Howard Levitt: What's happening to Jordan Peterson could happen to anyone now
His is an important fight. His failure would leave many vulnerable to attacks on their employment
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Given how hard Jordan Peterson has worked (and continues to work), it is difficult to attribute his phenomenal successes to simple good fortune. But, sometimes, even he can just get lucky.
As a result of the most boneheaded unforced error I have ever seen, the Ontario College of Psychologists is about to propel his already ascendant career into meteoric orbit.
The College has just ordered Peterson to attend a Maoist style, compulsory social media re-education program at a cost to him of $225 per hour, such sessions to continue until these paid “educators” determine that he is sufficiently penitent. His refusal to participate — and of course he has refused — will lead to a public disciplinary hearing and potential cancellation of his professional license as a psychologist. He is also ordered to “review, reflect on and ameliorate his ‘professionalism’” in public statements. This, to a professor of Psychology at Harvard and U of T. (Full disclosure: I do not represent Peterson in this case but have acted for him in other matters including his unrelated, ongoing lawsuit against Laurier University for defamation).
Which patients complained to the College that he was conducting his craft as a psychologist (all that the College can regulate) improperly? Actually, none at all. None could have as he has not practised as a clinical psychologist for over five years. Nor did any of the complainants even know any of his patients.
OK, then what psychological principles was he allegedly breaching? Well again, the complaints against him have nothing to do with his practice of psychology but were exclusively political complaints from the left about his conservative political pronouncements. What were these complaints? They included his retweeting our federal Opposition Leader’s statement that the COVID lockdown was too severe and his criticisms of our PM and of Gerald Butts, Trudeau’s former principal secretary. One complainant also objected to Peterson’s rather humorousTwitter response to a critic worried about overpopulation: “You’re free to leave at any point.”
In a front page story Thursday in the National Post, Peterson asked: “What makes you think that something similar won’t happen to you or someone you know and respect or love?” And, to those too faint of heart (and cojones) to imagine that ever happening to them: “What makes you think you are going to continue to be able to communicate honestly with your physicians, lawyers and psychologists or representatives of other regulated professions if they are so terrified of regulatory boards that they can no longer tell you the truth?”
Peterson of course will not comply and doubtless the college’s pronouncement will be quickly overturned by the court as a wild regulatory overreach. The college picked the wrong target and by its stupidity has doubtless further invigorated the conservative movement here as well as south of the border.
The public outrage has been immediate. Elon Musk, who has barely given this country the time of day since he left after university, called the Ontario College’s charges “extremely concerning” and even the august Wall Street Journal’s Editorial Board wrote a special editorial decrying the College’s conduct entitled, The Campaign to Re-Educate Jordan Peterson. “Professional bodies are supposed to ensure that practitioners are competent, not enforce political orthodoxies or act as language police outside the office,” it concluded. “But that’s the trend in Western medical associations and beyond.”
Peterson’s are not phantom concerns. Only four years ago, the Law Society of Ontario, which regulates the province’s lawyers, passed a statement of principles requiring all Ontario lawyers to subscribe to and sign a statement agreeing to promote certain values of diversity inclusion and equity (referred to as DIE by Peterson) prescribed by it, arguably in disregard of the Charter freedoms of thought, belief, opinion, expression, conscience and religion. I and many others risked our licences by refusing to sign believing it not the role of our regulator to order us how to think. And I did this as the senior partner of one of the most diverse firms in the country.
Lawyers were so up in arms that a slate of bencher (the term for directors of the law society) candidates ran directly in opposition to the society’s overreach and every single one was elected. They were elected because Ontario lawyers were worried that the LSO, empowered by this statement of principles, would conduct itself precisely in the fashion which the College of Psychologists just has and order witch hunts against the politically incorrect.
Interestingly, the regulatory overreach in the Peterson case should give this slate, who are running again on similar principles against an establishment slate, a new lease on life in the upcoming bencher election.
In employment law, if you lose your job, you will be compensated by a court in an amount between two and 27 months depending upon factors such as re-employability, age, and length of service. But what if you are deprived, not of a particular job, but of your livelihood as this College is threatening and every professional regulatory body can?
Courts have dealt with this, finding that the damages from employer complaints leading to regulatory delicensing are dramatically greater than damages for wrongful dismissal. This can occur in every licensed profession from licensed mechanics, to stockbrokers, pharmacists and teachers. And, as regulatory bodies are increasingly run by the woke (just take the Halton District School Board and the ludicrous case of the transgender teacher), those on the other political side are at risk. And, unlike Peterson, few can afford a suspension pending a hearing, let alone the costs and publicity associated with defending yourself against an unfriendly tribunal of political opponents.
One case of the B.C. Court of Appeal dealing with damages from the lost opportunity of a profession involved Melissa Ojanen, an articling student fired for cause (wrongfully, as it turned out) by Vancouver-based Acumen Law Corp. The stress of the ordeal resulted in her failing the bar admissions exam, so that by the time the matter reached court three years later, she had still not been called to the bar and the stigma of cause impacted her future prospects.
The court found that she had no reasonable prospect for employment in the legal profession while the allegations brought against her in the litigation were being pursued. She was awarded damages for the lost opportunity to practice as a lawyer — a much larger amount than her successful wrongful dismissal claim — as well as punitive damages for Acumen’s conduct.
So, if you have the fortitude, these rulings can be successfully defended and damages paid, well beyond what an employee wrongfully dismissed could ever expect. But given the stresses of a fight for your very career, we must all hope that the court will give the College a severe dressing down, unless it has the good sense to retreat in full flight first.
Given that the college had the temerity to take on a person with such public support, one can only imagine how many psychologists with the wrong political opinions it has previously cowed into submission. Peterson’s is an important fight. His failure would leave many vulnerable to attacks on their employment by third party letters to their professional bodies or even to their employers by leftists (today, tomorrow who knows what political views will be ascendant) with opposing views claiming that they have put their profession into disrepute, (which is an actual offense under Law Society rules). I had one such complaint for a previous column when I referred to a decision of a privacy commissioner as boneheaded, for which I was informally cautioned. Such weaponization of political opinions must be stopped in its tracks. Peterson is just the person to do it.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.
Editor’s Note: An earlier version of this column did not indicate the author has represented Jordan Peterson in legal matters. The Financial Post regrets the omission.
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