BCMA faces Judicial Review in BC Supreme Court

Public

VANCOUVER, BC - On April 10 and 11, 2008 the BC Supreme Court heard the case between Dr. Caroline Wang and the BC Medical Association. On April 7, Dr. Wang filed a petition in the court for a judicial review and a court order to dissolve the conduct review committee of the BCMA citing that she has been denied natural justice. After hearing from both sides the judge has reserved decision until later.  (Addendum: The judge reserved her decision until after May 12, 2008 and delivered a written decision in November 2008.)

Present in the court were Dr. Wang with her lawyer and representing the BCMA were four lawyers and two legal assistants from two different legal firms.

Despite the requirement for a complaint to exist to trigger a Special Committee under the BCMA Code of Conduct policy, the court heard from the BCMA lawyers that there is no complaint or allegation of a violation by Dr. Caroline Wang of the Code of Conduct, the Constitution of the BCMA, or its Bylaws.

They confirmed that the hearing before the Special Committee was not, in fact a Code of Conduct hearing.

In short, they confirmed what counsel for the Special Committee had earlier said in a letter: Dr. Wang does not stand accused of anything.

During the proceedings the BCMA lawyers acknowledged that there may be a cloud hanging over Dr. Wang's head, but that this is not a "witch hunt", and it was their view that this would not prejudice her reputation or her chances of success in the upcoming BCMA elections.

The BCMA lawyers advised the court that the Special Committee has expanded its Terms of Reference to examine broader general issues of confidentiality and governance and that the expanded Terms of Reference were circulated and approved by the BCMA Board on February 22 through a decision conducted by email. The focus is not on Dr. Wang.

The BCMA lawyers suggested to the court that while the Board resolution of February 2, 2008 was to strike a Special Committee under the Code of Conduct policy, the BCMA Constitution gives the Board broad authority whereby after any committee is struck, the Chair of the committee and the committee determines its Terms of Reference, in any way, which are then approved by the Board.

The BCMA lawyers also advised the court that the Special Committee is advisory in nature and gathering facts and information of a broad nature. They suggested that the fact that the Terms of Reference of the committee state that its recommendations will be given "Full weight" does not change the advisory nature of the committee and it was their view it would not prejudice the petitioner, Dr. Wang.

The BCMA lawyers suggested that the court has no authority to intervene at all, and especially not at this time. They argued that the Code of Conduct is simply an internal policy and not part of the BCMA Constitution and Bylaws, and that the court is not to supervise internal policy or the internal affairs of a private society. They stated that this is not a disciplinary process. That there is no disciplinary process in the BCMA Constitution to fine, punish or remove a delegate or officer. And that a delegate or officer can only be removed by the members through a Special resolution.

The BCMA lawyers emphasized that the BCMA is a voluntary society and a bargaining agent. That the powers of the Board include broad responsibility to manage the association including the right to review anyone even without a complaint.

The BCMA lawyers argued that while the Special Committee accepts that they should treat Dr. Wang fairly, there is no legal requirement or duty to act fairly. They suggested that administrative law provisions and principles of administrative law have limited applicability to a private society. That obligations to fairness depend on various factors, including whether or not the decision is final. They suggested that an interim or preliminary decision does not trigger the duty to act fairly. The lawyer for Dr. Wang suggested that the power to manage does not allow ignoring obligations of fairness.

In regard to Dr. Wang's allegations that members of the Special Committee may be biased, the BCMA lawyers made reference to two tests of bias. The first being "a reasonable apprehension of bias" and the second more definitive test of a person being of a "closed mind". They argued that the applicant, Dr. Wang, must show the person has a "closed mind".

On the evidence presented that Dr. Carole Williams may be biased, the BCMA lawyers argued the evidence did not demonstrate this. After hearing the points, the judge remarked that she did not agree that there was no evidence to suggest bias.

On the question of possible bias by Dr. Michael Golbey the court was advised by the BCMA lawyers that Dr. Golbey had participated in deliberations of the committee before the committee meeting that Dr. Wang attended with her lawyer, but that Dr. Golbey was unable to attend the meeting where Dr. Wang and her lawyer were present. However, he would continue to participate in further deliberations of the committee. The lawyer for Dr. Wang argued that since Dr. Golbey was not present at the meeting of the Special Committee with Dr. Wang that Dr. Golbey should not participate in further decisions of the committee.

The court also heard that the Special Committee had denied the request from the lawyer for Dr. Wang to receive copies of tapes and transcripts of the Board meeting, and the request to bring a court reporter at the expense of Dr. Wang to record the proceedings of the meeting with the Special Committee was also denied.

During the proceedings on Friday afternoon, the judge said that she understood the Board could strike an Ad Hoc committee to examine broad issues of confidentiality and governance, and had that been the case this court would not have been convened. At one point she returned to the evidence of the Board resolution to strike a Special Committee under the Code of Conduct and the BCMA President Letter of February 2, 2008 advising members that "the Board has activated a provision of the BCMA's Code of Conduct to review some of Dr. Caroline Wang's actions relative to her duties as a Board and Executive Committee member". Even after February 22 when the Board approved the expanded Terms of Reference for the committee the President Bulletin of March 6 doesn’t refer to anything other than this as a Code of Conduct review. At this point, the BCMA lawyer remarked, "He was wrong." The judge paused and repeated the words in a questioning tone, "He was wrong?"

At the conclusion of the proceedings on Friday afternoon the judge reserved decision until May, but stated that this process bothered her and she felt unsettled with what has gone on.

After a brief recess for the parties to consider what interim measures might be sought the BCMA lawyers advised the court that while the Special Committee will have concluded its work by the end of the day, it would not release its report to the Board or the membership until after the court case is settled.

The BCMA lawyers also expressed concern that this matter not be discussed widely amongst the profession through communications such as the doclounge list serv while awaiting the decision of the court. The judge reminded them that the court proceedings are all public information.

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