Wang v BC Medical Association Judgment Released March 8, 2013

Public

2013-04-05 Vancouver, BC – Z. Essak,

Almost a month has passed since the Judgment Wang v BC Medical Association was released on March 8, 2013. The day the Judgment was released the BCMA Board was in session. The BCMA Board will be meeting again on Saturday April 6, 2013.

The Judgment comes a little more than a year after the 24 days at Trial from January 23 to February 24, 2012 and five years have elapsed since the President’s Letter of February 2, 2008.

Some doctors are saying maybe the Judgment could have been more even-handed in it’s delivery. Some doctors are saying “Dr Wang won but she doesn’t get any relief”. Some doctors are saying “it’s a partial victory” and some doctors are saying “it’s a huge win”.

What has emerged from the Judgment?

Win #1 for Dr Wang

The Judgment concludes the BC Medical Association breached its contract in failing to provide full procedural fairness to Dr Wang [378].

Win #2 for Dr Wang

The BCMA denied Dr Wang principles of natural justice; the right to adequate notice of allegations and an unbiased tribunal.

"[365] I find that this was a violation of the first principle of natural justice applicable to such tribunals: adequate notice of what was being alleged. Yet as far as Dr. Wang could tell, she remained exposed to potentially serious consequences."

"[368] Dr. Williams cannot be criticized for holding or expressing those views in her capacity as a director. But to put her on the committee tasked with investigating Dr. Wang's conduct? In such circumstances, it would have been strange if Dr. Wang had not been concerned about bias."

Although not identified in the Judgment as a violation the remaining third principle of natural justice may also have been denied, the opportunity to make representation and speak to one's own defence.

"[187] Dr. Wang objected. Her objections were not unreasonable. ... She put forth her own motion giving her an opportunity to provide a statement to go with any such communication in order to inform the members."

"[189] Dr. Black's motion was passed. Dr. Wang's was not. There was no seconder."

She was truly alone.

Win #3 for Dr Wang

The President's letter of February 2, 2008 defamed Dr. Wang.

"[260] I have already found that the President's Letter of February 2, 2008, defamed Dr. Wang. ... I propose first to deal with the potential liability for that letter, and then the defences raised in relation to it."

At that time Dr. Appleton was BCMA President, Dr Mark Schonfeld was BCMA CEO and Ms. Geraldine Vance was BCMA Director of Communications.

“[270] The question as it pertains to Ms. Vance is a difficult one. She drafted the defamatory words. She was obviously aware that the letter would go out to the whole membership. She prepared the letter for that very purpose. But the defendants say that she was simply doing her job on the instructions of her superior. They submit that there is no evidence linking her to the actual publication, and, they assert, "It is the publication, not its composition, that is the actionable wrong": St. Elizabeth Home Society v. Hamilton (City), [2005] O.J. No. 5369 (S.C.J.).”

“[271] In the circumstances of this case, I agree. ...”

"[272] The question then arises as to whether Dr. Schonfeld was a publisher. He agreed that he reviewed it before it was distributed, and limited his involvement to asking Dr. Appleton whether he was comfortable with it. He saw no problem with it himself."

"[276] Accordingly, I find that the defendants who are answerable for the publication of the defamatory February 2 letter are limited to the Association itself, Dr. Appleton and Dr. Schonfeld."

These three wins for Dr Wang are similar to the Judgment of Justice Ballance in November 2008 that included, "it can be said that the directors have acted in contravention of Sec. 25 of the Society Act, and with unintended irony, are thereby in breach of the code of conduct itself" and the letter was "rich with innuendo". Justice Grauer has ruled it was defamatory.

The law then turns on the question of malice.

Justice Grauer rules "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." [290]

Although legal minds may question if the Judgment rightfully considers all the requirements for Qualified Privilege to apply, liability for the defamation is averted. A win for the BCMA and Individual defendants. Dr Wang gets no relief.

Five years ago, in her letter of response dated February 29, 2008, Dr Wang wrote, “That the Board allowed this publication to the entire membership impugning my reputation is chilling and should be a wake-up call for all BC doctors to pay attention to what is happening.” [219]

But wait, there is one more thing in the Judgment.

The philosophical divide.

Going back to 2005 and 2006 the Judgment describes the historical background.

"[72] We begin with a genuine, fundamental disagreement between Dr. Wang on the one hand, and the other board members and the executive on the other, concerning board governance. Dr. Wang championed a representative model, responsive to her constituents, which would leave her free to communicate any dissenting views to the membership as a whole."

“[41] ... She felt that it was her duty as a representative of members of the Association to ensure that they were aware of all points of view so that they could make rational decisions on their own, and voice their opinions to her as constituents. This was, as she saw it, the best way to ensure that the BCMA was governed in an open and transparent manner. This approach, she believed, would encourage grassroots governance rather than top-down corporate-style direction, to the benefit of the profession and in the best interests of the Association.”

“[40] In the view of many, the duty of board members, once a motion had been debated and passed, was to "speak with one voice". ...”

“[50] In preparation for the November meeting, the BCMA received an opinion from Ms. Jane Murdoch of Lawson Lundell LLP that included … acting or speaking out inconsistently with a Board decision, for example by expressing a dissenting view, constitutes a failure to carry out the duty to act in the best interests of the Association."

“[52] Dr. Wang did not accept Ms. Murdoch's opinion. She proceeded to requisition her own from Mr. Stuart Morrow of Davis & Co.”

“[54] Like Ms. Murdoch, Mr. Morrow pointed out that directors owe their duties to the Association as a whole, not to the board. He went on to explain that subject to the same limitations he had previously set out, "it would be incompatible with the proper exercise of your fiduciary duty to the Association, not to speak out on important issues..."

The Judgment includes, “[74] I may not have done justice to one or both positions, and it is certainly not part of my role to decide whether one is preferable to the other. That is a matter for the members of the BCMA.”

Is this confirming that the philosophical direction of the Association is a matter for the members of the BCMA?

Is this a surprise bonus win for Dr Wang who in 2006 and 2007 requested the Board send both views to the members to decide the philosophical direction of the Association? A request echoed by other physician members, to let the members decide.

This has been denied by the majority on the Board. Even now, seven years later, the Board has not sent the matter of the philosophical direction to the members. Will the matter now be sent to the members?

Is this a win for the members of the BC Medical Association and all other Societies in BC? A win by a single, committed individual who has carried the torch since 2005 with the vision that it was the right of members to decide? Even through times of standing all alone?

The BCMA breached its contract failing to provide procedural fairness, denied Dr Wang natural justice, published a defamatory letter although claims are dismissed on qualified privilege, and withheld from the members the right to determine the philosophical direction of the association, instead imposing a “speak with one voice” view.

Is it now time for the members of the BCMA to ensure Board accountability and bring resolution and relief?

(Docket S095777 Vancouver),
http://www.courts.gov.bc.ca/search_judgments.aspx