Facts:
G is a practising physician. During the height of the COVID-19 pandemic, the College of Physicians and Surgeons received a number of complaints about G’s statements about the pandemic on her Twitter account. G’s Twitter account clearly identified her as a physician.
The Inquiries, Complaints and Reports Committee of the College (the “ICRC”) investigated the complaints. At the same time, the Registrar conducted an investigation into G’s social media conduct more generally, and reported the results to the ICRC.
The ICRC dismissed five of the complaints on the basis that the complaints were not specific enough or that the impugned tweets were not “verifiably false”. For many of the tweets, the ICRC was unable to conclude that G’s statements were incorrect and therefore could not conclude that she was deliberately attempting to misinform the public. With respect to the two remaining complaints, and the Registrar’s investigation, the ICRC took issue with three out of the approximately 100 social media posts it examined. The tweets in issue claimed that there was absolutely no medical or scientific reasons for lockdowns, that vaccines were unnecessary, and that contact tracing, testing, and isolation were ineffective and “counterproductive”. The ICRC accepted that there are many ways that people could legitimately disagree with or question government policies in relation to the pandemic. However, G’s tweets provided no evidence for her false claims and could lead to harms if members of the public followed her advice.
As a result, the ICRC ordered G to appear to be cautioned about her social media usage. G appealed all decisions to the Health Professions Appeal Board (the “HPARB”). The HPARB upheld the ICRC decisions.
G then sought judicial review of the decisions ordering her to be cautioned, as well as the decisions dismissing the complaints.
Decision
(per Sachs, Myers and Shore JJ.): applications dismissed. The HPARB decisions were reasonable.
Judicial review is unavailable for the decisions to dismiss the complaints against G. G had sought to challenge these decisions on the basis that the reasons referred to the caution in the parallel complaints. Judicial review is an extraordinary remedy in respect of a decision—not the reasons for that decision. Applicants cannot seek judicial review just because they disagree with the language of the reasons, but agree with the result.
The HPARB decisions reasonably balanced G’s Charter rights and values in accordance with Doré.1
The HPARB decisions noted G’s Charter submissions, but did not explicitly address them. Nevertheless, the HPARB quoted, endorsed, and adopted the portions of the ICRC decisions that sought to balance G’s free speech rights. As a result, the Court must focus on the ICRC reasoning to determine if HPARB decisions engaged in the proper Doré analysis.
While freedom of expression, particularly in relation to political speech, is of great importance, the impact on G’s expressive rights is minimal. The decisions resulted in a caution, which is educational and remedial; it is not a finding of professional misconduct.
The ICRC recognized the important value of political speech, highlighting legitimate areas where doctors might question or disagree with government policies in relation to the pandemic. The ICRC was not trying to prevent members of the College from criticizing the government. However, it sought to prevent them from using misinformation to do so. The ICRC’s issues with G’s tweets was not that they were critical of government policy, but that they used incorrect information to do so. In this regard, it is important to consider the context of the complaints that the ICRC dismissed because they were based on tweets that were not “verifiably false”.
Finally, the ICRC had a reasonable concern that members of the public would give significant weight to a doctor’s opinion, ignore public health directives, and thereby put the public at risk.
Drawing the line at tweets that contained misinformation properly balanced G’s right to free speech against her professional responsibilities and was minimally intrusive.
Commentary:
Gill is another example of the Ontario Divisional Court upholding the decision of a professional regulatory body to proceed against a member in respect of their comments on social media, outside of their professional practice. Alongside Peterson v. College of Psychologists of Ontario,2 the Court has accepted that these bodies have a legitimate interest in what their members are saying on their personal social media accounts. In particular, where members identify themselves as professionals on their social media accounts, their professional regulatory bodies may have a basis to take action in response to concerns about the public harm that flows from such statements. However, in assessing these cases, decision-makers must be alive to the proportionate balance between its duty to protect the public interest and the member’s right to freedom of expression.
In this case, the Court found that the Doré analysis was reasonable because of the ICRC’s focus on whether G’s COVID-related tweets were “verifiably false”. It recognized that people have an important right to criticize and question the government, but that using misinformation to do so can cause real harm to the public. In the context of s. 2(b) of the Charter, it is worth recognizing that freedom of expression includes statements that are “wrong”. People have a right to say things that are incorrect. However, when it comes to an administrative body balancing those rights against its statutory objective to protect the public, the falsity of the statements can significantly tip the balance.
While this logic makes sense, particularly in the context of regulated health professionals, the result of this approach is to require the professional body to delve into the often thorny issue of whether particular statements are “true” or not. This is an approach that the courts generally avoid in the broader case law that has developed under s. 2(b) of the Charter. In this administrative case, the court was perhaps comforted by the fact that the ICRC consisted of physicians with a level of expertise to assess the veracity of the medical claims; that it dismissed complaints related to many other tweets that might have also been harmful to the public, but were not clearly and verifiably false; and that ultimately the impact on G’s expression was limited, given the fact that the result was a remedial caution and not any kind of professional misconduct finding. The latter consideration played an important role in Peterson as well.
Still, Gill should not be taken to stand for the proposition that action can be taken against regulated professionals solely in respect of “verifiably false” statements. Certain statements may cause harm to the public, even if the regulator cannot definitively assess their accuracy. In such cases, Doré still provides guidance to administrative decision makers to determine whether the objective of protecting the public outweighs the restrictions on free speech. Ultimately, each case will depend on its particular facts and context.
Finally, the court seemed to take a fairly generous approach to the sufficiency of the reasons of the administrative body conducting the requisite Doré analysis. In this case, despite the fact that G clearly raised the Charter issues, the HPARB did not directly engage with them. In many cases, that would be enough to render the decision unreasonable. Nevertheless, the Court accepted that it was sufficient that the HPARB adopted and endorsed the Doré balancing of the ICRC. The Court then focused its analysis on the ICRC’s reasons. Thus, for administrative regimes with internal appeal mechanisms, it may be sufficient for the first level reviewer to properly consider and balance the Charter rights in issue—and for the further internal appeal level to simply adopt and rely upon that analysis.