Oct 19, 2020

Using the Competition Act to Engage in Unauthorized Practice

Maddock v Law Society of British Columbia, 2020 BCSC 71 (CanLII)

Can someone engaging in the unauthorized practice of a profession rely on the Competition Act to continue their conduct? The answer is “no” according to the case of Maddock v Law Society of British Columbia, 2020 BCSC 71, http://canlii.ca/t/j4sjv. The Court held that it was the Competition Bureau and not the courts acting in an individual case that determined whether a regulator of a profession, or its restrictive enabling legislation, was breaching the Competition Act. It was no defence to an injunction application by the regulator for the unauthorized practice of the profession.

The Court also interpreted the exception for individuals practising in the employment of and under the supervision of another registered practitioner as referring to an intense level of control over the unregistered person. For example, just because the client of the unregistered person happened to be a lawyer did not provide the intended level of oversight to engage the exception for the unregistered person to practise law.

The Court also looked at all of the circumstances of the case to ascertain whether it was likely that the unregistered person would continue their conduct if no injunction was granted. Prominent in that analysis was the fact that the regulator had issued many warnings, and the manner in which the unregistered person resisted the application for the injunction by raising unconvincing arguments. The Court concluded that in the absence of the injunction, the unregistered person would find additional justifications to continue his conduct