A workplace investigation will often start with an internal dispute between co-workers. The issue for an investigator will usually be to hear the evidence and to determine what was said or done, and to then determine whether the conduct in question was contrary to the standard of behaviour expected under an organization’s policies.

An organization may also need to address potentially harassing or disrespectful conduct in broader circumstances, beyond an internal disagreement between staff; a professional association, for example, may have standards of conduct on its members that extend beyond the strict confines of their professional life. An institution or organization which interacts with the broader public may place restrictions on any individual who comes within the institution’s space. Policies which purport to have such external application will often be referred to as a code of ethics or code of conduct.

Given the broader application, it is also more likely that someone whose conduct is being questioned may challenge whether the organization has a right to limit their behaviour. This can particularly become an issue when the organization or institution is a public entity or is exercising a statutory power and is subject to constitutional limits in its authority. The Ontario Divisional Court has recently weighed in on this issue in several cases where the scope of a body enforcing a code of ethics or conduct has been challenged on the basis that the application of the code was contrary to the fundamental rights set out in the Canadian Charter of Rights and Freedoms.

Peterson v College of Psychologists of Ontario, 2023 ONSC 4685 (Div Ct), involved an alleged breach of a professional code of ethics based on public statements by a member. Burjoski v Waterloo Region District School Board, 2023 ONSC 6506 (Div Ct), and Ramsay v Waterloo Region District School Board, 2023 ONSC 6508 (Div Ct), two related cases, involved a member of the public challenging a decision by a school board to limit her speaking time as her deputation was considered to be discriminatory, and one of the school trustees who objected to his colleagues decision to shut the speaker down. In all these cases, the individuals were challenging decisions made respecting their conduct on the basis that the decisions were infringing their right to freedom of expression guaranteed under section 2(b) of the Charter.

The Peterson case involved the well-known personality, Jordan Peterson. Dr Peterson is a member of the College of Psychologists of Ontario (the “College”). Through social media and interviews, Dr Peterson made a number of comments which resulted in complaints being filed with the College respecting Dr Peterson’s professionalism, raising the issue that his statements were contrary to the College’s Standards of Professional Conduct and Code of Ethics.

The College conducted an investigation, and a panel of its Inquiries, Complaints and Reports Committee (“ICRC”) found Dr Peterson to have made a number of public comments, which it determined to be inflammatory, disgraceful, dishonourable, and/or unprofessional. The incidents included degrading comments about a former client on a popular podcast; dismissive comments about a municipal politician’s use of gender-neutral pronouns; deadnaming an actor who had recently undergone a gender transition, and referring to their transition surgery as “criminal”; and dismissive comments about a plus-size model who appeared on the cover of Sports Illustrated.

The ICRC determined that Dr Peterson’s public statements were inconsistent with the professional standards and ethics expected of a psychologist. The ICRC also recognized Dr Peterson’s right to freedom of expression, but noted that the duty to the public and the profession also had to be considered in determining how his actions should be addressed.

The ICRC determined that Dr Peterson’s conduct did not warrant being sent to a discipline hearing. Instead, it required him to complete a “specified continuing education or remedial program” (a “SCERP”) to “review, reflect on and ameliorate his professionalism in public statements.”

Dr Peterson sought judicial review of the Panel’s direction. A panel of three judges on the Ontario Divisional Court upheld the ICRC’s directions as being a reasonable and proportional approach to the issues in question.

Dr Peterson had acknowledged making the statements; however, he took the position that they were “off-duty opinions.” The Court noted, however, that actions outside of a member’s professional life that are inconsistent with the core values of a profession may be relevant and appropriate for a professional college to address, citing another case involving nurses publicly making misleading statements respecting vaccines and public health measures during the COVID-19 pandemic.¹

With respect to the Charter issues, the Court held that the ICRC had taken a balanced approach to the competing issues of professional obligations and freedom of expression, in accordance with the principles set out by the Supreme Court of Canada.² Though finding Dr Peterson’s comments to be unprofessional, the ICRC had nonetheless not sent the matter to a disciplinary hearing, but rather took a remedial approach by directing Dr Peterson to take training on why his comments were inappropriate.

The Divisional Court reached a similar decision in Burjoski and Ramsay. Ms Burjoski was a member of the public, a retired teacher, who had sought to make a deputation to the School Board on the transparency of the process being undertaken to review the library collection of the Board, and on what guidance the Board should provide to teachers on addressing issues of gender and biology. She was given permission to make a deputation on the first issue only. However, during her deputation, she digressed into a critique of certain books addressing gender identity or gender expression. The Chair cautioned her against making any statements which may be considered discriminatory, but permitted her to continue. She did not heed the admonition, and continued with comments questioning the appropriateness of specific books addressing gender identity issues. The Chair stopped her deputation, on the basis that her statements were becoming problematic, and could be considered discriminatory.

Mr Ramsay, a trustee, objected to the Chair’s ruling to stop the delegation. A vote was taken, and the majority supported the Chair’s position. Over the following weeks, Mr Ramsay continued to express his opposition to the decision to end the deputation, both in School Board meetings and on social media. A complaint was filed against Mr Ramsay for a violation of the Trustee Code of Conduct, which included an obligation on trustees to respect decisions of the Board once made. Following a thorough investigation by an integrity commissioner, Mr Ramsay was sanctioned by the School Board for his failure to comply with the Trustee Code of Conduct.

Both Ms Burjoski and Mr Ramsay sought judicial review of the decisions made by the School Board. As in Peterson, in both cases, the courts held that the School Board had adopted a reasonable approach to balance the right to freedom of expression in the context of statements which ran contrary to its code of conduct, policies, or by-laws, and were consistent with its obligation to provide a safe and inclusive school environment for all students.

When conducting an investigation involving a code of conduct with a broad application, it is important to be aware of the potential disputes respecting jurisdiction or authority that may arise. Similar facts may lead to different conclusions based on context, and based on the relationship of the parties.

¹Pitter v College of Nurses of Ontario and Alviano v College of Nurses of Ontario, 2022 ONSC 5513 (Div Ct).

² See Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293, and Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395.

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