BC Court Sets Asides Doctor’s Suspension of Membership in NFP
May 2022 Charity & NFP Law Update
Published on May 26 2022

By Ryan M. Prendergast
   
 

The Supreme Court of British Columbia set aside a doctor’s one-year suspension of membership in a not-for-profit corporation after it determined that he was not given sufficient notice of the allegations against him that were the reason for his suspension. In the decision of Webb v Canadian Medical Association, decided on April 22, 2022, the court considered a petition from Dr. Charles Webb which sought an order quashing the suspension of his membership in the Canadian Medical Association (“CMA”). Dr. Webb alleged that the CMA had not followed its own rules or the rules of natural justice when it made the decision to suspend his membership.

The CMA was incorporated as a not-for-profit corporation under An Act to Incorporate the Canadian Medical Association, S.C. 1909, c. 62. Mr. Webb had been a member since 1989 and served as a director from 2017-2020. On November 4, 2021, the CMA Board Chair sent a letter to Dr. Webb which stated that the Board of Directors was proposing to suspend his membership for a one-year term because of serious allegations about his conduct both during and following his time as a director of CMA. This letter stated that there were allegations from several residents that Dr. Webb made “unwelcome comments of a sexual nature”. Further, it quoted allegations of inappropriate comments amounting to sexual harassment made by Dr. Webb at a CMA meeting, without naming the persons to whom the comments were directed. There were also four specific examples of bullying behaviours exhibited by Dr. Webb and directed to CMA board members and staff over a 10-month period in 2021.

The CMA Board of Directors engaged an independent third-party reviewer from a law firm to review Dr. Webb’s alleged breaches of CMA’s Code of Ethics and Professionalism. Dr. Webb was given the opportunity to participate in the review and to provide a written submission to the board. However, Dr. Webb was also informed that he would not receive a copy of the reviewer’s report or any other documents submitted to the committee who would make the final recommendation to the Board regarding his membership. Dr. Webb declined to participate in the review and instead provided a written response denying the allegations and claiming that the process did not comply with CMA’s bylaws or natural justice.

The court’s analysis noted that courts “will not generally interfere with the operation of the society and will not interfere with its discretionary decisions.” Nevertheless, a court may consider whether a not-for-profit corporation has followed its own rules, whether anything has been done contrary to the rules of natural justice, or whether anything was done in bad faith. In this instance, the court largely focused on whether the rules of natural justice had been followed, noting that some of the most basic requirements of natural justice are those of “notice, opportunity to make representations, and an unbiased tribunal”.

The suspension of Dr. Webb’s membership in the CMA was sufficiently serious to merit the court’s review, because the suspension affected “his reputation within the profession and his ability to participate in and benefit from an important professional organization.” While the court did not think Dr. Webb was entitled to an oral hearing before the board, with the examination and cross-examination of witnesses, it concluded that there should have been detailed reasons for the intended suspension to which he could meaningfully respond.

In conclusion, the court found that certain portions of the letter sent from CMA to Dr. Webb did contain sufficient information for him to understand and respond to the complaints against him. For example, there were descriptions of specific instances, with dates, of the alleged bullying behaviours and communications Dr. Webb exhibited. But other allegations, such as the unwelcome comments of a sexual nature made to medical residents at some point during Dr. Webb’s tenure as a CMA director were not specific enough for him to respond to in any meaningful way. Further, Dr. Webb had never had the opportunity to confirm whether the contents of the independent third-party reviewer’s report were a fair depiction of what happened. Therefore, “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.” As a result, Dr. Webb’s one-year membership suspension was ordered to be set aside, and he was entitled to costs.

Charities and not-for-profits faced with allegations of a member’s inappropriate behaviour must deal with such allegations carefully. As the court noted, sometimes it is a preferable first step to engage professional assistance for the fact-finding process. However, when allegations are brought against a member, it is important for organizations to both follow their own rules as well as any rules of natural justice which may apply. This will include allowing a person to respond to the allegations against them.

   
 

Read the May 2022 Charity & NFP Law Update