A respiratory therapist (“Chaudhary”) successfully petitioned for a Declaration that the Canadian Society of Respiratory Therapists (“the Society”) had no jurisdiction to proceed with a disciplinary action against him given that he was a former member of the Society

26. June 2007 0

Administrative law – Decisions of administrative tribunals – Respiratory Therapists – Rules and by-laws – Retrospective operation – Disciplinary proceedings – Jurisdiction to hear a complaint – Former member – Judicial review

Chaudhary v. Canadian Society of Respiratory Therapists, [2007] B.C.J. No. 692, British Columbia Supreme Court, April 4, 2007, Garson J.

Chaudhary is a respiratory therapist employed in a permanent full-time position by the Fraser Health Authority at MSA Hospital. The Society is a federally incorporated professional association whose members are respiratory therapists and respiratory students. Membership in the Society is voluntary. There is no requirement that respiratory therapists practicing in British Columbia be licensed or regulated nor are they required to belong to the Society.

The Society offers a qualifying exam which has an associated credential with it, although this credential is not mandatory for practice in British Columbia.

Chaudhary wrote the qualifying exam after registering as a student member of the Society in 2000. In 2002, he received certification as a Registered Respiratory Therapist from the Society. Chaudhary did not recall renewing his membership with the Society for any of the years between 2002 and 2006, nor could the Society produce evidence of his membership during that time.

In 2003, Chaudhary started work at the Chilliwack General Hospital. Allegations of poor performance were made during his work there, leading to discipline and his dismissal. Chaudhary’s union grieved the dismissal and negotiated a settlement of all issues. Chaudhary was reinstated by the Fraser Health Authority and hired at MSA Hospital on a casual basis. After passing his probationary period, he obtained a full-time position.

At the time of the disciplinary action taken by the Chilliwack Hospital, a letter of complaint was filed against Chaudhary with the Society by a respiratory therapist who was also an employee of Chilliwack General Hospital. The Society investigated the complaint and issued a citation against Chaudhary in April of 2005.

In June 2005, the Society amended its bylaws and removed the preamble of one section of the bylaws that stated that former members could be disciplined in a manner similar to current members.

At the time that Chaudhary became a member of the Society, the bylaws defined a member as including a former member and also contained a provision that empowered the Society to discipline former members. In 2005, an amending resolution removed the Society’s jurisdiction to discipline former members. However, the 2005 amendment failed to change the definition of “member” which still included former member and failed to incorporate any transitional provision to apply to pending discipline cases against former members. Chaudhary was a former member at the time the discipline was commenced against him.

The Court considered that the parties had agreed that the relationship between Chaudhary and the Society was a contractual relationship in which the bylaws were contractual obligations. Although the Court agreed that the relationship was contractual, there were multiple contracting parties entering and leaving this type of relationship and those parties were subject to changing contractual obligations as bylaws of such a Society are amended from time to time.

The Court held that because this was a professional association in which the outcome of a disciplinary process might have a serious impact on the member, the approach from Kaplan v. Canadian Institute of Actuaries, [1997] A.J. No. 874 (C.A.), was appropriate. The basic relationship between the parties was contractual but the role of the Court in reviewing the decisions of such a voluntary association would be to ascertain whether the Society had acted within its jurisdiction. The bylaws making up the contractual obligations in this type of circumstance ought to be construed in accordance with the principles of fairness and due process because of the important nature of the power of the professional association. In addition, the Court should focus on the nature of the underlying contract and the reasonable expectations of the parties. The Court considered that there would be three methods for resolving the jurisdictional question with respect to the Society:

1)   by application of the presumptions against retroactivity and interference with vested rights;

2)   by admission of extrinsic evidence concerning the intent of the Society in enacting the bylaw amendments, mainly through the minutes of the Society’s meetings;

3)   by application of the doctrine of contra proferentum.

The Court noted that the law with respect to questions of retroactivity had been described as “notoriously difficult”.

In this situation, the past legal effect of Chaudhary’s conduct was not being changed, but the jurisdiction of the Society was being revoked during a proceeding which the Court thought might be more akin to interference with a vested right. The Court concluded that the stronger interpretative aid was the contra proferentum rule, especially considering the fairness requirement.

The Court reviewed the concept of a vested right and indicated that prior to the amendments to its bylaws, the Society was required to carry out the disciplinary process and held that since the Society amended its own bylaws it lost jurisdiction over Chaudhary.

The Court further concluded that the statutory presumption against retroactivity did not govern the contractual principles in the case.

The Court turned to the doctrine of contra proferentum. Contra proferentum requires that ambiguities are solved against the interests of the party drafting the bylaw. The Court noted that this doctrine is only to be applied as a measure of last resort when ambiguity cannot be resolved through other means.

The Court concluded that the extrinsic evidence could not resolve the conflicts between the amendment dealing with the removal of jurisdiction over former members, and the definition of member continuing to include former members and the mandatory provisions of the disciplinary powers of the Society, without requiring the Court to rewrite the bylaws. The contra proferentum rule was found to be applicable, particularly because Chaudhary should be entitled to know with clarity, the powers of the Society that exerted extraordinary power over him, extending to his ability to practice in his chosen employment. Chaudhary was entitled to the declaration that the Society had no jurisdiction to proceed with disciplinary action against him and the Court invited the parties to speak to costs at a later date.

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