If your society has an occupational title as one of its assets, watch out: a misstep under the new Society Act (BC) (the “New Act”) could remove your title protection.
The former Society Act (BC) (the “Old Act”) provided for a system of occupational title protection. These societies (often called “OT Societies”) typically registered initials or profession names to protect the quality, character, and source of the goods and services of their membership. Under the Old Act, this protection was obtained if the Registrar of Companies (the “Registrar”) decided it was in the public interest and the society had more than 50 members. It was first introduced in 1985.
Under the New Act, OT Societies can continue to use their titles, and have the ability to obtain an injunction should their titles be used by non-members. However, since December 31, 2015, no new applications for title protection have been accepted by the Registrar, and the New Act no longer allows such registrations.
The changes to the New Act make it apparent that B.C. is attempting to phase-out occupational title societies. B.C.’s existing OT Societies must be aware that:
- the New Act no longer provides for the registration of new OT Societies;
- should the society be dissolved, or its registration cancelled, the occupational title protection is no more, even if the society is restored; and
- a registration for an OT Society may be cancelled by the Registrar if they file a bylaw alteration without the written consent of the Registrar, relating to qualifications for admission, education requirements, member conduct and ethics, or discipline of members. This is so even if done on transition, making a proper transition critical.
OT Societies should ensure they have appropriate reminders and systems in place to ensure they do not accidentally allow their registration to lapse, nor file a bylaw alteration application without the appropriate consents.
If you have lost your OT protection, there are other forms of protection available. Canada’s Trademarks Act allow for the registration of a “certification mark”, which distinguishes goods or services by character, quality, conditions produced, services performed, geographic area, and class of persons who produce or perform the services. Enforcement and registration is through the Trademarks Act, and your society may hold this as one of its assets.
Though this level of protection is more complex to obtain, it will provide Canada-wide protection for the society, not just protection within BC. The system for obtaining such marks is less discretionary and the availability of the mark is not dependent on the number of members in the OT Society, making this attractive to closely-held certification societies.