You make the rules, or else you have to play fair: a society is entitled to create its own procedures, and in doing so may violate some principles of natural justice, as long as it does so expressly in its bylaws

Administrative law – Decisions reviewed – Medical Associations – Investigations – Judicial review – Procedural requirements and fairness – Natural justice – Associations and clubs – Disciplinary proceedings – By-laws – Governance – Physicians and surgeons – Professional misconduct or conduct unbecoming – Penalties and suspensions

Webb v. Canadian Medical Assn., [2022] B.C.J. No. 687, 2022 BCSC 619, British Columbia Supreme Court, April 22, 2022, N. Smith J.

The petitioner, Dr. Charles Webb, sought an order quashing the suspension of his membership with the Canadian Medical Association (“CMA”).

Membership with the CMA is voluntary, though the majority of doctors in Canada are members.  Dr. Webb had been a member since 1989.  He was a director from 2017 to 2020, and had hoped to be a candidate for national presidential elect prior to his suspension.

On November 4, 2021, the CMA Board Chair wrote to Dr. Webb by letter stating the Board of Directors was proposing to suspend his membership for one year, commencing December 19, 2021, due to serious allegations concerning his conduct when he was a CMA Director and subsequent to his term as director.  The allegations concerned sexual harassment, bullying, and breach of confidentiality.  The letter attached a three-page schedule outlining the allegations in more detail and indicating that the Board had engaged an independent third-party reviewer from a law firm to review the alleged breaches of the CMA Code of Ethics and Professionalism.  The letter stated that Dr. Webb would have an opportunity to participate in the review before the third-party reviewer submitted their report, and that Dr. Webb could provide a written submission by December 8, 2021 for the Board to consider before making its final decision.

On November 15, 2021, the third-party reviewer wrote to Dr. Webb by letter inviting him to participate in a video interview.  The letter stated that Dr. Webb would not be provided with notes or recordings of the reviewer’s interviews with the complainants.

On December 4, 2020, the CMA’s vice-president and legal counsel wrote to Dr. Webb’s counsel confirming Dr. Webb would not receive a copy of the third-party reviewer’s report or any other documents submitted to the special committee.

Dr. Webb declined to participate in the interview.  His counsel provided a written response denying the allegations and objecting to the process, which he alleged did not comply with the CMA bylaws or the rules of natural justice.  On January 30, 2022, the CMA Board Chair wrote to Dr. Webb by letter informing him the Board of Directors had decided to suspend his membership for one year.  The decision was based on the report of the third-party reviewer.

The relationship between an incorporated non-profit society and its members is contractual.  When a society makes a discretionary decision regarding one of its members, 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.

The Court held that a society is entitled to define its own procedures, and in doing so may violate at least some principles of natural justice, but must do so expressly in its bylaws.  If its bylaws are silent to the procedure at issue, that procedure must comply with the rules of procedural fairness.  The most basic requirements include notice, opportunity to make representations, and an unbiased tribunal.

Further, the Court may consider the severity of the consequences of an investigative process in determining whether a member is entitled to the principles of natural justice to ensure procedural fairness.  The Court found the allegations against Dr. Webb would cause significant reputational embarrassment, and that the CMA is clearly of importance within the procession, placing this suspension at a high point on the spectrum of severity.

While Dr. Webb was not entitled to an oral hearing before the board as he asserted, the absence of a hearing increased the importance of the other factors of procedural fairness, including sufficient detail being provided regarding the allegations to be responded to in the notice of the intended suspension.  Having a third-party reviewer provide additional information was said not to relieve the CMA of the requirement to provide detailed reasons in the notice.  The Court found several of the allegations lacking in detail, and further found it may have been preferable for the third-party reviewer’s findings to have been made available earlier and to have served as the basis for the notice to Dr. Webb.  Dr. Webb never received the report.  He had no way of knowing how the allegations were substantiated, or the basis for the reviewer’s conclusions.  The Court held this case justified intervention by the Court as Dr. Webb was not given sufficient notice of the allegations to respond to, and had no opportunity to respond to the document that formed the primary basis for the board’s ultimate conclusion.  The suspension was set aside.

This case was digested by Mollie A. Clark, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Mollie A. Clark at mclark@harpergrey.com.

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