Some Protected Titles May be Unconstitutional

Many regulators have two types of title protection provisions. The first reserves a title associated with a profession for use only by those registered with the regulator. No unregistered person can use the title in any context. The second prohibits the use of any title that can confuse the public as to whether the individual is qualified or competent to practise the profession.

In a case that played prominently in the media, the first provision has been found to be an unconstitutional infringement of the freedom of expression protections contained in the Canadian Charter of Rights and Freedoms: College of Midwives of British Columbia v MaryMoon, 2019 BCSC 1670, http://canlii.ca/t/j2nn8. Ms. MaryMoon, who assisted individuals and families through the dying process, called herself a “death midwife”. The regulator for midwives sought an injunction to prevent her from using the title “midwife”. She opposed the restraining order on the basis that her use of the term had nothing to do with the practice of midwifery. She argued that no member of the public would be confused by her use of the title.

The Court concluded that the provision did infringe on Ms. MaryMoon’s freedom of expression. The Court also found that there was insufficient evidence justifying the necessity for the provision that did not mislead the public. In its reasoning the Court found that the public was adequately protected by the other provision prohibiting anyone from using a title or designation suggesting the person was qualified or competent to practice the profession while unregistered. The Court not only declined to issue the injunction, but also declared the provision to be unconstitutional.

The College has appealed.

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