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BC Appeal Court to rule on Qualified Privilege

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Vancouver, BC – Z. Essak, March 5, 2014.

Vancouver Courts skylineNext week on March 11th and 12th the BC Appeal Court in Vancouver will be hearing the matter in Wang v BC Medical Association and named Defendants.

Why might this Appeal Court hearing be important to people in all walks of life in BC especially those involved as board directors and members of any non-profit Society, Association, Health Authority, Union and even corporations?

When can members of a Board claim qualified privilege as a defense for what they do?

Qualified privilege is a special privilege for those in positions of authority or trust. When does qualified privilege apply and when are actions simply an abuse of privilege, position, or power?

Being present in the court room may be very interesting. To see and hear the Appeal Court proceedings is more than written Judgments and transcripts convey. It is a chance to see how our justice system works, to see how the lawyers present views before the judges and maybe a chance during breaks for conversations amongst those who attend.

Dr Caroline Wang has stood for the rights of physicians (the BCMA membership) to be informed with open transparent communications and referenda since 2005. She was the director who drew doctors attention to changes in the Code of Conduct for directors and the need for debate amongst the membership. She stood firm to principle despite the Board's refusal to send the Code of Conduct for Directors to the membership for ratification. When she was Secretary Treasurer she tried to engage the Board and Executive in debate on how decisions of the Board might be influenced. Then events unfolded in the February 2008 Board Meeting after which the BCMA President’s Letter of February 2nd was circulated to doctors throughout BC.

Many doctors wrote to then BCMA President Dr. Appleton expressing concern that such a letter should not have been sent.

In the November 2008 BC Supreme Court Judgment, the Honorable Madam Justice Ballance, was critical of the President's letter sent by Dr. Appleton to the membership on February 2, 2008 that was “rich with innuendo”; found that the Board failed to comply with its own procedural requirements stipulated in its Code of Conduct; and remarked that “from the outset, the Board appeared to be heavy handed and misguided in its treatment of Dr. Wang”.

"It is difficult to imagine how the conduct of the Board, which fails to adhere to its own Code of Conduct designed to govern its own directors, could nevertheless be said to be acting in the best interests of the BCMA. On this basis alone, it can be said that the directors have acted in contravention of s. 25 of the Society Act, and with unintended irony, are thereby in breach of the Code of Conduct itself. Along the same lines, I question how the Board’s conduct can reasonably be seen as being in good faith. This statutory breach on the part of the BCMA justifies intervention by the Court."

In January 2010, the Appeal Court set aside the orders of Madam Justice Ballance on the basis that Dr Wang’s claims for breach of contract should have been brought by an action not a petition, without prejudice to her right to bring any proceedings she may consider appropriate.

Subsequently, the matter was brought to Trial in January and February 2012. In the Judgment released a year later on March 8, 2013, the Honorable Justice Grauer found that the President’s Letter of February 2, 2008 and other communications regarding Dr Wang were defamatory; that the BC Medical Association breached its contract in failing to provide full procedural fairness to Dr Wang; and the BCMA denied Dr Wang principles of natural justice; the right to adequate notice of allegations and an unbiased tribunal.

Even to this day there has been no public apology to Dr Wang by the BCMA and those involved.

The Judgment of the Trial also includes on the subject of the philosophical divide, “that is a matter for the members to decide”. Yet still no opportunity for the membership to consider the opinions on the fiduciary duties of directors and to ratify the Code of Conduct for Directors.

With the Court finding that communications were defamatory comes the presumption of malice unless there is a successful defense of qualified privilege or fair comment.

Justice Grauer ruled "that the President's Letter of February 2, 2008, was published on an occasion of privilege, thereby rebutting the presumption of malice that arises from my finding that the letter was defamatory."

It will now be for the BC Appeal Court to decide whether or not qualified privilege applies.

Dr Caroline Wang has carried the burden herself for the past 6 years, unlike the defendants who have had most if not all legal expenses paid by the BC Medical Association while many remain in office and other positions in the Association which has recently been re-branding itself as the Doctors Of BC.

With deep pockets, essentially those of the membership, the BCMA has used expensive legal advice, legal instruments and procedural hearings over a period of six years since February 2008.

Dr Caroline Wang has had to respond on her own incurring untold financial cost and impact on herself and family.

If one assumes the BCMA has spent over $2 million dollars, is it conceivable that Dr Caroline Wang may have incurred expenses of at least half that; near or exceeding $1 million and may be at risk of losing her house on this journey for justice?

In the summer of 2011, prior to the Trial in January 2012, the BCMA went to court in an attempt to have the courts order Dr Caroline Wang to post security for court costs not yet incurred even if it meant re-mortgaging the family home. The court declined.

How has Dr Wang weathered the storm alone for so long?

In 2009 almost 1,000 physicians signed a petition for a Special Meeting to end the legal expenses and resolve the matter at a time when the total legal expenditures were a fraction of what they are now. The BCMA Board refused to circulate the petition to the full membership and instead determined to proceed through the courts.

At the June 2013 BCMA AGM a motion to reserve funds from the BCMA surplus sufficient to resolve the matter with Dr. Wang was put to the assembly. The motion was defeated with defendants some of whom remain on the board speaking against the motion.

Meanwhile in the summer of 2013 a survey of BC physicians with approximately 400 respondents found on a question in the matter of the BCMA’s handling of former board member and Secretary Treasurer Dr Caroline Wang should the BCMA be refunding to Dr Caroline Wang her legal costs? 53% answered yes, 29% answered not sure, 16% answered no, and 2% answered don’t care.

Whatever direct impact the outcome of this Appeal Court decision has on the BCMA, the bigger questions for the BC Medical Association, or indeed the doctors of BC, will remain as to what is the values framework we expect in our provincial and national medical association? How do we ensure the right things are done? How do we ensure accountability?

Similar questions may be important to members and directors of other Societies, Associations and Boards.

Web Links:

Article on the 2013 Judgment

Article on the 2010 Appeal Court decision

Article on the 2008 Judgment