until about seven months after the CJC notified the appellant that it had declined to investigate the complaint". In these quotes the court reviews and approves the Appeal Division's 'balancing' as required by Groia v Law Society of Upper Canada (SCC, 2018):[7] The appellant raised multiple grounds of appeal at the Appeal Division. He submitted that the penalty imposed by the Hearing Division violated his rights under s. 2(b) of the Canadian Charter of Rights and Freedoms.[1] ....
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Section 2(b) Charter Rights
[9] The appellant submitted before the Appeal Division that the Hearing Division violated his freedom of expression under s. 2(b) of the Charter by sanctioning him for adducing an affidavit that contained attacks on a judge and maintaining the website that supported the CJC complaint after the complaint had been dismissed.
[10] The Appeal Division agreed that the appellant’s s.2(b) rights were engaged by the Law Society’s disciplinary actions but rejected the submission that they were unjustifiably infringed.
[11] In this court, the appellant submits the Appeal Division erred by failing to perform the analysis required by the Supreme Court of Canada in Groia v Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772. He points to para. 120 of Groia to say the Appeal Division was required to conduct a review of his affidavit (which appended the complaint to the CJC) to determine whether the allegations were made in good faith and based upon reasonable factual and legal foundations.
[12] We disagree with the submission that the Appeal Division failed to apply Groia correctly. According to Groia, a professional misconduct finding that engages a lawyer’s expressive freedom under s. 2(b) of the Charter will only be reasonable if it reflects a proportionate balancing of the law society’s statutory objective with the lawyer’s expressive freedom. At para. 120, Groia states that “sanctioning a lawyer for good faith, reasonably based allegations that are grounded in legal error does not reflect a proportionate balancing.”
[13] The Appeal Division engaged in the very balancing Groia requires. It squarely acknowledged the importance of the appellant’s s. 2(b) rights, stating, for example at para. 32 of its reasons:Lawyers play a critical role in the administration of justice. It is imperative that they be able to speak freely about the justice system and its failings in order to hold all justice participants – including judges – accountable. [14] The Appeal Division also stated that a lawyer does not fail to encourage respect for the administration of justice merely by speaking out against the conduct of justice system participants. However, it emphasized at para. 33: “The question is how they choose to do so.”
[15] In this respect, the Appeal Division stated that limitations on a lawyer’s right to speak freely about justice system participants will be reasonable insofar as it advances the underlying objectives of transparency and accountability in the justice system.
[16] The Appeal Division noted the Law Society’s statutory mandate includes regulating the professional conduct of lawyers, including by enforcing the Rules of Professional Conduct. It went on to say that criticism of justice system participants that is, as stated in commentary to Rule 5-6-1, “petty, intemperate, or unsupported by a bona fide belief in its real merit” undermines rather than promotes the goals of transparency and accountability. It stated this type of expression lies far from the core values that underpin lawyers’ expressive rights.
[17] The Appeal Division concluded that the Hearing Division’s basis for finding professional misconduct reflected a proportionate balancing of the appellant’s Charter rights with the Law Society’s statutory mandate.
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[21] The Hearing Division’s second concern with the appellant’s expressive activity related to the website he created about his CJC complaint. The website posted documents from the family law proceedings, including the parties’ prenuptial agreement and financial statements. The Hearing Division concluded it constituted professional misconduct to maintain the website for over a year, including after the CJC notified him that it would be declining to investigate the complaint. The website landing page contained inflammatory statements against MacLeod J.
[22] The Appeal Division concluded that in the circumstances, the finding of professional misconduct reflected a reasonable balancing. It described the appellant’s expressive activity as “gratuitous,” taking into account the manner in which it was made and that it was irrelevant in the forum in which it was expressed.
[23] It was far from the core values of s. 2(b) to raise inflammatory allegations in court against a judge that were irrelevant to the issue before the court. Similarly, maintaining a website about a complaint with strongly-worded criticisms against a judge long after the CJC summarily dismissed the complaint is accurately described as gratuitous and did not promote the central values sought to be protected by s. 2(b). Overall, considering the context and content of the appellant’s allegations, it was implicit in the Appeal Division’s reasons that the appellant’s gratuitous expression did not constitute good faith, reasonably based allegations. There is no basis to interfere with the Appeal Division’s conclusions on this issue. I have concerns about the LSO sanctions insofar as they are grounded in "maintaining a website about a complaint with strongly-worded criticisms against a judge long after the CJC summarily dismissed the complaint", which the court here "accurately described as gratuitous". 'Gratuitous' here is plainly equated with bad faith motivation, but what if a third party legal writer choses to publish the same documents as an illustration of what the CJC accepts for further consideration and what it does not - for the motivation of professional and public education. This illustrates that motivation matters in such professional-expressive disputes.
. Zarabi-Majd v. Toronto Police Service
In Zarabi-Majd v. Toronto Police Service (Ont Divisional Ct, 2025) the Divisional Court dismissed a police officer-brought JR, this against a dismissed appeal by the Ontario Civilian Police Commission, that against a TPS discipline hearing finding that the applicant "was found guilty of four counts of discreditable conduct and four counts of insubordination, and was dismissed from the TPS".
Here the court consider an administrative Charter s.2(b) ['freedom of expression'] by a police officer professional:c. The Commission’s finding that Ms. Zarabi-Majd’s dismissal is a proportionate limit on her freedom of expression is reasonable.
[50] Having found that the Commission was correct that ss. 7 and 15 were not engaged, the remaining question is whether the Commission’s decision upholding Ms. Zarabi-Majd’s dismissal is reasonable. To be reasonable, the decision must reflect a “proportionate balancing” of her Charter rights and the statutory objectives of the Police Services Act: Commission scolaire francophone at para. 67. The decision must also show that the Commission meaningfully considered the impact its decision might have on others: Vavilov, at paras. 128 and 133.
[51] The Commission made no error in finding that the objectives of the Police Services Act are to ensure transparency and enhance public confidence in policing: Figueiras v. (York) Police Services Board, 2013 ONSC 7419 at para. 54. The restrictions in the TPS Policy and Standards of Conduct on the use of social media by officers are consistent with the objectives of the Police Services Act. The Commission found that Ms. Zarabi-Majd was aware of the limits placed on her social media use by the TPS Policy and Standards of Conduct when she took oath to become a police officer.
[52] The Commission also made no error in finding that Ms. Zarabi-Majd was not punished for her use of social media generally. Rather, Ms. Zarabi-Majd was punished only for those posts that violated the TPS Policy and Code of Conduct, and undermined public confidence in the TPS. Under the Police Services Act, an officer cannot be disciplined for misconduct while off duty unless there is a connection between the conduct and “the occupational requirements for a police officer or the reputation of the police force”: Police Services Act, R.S.O. 1990, c. P.15, s. 80(2).
[53] Despite finding that ss. 7 and 15 were not engaged in this case, the Commission fully considered Ms. Zarabi-Majd’s argument that her Twitter posts were intended to raise awareness about the TPS work environment and expose TPS wrongdoing. The Commission considered and rejected Ms. Zarabi-Majd’s argument that her Twitter posts had significant public value that were intended to promote the objectives of the Police Services Act, including maintaining public confidence in policing. The Commission found that Ms. Zarabi-Majd’s argument was an attempt to relitigate the factual findings made by the Hearing Officer.
[54] The Commission also rejected Ms. Zarabi-Majd’s argument that she had no way other than Twitter to address her concerns about misconduct within the TPS. That finding was reasonable.
[55] Finally, the Commission considered and rejected Ms. Zarabi-Majd’s argument that punishing her for her Twitter posts would discourage other TPS employees from reporting harassment within the Service. The Commission found that, given the “exceptional circumstances” of Ms. Zarabi-Majd’s matter, including the content and volume of her posts as well as the very public nature of her criticisms, her dismissal from the TPS would not impact the reporting of harassment through appropriate channels.
[56] In the end, the Commission found that Ms. Zarabi-Majd’s dismissal was proportionate. On the one hand, the Commission found that Ms. Zarabi-Majd’s dismissal from the TPS would not have a chilling effect on the expressive rights of other officers beyond the limits imposed by the Police Services Act and the TPS policies. On the other hand, the Commission found that the findings of misconduct and Ms. Zarabi-Majd’s dismissal were “necessary to protect public confidence in policing.”
[57] We see no basis to interfere with the Commission’s conclusion that the penalty was a proportionate limit on the values underlying freedom of expression in light of the objectives of the Police Services Act. . Zarabi-Majd v. Toronto Police Service
In Zarabi-Majd v. Toronto Police Service (Ont Divisional Ct, 2025) the Divisional Court dismissed a police officer-brought JR, this against a dismissed appeal by the Ontario Civilian Police Commission, that against a TPS discipline hearing finding that the applicant "was found guilty of four counts of discreditable conduct and four counts of insubordination, and was dismissed from the TPS".
Here the court considers a police policy regarding professional freedom of expression:[46] The TPS Policy governing social media use by its members permits officers to make public comments about political, community and social issues in their personal capacity. However, the policy prohibits officers from posting information that “may compromise the integrity and good reputation of the Service.” The TPS Standards of Conduct prohibit its members from making public comments that “amount to criticism of the Service or the Board” or that “amount to a personal attack on the character or integrity of an individual.” . Polidoulis v. Health Professions Appeal and Review Board
In Polidoulis v. Health Professions Appeal and Review Board (Div Court, 2024) the Divisional Court dismissed a JR against the Health Professions Appeal and Review Board (HPARB), when it cautioning a doctor "with respect to being mindful of her tone and clarity" in COVID-related "open letters".
Here the court considers the tribunal's application of the administrative Charter case of Dore:[17] The applicant then sought a review by HPARB, also a specialized tribunal. It is responsible for reviewing ICRC decisions on complaints. It is required to consider whether the ICRC investigation was adequate and whether the ICRC decision was reasonable. The HPARB may confirm all or part of the ICRC’s decision, make recommendations to the ICRC and require the ICRC to exercise any of its powers (with an exception that does not apply here).
[18] The applicant raised a number of issues before the HPARB regarding the reasonableness of the ICRC decision, not all of which are still being pursued. The main issue before us is the HPARB review of this issue: whether the ICRC gave sufficient weight to the applicant’s right to freely express her religious beliefs.
[19] In support of the applicant’s request for review of the above issue, the applicant submitted case law to the HPARB, including Strom v Saskatchewan Registered Nurses’ Association, 2020 SKCA 112, [2020] 12 W.W.R. 396, a discipline case that included an analysis under Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395.
[20] As summarized in the applicant’s case of Strom, at para. 36, in Doré, the Supreme Court concluded that a decision of an administrative body that affects Charter rights does not need to be made using a formulaic application of the test in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. The question is whether the decision reflected a proportionate balance of the decision-maker’s statutory mandate with the Charter right at issue: Doré, at para. 57.
[21] In considering the applicant’s request for review, the HPARB cited the above principle from Doré and found that the ICRC decision reflected the College’s object of promoting relationships between its members and the public in its findings that, “While the [applicant’s] comments engaged her religious faith and were made within her faith community, they were public facing comments involving the transmission of infectious disease, and in some cases associated directly with her identity as a physician.” Further, the ICRC found that, “As a physician, the [applicant] holds a unique position of trust in society; she must therefore recognize that her role as a physician has an authoritative impact on listeners and readers when speaking publicly on public health-related matters.”
[22] The HPARB noted that the ICRC had chosen the remedial approach of a caution, which did reflect a proportionate balancing of the statutory mandate with the Charter right at issue. The HPARB further noted that the ICRC did not preclude the applicant from expressing her religious views in public. The concern was that she identified herself as a physician when doing so.
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[26] Nor is there any issue that the Doré analysis is a highly contextual exercise: Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, at para. 41. . 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.
The court considers a Charter argument that the expressive behaviour of the applicant here was "fundamentally political", and holds that this "submission impermissibly merges the analysis of the constitutionality of a statute or regulation with administrative regulation":[67] In oral argument, counsel for Dr. Trozzi essentially repeated the argument that Dr. Trozzi’s expression was so fundamentally political that it was protected per se without any need to consider Doré balancing. He submitted that the spread of a minority view or even harmful disinformation is protected under the Charter citing cases such as R. v. Zundel, 1992 CanLII 75 (SCC). He submits that by analogy to R. v. Oakes, 1986 CanLII 46 (SCC), there is no need to consider proportionality where the underlying measure is itself a violation of rights.
[68] Dr. Trozzi submits that his freedom of expression can only be proscribed when there is a “clear and immediate” danger of inciting violence or physical harm, or the expression is hate speech, child pornography, a criminal threat of death or assault, or defamatory. He cites Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), 1989 CarswellQue 115; Fleming v. Ontario, 2018 ONCA 160, Bracken v. Fort Erie (Town), 2017 ONCA 668, R. v. Keegstra, 1990 CanLII 24 (SCC), 1990 CarswellAlta 192, R. v. Sharpe, 2001 SCC 2, and West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) 655: [sic]
(ii) Analysis
[69] Dr. Trozzi’s submission impermissibly merges the analysis of the constitutionality of a statute or regulation with administrative regulation. Dr. Trozzi has not sought a declaration that the applicable regulations violate the Charter in general or as applied to him. Rather, as discussed in Doré and later cases, the tribunal and the court are dealing with the intersection of regulatory discretion and Charter values. Had Dr. Trozzi challenged the constitutionality of the governing legislation, the issues might have fallen to be decided on a balancing under s. 1 of the Charter. But Doré applies here, where discretion is exercised under a presumptively valid statutory scheme. Doré provides an analogous analysis, but it takes into account the specific regulatory context and public interest as well.
[70] An argument that under the Charter a doctor can never lose his or her licence due to expression is not supported by any legal theory or precedent. The Supreme Court of Canada has said that when regulatory decision-making raises constitutional concerns, the Doré balancing approach is appropriate. Accordingly, I reject the submission that the court can or should overrule the tribunal on constitutional grounds without getting to Doré.
[71] In my view, the tribunal’s Doré analysis was impeccable and stands as a guide for future tribunals confronted with serious constitutional considerations. As noted in other cases, such as Gill v. Health Professions Appeal and Review Board, 2024 ONSC 2588 and Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685, not all regulatory remedies are punitive or as severe as a licence revocation. The tribunal was correct in this case to note that the constitutional issues were especially significant due to the severity of the remedy and to deal expressly and extensively with Doré. The tribunal found that the seriousness of the context and the extreme nature of Dr. Trozzi’s misconduct satisfied the Doré balance. It properly considered whether there were less restrictive alternatives. It is hard to fathom a contrary decision on the facts as found.
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