Professionally speaking: Ontario Superior Court upholds professional regulators’ right to moderate speech

By Sheila Mecking and Kathleen Starke

On August 23, 2023, the Ontario Superior Court (“ONSC”) upheld a complaints decision which ordered a psychologist to complete a continuing education or remedial program regarding professionalism in public statements.^[1]  The Court’s decision confirms that professional regulators have authority to regulate public statements of their members and that high standards are imposed on professionals’ conduct, off-duty or otherwise.

Background and decision

The complaints decision stemmed from multiple complaints to the College of Psychologists of Ontario against Dr. Peterson for tweets and his statements made on a podcast – Dr. Peterson disparaged a former client who filed complaints against him, and made other derogatory, sexist, transphobic, and racist comments that were not in keeping with any clinical understanding of mental health. The College’s Inquiries, Complaints and Reports Committee found: “[the comments] may be reasonably regarded by members of the profession as disgraceful, dishonourable and/or unprofessional” and posed “moderate risks of harm to the public”.  The Committee ordered Dr. Peterson to complete a specified continuing education or remedial program regarding professionalism in public statements.

Upon appeal to the ONSC, Dr. Peterson argued, in part, that the College’s Code of Ethics did not apply to “off duty” comments and it was only applicable to comments made in his professional capacity.  However, the ONSC did not agree, and found that Dr. Peterson’s comments were not made as a private citizen, but instead as a psychologist representing his profession.^[2]

Further, the ONSC recognized that professionals can harm public trust and confidence in the profession through “off-duty” conduct.  Therefore, regulatory bodies have the authority to ensure that professionals are abiding by applicable standards of conduct, including conduct “off-duty”.

Key takeaways

1. A professional may find their Charter rights impaired as professional regulators balance Charter rights, such as freedom of expression, against the interest of the public.^[3]
2. Regulated professionals should think twice about posting personal opinions on public platforms and how such statements could impact their profession and the public more broadly.
3. Harmful public statements constitute professional misconduct and/or conduct unbecoming. The motivation or true intent behind the comments is not relevant – what is relevant, is the language used and the impact of that language.
4. Professional regulators must issue decisions that are transparent, intelligible, justifiable, and reasonable, and this onus is a heightened when the decision could affect a members’ Charter rights.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Professional Regulation & Misconduct group.

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[1] Peterson v College of Psychologists of Ontario, 2023 ONSC 4685.
[2] The ONSC further held that Dr. Peterson’s own actions undermined his argument, including that he identified himself on Twitter as a “clinical psychologist” and, in fact, relied on his professional status to lend credibility to his statements.
[3] The ONSC held that the complaints decision minimally impaired, if at all, Dr. Peterson’s freedom of expression rights given that Dr. Peterson had ignored previous advice regarding his use of demeaning language.  Therefore, it was an appropriate next step to order Dr. Peterson to undertake coaching with respect to his language.