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Canadian Medical Association Board breached principles of natural justice and fairness
Public
Dr Z. Essak, MD - Vancouver, BC - May 20, 2022
In a BC Supreme Court Judgment released on April 22, 2022 Justice Nathan Smith found that the Canadian Medical Association (CMA) Board breached principles of natural justice and procedural fairness when it suspended the membership of Dr Charles Webb denying him the opportunity to run as a candidate in the election for the BC nominee for CMA President-Elect in February 2022.
Unknown previously to doctors throughout BC and across Canada, on Sunday January 30th 2022, the CMA Board decided to suspend the membership of Dr Charles Webb and removed his name from the list of candidates in the election scheduled to begin on February 1, 2022.
Was this decision of the CMA Board a fair decision or an attempt to sideline a vocal critic? Less than 6 months previously, in August 2021, Dr Charles Webb, along with other doctors, mobilized member doctors to successfully defeat Board proposed changes to the Bylaws described as "the end of democracy at the CMA". The changes would have removed the CMA General Council's sole authority to elect individuals to various positions and committees and instead place the authority in a Board selected committee to appoint individuals to positions including recommending individuals for ratification to three positions.
The Judgment takes the commonly held position that, "The court will not generally interfere with the operation of the society and will not interfere with its discretionary decisions. The only questions the court can consider are whether the society’s rules have been followed, whether anything has been done contrary to the rules of natural justice or whether anything has been done in bad faith." [para. 22.]
Two important lessons
There are two very important lessons in this for members of all Associations, Unions, Non-profit societies, Strata councils and others.
Fundamental principles for a fair society everyone can understand
First, while the term "principles of natural justice" may sound like something only for the realm of lawyers and courts, it is not. These are fundamental principles for a fair society, something everyone can easily understand, appreciate and uphold. In paragraph 23 of the Judgment we are reminded of the three basic requirements of the principles of natural justice:
Principles of natural justice
- Adequate notice, any allegations must be clearly and specifically contained in the notice.
- An opportunity to respond.
- The right to be heard by an unbiased tribunal. Those that hear and decide on the matter must be unbiased.
The Judge found "Dr. Webb was not given sufficient notice of the allegations he had to respond to and was given no opportunity to respond to the document that formed the primary basis for the board’s ultimate conclusion. This is therefore a case that justifies intervention by the court”. He ordered, “that the suspension of Dr. Webb be set aside. If the CMA wants to proceed against Dr. Webb, he must receive the independent reviewer’s report or other factual record the board is to consider and must have a reasonable opportunity to respond in writing to it." [paras. 56, 57.]
Organizations may violate some principles of natural justice
The second lesson from this case is also very important and is something members of all organizations should be aware of and guard against.
Paragraph 25 of the Judgment contains what many people may see as an alarming warning:
An organization is entitled to define its own procedures and, in so doing, may violate at least some principles of natural justice, but must do so expressly. Where bylaws are silent on a procedural issue, the procedures adopted must comply with rules of procedural fairness. Whether procedural deficiencies amount to a denial of natural justice can be assessed by asking whether, “although imperfect, the process was fundamentally fair?”: Farren v. Pacific Coast Amateur Hockey Association, 2013 BCSC 498 [Farren] at paras. 16 and 27.
That an organization can define its own procedures such that they may violate some principles of natural justice as long as it does so expressly will be a very troubling thought for many people. When this is combined with the trend of organizations to move many elements from Bylaws, that must be voted on by members, to Rules and Regulations that can be adopted and changed at any time by the Board, this will elevate concerns to the level of being alarming and raise questions such as, should Provincial and Federal laws do more to protect principles of natural justice and procedural fairness within organizations?
This is of particular concern when it comes to the CMA because it was incorporated through a private Act of parliament that was adopted in 1909. Not only is the Act brief, it does not contain mechanisms of redress for an aggrieved member such as the “Oppression remedy” found in federal and provincial legislation. A solution for the CMA may be the introduction of a Bylaws change to establish a grievance mechanism and tribunal for members to receive redress.
Lack of transparency at the CMA
At the time of the election for the BC nominee for CMA President-Elect in February 2022 the CMA did not advise the membership of the Board’s decision to suspend Dr Charles Webb and remove him as a candidate. The CMA also did not advise the members of the pending lawsuit in the BC Supreme Court.
The other BC candidates were advised of the lawsuit by the counsel for Dr Charles Webb. One of the candidates, Dr Caroline Wang, wrote to the CMA and the other candidates suggesting that, to demonstrate transparency, voting should be postponed until after the Court provided Judgment on the case. The suggestion was not supported by the CMA or any of the other candidates leaving one to wonder, did the candidates feel their chances of success were improved by the elimination of Dr Charles Webb as a candidate?
Engagement of members by the CMA
While the CMA boasts having 90,000 doctors across the country as members and has initiatives to increase member engagement, the sad reality is that over 90% of doctors have given up on the association. They may be members because of requirements of joint membership in provincial associations and the CMA, but they are openly critical of the lack of transparency of the Board including the sale of MD Management in 2018 by the Board without the members input or knowledge and the erosion of the role of General Council.
At the 2021 AGM where Bylaw changes would have further shifted the balance away from democratic elections to committee appointments, less than 0.4% of the members attended. Despite the Bylaw changes being defeated, the Board chair responded to the results with the statement, "We remain unbowed". The fact that 99.6% of member physicians had given up on the organization appeared to be of no concern to those in control.
Similarly, in the 2022 election for the BC nominee for CMA President-Elect it is estimated that of the approximately 15,000 BC doctors eligible to vote, only 10% cast a ballot. A request to the CMA for the election results, in the spirit of transparency, was replied to with a statement that the CMA does not provide details of election results to the members or even to the Board.
Holding the CMA to a higher standard
In the Judgment, Justice Nathan Smith says that the impact of the actions on the reputation of an individual within the profession by an important professional organization is potentially serious such that the organization should be held to the high point on the "spectrum" of requirements for procedural fairness rather than a lesser level because it is a voluntary association as argued by the CMA. [paras. 29, 34.]
As an important professional organization, well recognized within the medical profession and by the public, it is only reasonable that the CMA Board should be held to the high end of the spectrum for procedural fairness and adherence to principles of natural justice.
What will happen now that the court has ruled that the CMA Board breached principles of natural justice and procedural fairness? Will the CMA try to spin this another way? Or will the members of the CMA decide to call a Special Meeting to remove the current directors and replace them?
Will this be the final straw? Will it be the time when doctors across Canada decide to take back control of their national professional organization, the Canadian Medical Association? To assert principles of fairness, openness and transparency? To restore a democratic organization as an example for the provincial medical organizations and all other organizations throughout the country?
Attached below:
1909 Act to incorporate the Canadian Medical Association with images
Web links
2022-04-22 BCSC Judgment, Webb v. Canadian Medical Association
An appeal to heal the wounds from the past: 111 years ago, and from the 2021 CMA AGM
2021-08-25 From the CMA Board Chair – We remain unbowed
Not the only nail in the coffin of democracy at the Canadian Medical Association
2013 BCSC 498 (2013-03-22) Farren v. Pacific Coast Amateur Hockey Association
[16] The B.C. Court of Appeal decision in James (Guardian ad litem of) v. Pacific Coast Amateur Hockey Association, [1982] B.C.J. No. 266 (C.A.) [James] indicates that the PCAHA is entitled to define its own procedures, and those procedures are free to violate (at least certain) rules of natural justice if they do so expressly (see paras. 19, 21). However, where the bylaws are silent on a procedural issue, the procedure that is ultimately used must comply with the rules of procedural fairness (James at para. 21; see also Lutz v. Faith Lutheran Church of Kelowna, 2009 BCSC 59 at para. 87 [Lutz]).
Will the new BC Societies Act transition be a train wreck?
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Groups:
CMAPublic
Thank you Dr. Essak for summarizing this issue with such clarity. I would like to add to this account with a few comments. Alongside Dr. Webb, I too participated in raising questions regarding the proposed CMA changes to the selection process for CMA Committee and board members and co-authored Medical Post articles on the topic. We felt strongly CMA members should continue to have the democratic right to select their representatives and that we should look to develop additional processes to increase diversity on the CMA board while maintaining those democratic rights. Ultimately the motions failed to pass and additional work in this important area has begun. Although I do understand the arguments both for and against the above motions, I stand by my belief that members should maintain their democratic rights to choose their representation at our national professional organization. Participation is low by percentage of membership, however very similar to elections for PTMA leadership races across Canada. I understand that other member driven organizations also struggle with turn out for elections.
All the candidates in the 2022 CMA President Elect election were made aware of Dr. Webb’s circumstances, either by Dr. Webb directly or via discussions between candidates at the outset of the election period. This was a topic of discussion at each of the candidate meetings. Many concerns were raised by all candidates and we were advised that it was the CMA’s advice and intention to proceed with the election as the timeline for the court’s decision was not defined. Dr. Wang and I specifically discussed the issue over several hours of phone calls. The suggestion to write a formal letter requesting the election not be held, as a method of addressing the concerns felt by the candidates, arose as a direct result of these discussions. I believe all of the candidates would have co-signed Dr. Wang’s letter had they been afforded the opportunity.
It is my opinion that the CMA Board’s concerns regarding Dr. Webb would have been better addressed openly and transparently. Unfortunately that was not the CMA board’s decision based on the information they possessed at that time. I cannot comment on their process as it was, as stated, not transparent to non board members. The court judgement is as stated above.
Finally, all of the candidates offered their dedicated service to our profession in good faith when they agreed to have their names put forward. Each of the candidates brought appropriate experience and knowledge, and perhaps more importantly, a desire to represent our profession nationally and help to inform the evolution of our healthcare system as we emerge from the pandemic. For myself, it was an honor even to be asked to put my name forward and certainly an honor to run with such incredible physicians. We would have welcomed Dr. Webb as a fellow candidate in this election. I am certain each of us would have supported any of our esteemed candidates had they have been the nominee selected by our colleagues. This is about our profession as a whole, not each of us individually.
As the now elected nominee I have agreed to put by name forward at the August CMA AGM. The decision will now rest democratically with the voting PTMA CMA delegates from across Canada. Whatever the outcome, I commit to continuing to advocate for a sustainable healthcare system that supports patients, physicians, and our society at large.
Dr Kathleen Ross
Dr Kathleen Ross you have failed to address the issues raisedPublic
Dr Ross, I am disappointed in how you have failed to address the issues raised in my post and instead deflected it to what appears to be a campaign statement. Although you don't mention it in your comment you have shared on social media that your election as the next CMA President-Elect is being contested through the alternate mechanism provided for in the CMA Bylaws by Dr Caroline Wang that should, as you say, be decided at the AGM in August 2022 by the Delegates to the CMA General Council. If you wish to discuss this further then please do so by creating a separate post.
I think the concerns raised in my post are significant to physician members of the Canadian Medical Association and other member organizations throughout Canada. That of the Board failing to uphold principles of natural justice and procedural fairness and the timing interfering in a democratic election. This raises the very important question of what can and should member physicians do about it? In your comment you have not said a single word about this. You did not engage in a discussion of the issue and did not offer what you as a potential leader will commit to do about these concerns. Instead you have described yourself as someone who waits for others to hand you something to sign rather than taking the initiative in voicing concerns and suggesting actions.
You have deflected the discussion to platitudes of "a sustainable healthcare system that supports patients, physicians, and our society at large" when what is really needed is leadership to ensure the Board, in all that it does, respects principles of natural justice and procedural fairness that anyone can understand. Furthermore, the need to restore an open, transparent and democratic organization instead of remaining "unbowed" and satisfied with low levels of member engagement, of less than 10 percent and as low as 0.4 percent.
Dr Z. Essak, MD