A frequent discussion at the courts in recent years is how regulators are to balance interests protected by the Canadian Charter of Rights and Freedoms against unprofessional conduct. One basis for limiting Charter free expression rights is where the registrant’s comments are degrading and demeaning such that they may harm the public and compromise public confidence in the profession: Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685 (CanLII), https://canlii.ca/t/jzvdv.
Another recent decision of Ontario’s Divisional Court adds another criterion: where the expression contains misinformation, particularly misinformation that has the potential to cause harm to the public: Gill v. Health Professions Appeal and Review Board, 2024 ONSC 2588 (CanLII). A physician had posted scores of comments on social media related to COVID. There were multiple complaints and a broader Registrar’s investigation into the posts. The regulator did not take action on the vast majority of the posts even though some were strongly worded and critical of health policies and the stance taken by other physicians. However, the regulator did take issue with three posts that contained misinformation about the effectiveness of lockdowns, the value of vaccines, and an assertion that contact tracing, testing, and isolation processes were “counter productive”. The regulator found that there was no credible evidence to support those statements. The physician was not referred to discipline, but was issued a remedial caution, which was upheld by the Review Board (for complaints at least).
On judicial review, the Court provided guidance to regulators balancing Charter rights against professional expectations. While indicating that it was necessary for the regulator to address, with robustness, the competing Charter rights, it did not hold the regulator to the same standard that would be expected of a court dealing with the same issue. The Court noted that the regulator had considered the freedom of expression of the physician and allowed considerable latitude to the comments made. The regulator specifically upheld the rights of physicians to criticize public health measures. The Court agreed that, in the circumstances, drawing the line at misinformation was reasonable. The Court also observed that there could be more than one acceptable place to “draw the line”.
The Court noted that the degree of justification required was affected by what was at stake for the registrant. Here, the intervention was an educational caution, not disciplinary proceedings, which gave more leeway for the regulator in its balancing obligations, even though the outcome was entered on the public register (and, apparently, actively distributed to health care institutions).
The Court accepted that, given the status of physicians and the context, it was not paternalistic speculation for the regulator to be concerned that the comments were potentially dangerous to members of the public who might choose not to comply with public health measures.
The Court also accepted that reposting a comment on social media could reasonably be seen, in the circumstances, as endorsing it.
On a more technical point, the Court observed that there was no method within the legislative scheme to combine multiple complaints and a Registrar’s investigation into a single process even when their content overlaps. As such, the regulator’s choice to place the overlapping files before the same screening panel on the same day provided an effective and fair method of ensuring a consistent and coordinated outcome.
This decision provides additional guidance to regulators when addressing Charter rights or, even, Charter values.