December 5, 2019

Reserved titles and freedom of expression

Administrative Law
Unauthorized Practice

The constitutionality of the reserved title regime under the B.C. Health Professions Act recently has come into question, after a justice of the B.C. Supreme Court held that s. 12.1(1) of the HPA unjustifiably infringes freedom of expression. Section 12.1(1) prevents any person, other than a registrant of a college, from using a reserved title (like “midwife”) to describe their work, or as part of another title describing their work. The provision operates in conjunction with s. 12.1(3), which prevents any non-registrant from expressing or implying that he or she is a registrant. The court decided that Ms. MaryMoon, who uses the title “death midwife” in relation to end-of-life care to clients, violated s. 12.1(1), but the provision restriction against her using “midwife” as an occupational title unjustifiably infringed her freedom of expression: College of Midwives of British Columbia v. MaryMoon, 2019 BCSC 1670.

The court decided that Ms. MaryMoon’s freedom of expression extended to her use of occupational title. More crucially, and given an absence of any legislative commentary about s. 12.1(1) when it was passed in 2008, the court disagreed with the objectives of that provision put forward by the AGBC and the College, and viewed it as a significant expansion of title restrictions. This conclusion had a significant impact on the court, which declined to accept statements about reserved title as applying to s. 12.1(1). The court did not recognize, however, that s.12.1(1) merely consolidated reserved title restrictions previously existing in various HPA regulations before 2008.

The decision has been appealed by both the AGBC and the College, with both appeals to be heard together. The appeals seem likely to collectively address such matters as

  • the effect of existing but older caselaw, which places occupational titles outside of freedom of expression;
  • the legislative objective of s. 12.1(1), given its wording and effect, and given earlier “reserved title” provisions (operating in conjunction with what is now s. 12.1(3)) that have been in place in regulations since before 2008; and
  • the court’s silence about the objectives of a parallel “prohibited mark” regime under s.9(1)(n)(iii) of the federal Trade-marks Act  – a regime that prevents the private use of public marks (including public titles) – which the Federal Court decided was constitutional, despite freedom of expression, in the Natural Medicine case (2013 FC 287).

College of Midwives of British Columbia v. MaryMoon, 2019 BCSC 1670

Lisa C. Fong and Michael Ng