If It Looks like a Duck: British Columbia Court of Appeal Rules on Title Use
Professional Regulatory Alert
Professional regulators are often faced with non-members who use titles similar to those used by regulated members of the profession but not explicitly prohibited by the governing statute. In Organization of Chartered Professional Accountants of British Columbia v. Nordine, 2017 BCCA 103, the British Columbia Court of Appeal rejected a technical approach to this problem. It held that the proper approach in assessing whether the use of a title is contrary to the statute is to perform a pragmatic analysis into what the public would understand by the use of the title. The insertion of a word in a title such that it is no longer the exact wording prohibited by the statute does not change the fact that the title may imply that the individual is a member of a regulated organization.
The Organization of Chartered Professional Accountants of British Columbia (“CPABC”) is the regulatory body responsible for governing professional accountants in British Columbia. Its governing statute, the Chartered Professional Accountants Act (the “Act”), provides that only CPABC members may use particular designations and non-CPABC members cannot imply, suggest, or hold themselves out as a professional accountant.
In this case, the CPABC sought an injunction against two non-CPABC members, Mr. Solomon Nordine and Mr. Muneeb Ehsan, in order to prevent them from referring to themselves as a “Professional Business Accountant” or as a “PBA”. The Chambers judge refused the injunction, finding that while the Act restricted the use of the “professional accountant" designation and the “PA” abbreviation, it did not explicitly restrict the use of titles like “professional business accountant” or “PBA”.
On appeal, the Court of Appeal observed that the principal object of the Act is to protect members of the public by helping them recognize whether they are dealing with members of the CPABC. As a result, the question to be asked is not whether a non-member has used the exact language listed in the Act, but whether a non-member has implied, suggested or held out in a manner that would mislead the public into believing the person is a professional accountant.
The Court of Appeal observed that if a lay person was asked whether an accountant described as a “professional business accountant” was a “professional accountant”, the person would undoubtedly answer in the affirmative. The Court of Appeal noted that the insertion of the adjective “business” between “professional” and “accountant” does not change the implication that the individual is a “professional accountant”. Instead, it signifies the person is a professional accountant of a particular kind.
Accordingly, the use of “professional business accountant” by a non-member such as Mr. Nordine and Mr. Ehsan was contrary to the Act. As the abbreviation “PBA” simply represented the term, the use of it was also contrary to the Act.
The fact that the “professional business accountant” designation was issued by a society called the Professional Business Accountants’ Society of British Columbia did not influence the Court’s decision. The Court of Appeal observed that while it may seem “unfair” to prevent the use of a designation issued by a third party, any perceived unfairness could not overcome the statute.
This decision interprets the BC Chartered Professional Accountants Act but similar restrictions on title use and holding out exist in the governing statutes of most professional regulatory organizations. Regulators should closely examine the language in their own statutes but this decision confirms the important role that professional regulatory organizations have in protecting the public. The decision also suggests that use of title provisions in professional regulatory statutes should receive a liberal interpretation to ensure the public is protected. This is consistent with many recent decisions recognizing the need to interpret statutes in a manner that allows professional regulatory organizations to fulfill their mandate. Mr. Nordine has sought leave from the Supreme Court of Canada to appeal the decision. Field Law’s Professional Regulatory Group will continue to monitor the proceedings.