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BC Court of Appeal decision puts February 2008 BCMA dispute back to square one
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Vancouver, B.C.  February 7, 2010

The BC Court of Appeal decision in Wang v. British Columbia Medical Association (2010 BCCA 43) was delivered on January 29, 2010, marking almost two years from the February 1-2, 2008 BCMA Board meeting where a dispute arose that was not resolved and resulted in recourse to the courts.

The Court of Appeal decision does not provide an answer to how the dispute can be resolved while it sets aside the Judgment of the BC Supreme Court with Justice Madame Ballance presiding (2008 BCSC 1559) and "make(s) no comment on the merits of the dispute", essentially reverting the dispute back to square one leaving it up to the parties involved and the BCMA membership to determine what further actions are required.

For almost five years now, since the failed GPSC agreement of 2005, there has been debate in the BCMA on the fiduciary duties of directors and Code of Conduct rules for directors.

Is the fiduciary duty of directors of a Society to the Board itself, presenting only majority Board decisions as views of the Board and the Association without voice to minority views for discussion by the membership including minority views on decisions resulting from very close votes?  This was the view contained in a legal opinion presented to the BCMA Board leading to revisions of the Code of Conduct rules that gave rise to heated debates at the BCMA AGM’s in 2006 and 2007 followed by a rescheduling of the 2008 AGM to Prince George.

Or is the fiduciary duty of directors of a Society to the members?  This was the view provided in an independent legal opinion obtained by Dr. Wang and provided in summary to the BCMA Board in June 2006.  That it is not only the right of directors to express dissent from Board-approved decisions including discussing the grounds for that dissent, but on important issues facing the BCMA membership generally it is their duty to do just that.

Hopefully, the review currently underway of the BC Society Act which has not been significantly revised since 1977 and "is outdated and in need of revision" will receive public feedback and help ensure greater clarity on the fiduciary duties of directors in a newly revised Act. http://www.fin.gov.bc.ca/society_act_review.htm

A Storm Erupts.

A dispute between Dr. Wang, an Officer and long serving board member, and other Board members erupted at the BCMA Board meeting of February 1 and 2, 2008 giving rise to two issues.

First, were questions on the requirements of due process and the necessary steps to ensure due process was followed without delay?  Second, the events that unfolded following the February 2008 Board meeting raised concerns about the potential damage to the reputation of an individual.

Central to this case is the responsibility of Societies to treat members and directors fairly and without oppression, and the rights of members and directors to seek redress.

Had the BCMA Board and membership directed immediate attention to resolving the first question (ensuring due process) one can only speculate if it would have resolved or lessened the secondary concerns that arose (the potential damage to an individual's reputation) and avoided the libel action that has subsequently been filed in the courts.

What details of the events can be learned through the public disclosure required in court proceedings?

The BC Court of Appeal decision provides, "At a BCMA board meeting held on February 1 and 2, 2008, the question of Dr. Wang’s conduct was raised. There is some dispute between the parties as to exactly what was decided at this meeting and also as to the process that took place at the meeting, but it is clear that on February 2, 2008, the Board resolved to refer the issue of Dr. Wang’s conduct to a Code of Conduct committee, which became known as the “Special Committee”.

While the BCSC Judgment has been set aside, the Judgment contains facts presented in court and through affidavits that may be summarized as follows:

Prior to the February 2008 Board meeting Dr Wang requested that the issue of confidentiality and the Code of Conduct be put on the agenda, but it was not.  Dr Wang had hoped for a broad discussion of perceived breaches of confidentiality and inconsistent approaches taken, with the view to clarify confidentiality issues, and work toward the development of a policy on a principled basis.

In a surprise move, at the end of the first meeting day, through the President’s Report the single matter of Dr. Wang’s DOCLOUNGE email about the Forms Motion was raised.

Several Board members suggested Dr. Wang should leave the meeting and the Board Chair ruled that she must do so.  Dr. Wang disagreed and expressed concerns that she needed an opportunity to determine her legal rights and responsibilities.  This was not accommodated.

In the context of that topic a motion “That the matter … be referred to the Code of Conduct Committee” was passed and another motion resolving that “the president is directed to advise the members …” was also passed.  Dr. Wang requested an opportunity to provide her views for inclusion with the advisory to members and this was denied.

Dr Wang requested that her right to natural justice (the right to know what if any allegations exist and the right to be heard impartially) be respected.  The actions of the Board were not satisfactory in meeting this and Dr Wang’s only recourse was through the courts.

In April 2008, with communications from the BCMA President having already been sent to the BCMA membership and the Special Committee having been formed, Dr Wang filed a petition in court seeking dissolving of the Special Committee and restraining the BCMA from receiving any report(s) of that committee and prohibiting the communication of the contents of any such report(s) to the membership on grounds the committee was not validly formed and there was a reasonable apprehension of bias in the composition of the committee.

Despite the position taken by the BC Court of Appeal, legal considerations may support that a petition to the courts was the most timely legal process available to request a Judicial order in the dispute, although revisions to the Society Act are needed to remove the convolutions that currently exist in the Act.

Bringing resolution to the issues.

The BCMA membership is left with incomplete knowledge of the various perceived breaches of confidentiality and inconsistent approaches taken as this was never discussed by the Board.  The membership also has no knowledge of the specifics of the DOCLOUNGE email about the Forms Motion and whether or not the content of the email includes any breach of confidentiality.

Many members found the BCMA President letters of February 2, 2008 and March 6, 2008 troublesome in tone and content giving rise to a great many letters to the President and Board.

The BCMA Board has not engaged in discussions with the membership on the authority of the Board Chair to rule to expel a board director or officer from meetings despite the BCMA Constitution requirements for a Special Meeting and a referendum to remove Officers or Directors.

Furthermore, a similar ruling of the BCMA Board Chair was used in September 2005 to exclude two board directors from Board discussion during which they were censured and they were not provided the reasons for their censure, which also raises questions of respect for the individuals’ rights to natural justice.

Over the past two years the BCMA membership has witnessed the unfolding of long and costly legal processes.  This BC Court of Appeal decision does not bring closure to the issues or an end to further lengthy and costly legal processes already underway.

At the heart of this dispute is the responsibility of Societies to treat members and directors fairly.

Will the BCMA leadership provide the direction to bring this dispute to a rapid and equitable resolution without further unnecessary legal expenses?

Or will it be up to the BCMA membership to ensure the Board is directed to a course of action that will bring rapid and equitable resolution to the issues and ensure the right people are on the bus?

Circulation of a BCMA membership petition began in December 2008, to “request a Special Meeting of the BCMA be convened … to review the BCMA Board conduct and ... to ensure a rapid, equitable remedy ensuring the fair and ethical treatment of all members without incurring further unnecessary legal costs.”

The need for a rapid equitable remedy remains.  No doubt the legal expenses incurred so far have been staggering with future legal expenses threatening to far exceed those experienced to date unless something is done.

The membership may choose to use the petition for a Special Meeting, which remains valid and upon reaching the threshold of signatures required can be presented to the BCMA President and a Special Meeting convened. Request_for_a_Special_General_Meeting_of_the_BCMA.pdf

The manner in which the BC Court of Appeal decision, in not providing an answer to how the issues are to be resolved and placing it in the hands of the parties and the BCMA membership to determine the course of action required, is reminiscent of the case more than thirty years ago in a dispute between the BCMA and three of its members over election irregularities that was heard in court.  In that case the Judge determined it would not be decided by the courts and that the membership would have to decide, which they did as over the next few years each of those three members was elected as BCMA President; Drs Ray March, Alex Mandeville, and John O’Brien-Bell.


Z. Essak, MD

Special Note: In this article and the court proceedings references to DOCLOUNGE and DOCLOUNGE Emails are not references to posts on the DocLounge website but are references to the doclounge listserv, established since 1998.  Authors of emails shared on the listserv in some cases may also have chosen to post the information on this website for either private or public discussion depending on the subject matter.

Web Links:

BC Court of Appeal decision (2010 BCCA 43),
http://www.courts.gov.bc.ca/jdb-txt/CA/10/00/2010BCCA0043.htm

BC Supreme Court Judgment (2008 BCSC 1559)
http://www.courts.gov.bc.ca/Jdb-txt/SC/08/15/2008BCSC1559.htm

BC Society Act review,
http://www.fin.gov.bc.ca/society_act_review.htm

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Comments

From my understanding of the BCMA Constitution
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In response to a question from a member.

With respect, from my understanding of the BCMA Constitution, actions of the Association can only be taken by the BCMA leadership.  They can reconsider their direction at anytime and take whatever steps are necessary.

Membership can offer input to directions through communications such as letters or dialogue with the Board directors and Officers and recommendations passed as motions at General Meetings, but it is the leadership who choose to implement.

The AGM would not be the correct forum for discussion of such a matter because the motions of the AGM are not binding on the Board and there are other matters that need to be addressed at an AGM.

On the other hand, if the direction of the leadership is not satisfactory to the membership, a Special General Meeting would provide singular discussion of such an important matter.  Again, the motions of the Special General Meeting may not be binding on the Board.  However, if those in attendance had doubts that the leadership will take direction from the membership, the Special General Meeting does have the authority to pass a motion to initiate a referendum to recall Officers and such a motion is binding with specified timelines for the referendum to occur.

The membership also has the opportunity to determine the leadership of the association through elections for directors and officers.

Anyway you look at it, it is the leadership who determine the actions taken.  While, the Association belongs to the membership, it is the leadership who make the decisions to implement directions.  Meanwhile, the membership is responsible for the actions and has limited options to correct any course errors; through ensuring the leadership are responsive to the membership, honest, open and transparent.