September 7, 2020

The constitutionality of reserved titles under B.C.’s Health Professions Act

Administrative Law
Professional Regulation

The Court of Appeal recently upheld the constitutionality of reserved professional titles under B.C.’s Health Professions Act (“HPA”), and set aside a lower-court decision finding that the regime unjustifiably infringed freedom of expression (2019 BCSC 1670) in College of Midwives of British Columbia v. MaryMoon, 2020 BCCA 224.

The case involved a woman who called herself a “death midwife” as part of her providing support services to dying persons and their families. The term “midwife” is, however, a reserved title, which meant that her using the title “midwife” as part of a title describing her own work contravened s. 12.1 of the HPA, which provided (with respect to prescribed titles) that, “a person other than a registrant of the college must not use the title, an abbreviation of the title or an equivalent of the title or abbreviation in another language … (b) in association with or as part of another title describing the person’s work….”

Unlike the court below, the Court of Appeal found that the regime justifiably infringed freedom of expression.

First, as to the kind of “work” to which s. 12.1 applied, the Court of Appeal agreed with the College of Midwives, and with the intervenor, College of Speech and Hearing Health Professionals, “work” meant any work, and not only the provision of health care services: “I can see no principle of statutory interpretation that would call upon us to read in language limiting the application of s. 12.1(1) only to work relating to the provision of health services.” [58] The court rejected the proposition that capturing all work resulted in an absurdity, by extending to such uses as “lawn doctor”, since the court concluded, “it cannot be said  that persons describing themselves as ‘lawn doctor’ are using the reserved title ‘doctor’ as an indication of status or qualification….” [66] As for the term “death midwife”, however, the court reasoned that the use “suggests that she is entitled by some qualification to use the title ‘midwife’”. [69]

Second, the case fell outside of the scope of R. v. Baig (1992), 78 C.C.C. (3d) 260 (B.C.C.A.), which involved a respondent using reserved title while actually practising the professions to which those titles related. The court reasoned that the Baig case “[80] … is authoritative only insofar as it addresses a statutory prohibition against the misuse of a title to misrepresent qualifications.”

Third, the court concluded that the restriction against title use does infringe freedom of expression. It went on to note, however, that the expression was primarily a form of economic expression: “[96] …the particular act enjoined by s. 12.1 clearly has commercial value to those who would engage in it. In my view, we must recognize that the effect of statutory restrictions on the use of titles in association with work will be largely commercial and economic.”

Fourth, in finding that the reserved title regime justifiably infringed (economic) freedom of expression, the Court of Appeal concluded that the chambers judge had erred in her understanding of the changes to the HPA in 2008. Although the legislature only created s. 12.1 in 2008, restrictions against non-registrant use of reserved titles existed previously, as part of various HPA regulations. [100]

(a) The Court of Appeal accepted that the objective of s. 12.1(1) of the HPA was as set out in a “Safe Choices” report of the Health Professions Council (2001): “Reserved titles afford a mean for consumers to identify the different types of health care providers, to distinguish the qualified from the unqualified, and to differentiate those practitioners who are regulated from those who are not. Titles must adequately serve the public in describing the practitioner and the services being provided and must distinguish the practitioner from others performing services outside the jurisdiction of the college.” This is a pressing and substantial objective.

(b) The prohibition under s. 12.1 was rationally connected to the objective.

(c) The restriction impaired expression as little as possible, given (a) the restriction only applied to persons using a title reserved by regulation as a title in connection with their work; the use of a title in connection with work primarily serves a commercial purpose; and the scheme of reserved titles is part of a complex scheme of regulating health professions and warrants a more deferential posture by the court. [106] With respect to the assertion that the objectives of s. 12.1(1) could be achieved without prohibiting those who provide services outside the realm of health care, both the College of Midwives and the College of Speech and Hearing Health Professionals submitted that widespread use of a title may make it difficult for the public to ascertain that the use of the title in a health context signifies regulation. In terms of the evidence needed to justify an infringement of a Charter right or freedom, the court concluded that the arguments of the College of Midwives and the AGBC were “sufficiently rooted in common sense and logic”. [109]

(d) Finally, with respect to the proportionality between the effect of s. 12.1(1) and its objective, the deleterious effects were marginal: “Section 12.1(1) occasions limited infringement of vocational titles because relatively few titles, those associated with regulated health professions, have been reserved by regulation. The prohibition only applies to the use of words when they function as titles.” [112] In contrast, the salutary effects include allowing a vulnerable group, health care consumers, “can easily identify regulated and qualified health care professionals.” [113] Accordingly, the salutary effects outweighed the deleterious effects on freedom of expression. [113]

The Court of Appeal set aside the order of the court below, and granted the College of Midwives an injunction restraining the respondent from using the title, “death midwife”. [115 and 116]

Lisa C. Fong and Anne Muter acted for the College of Midwives of B.C.

College of Midwives of British Columbia v. MaryMoon, 2020 BCCA 224

Lisa C. Fong and Michael Ng