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BC Court of Appeal grants stay of decision striking down reserved titles

On October 1, 2019, the BC Supreme Court issued a decision called College of Midwives of BC v. MaryMoon, sometimes referred to in the media as the “death midwife” case. The court’s ruling struck down section 12.1(1) of the Health Professions Act as an unconstitutional limit on freedom of expression not saved by section 1 of the Charter. Section 12.1(1) prohibits a non-registrant of a health profession college from using a title that is prescribed by regulation. In the case of CMTBC, that meant that the reserved titles set out in the Massage Therapists Regulation were declared as no longer in force. The titles in the Regulation are “registered massage therapist”, “massage therapist”, “registered massage practitioner”, and “massage practitioner”. 

 CMTBC was surprised by the court’s decision, as were many other health profession regulators. CMTBC, in cooperation with other regulators, immediately took steps to address the court’s decision, and worked with legal counsel for BC’s Attorney General to prepare materials in support of an application for a stay of the decision pending the outcome of the appeal. This cooperation included an affidavit sworn by CMTBC’s Registrar detailing title violation concerns and enforcement activities taken by CMTBC over the past several years. The College of Psychologists of BC and the Ministry of Health also delivered affidavits.

 On December 3, 2019, the BC Court of Appeal granted a stay order, meaning that the title protections in the Health Professions Act and its regulations will remain in force at least until the appeal is decided (and after the appeal, if the appeal is successful). The MaryMoon appeal is expected to be argued in mid-2020, and a decision would likely be rendered possibly by late 2020, but more likely in 2021.

 CMTBC will now resume its activities taken to support and protect the RMT title, up to and including court proceedings where a settlement cannot be reached, and will keep registrants informed of any further developments.

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