In College of Midwives of British Columbia v. MaryMoon, 2020 BCCA 224, the British Columbia Court of Appeal (“BCCA”) considered whether restricted title provisions found in the British Columbia Health Professions Act (the “BC HPA”) infringe the Charter right to freedom of expression. The Court found that although these provisions restrict freedom of expression, the infringement is justified in a free and democratic society.

Pashta MaryMoon provides practical and spiritual support to dying persons and their families in British Columbia and referred to herself as a “Death Midwife”. Her use of the term “midwife”, which is a restricted title under the governing legislation, caught the attention of the College of Midwives of British Columbia (the “College”). The College brought an injunction to prevent MaryMoon from using the term “midwife”, relying on s. 12.1(1) of the BC HPA, which prohibits anyone other than a registrant from using the title “midwife” to describe their work. 

MaryMoon argued that because she was not involved in the traditional practice of midwifery governed by the College, her use of the restricted title did not imply that she was a registrant of the College. Accordingly, the prohibition on the use of the title constituted an inappropriate infringement of her Charter right to freedom of expression. Initially, the Chambers Judge found that s. 12.1(1) infringed MaryMoon’s freedom of expression rights and that this infringement could not be justified in a free and democratic society. As such, the Chambers Judge declared that the legislation was invalid and of no force and effect. 

The BCCA overturned the Chambers Judge’s decision and granted the injunction. The Court made several key determinations in coming to this decision. The Court found that:

1. Freedom of expression rights are infringed when non-members use a restricted title without also attempting to engage in the regulated profession. This applied to MaryMoon because she used the term “midwife” while acknowledging she was not trying to provide midwifery care or care that could be confused for midwifery care. 
2. This infringement was very narrow and impaired expression as little as possible. The Court concluded that s. 12.1(1) does not prohibit using the term “midwife” to describe work in any capacity but only prohibits the use of a restricted title to indicate status or qualification in connection to work. For example, the Court clarified that a self-described “lawn doctor” would not run afoul of this provision, as this use of “doctor” does not imply that the person has qualifications. 
3. Although s. 12.1(1) infringed the right to freedom of expression, the infringement was justified in a free and democratic society. Restricted titles allow the public to easily identify regulated and qualified health care professionals, and they are put in place by regulators who are charged with protecting the public interest. The Court concluded that, in the balance, even though restricted titles limit expression, they do so to ensure the safety of health care consumers. This is a lawful infringement, the legislation is valid, and the College is permitted to prohibit non-members from using the title “midwife” in connection with their work where they are using that term to indicate status or qualification. 

Takeaways

This case confirms the constitutionality of the restricted titles scheme even where there is an impact on a person’s freedom of expression. The BCCA’s decision is important as it struck down a previous decision that severely restricted a regulator’s ability to enforce its restricted title. The Court confirmed a regulator’s ability to prevent individuals from improperly using a restricted title to describe their status or qualification to engage in a certain type of work, even when it is not the work commonly associated with that reserved title. Regulators who become aware of a person using a restricted title when they are not regulated members may be able to take steps to prevent this from occurring depending on the relevant legislation and the actions involved. Field Law’s Professional Regulatory Group is here to assist Regulators with any concerns regarding restricted titles.