The Petitioner sought judicial review of a decision of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia (the “College”) to terminate him from his position as registrar of the College. The petition was dismissed as the judge found that the College met its requirement of procedural fairness. On appeal, the Court held that the reviewing judge erred in mixing the merits of the decision to terminate with the process of termination. Furthermore, she made a palpable error of fact in finding that the Petitioner had notice of the grounds for termination when he had no prior notice of a report accusing him of dishonesty and no opportunity to address the accusation. This amounted to a denial of procedural fairness. The Court ordered that he be re-instated to his position as registrar, with full back pay and benefits less earnings from other employment.

Administrative law – Employment law – Termination of employment – Decisions of administrative tribunals – College of Traditional Chinese Medicine Practitioners – Natural justice – Judicial review – Appeals – Procedural requirements and fairness

Wong v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia, [2005] B.C.J. No. 2219, British Columbia Court of Appeal, October 21, 2005, Prowse, Donald and Hall JJ.A.

The College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia (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. It has a 9-member Board of Directors. Pursuant to the Act, the College appointed the Petitioner to act as the registrar, which included the authority to deal with financial matters and administer and operate the College on a daily basis. Following an internal audit in 2000, the College’s Board directed the Petitioner to implement an accounting system on numerous occasions between 2000 and 2003. Despite assurances, the Petitioner failed to implement the system, and the Board was forced to hire an accountant to complete its financial statements for fiscal year end. The board also hired an external auditor to investigate the College’s financial affairs. The external audit revealed financial irregularities, including the Petitioner’s alleged improper charging of overtime pay, misappropriation of funds and diversion of College property. Following discussion of the report, the Board decided unanimously to terminate the Petitioner’s employment. In a petition for judicial review, the reviewing judge found that the College met its duty of fairness in the process of termination and dismissed the Petition. The Petitioner appealed that decision.

The appeal was allowed. As registrar, the Petitioner was owed a duty of fairness of a statutory officeholder in the process of termination. As the Petitioner held office at pleasure (subject to his employment contract, he was entitled only to the minimal standard described in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 (S.C.C.) that he be provided with the reasons for the Board’s dissatisfaction with his employment and an opportunity to be heard.

The Board’s termination letter made it plain that the primary reason for the Petitioner’s dismissal was the dishonesty set out in the auditor’s report. Although the Petitioner was aware of problems regarding his day-to-day management of the College, he never saw the report before he was fired nor was he given any inkling that he was under suspicion of dishonesty. The reviewing judge was incorrect in her finding that the Petitioner was aware of the grounds for his dismissal. The insubordination grounds were additional reasons but clearly secondary to the dishonesty grounds. Moreover, the operative grounds alleged theft, fraud and other dishonest acts which triggered a natural justice requirement that the Petitioner have the opportunity to respond directly to the Board, if he can, before his reputation in the community is ruined. As such, the College breached the duty of fairness and the reviewing judge erred in finding otherwise. Reinstatement with full back pay and benefits, less income from other employment in the meantime was an appropriate remedy. As a statutory body, the College owed a duty of fairness to its office-holders and in this case it did not satisfy the duty. It followed that the Petitioner never lost his office and, therefore the Court exercised its discretion to restore him to that office. This allowed the Petitioner full status to make his case to the Board. To address the College’s argument that the Act does not provide for more than one registrar and that reinstatement would be unduly disruptive, the Court found that the College need not bring the Petitioner back into active service but the fact he was on the payroll provided the College with the incentive to act quickly with the natural justice hearing.

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