CMA board breached principles of natural justice and fairness

In a B.C. 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 B.C. nominee for CMA president-elect in February 2022. Unknown previously to doctors throughout B.C. and across Canada, on Sunday, Jan. 30, 2022, the CMA board decided to suspend the membership of Dr. Webb and removed his name from the list of candidates in the election scheduled to begin on Feb. 1, 2022. Read: Dr. Zafar Essak: Not the only nail in the coffin of democracy at CMA Was this decision of the CMA board a fair decision or an attempt to sideline a vocal critic? Less than six months previously, in August 2021, Dr. 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.” Two important lessons There are two very important lessons in this for members of all associations, unions, non-profit societies, strata councils and others. 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: 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.” 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 B.C. nominee for CMA president-elect in February 2022, the CMA did not advise the membership of the board’s decision to suspend Dr. Webb and remove him as a candidate. The CMA also did not advise the members of the pending lawsuit in the B.C. Supreme Court. The other BC candidates were advised of the lawsuit by the counsel for Dr. 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. 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 in any practical way most doctors have given up on the association (at a virtual AGM in 2021—where all members could attend online and where those bylaw changes would have further shifted the balance away from democratic elections to committee appointments—the per cent who attended was about 0.4%). 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. Despite the bylaw changes being defeated last year, 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 B.C. nominee for CMA president-elect it is estimated that of the approximately 15,000 B.C. 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 Smith said 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. 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? Dr. Zafar Essak is a GP/family physician from B.C. This item originally appeared on the website DocLounge.

CMA board breached principles of natural justice and fairness

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