Last November the Ontario College of Psychologists imposed an unusual order on Dr. Jordan Peterson: “remedial” media training to “ameliorate his professionalism.” This was in response to complaints about sarcastic and arguably rude remarks Peterson had made on Twitter and in other media. Peterson took the decision to the Ontario Divisional Court for judicial review. The Court upheld the College.

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Opinion: Media training for Jordan Peterson? Really? Back to video

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Peterson’s contentions that the order infringed his constitutional freedom of expression and that he had been “off-duty” when making the remarks were both weak. Too many judicial decisions have rejected these arguments. A professional does not have unlimited freedom of expression and is never off-duty when making public statements deemed to be unprofessional. Whatever one may think of Peterson’s remarks, the College’s response is opaque, suggesting an agenda with a virtually inevitable negative outcome for him.

The College’s order for Peterson raises an important transparency issue: was it really an order for remedial education, as the College argued, or was it actually the start of a disciplinary process — but without the normal procedural and legal safeguards for Peterson? A court could find a regulator’s actions to be reasonable if the court has misunderstood what the regulator was really doing. In fact, that appears to have been the case here. The Court accepted the College’s argument about remedial training, even though the order would have severe disciplinary consequences for Peterson should the trainer decide he had not changed his attitude sufficiently.

The three judges who made the decision are all top-flight and highly respected. The problem is not the judges but the law they felt obligated to apply and the facts as the College presented them. The leading case in the applicable law is the Supreme Court of Canada’s 2019 Vavilov decision, which instructed judges to show considerable deference to decisions of expert regulators.

The College ordered Peterson to complete what it called its “specified continuing education or remedial program” to correct his alleged lack of professionalism. But there is a fundamental difference between a “continuing education” program and a “remedial” program. The former involves education in current developments of interest to the profession; the latter requires a remedy to the member’s conduct. The former is harmless instruction; the latter creates the risk of discipline by stealth.

Why does this matter? Because anyone subject to disciplinary action is protected by certain legal safeguards, while mere education — whether labelled continuing or remedial — involves no such safeguards. The Court took its description of the College’s order directly from the College’s own description of it. But that description was opaque, inaccurate and hence arguably unreasonable under the Vavilov decision.

With his highly successful use of print, TV and social media and his huge global following, the last thing Jordan Peterson needs is media training. But of course that’s not what this training is really intended to be. The complaints against Peterson were about his attitude, not his aptitude.

The Court wrote that the College’s order “simply requires him to have coaching ‘to review, reflect on, and amelioratehis professionalism in public statements’ in order to avoid making demeaning and degrading statements about people that may be harmful to them and to the profession.” The key word is “ameliorate.” In this context, it means change his attitude to the satisfaction of the mandatory coach. In effect, the coach becomes a judge who can end Peterson’s career by reporting that his “amelioration” has not been good enough.

Yes, maintaining acceptable conduct of professionals is in the public interest. But so is freedom of expression, otherwise it would not be a constitutional right. The requirement that a court show deference to a regulator in no way explains how to balance these public interests when they compete with each other.

The Vavilov decision says courts must defer to experts so long as their decisions fall within the range of reasonable outcomes. But here’s the contradiction: if judges are required to defer to decisions of regulatory bodies because they don’t know enough to overrule their specialist decisions, how is it they know enough to know whether the decision falls with the range of reasonable outcomes? And if they do know enough to know the decision does fall within that range, why require judges to defer to the regulator’s decision?  Vavilov needs rethinking.

The College had the legal authority to impose disciplinary measures on Peterson. But it should not have the authority to issue a disciplinary order and call it something else, like training, to avoid judicial review. In the Court of Appeal, the College should have to show that its order of compulsory attitude adjustment was in fact procedurally fair, transparent, logical and reasonable, based on the facts that were before it. That may be difficult.

Andrew Roman, a retired lawyer, practiced, taught and wrote about judicial review.

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