Canada: Lessons From Jordan Peterson's "Off Duty" Tweets – Regulating Professionals Who Post On Social Media
Litigation and Dispute Resolution Bulletin

A recent decision from the Ontario Divisional Court raised a "clash" between a professional's right to "speak in a certain manner" on Twitter, and a regulator's power to require the professional to "moderate that speech."

At a time when news consumption and social media usage are at peak levels, the decision is particularly relevant — it provides guidance to professional regulators about how to respond to "off duty" comments made by their members. The decision also serves as a caution to professionals who exercise their freedom of speech online. The bottom line? The court found that a professional's social media posts may properly trigger a remedial response from their regulator.

The case, Peterson v. College of Psychologists of Ontario,¹ concerned Jordan Peterson, a registered clinical psychologist in Ontario and a public figure — one who frequently makes public statements, some of which deal with gender-identity, racism, overpopulation, and the response to COVID-19. As one example, during a podcast discussion about air pollution and child deaths, Dr. Peterson stated that "it's just poor children, and the world has too many people on it anyways."²

Dr. Peterson is subject to regulation by the College of Psychologists of Ontario, which received complaints about Dr. Peterson's public statements.³ Following an investigation into those of Dr. Peterson's statements alleged to be "transphobic, sexist, ^and racist,"⁴ the College's Inquiries, Complaints and Reports Committee (ICRC) ordered Dr. Peterson to complete a specified continuing education or remedial program regarding professionalism in public statements.

Dr. Peterson sought judicial review of this decision. The Divisional Court denied his application, finding that the ICRC's decision was reasonable and proportionately balanced the College's statutory mandate, including the protection of the public interest, with Dr. Peterson's Charter right to freedom of expression. Dr. Peterson's lawyers have publicly stated his intention to file for leave to appeal the decision to the Ontario Court of Appeal.

Key Takeaways

"Off-duty" statements may be subject to regulatory scrutiny. The Divisional Court concluded that it was reasonable for the ICRC to reject Dr. Peterson's arguments that his public comments were made outside his role as a psychologist and, thus, not subject to the College's policies.

The court found that Dr. Peterson represented himself as a clinical psychologist and could not "speak as a member of the regulated profession without taking responsibility for the risk of harm that flows from him speaking in that trusted capacity."⁵ As a regulated professional, Dr. Peterson held a position of "trust, confidence and responsibility" in society, which lent credibility to his statements.⁶ The court concluded that even when acting "off duty," the conduct of regulated professionals can still harm public trust and confidence in their profession;⁷ agreeing 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 ^...."⁸

Professional regulators may recognize limitations on freedom of expression. The Divisional Court confirmed that, when deciding, what, if any, remedial order to impose on Dr. Peterson, the ICRC's task was to proportionately balance its statutory objectives with Dr. Peterson's right to freedom of expression in a highly contextual inquiry.⁹

Of note, the court found that the ICRC's decision was "a proportionate and reasonable option" because (1) it was remedial in nature (rather than disciplinary); (2) it did not prevent Dr. Peterson from expressing himself on issues of interest (but rather focused on concerns over allegedly degrading and demeaning language that he had been previously warned about); and (3) could be contrasted to other, more serious impairments of Charter rights (such as decisions actively requiring physicians to provide a referral for services they oppose on religious grounds).¹⁰

A regulator's balancing of Charter rights with statutory objectives is owed deference. The standard of review in this case was reasonableness. The court confirmed that, when assessing reasonableness, the court need not agree with the outcome — neither must a decision-maker choose the option that limits the Charter protection least.¹¹ If the decision falls within a range of possible, acceptable outcomes, the decision-maker is entitled to deference.

Further, the Divisional Court reasoned that because the ICRC is composed of a majority of professional members, deference should be afforded to its assessment of the risk of harm to the public and the profession.¹²

Footnotes

1. 2023 ONSC 4685 Peterson..

2. Peterson at para. 9.

3. Peterson at para. 7.

4. Peterson at para. 8.

5. Peterson at para. 49.

6. Ibid. (excerpting from Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC)).

7. Peterson at para. 51.

8. Peterson at para. 54 (excerpting from Dr. Jha v. College of Physicians and Surgeons of Ontario, 2022 ONSC 769).

9. Peterson at para. 31.

10. Peterson at paras. 63-65.

11. Peterson at para. 33.

12. Peterson at para. 45.

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