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SELF-GOVERNING PROFESSIONS - Midwives - Unauthorized practice - Use of professional designation

Tuesday, September 15, 2020 @ 8:47 AM  

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Appeals by the College and the Attorney General from a decision of a chambers judge finding that s.12.1(1) of the Health Professions Act restricting a non‑registrant using a reserved title in connection with their work infringed the respondent’s freedom of expression and was not saved as a reasonable limit demonstrably justified in a free and democratic society. The B.C. College of Midwives sought an injunction to permanently enjoin the respondent from using a reserved title midwife in association with her work as a death midwife. The title “midwife” was reserved for exclusive use by registrants. The chambers judge found that while the use of the title midwife in this case did not have the effect of misleading the public, the respondent’s use of the title contravened s.12.1(1) of the Act. The chambers judge found the appellants were not able to provide an explanation or description as to what prompted the legislative change that resulted in a broader restriction on freedom of expression than existed when the scheme was enacted in1993. The judge found the limit on expression effected by the impugned provision was not minimally impairing and therefore the provision could not be saved under s.1 of the Canadian Charter of Rights and Freedoms (Charter).

HELD: Appeals allowed. While the chambers judge read the prohibition too widely when she found it restrained the respondent’s ability to describe her work by using the word midwife in any capacity, she did not err in finding that the provision violated freedom of expression. Section 12.1(1) only prohibits the unauthorized use of titles. The term “work” in s.12.1(1) encompassed all work. There was no principle of statutory interpretation that would read in language limiting the application of s.12.1(1) only to work relating to the provision of health services. Reading work in a health profession into s.12.1(1) violated the presumption of consistent expression. The Attorney General’s description of the legislative intent, as expressed in debate, suggested the prohibition was meant to apply to the use of reserved titles in relation to any work. Section 12.1(1) applied to the use of reserved titles in relation to any work but only to the use of the specific reserved title, as such, as an indication of status or qualification. The judge correctly found the respondent to have contravened s.12.1(1) of the Act. The statute did not preclude the respondent from using the word “midwife” generally but precluded her from taking the title alone, or together with other modifiers, in a manner that suggested she possessed qualifications or a designation of status. The respondent breached s. 12.1(1). The chambers judge erred in finding that the limit on freedom of expression arising from the enactment of s.12.1(1) was not demonstrably justified in a free and democratic society. The means used impaired expression as little as possible. The use of a title in association with work primarily served a commercial purpose. The scheme of reserved titles was part of the complex scheme of regulating health professions. The deleterious effects caused by s.12.1(1) were marginal since the prohibition only applied to the use of words when they functioned as titles. The salutary effects of s.12.1(1) included ensuring that a vulnerable group, health care consumers, could easily identify regulated and qualified health care professionals. This was sufficient to conclude that the salutary effects of s.12.1(1) outweighed the deleterious effects that it had on free expression.

College of Midwives of British Columbia v. MaryMoon, [2020] B.C.J. No. 1223, British Columbia Court of Appeal, P.M. Willcock, S.A. Griffin and P. Abrioux JJ.A., August 5, 2020. Digest No. TLD-September142020004