Oct 27, 2020

The British Columbia Court of Appeal has restored title protection provisions in that province. In College of Midwives of British Columbia v. MaryMoon, 2020 BCCA 224, http://canlii.ca/t/j90z5 a person providing support to dying individuals and their families had been calling herself a “death midwife”. An attempt by the College of Midwives to prohibit Ms. MaryMoon from using the word “midwife” had been unsuccessful in a lower Court on the basis that it infringed the protections for expression in the Canadian Charter of Rights and Freedoms.

The Court of Appeal reversed the lower Court decision. In doing so the Court of Appeal held as follows:

  • The prohibition, while not limited to the provision of health services, only applied to the use of the word as a title to describe one’s work. For example, making an analogy to one’s work as being similar to that of a midwife was not prohibited under the language of the provision. To be used as a title, the word must imply an assertion of status or qualification.
  • While the prohibition did infringe on Ms. MaryMoon’s freedom of expression, that restriction was permitted by the saving provision found in section 1 of the In finding the restriction justified, the Court quoted the following rationale for title protection provisions: “Reserved titles afford a means 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.” The Court also noted that the infringement was not more than required because it only applied to the use of the word as a title, it related to commercial expression and the provision was part of a complex regulatory scheme to protect the public.

The Court imposed the injunction sought by the regulator.