Stop, in the Name of Law, Before You Break My Rules!

Part 1: Unauthorized Practice – Injunctions

Regulators already have a full plate regulating members. They register members, set standards, investigate complaints, and deal with discipline, among many other things. But what happens when the conduct of someone who is not a member comes onto the regulator's radar? What happens when someone who is not authorized to practise begins providing professional services or using a protected title?

Should the regulator intervene? If so, when? And how far should it go?

Spoiler alert: it depends.

The appropriate response will depend on the governing legislation, the nature and extent of the conduct, whether it is ongoing and, perhaps most importantly, the risk it poses to the public.

The recent decision in College of Physicians and Surgeons of Alberta v Makis (“Makis”) provides a useful roadmap. Viliam Makis was formerly registered with the College of Physicians and Surgeons of Alberta (“CPSA”), but his practice permit was cancelled in 2019. The CPSA subsequently alleged that he continued to provide medical services and use titles reserved to regulated members. After a cease-and-desist letter did not resolve its concerns, the CPSA sought and obtained an interim injunction. It later returned to Court and obtained a permanent injunction order.

First Things First: Is It Actually Unauthorized Practice?

Depending on the regulatory scheme, legislation may restrict certain activities to regulated members. This may include protecting particular titles or designations, prohibiting people from expressly or implicitly holding themselves out as regulated professionals, and restricting who may practise the profession. There may also be exceptions.

Tip: Identify the statutory prohibition first. Then ask what evidence would establish a breach of it.

That sounds simple enough. The complication is that people do not necessarily describe their activities using the language of the legislation. Sometimes it is also difficult to determine where permissible information or support ends and the regulated practice of the profession begins.

That brings us to an important lesson from Makis: labels are not determinative.

Makis characterized what he was doing as providing information and research to clients rather than medical advice or treatment to patients. But the evidence included individual consultations, reviews of test results and patient records, and customized treatment protocols.

Justice Mah put it simply:

"One must look at the substantive nature of the impugned activity, not the labels used by the actor. Calling something “health coaching” does not mean that someone is not practicing medicine as defined in the HPA."

For regulators, the questions include: what is the person actually doing, does that conduct fall within the scope of the regulated profession and, importantly, does the legislation prohibit an unregulated person from doing it?

You Think You Have Unauthorized Practice. Now What?

Investigate. And, importantly, preserve the evidence before putting the person on notice. Keep track of what was found, where and when it was found, who collected it and how it was preserved.

Unauthorized practice often occurs in plain sight. Websites, LinkedIn profiles, social media, advertisements, booking pages, podcasts and videos may all reveal what someone is holding themselves out as qualified to do and what services they are actually providing. That evidence can disappear quickly once a regulator comes knocking.

In Makis, the CPSA relied on social-media material, screenshots, videos, podcasts, emails and Makis' own evidence on questioning. Although the electronic evidence was challenged, the Court accepted that electronic evidence may be authenticated through direct or circumstantial evidence; technical or forensic evidence is not invariably required.

When Is It Time for An Injunction?

Once the evidence is collected, consider whether voluntary compliance will work. A cease-and-desist letter identifying the statutory prohibition may be enough. If it isn't, it may be time to go to court.

An injunction gives the regulator something a cease-and-desist letter cannot: an enforceable court order requiring the person to stop the prohibited conduct.

The fact that the person is not a member does not necessarily put them beyond the regulator's reach. This issue arose directly in Makis. The Court accepted that the CPSA could not regulate Makis as though he were a regulated member. But that was not what the CPSA was doing. It was asking the Court, in furtherance of its public-interest mandate, to restrain unlawful conduct. Once the interim injunction was granted, it was the Court, through its order, restraining Makis' conduct. The CPSA was not purporting to exercise disciplinary jurisdiction over a non-member.

Makis dealt with a permanent injunction. The Court held that the most important factor was whether the CPSA had established the legal right it sought to protect. It also considered irreparable harm and the balance of convenience in determining whether a permanent injunction should be granted. In other words, whether allowing the conduct to continue would cause harm to the CPSA or the public interest that could not adequately be remedied by damages, and whether that harm outweighed the consequences to Makis of requiring him to stop.

The Court found that those considerations favoured the CPSA. Its statutory public-interest mandate entitled it to insist that only properly licensed persons practise medicine and use protected titles. Damages could not adequately address the public-interest concerns, while Makis had no lawful entitlement to practise medicine or use protected titles while unregistered.

For a regulator considering an injunction, that translates into a practical checklist:

1. What provision is being breached?
2. What is the evidence of the prohibited conduct?
3. Is the conduct ongoing?
4. What steps have already been taken to obtain compliance?
5. What harm or public-interest risk will result if the conduct continues?
6. What exactly does the regulator need the Court to prohibit?

Does Someone Actually Have to Get Hurt?

Makis argued there was no evidence that anyone had been harmed by his activities. The Court rejected the proposition that the CPSA had to establish harm to an identifiable patient before it could obtain relief. Where the prohibited act itself was established, Justice Mah put the point succinctly:

"It is the act itself that is the harm."

That is an important point for regulators. A public-protection mandate should not necessarily require a regulator to wait for a risk to materialize into actual harm before taking steps to stop statutorily prohibited conduct.

At the same time, not every potential breach warrants an injunction. The seriousness and persistence of the conduct, the potential consequences to the public, the person's response when concerns are raised and whether voluntary compliance is realistic should all inform whether court proceedings are proportionate.

What is the Takeaway?

When unauthorized practice comes across a regulator's desk:

1. Start with the legislation.
2. Look at what the person is actually doing, not what they call it.
3. Preserve the evidence.
4. Assess the public risk.
5. Seek voluntary compliance where appropriate or consider an injunction.

Ideally, that is the end of the story. The person stops the unauthorized practice and everyone moves on.

But what happens when they don't?

An injunction is, after all, a court order. And court orders demand a little R-E-S-P-E-C-T.

If your regulatory organization is dealing with potential unauthorized practice, our Professional Regulatory Group can help assess the conduct, evaluate enforcement options and navigate injunction proceedings. Contact Tracy Zimmer or any member of our team to discuss the steps available to protect the public and uphold professional standards.

Stay tuned for Part 2: Unauthorized Practice - Enforcement.

Link to decision: College of Physicians and Surgeons of Alberta v Makis, 2026 ABKB 159