The petition of the former registrar (“Wong”) of the College of Traditional Chinese Medicine Practitioners (the “College”) was dismissed where the court found that the decision of the governing board of the College (the “Board”) dismissing Wong was reasonable and that the requirements of procedural fairness were met in the process employed by the Board

23. November 2004 0

Administrative law – Employment law – Termination of employment – Decisions of administrative tribunals – College of Traditional Chinese Medicine Practitioners – Judicial review – Procedural requirements and fairness – Compliance with legislation

Wong v. College of Traditional Chinese Medicine Practitioners, [2004] B.C.J. No. 1906, British Columbia Supreme Court, September 17, 2004, Boyd J.

The College is a non-profit organization constituted under the Health Professions Act, R.S.B.C. 1996, c. 183 (the “Act”) to govern the traditional Chinese medicine and acupuncture profession. The College appointed Wong to act as registrar of the College. The employment contract set out Wong’s responsibilities which were extremely broad and, in effect, Wong acted as the chief executive officer of the College, responsible for the overall administration, including the financial administration. In 2000, the College’s auditor expressed concerns to the Board and to Wong about the College not having any accounting system in place. The Board directed Wong to implement an accounting system. In November 2001, the auditor advised the College’s Financial Committee that an accounting system had not yet been implemented. In March 2003, the Board was advised again that Wong had failed to implement an accounting system. At the end of July 2003, the auditor found that no financial transactions for the previous fiscal year had been recorded in an accounting system and that Wong was unable to provide any financial data to the auditor for the purposes of preparing audited financial statements as required by the bylaws of the College.

In October 2003, the Board retained the services of Mew & Co., chartered accountants, to perform a special investigation audit of the College’s financial affairs. This report showed a number of irregularities totalling in excess of $50,000 including Wong’s alleged improper charging of overtime pay, as well as his alleged misappropriation of the funds and diversion of property belonging to the College. The Board met to discuss the report and was unanimous in its decision to terminate Wong’s employment. Wong was given a termination letter at the time he was dismissed which set out the reasons for dismissal. Wong filed a petition seeking judicial review of the Board’s decision to terminate his employment and further seeking a direction that he be reinstated as the registrar, paid all income lost to date, and be awarded special costs.

Relying upon the Supreme Court of Canada’s decision in Knight v. Indian Head School District No. 19, [1990] 1 S.C.R. 653, Wong submitted that, in the case of a statutory office-holder, an implied right of procedural fairness arises and must be met prior to any termination of employment. The court agreed that the Indian Head decision provided that an employee in this position was entitled to fairness but noted that it was only a minimal standard of fairness. In determining the content of the duty of fairness, the court reviewed the decision in Baker v. Canada (Minister of the Citizenship and Immigration), [1999] 2 S.C.R. 817 where the following factors were set out:

(a)  the nature of the decision being made and the process followed in making it;

(b)  the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;

(c)  the importance of the decision to the individual or individuals affected;

(d)  the legitimate expectations of the person challenging the decision; and

(e)  the choices of procedure made by the agency itself.

 In this case, the court noted that the Act provided that it was the duty of the College at all times to serve and protect the public. The Act further required the Board to appoint a registrar of the College and provided that the registrar will hold office during the pleasure of the Board. No appeal procedure is included in the Act which would apply to the registrar upon a decision being made by the Board to terminate his employment. The Board also noted that the employment contract with Wong provided that the Board may terminate his employment without notice and without compensation on the grounds of just cause. The court found that Wong was aware of the Board’s underlying complaints with respect to his employment prior to the decision to terminate him. Wong was provided with a full opportunity to be heard at a board meeting called to review the complaints with respect to the lack of accounting system and financial irregularities. Therefore, the court held that the requirements of procedural fairness were met in this case, even though no structured hearing was held immediately in advance of the decision to terminate. In the result, Wong’s petition was dismissed with costs to the College.

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