November 5, 2018

Injunctions against unauthorized practice may reflect legal changes

Professional Regulation
Unauthorized Practice

An injunction against unauthorized practice that sets out specific restricted activities may be amended by the court to reflect changes in the law, based on the court’s original intention that unauthorized practitioners comply with the law as amended from time to time, rather than law that has become outdated: College of Midwives of British Columbia v. Lemay, 2018 BCSC 1827.

The B.C. Supreme Court originally issued an injunction in February 2000 against a respondent to prevent her from practising as a midwife. The respondent was not a registrant of the College of Midwives. The original order listed restricted activities based on the wording of the Midwives Regulation at the time. She was later held in contempt of court for wilfully disobeying the original order: 2002 BCSC 6. She again disobeyed the order after her conviction and before sentencing: 2003 BCCA 583.

In 2018, the college applied to have the original updated, based on significant changes to the list of restricted activities in the Midwives Regulation after 2000, and based on various reports that the Respondent was still continuing birthing-related activities. 

The court agreed that the only reasonable interpretation of what the court had intended was to enjoin Ms. Lemay from contravening the Midwives Regulation as amended or replaced from time to time. (The court drew on reasoning of the Court of Appeal, in a 2017 case, where an interim order restraining an employer from contravening safety legislation had only one reasonable interpretation respecting temporal scope, i.e., that the order “requires compliance with the Act and Regulation as amended from time to time”: British Columbia (Workers’ Compensation Board) v. Seattle Environmental Consulting Ltd., 2017 BCCA 19 (CanLII). [31-37, esp. at 35]) The court concluded that the “manifest intention” of the court when issuing an injunction against Ms. Lemay had been to “[48] … restrain Ms. Lemay from engaging in the reserved acts of midwifery as defined from time to time in the Regulation, and not as they stood at any particular point in time.”

The court also decided to amend the order based on its inherent jurisdiction, as distribution of the original order “with the more limited listing of reserved acts as the Regulation stood in 2000 is misleading. Members of the public may fall under a misapprehension that Ms. Lemay is entitled to perform acts that are beyond the list as it stood in 2000, but which are now prohibited by amendments to the regulatory framework”.

Given that the B.C. Supreme Court recently confirmed in another case that a court order need not list out specific restricted activities (CPSBC v. Li, 2018 BCSC 923), new injunction orders should simply refer to restricted activities in a general sense, rather than list them specifically, to better reflect the true intention of the court.

College of Midwives of British Columbia v. Lemay, 2018 BCSC 1827

Lisa C. Fong and Michael Ng