Wong v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia,


2005 BCCA 509

Date: 20051021

Docket: CA032339


Randy Wong




The College of Traditional Chinese Medicine
Practitioners and Acupuncturists of British Columbia





The Honourable Madam Justice Prowse

The Honourable Mr. Justice Donald

The Honourable Mr. Justice Hall


R.N. McFee, Q.C. and M.J. Westphal

Counsel for the Appellant

R.M.L. Basham, Q.C. and V.H. Stewart

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

23 September 2005

Place and Date of Judgment:

Vancouver, British Columbia

21 October 2005


Written Reasons by:

The Honourable Mr. Justice Donald

Concurred in by:

The Honourable Madam Justice Prowse

The Honourable Mr. Justice Hall


Reasons for Judgment of the Honourable Mr. Justice Donald:

[1]                On 7 November 2003, the College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia (the "College") terminated Randy Wong ("Wong") from his position as registrar.  This is a statutory office entitling Wong to procedural fairness.  In a petition for judicial review challenging the termination, Wong alleged denial of procedural fairness.  The reviewing judge dismissed his petition:  (2004), 35 C.C.E.L. (3d) 216, 2004 BCSC 1212.

[2]                In my respectful opinion, the reviewing judge erred in mixing the merits of the decision to terminate with the process of termination.  Further, she made a palpable error of fact in holding that Wong had notice of all the grounds for firing him when clearly and indisputably he was not aware of a report accusing him of dishonesty.  The report formed the principal basis for the College's decision.  Wong had no notice of the report nor was he given an opportunity to address it prior to termination.  This amounts to a denial of procedural fairness.  Having been denied procedural fairness, he is entitled to an order quashing the decision to terminate him, reinstatement on terms later described with full back pay and benefits, less income from other employment earned in the meantime, and I would so order.


[3]                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 nine-member board of directors.  Section 21(1) of the Act provides for the appointment of registrar who is responsible for the overall administration of the College, including financial matters.

[4]                For about three years, beginning in 2000, the board told Wong to implement an accounting system but despite assurances he did not do so.

[5]                In July 2003, the College's auditor found that none of the financial transactions for the previous year had been recorded in an accounting system, despite the fact that the auditor had provided Wong with an accounting system in September 2002.  Without any accounting entries, the College could not produce and make available its financial statements, as required by its bylaws.  The College and Financial Committee therefore took charge of the matter and retained an accountant.

[6]                The bookkeeping issue, and other irritants, came to a head in October 2003.  The reviewing judge provided a narrative of the relevant events in her reasons at paras. 12-17:

[12]      In October 2003, being concerned with Wong's actions and inactions in failing to implement an accounting system, in refusing to provide financial documents, in failing to provide financial statements to the Board, in failing to adequately prepare the budget, and in continuing to fail to cooperate with the Board, the Board retained the services of Mew & Co., Chartered Accountants to perform a special investigation audit of the College's financial affairs.

[13]      Over the next several months new issues arose.  Wong's improper transcription of Board minutes led to a Board decision that all Board meetings be tape-recorded.  A complaint was advanced by the president of the QATCMA (Qualified Acupuncturists and Traditional Chinese Medicine Association) about difficulties dealing with Wong. 

[14]      On October 17, 2003 the Board Chair, Mr. Mason Loh ("Loh"), met privately with Wong.  Wong complained of the Board's failure to support him and what he perceived as its infringement on financial matters, which he insisted fell strictly under his management responsibility.  Loh responded and pointed out the various ways in which Wong was not fulfilling his duties, nor following the Board's directions.  Wong promised to correct these matters and to cooperate with the Board. 

[15]      However, at the Board luncheon meeting which followed on October 19, 2003, Wong refused to commit to any changes or to cooperate with the Board.  He insisted the Board had not conducted itself properly and had not adhered to its bylaws. Nevertheless, it was agreed that members of the Board and Wong would maintain a united front at the upcoming QATCMA meeting. 

[16]      At the QATCMA meeting which followed, Wong openly attacked the Board and referred to the Board's alleged failure to comply with its own bylaws. 

[17]      On November 5, 2003 Mew & Co. provided its audit investigation and report to the Board.  The 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 funds and diversion of property belonging to the College.  The Board met to discuss the report at great length and ultimately was unanimous in its decision to terminate the petitioner's employment.  The petitioner was given a termination letter at the time he was dismissed, which set out the reasons for dismissal.

[7]                The grounds for dismissal were set out in a letter from the College dated 7 November 2003:

Dear Mr. Wong:

We write to advise that your employment with the College is terminated effective immediately, for cause.

After an extensive audit investigation, we have discovered a number of your actions breach your duty of fidelity, honesty and loyalty to the College.  A sample of the specifics of these breaches are as follows:

•           You have claimed and collected a large sum of money in payment of overtime to which you have no entitlement under your contract or at law.  In doing so, you took advantage of the trust relationship you have with the Board;

•           You have claimed and collected vacation pay for a period of time when you were retained as an independent contractor with the College.  Again, you were not entitled to vacation pay for this period and to obtain it, you took advantage of the trust relationship you have with the Board;

•           You have deliberately claimed reimbursement for expense monies to which you were not entitled.  Your conduct in this regard has occurred on a number of occasions and cannot be characterized as inadvertent;

•           You have appropriated capital assets you purported to purchase for the College and for which you were reimbursed;

In addition to these actions, your continuing refusal to cooperate with the Board, specifically to provide financial information in a timely way, to respond to requests for information from Board members, to implement a computerized accounting system, to provide a taping system for Board meetings amount to insubordination.

Attached to this letter you will find a cheque for wages to date and vacation pay accumulated but unused.  From this amount we have deducted the vacation pay improperly claimed for the period when you were a contractor to the College.  Your Record of Employment will be forwarded to you shortly.

You are required to return all College equipment, files, and information in your possession including any back-up tapes or other College materials and equipment you may have at your home.  In addition, you will give us today any credit cards, security cards and keys belonging to the College.  In return we will provide you with a receipt for same.

You are reminded that the duty of confidentiality which attaches to the position as Registrar of the College is an obligation which continues following your termination.  You may not use any confidential College information for any purpose.

It is the Board's direction that you not return to the premises of the College from this point forward.  Your personal possessions will be packed and returned to you.  All access codes, locks and alarm codes have been changed.  Should you return to the College's premises without the express, written permission of the Chair of the Board, the staff has been instructed to treat your entry as a trespass and to contact the RCMP to effect your removal.  We trust this will not be necessary and you will respect the wishes of the Board.  You are also requested not to telephone or email the College staff.

It is with sadness and disappointment that the Board has found it necessary to take this action.

Yours truly,


Mason Loh, Q.C.


[8]                On 20 November 2003 Wong's solicitor wrote to the College's solicitor demanding reinstatement and proposing that they enter into discussion for a "fair and expeditious process" if the College wished to pursue termination.  This offer was not taken up and so the petition was filed.


[9]                In her reasons, the reviewing judge discussed two of the leading cases in this area:  Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.  The first decision established the right of a statutory office-holder to procedural fairness; the second set out factors relevant to the content of the duty of fairness.

[10]            The judge embarked upon a discussion of "the appropriate standard of review" at para. 25:

[25]      In this case I do not intend to engage in an exhaustive analysis of the appropriate standard of review.  Assuming, but without finding, that the appropriate standard of review is reasonableness simpliciter, this Court’s role is not to substitute its own view of the facts for that of the Board to come to a different decision, but rather to determine whether or not the Board’s decision was unreasonable and ought to be set aside.  A court must not interfere unless the party seeking review has positively shown that the decision, taken as a whole, was unreasonable.  If any of the reasons that are sufficient to support the conclusion are tenable, in the sense that they can stand up to a somewhat probing examination, the decision will not be unreasonable and the reviewing court must not interfere.  The decision may satisfy the standard if it is supported by a tenable explanation.  Even if this explanation is not one which the reviewing court finds compelling, a reviewing court should not seize on one or more mistakes which do not affect the decision as a whole (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247).

[11]            Having summed up Wong's submission to the effect that he was entitled to formal notice of the allegations against him and an opportunity to be heard, the judge wrote at paras. 26-29:

[26]      Considering the statutory framework, the terms of the petitioner's employment contract and the close communications and dealings between the Board Chair and the petitioner, I am not persuaded that even if there was a duty to act fairly, such a duty required any formal hearing in advance of the Board's decision to terminate the petitioner's employment.

[27]      I am satisfied that by virtue of his earlier meeting with Loh on October 17th, and his subsequent meeting with the Board on October 19th, Wong was well aware of the Board's underlying complaints.  He had a full opportunity to be heard both by Loh, in their private meeting, and later at the Board meeting called to review the matter.  In my view, 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.  Here, I am satisfied there was a fulsome communication of the broad grounds of dismissal in advance of the termination. 

[28]      Wong has said that he [was] unaware of any problems in his employment, and that while he took from his discussions with the Board members, that there were certain outstanding issues regarding his day-to-day management of the College, he did not perceive his employment was in jeopardy.  He insists he was unaware of the particulars of any of the problems complained of by the Board until some six weeks following his dismissal, when he received a copy of the investigation audit report prepared by Mew & Co.  In my view, this evidence is disingenuous and is completely contradicted by the body of evidence tendered by the College.  Further, this position flies in the face of Wong's difficult tenure as Registrar and the fact that all of the complaints had been raised at least six months prior to his dismissal. 

[29]      I conclude there are no grounds for reinstatement in this case.  Reinstatement is a discretionary remedy.  In any case, I note the courts are extremely reluctant to order an employee's reinstatement, particularly where the circumstances show the working environment has been soured or the conduct of the employee would not be conducive to the effective operation of the employer's business (Cimolai v. Children's and Women's Health Centre of British Columbia [(2003), 14 B.C.L.R. (4th) 199, 2003 BCCA 338].  Here, I accept that as a result of the petitioner's conduct, the Board has lost all trust and confidence in the petitioner and that it would indeed be untenable for the petitioner to be reinstated to a position of trust in which he controls the College funds.  In this regard, it should be noted that up to this point, the petitioner has yet to explain or respond in any way that to the alleged evidence of his deception and defrauding of the Board.


[12]            There is no dispute that, as registrar, Wong was owed a duty of fairness in the process of termination.  At issue on this appeal is:

1.         the content of the duty;

2.         whether the duty was breached; and if so,

3.         the appropriate remedy.


Content of the Duty

[13]            On appeal, Wong argues that his case succeeds on the minimal standard of procedural fairness and therefore it is not necessary for him to assert any higher standard.  In Knight, the employee was an administrator holding office at pleasure.  As such he was entitled only to the minimal standard described by L'Heureux-Dubé J. for the majority in this way at p. 683:

Since the respondent could be dismissed at pleasure, the content of the duty of fairness would be minimal and I would tend to agree that notice of the reasons for the appellant Board's dissatisfaction with the respondent's employment and affording him an opportunity to be heard would be sufficient to meet the requirement of fairness.

This is the standard applicable to Wong since he held office at pleasure (subject to his employment contract).

[14]            Since the content of the duty is uncontroversial, I will proceed to the next issue; namely, whether there was a breach of the duty.

Breach of the Duty

[15]            The reviewing judge's finding at para. 28 of her reasons (quoted at para. 11 above) that "all of the complaints had been raised at least six months prior to his dismissal" is palpably wrong.  The finding is correct only in relation to the secondary grounds in the letter relating to insubordination.  As Wong correctly submits, prior to his termination the College went no further than to reprimand him with regard to complaints and gave no ultimatum or other indication that they were on the verge of firing him.

[16]            The termination letter makes it plain that the primary reason for Wong's dismissal was the dishonesty set out in the accountant's report.  Wong never saw the report before he was fired nor was he given any inkling that he was under suspicion of dishonesty.  With respect, the judge was incorrect in finding that Wong was aware of the grounds for his dismissal.

[17]            The judge's discussion of reasonableness as a standard of review (quoted at para. 10 of these reasons) is curious because the merits of the decision to terminate were not before her.  I infer that the judge assessed the conduct of the College in the process according to the standard of reasonableness.  I fear that approach led her astray in reasoning that since the College made many of their complaints known to Wong ahead of time it was not unreasonable to fire him without giving him notice of the dishonesty allegations.

[18]            Either the rules of procedural fairness were observed or they were not.  Reasonableness does not come into the picture.  The following portion of Binnie J.'s decision in Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29 at paras. 102-3, makes the point:

The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations.

On occasion, a measure of confusion may arise in attempting to keep separate these different lines of enquiry. Inevitably some of the same "factors" that are looked at in determining the requirements of procedural fairness are also looked at in considering the "standard of review" of the discretionary decision itself. Thus in Baker, supra, a case involving the judicial review of a Minister's rejection of an application for permanent residence in Canada on human and compassionate grounds, the Court looked at "all the circumstances" on both accounts, but overlapping factors included the nature of the decision being made (procedural fairness, at para. 23; standard of review, at para. 61); the statutory scheme (procedural fairness, at para. 24; standard of review, at para. 60); and the expertise of the decision maker (procedural fairness, at para. 27; standard of review, at para. 59). Other factors, of course, did not overlap. In procedural fairness, for example, the Court was concerned with "the importance of the decision to the individual or individuals affected" (para. 25), whereas determining the standard of review included such factors as the existence of a privative clause (para. 58). The point is that, while there are some common "factors", the object of the court's inquiry in each case is different.

[Emphasis in text.]

[19]            See also Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11, where Arbour J., writing for the court said, at para. 74:

The third issue requires no assessment of the appropriate standard of judicial review. Evaluating whether procedural fairness, or the duty of fairness, has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation. (See generally Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, and Baker, supra.)

[20]            The College endeavoured to support the reviewing judge's decision on the argument that there were ample grounds for dismissal prior to the audit report, that the Board had lost confidence in Wong, that he was aware of those grounds and that his job was at risk, and therefore it did not matter that Wong received no notice of the dishonesty allegations.  Put another way, the College's argument is that lack of notice on later grounds did not invalidate the earlier grounds about which there can be no allegation of breach of fairness.

[21]            This argument ignores the reality that Wong was fired for dishonesty, the College having earlier decided to carry on with him despite the lack of an accounting system and the other problems.  The termination letter cannot be read any other way.  The insubordination grounds appear as additional reasons but they are clearly secondary or subsidiary to the dishonesty grounds.  Moreover, the operative grounds alleged theft, fraud, and other dishonest acts which trigger a natural justice requirement that Wong have the opportunity to clear up those accusations directly with the board, if he can, before his reputation in the community is ruined.  I endorse what was said by the New Brunswick Court of Appeal in Lasch v. Miramichi Planning District Commission (2000), 49 C.C.E.L. (2d) 142 at para. 6:

It is trite law that an employee to whom a duty of procedural fairness is owed by the employer may be heard without a formal hearing as such. That being said, the fact remains that the employee must be heard on the relevant issues and in such a way that he or she is given a fair opportunity to present his or her case and to influence the decision-maker. The right to be heard also includes not only the right to challenge the grounds upon which disciplinary action might be taken by the employer but, as well, the right to plead, if necessary, in favour of leniency.

[22]            Wong was given no such opportunity.  The College breached the duty of fairness and the reviewing judge erred in finding otherwise.


[23]            The College submits that Wong has never denied the allegations and therefore ought not to receive the court's favourable exercise of discretion.  The College further submits that Wong can deal with the harm to his reputation by an action for wrongful dismissal or defamation and so it is unnecessary to reverse the process of termination at this stage.

[24]            These arguments merge process with substantive issues.  The two must remain separate for a clear-headed analysis.  As for the lack of denial, Wong's petition is for the opportunity to make his case before the College board; it would have been inappropriate for him to debate the merits in a judicial review petition.  Suits for wrongful dismissal and defamation do not provide an adequate alternative remedy to the claim for procedural fairness Wong seeks in this case.  This is because neither form of action could reinstate him to his office as registrar.  The "Harelkin doctrine", regarding exhaustion of remedies, Harelkin v. University of Regina, [1979] 2 S.C.R. 561, has no application here.

[25]            Is there any point in giving Wong a chance to put his position before the board given the history of the parties' relationship?  First of all, we are cautioned not to speculate how things might turn out, lest a fundamental right be lost without our knowing all the facts.  I refer to the statement of Le Dain J. for the court in the landmark case of Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 at 660-1.  In what follows, Le Dain J. refers to the reasons of this Court in the case:

It is a possible implication of their [this Court's] approach that they were of the view that given the Director's reasons for refusing to follow the recommendation of the Board a hearing by him of the appellants would not serve any useful purpose. Certainly a failure to afford a fair hearing, which is the very essence of the duty to act fairly, can never of itself be regarded as not of "sufficient substance" unless it be because of its perceived effect on the result or, in other words, the actual prejudice caused by it. If this be a correct view of the implications of the approach of the majority of the British Columbia Court of Appeal to the issue of procedural fairness in this case, I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.

[26]            Second, the situation appears to be dynamic with shifting internal politics in the College.  Wong may face a differently constituted board if given the opportunity to answer the accusations.

[27]            Third, Wong's counsel gave us a preview of some of the arguments available to Wong in attacking the audit report.  For example, it seems that the allegation regarding the largest item, approximately $47,000, depends on the accountant's interpretation of the employment contract and he may have misconstrued the contract.  So, even if we could examine the efficacy of the remedy, I cannot say that it is an exercise in futility.

[28]            In my view, reinstatement is an appropriate remedy in this case.  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 follows that Wong never lost his office and, unless there is a strong reason for doing otherwise, we ought to exercise our discretion and restore him to that office.  This will give him the full status to make his case to the board.

[29]            On the footing that, at law, Wong never lost his position, he should receive full back pay and benefits, less earnings from other employment.

[30]            The College resists reinstatement on the grounds that the College has replaced Wong and the Act does not provide for more than one registrar; that there was ample cause for firing him for insubordination which pre-existed the College's default; and that the relationship is so poisoned that to bring Wong back into the organization would be unduly disruptive.

[31]            The order I would make for reinstatement avoids the first and third difficulties presented by the College:  Wong should be reinstated as registrar but the College need not bring him into active service.  The fact that he would be back on the payroll provides an incentive to the College to get on quickly with the natural justice hearing.  Unlike the petitioner in Cimolai, above, Wong needs no such incentive:  indeed, he proposed the development of a fair and speedy process shortly after termination.

[32]            I regard the College's reliance on the insubordination grounds as a weak attempt to bring the merits into a petition relating solely to process and I accordingly reject the submission.


[33]            In the result, I would set aside the order dismissing the petition.  I would quash the decision to terminate, reinstate Wong as registrar on the limited basis described above, and award full back pay and benefits less earnings from other employment.


“The Honourable Mr. Justice Donald”

I Agree:

“The Honourable Madam Justice Prowse’

I Agree:

“The Honourable Mr. Justice Hall’