DISCIPLINE COMMITTEE OF THE COLLEGE OF AUDIOLOGISTS AND SPEECH-LANGUAGE PATHOLOGISTS OF ONTARIO
Date Written Reasons Released: June 4, 2024
BETWEEN:
College of Audiologists and Speech-Language Pathologists of Ontario
College
- and -
Brenda Berge
Registrant
ORAL REASONS ON FINDING
Heard: June 3, 2024, by videoconference
Panel:
Sherry Liang (panel chair)
Kim Eskritt (AUD)
Bonny Li (public)
Melanie Paradis (public)
Dana Parker (AUD)
Appearances:
Bernard C. LeBlanc, for the College
Brenda Berge, not present or represented
INTRODUCTION
1The Inquiries, Complaints and Reports Committee of the College of Audiologists and Speech-Language Pathologists of Ontario referred allegations to the Discipline Committee about the registrant, an audiologist. The College alleges she engaged in professional misconduct when she did not co-operate with an investigation and made or repeated a statement on social media that is inappropriate and offensive.
2At the time set for the remote hearing, the registrant did not appear despite having been sent notice of the hearing. The hearing proceeded without her.
3Based on the College’s evidence and submissions, we find that it has proven the allegations of misconduct against the registrant. In arriving at our findings on her social media post, we considered the registrant’s right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms (Charter). We conclude that our findings of professional misconduct proportionately balance the College’s statutory objectives with the registrant’s expressive rights.
THE REGISTRANT FAILED TO CO-OPERATE WITH THE COLLEGE’S INVESTIGATION
4The Health Professions Procedural Code (Code), which is Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c. 18 (RHPA), places obligations on registrants in relation to the College’s investigations:
76 (3) No person shall obstruct an investigator or withhold or conceal from him or her or destroy anything that is relevant to the investigation.
76 (3.1) A member shall co-operate fully with an investigator.
5These requirements are part of the responsibility of practising a regulated health profession. The credibility of the profession, and the College as its regulator, depends on the College being able to investigate complaints or other issues of potential concern and to take appropriate action in a timely way. As set out in section 1(31) of O. Reg. 749/93, made under the Audiology and Speech-Language Pathology Act, 1991, SO 1991, c. 19 (the Professional Misconduct Regulation), it is an act of professional misconduct to contravene the Act, the RHPA, or a regulation under either of them. Failing to comply with these requirements is thus professional misconduct.
6The College called two witnesses to give evidence about the registrant’s failure to comply with her duty to co-operate. These were the College’s investigator and an inspector from the local public health unit.
7The evidence is that, in April 2022, the College’s Registrar appointed an investigator to investigate concerns that the registrant may have failed to follow public health, sanitary and infection control procedures, made or repeated unprofessional and/or inaccurate statements concerning COVID19 and used the title “doctor” in the course of providing or offering to provide health care in Ontario.
8A few weeks later, the investigator went to the registrant’s clinic along with the public health inspector. The registrant allowed the public health inspector to enter the clinic but refused entry to the investigator. The reason the registrant gave for the refusal was that she had “issues” with another investigator and the College from a previous matter. The investigator explained that she had a new appointment of investigator and had legal grounds to be on the premises. The investigator gave the registrant a copy of her appointment. She also suggested that the registrant call her lawyer or the College, to which the registrant replied that she “did not care” what the College had to say.
9The registrant allowed the public health inspector to inspect her clinic but continued to refuse entry to the investigator. The public health inspector completed his inspection on the same day and, in his report, found no violations of the relevant infection prevention and control procedures.
10The College’s investigator emailed the registrant three times in the following months, attempting to arrange a telephone interview and attaching her appointment of investigator. The registrant did not respond. The investigator then sent her a letter by courier, in October 2022, advising the registrant that she was required to attend an interview with her. She attached another copy of the appointment of investigator as well as excerpts from the Code relating to the College’s investigation powers and the registrant’s duties, as set out above. The registrant did not respond.
11We find that in refusing to permit the College’s investigator to enter her clinic in connection with its investigation and in failing to respond to the investigator’s repeated requests for an interview, the registrant did not comply with her mandatory duties under ss. 76(3) and (3.1) of the Code. We have no evidence of any valid reason excusing her failure to co-operate with the College’s investigation.
12Under s. 1(31) of the Professional Misconduct Regulation, this constitutes professional misconduct. It is also conduct that members of the profession would reasonably regard as disgraceful, dishonourable or unprofessional, under section 1(37) of that Regulation.
THE REGISTRANT’S SOCIAL MEDIA POST WAS DISGRACEFUL, DISHONOURABLE OR UNPROFESSIONAL
13The College’s evidence also established that in early 2022, the registrant retweeted a post that stated:
“IF YOU THINK THAT WOMEN HAVE P*NISES, I WON’T BELIEVE A SINGLE WORD YOU SAY ABOUT ANYTHING ELSE.
BECAUSE IF YOU WILL LIE ABOUT SOMETHING SO OBVIOUS, I WILL ASSUME YOU LIE ABOUT EVERYTHING.”
[emphasis in original]
14Although the registrant does not identify her profession in this communication, she uses the title “Dr. Brenda Berge” in her Twitter profile and it is a simple matter to connect that profile with her profession.
15The registrant did not participate in these proceedings and did not raise her Charter rights in this hearing. Nonetheless, as we described in our prior decision about this registrant (College of Audiologists and Speech-Language Pathologists of Ontario v. Berge, 2024 ONCASPD 2) our decision must conform to the Charter.
16The Charter right to freedom of expression is an important right in a democratic society. Its purpose is to permit free expression to the end of promoting truth, political or social participation, and self-fulfilment (see R. v. Zundel, 1992 CanLII 75 at p. 752). It protects expression of minority beliefs which the majority may regard as wrong or false and even the deliberate publication of falsehoods.
17A finding of professional misconduct would affect the registrant’s fundamental right to freedom of expression. A decision with disciplinary consequences is a serious matter and impinges on her Charter rights. It would also have a chilling effect on other registrants who might be deterred from giving expression to their own views. In deciding whether a finding of professional misconduct arising out of the registrant’s communications is justified, we must consider the impact on this fundamental right.
18Balanced against this are the statutory objectives fulfilled by the College when it regulates the profession of audiology in the public interest. Ontario’s Human Rights Code, R.S.O. 1990, c. H. 19 guarantees the right to equal treatment with respect to services without discrimination because of, among other things, gender identity and gender expression. The College also referred us to Ethical Principle 3(h) of its Code of Ethics which requires that registrants maintain the standards and dignity of the profession in all communications, including social media.
19We find that the College has an interest in maintaining the integrity and reputation of the profession and promoting trust in the profession by ensuring that registrants do not make public comments that are uncivil and discriminatory, in particular given that such individuals may be potential or actual clients. We agree with the College’s submission that the social media post the registrant retweeted is transphobic. It contains disparaging comments about individuals’ gender identity or gender expression. Such communication reflects poorly on the registrant’s professionalism and can undermine public trust in the profession.
20We are satisfied that, by retweeting this communication, the registrant engaged in conduct that members of the profession would reasonably regard as disgraceful, dishonourable or unprofessional. While we recognize the importance of the registrant’s expressive rights, we are satisfied that a finding of professional misconduct is a proportionate balancing of the College’s statutory objectives and those rights.
CONCLUSION
21We find that the College has proven the allegations of professional misconduct. We will proceed to hear evidence and submissions on the appropriate penalty and costs.