Wang v. British Columbia Medical Association ,


2008 BCSC 1559

Date: 20081114
Docket: SO82439
Registry: Vancouver


Caroline Wang



British Columbia Medical Association
(Canadian Medical Association – B.C. Division),
Geoff Appleton, Evelyn Shukin, Carole Williams
and Michael Golbey


Before: The Honourable Madam Justice Ballance

Reasons for Judgment

Counsel for Caroline Wang:

M. Kevin Woodall

Counsel for the British Columbia Medical Association and Geoff Appleton:


Ron A. Skolrood

Counsel for Evelyn Shukin, Carole Williams and Michael Golbey:


Date and Place of Hearing:

Robert W. Cooper and

Joelle Walker


April 10 & 11, 2008

Vancouver, B.C.









[1]            The petitioner, Dr. Caroline Wang, is a member of the respondent, the British Columbia Medical Association (the “BCMA”).  She has been an elected director of the BCMA for six consecutive terms, and at the time of this hearing, was running for a seventh.  As well, Dr. Wang was elected as the honourary secretary-treasurer of the BCMA in 2007 and has held that office since then. 

[2]            The BCMA is a society created under the Society Act, R.S.B.C. 1996, c. 433 of British Columbia.  All members of the College of Physicians and Surgeons of British Columbia are eligible for membership in the BCMA upon completing an application and paying the prescribed fees.  Although membership is not compulsory, the vast majority, approximately 90-95%, of physicians in British Columbia are BCMA members.

[3]            The respondent, Dr. Geoff Appleton, is president of the Board of directors of the BCMA.  The other individual respondents are also members of the Board.  They are also members of a special committee to be discussed at length in these reasons.

[4]            Stated in general terms, Dr. Wang seeks a number of orders which have as their dominant goals: dissolving the special committee; restraining individual members of that committee from exercising their committee powers, preventing the BCMA from exercising its powers relative to the special committee; restraining the BCMA from receiving the report(s) of that committee and prohibiting the communication of the contents of any such report(s) to the membership.


(a)        Overview of the Structure of the BCMA

[5]            Although the BCMA is a voluntary association, it has a number of functions that affect the interests of medical professionals in British Columbia.  The purposes of the BCMA are enumerated in its constitution.  Included among those purposes are: to advance the scientific, educational, professional and economic welfare of all members of the medical profession in B.C.; to promote the highest quality of health care delivery for the people in B.C.; to promote the integrity and honour of the medical profession; to serve and further the interests of the Canadian Medical Association in British Columbia; and, to act for its members as an agent in collective bargaining regarding conditions in which medical services are rendered, remuneration for medical services and similar or related matters.

[6]            The affairs and business of the BCMA are managed by the Board.  The Board is comprised of delegates who represent geographic districts, a representative of the Society of Specialists, a representative of the Society of General Practitioners, and a number of past officers of the BCMA.  It is also comprised of the current officers of the BCMA namely, the president, president-elect, immediate past president, chair of the general assembly, and the honourary secretary-treasurer, which is the office currently held by Dr. Wang.

[7]            The Board has an elected executive committee composed of the five officers of the BCMA, two other directors and the chair of the Board.  The executive committee exercises the powers and functions of the Board between meetings, subject to any restrictions that may be imposed by the Board.  Actions of the executive committee must be ratified by the full Board.  By virtue of her office as the honourary secretary-treasurer, Dr. Wang is a member of the executive committee.

(b)       Past Debates between the Board and Dr. Wang

[8]            The BCMA was conceived as a democratic organization which facilitates the active participation of its members.  According to Dr. Wang, for the past several years, there has been a debate within the BCMA membership, and among members of the Board and the executive committee in relation to issues touching on the governance of the BCMA.  She says that there are two competing views.  One view is that the BCMA is, or should be, run using a top-down corporate approach.  In this model, the Board and executive committee would have the power to make decisions with a minimum of membership participation between elections.  The other view is that the BCMA is a representative, grassroots organization intended to reflect the interests and views of the membership.  Under the latter paradigm, proceedings of the Board and of the executive committee would be shared with the BCMA membership unless there was a specific and overriding concern to maintain confidentiality.  Dr. Wang describes herself as a proponent of this second view.  She campaigned on that platform when she ran for and was elected the honourary secretary-treasurer in 2007.

[9]            Dr. Wang says that her views are not necessarily shared by her fellow Board members.  She has often found herself in a position of dissent, particularly on matters pertaining to the Board’s openness and transparency in communicating with its members.  Dr. Wang believes that some Board members, including some sitting on the executive committee, have reacted negatively to her approach and stated views.  She has singled out the respondent, Dr. Golbey, as a member of the Board and executive committee with whom she has frequently been engaged in direct debate concerning the governance of the BCMA.  She says that over the years she and Dr. Golbey have been at odds over a number of issues and that they are well known in the BCMA as political opponents.

[10]        In her affidavit, Dr. Wang refers to a number of matters where she, on the one hand, and Drs. Appleton and Golbey on the other, have held opposing views about what is in the best interests of the BCMA and its members.  The recurring theme underlying these disagreements is the governance of the BCMA.  Dr. Wang has challenged the position of the majority of the Board on governance issues on several occasions.

[11]        One instance that Dr. Wang offers as exemplifying the ongoing debate about BCMA governance harkens back to 2005.  In the summer of that year, the general practitioner membership of the BCMA was given an opportunity to vote in a referendum to ratify a funding allocation/reallocation proposal (the “GPSC Proposal”).  Although the GPSC Proposal had Board approval, Dr. Wang spoke out against ratifying it because she was concerned that it was seriously flawed and that it could set a negative precedent for the medical profession in British Columbia.  In July 2005, she proposed a motion that the Board provide a summary of the advantages and disadvantages of the GPSC Proposal when it distributed the referendum ballots to the members.  Her motion did not carry.  Instead, the Board sent a letter from Dr. Golbey asking the members to vote in favour of the referendum, despite its acknowledged shortcomings.

[12]        According to Dr. Wang, at the request of a number of BCMA members and former presidents of the Society of General Practitioners, she drafted a summary of the contrary viewpoints about the GPSC Proposal.  At her own cost, she circulated her summary to the members of her district and, at the request of many general practitioner members outside of her district, she later distributed it to all general practitioners in British Columbia.

[13]        The BCMA membership ultimately rejected the Board’s recommendation and voted against the GPSC Proposal.  Dr. Wang believes that Dr. Golbey and other Board members blame her for that defeat.

[14]        The Board subsequently obtained a legal opinion concerning the entitlement of a director to communicate a dissenting opinion to the membership.  The Board was particularly interested in knowing whether broadcasting a dissenting viewpoint violated a director’s fiduciary duty.  A copy of that opinion is not in evidence.  I accept that it equated a director’s expression of dissent about a Board approved position outside the confines of a Board meeting to a breach of that director’s fiduciary duty.

[15]        Dr. Wang questioned whether the Board’s legal opinion was correct.  She proceeded to obtain a second legal opinion, at her own expense, about whether a director was precluded from expressing dissent to BCMA members.  The legal opinion obtained by Dr. Wang in May 2006, stated, in relevant part:

Far from being precluded from expressing your dissent to BCMA members, it is our opinion that, subject again to the limitations above, it would be incompatible with the proper exercise of your fiduciary duty to the Association, not to speak out on important issues facing the BCMA membership generally and that, indeed, it is your duty to do just that. Moreover, there is no authority granted to the Board under the BCMA's Constitution and Bylaws to prohibit or sanction the expression of dissent by Directors, under the Directors' Code of Conduct, or otherwise. We would expect that to be a principle in which all Directors might take comfort.  [underline emphasis in original]

[16]        It is amply clear on the evidence that Dr. Wang and the Board and other like-minded Board members had become engaged in a major and ongoing controversy over the entitlement of a member of the Board or executive committee to express dissent of Board decisions and the acceptable parameters of such dissension.

(c)      Code of Conduct

[17]        On November 24, 2006, the Board passed a resolution, which it later amended on April 13, 2007, by which it established a written Code of Conduct for directors.  The Code of Conduct articulates the minimum standard of conduct required of all directors of the BCMA.  It is extremely broad in scope.  Not only does it identify specific duties requiring compliance, it contains a catch-all provision with the effect that a director who fails to comply with the constitution, the bylaws, or policy of the Board or any applicable law or regulation, is in breach of the Code.

[18]        I do not propose to recite the entirety of the Code of Conduct.  Instead, I will summarize some of the key provisions:

·         Directors must act honestly, in good faith, and with a view to the best interests of the Association as a whole and must exercise the care, diligence and skill of a reasonably prudent person in exercising their powers and performing their functions as directors;

·         Directors must make decisions in the best interests of the BCMA as a whole, meaning all members, rather than in their own interests or in the interests of any particular area;

·         Directors must complete a written disclosure of conflicts or potential conflicts of interest to all the other directors.  A conflict of interest is defined as “any direct interest in any matter that may influence or appear to a reasonable person to influence the ability of a director to act in the best interests of the association.”  A conflict of interest, which includes the appearance of a conflict of interest, may exist due to personal or professional activities, memberships or positions, financial or business interests, or an interest in a contract or transaction involving or potentially involving the association.  A director who has a conflict of interest may be required to leave a board meeting during any period when the matter giving rise to the conflict is being discussed.

·         Directors are to maintain the confidentiality of the information they acquire by virtue of being directors.

·         Directors must deal with each other openly, honestly, truthfully and in good faith and are to observe proper decorum at all meetings.  The interactions of directors in meetings must be courteous, respectful, and free of animosity.

·         After a Board decision is made, a Board member is free to comment on it to BCMA members or to the general public, but it is expected to present a balanced view of arguments in favour and against the decision.  While communicating to BCMA members or the general public about a Board decision, a Board member is expected to convey a message of respect for the Board’s decision making processes, and a message of acceptance of the decision as a valid outcome of Board deliberations, even if he/she has voted against it.  Board members are expected to refrain from actively campaigning against a validly made Board decision, and are expected to refrain from blocking or undermining its implementation.

[19]        Of particular relevance to the case at hand is the final portion of the Code of Conduct which addresses directly the consequences of a director’s failure to comply with the Code of Conduct (the “Non-compliance Provision”).  It is reproduced below:

Consequences of Non-Compliance with this Code of Conduct

Any complaint of non-compliance with this Code of Conduct shall be referred to a committee comprised of the Immediate Past President, Director who is not a member of the Executive Committee, and a non-Director Parliamentarian (or such other committee as the Board of Directors may constitute) who shall investigate the matter with respect and impartiality and report to the Board with their recommendation.

Consequences for non-compliance with this Code of Conduct will be as determined by the Board and may include any one or more of the following:

·         Censure

·         Exclusion from debate on any matter related to the non-compliance

·         Letter to the director

·         Request for resignation

·         Recommendation of a special resolution to remove the Director

(d)     DOCLOUNGE Emails

[20]        Dr. Wang considers that one of her duties as a member of the Board and executive committee is to bring forward issues of concern to the membership.  To that end, she is a member of an online discussion group called DOCLOUNGE.  Dr. Wang states that membership on DOCLOUNGE is confined to physicians, most (if not all) of whom are members of the BCMA.  In her affidavit, she explains that comments made on DOCLOUNGE are not available to the general public outside of the medical profession.

[21]        A topic of interest being discussed on DOCLOUNGE for several months in 2007 was the increasing amount of paper work and forms that physicians were being asked to complete for little or no compensation.

[22]        Dr. Wang’s discussions with BCMA members, including those on DOCLOUNGE, indicated to her that the burden imposed on physicians by these forms had become a priority issue for many members.  With that in mind, she proposed a motion at a Board meeting held on November 30/December 1, 2007 to the effect that the BCMA strike a committee to study and evaluate the forms matter and to consider appropriate remuneration and ways to avoid the unnecessary taxing of physicians’ time (the “Forms Motion”).

[23]        The Board decided not to establish the committee urged by Dr. Wang.  Instead, it opted to refer the Forms Motion to the executive committee for study.  The executive committee planned to discuss the Forms Motion at its meeting on January 18, 2008.  The day before that meeting, Dr. Wang circulated an email on DOCLOUNGE reporting on the Board’s decision.  She invited suggestions from members and informed them that the executive committee would be considering the issue the following day.  Later that day, she circulated a second email on DOCLOUNGE thanking members for their input and confirming that she would bring their suggestions to the executive committee meeting.

[24]        The executive committee decided to refer the matter to staff for further study.  The referral did not include any time frame within which the staff were to report back to the executive committee.  The lack of a fixed time line concerned Dr. Wang.  On January 20, 2008, she posted an email on DOCLOUNGE notifying members of the executive committee’s decision and included an explanation of what she understood to be the reason for it.  Her email also informed members that the executive committee would have to report back to the Board on its decision to refer the matter to staff.  Dr. Wang told members that they could contact Dr. Appleton and/or their district delegate if they wanted to make their views known prior to the February Board meeting, where the decision of the executive committee would be considered by the Board for ratification. 

[25]        On the next day, January 21, 2008, Dr. Wang circulated another email on DOCLOUNGE about another hot topic.  The controversy surrounded an upcoming referendum aimed at altering the overall model of governance of the BCMA.  The email also addressed her separate but related concerns about the method used by the Board to appoint members to various BCMA committees.  The nub of the latter issue centred around her discovery that not all of the nominees’ names were given to the Board by the Governance and Nominating Committee as part of the committee selection process.  Dr. Golbey is the chair of the Governance and Nominating Committee.  Dr. Appleton is also a member of that committee.

[26]        It was Dr. Wang’s view that the Board should be provided with the names of all candidates, not just the slate recommended by the Governance and Nominating Committee.  She was concerned that the members had not been given sufficient information to enable them to appreciate the committee appointment issue in a meaningful way and its potential impact on the larger referendum issue.  She, therefore, provided additional information on DOCLOUNGE about the debate, including the text of a defeated motion that she had proposed which endorsed giving the Board the names of all potential candidates.

[27]        The thrust of Dr. Wang’s evidence, which I accept, is that the debates over these and other issues pitted her against Dr. Golbey, in particular, and others on the Board.  Although Dr. Golbey agrees that he and Dr. Wang have disagreed in the past on matters before the Board, he rejects her characterization of them as well known political opponents.

[28]        As will be seen, the DOCLOUNGE emails sent by Dr. Wang in January 2008 concerning the Forms Motion and the committee selection process were to cause the president and other Board members concern about the propriety of Dr. Wang’s conduct.  I will refer to these emails collectively as the “DOCLOUNGE Emails”.

[29]        Sometime before February 2008, Dr. Wang emailed Dr. Robin Saunders, the chair of the Board, to request that the issue of confidentiality and the Code of Conduct be put on the agenda for discussion at the February Board meeting.  She says that Dr. Appleton was also aware of her agenda item request.  Dr. Wang’s request was prompted by what she perceived to be breaches of confidentiality by some Board members of her private emails and inconsistent approaches taken by some Board members regarding confidentiality.  She wanted to have the entire issue of confidentiality clarified, and work toward the development of a policy on a principled basis.  She claims, and I accept, that Dr. Saunders agreed to do so.  For reasons not explained on this application, Dr. Wang’s questions about leaks of her confidential emails were not placed on the agenda of the February Board meeting.

(e)     February 1-2, 2008 Board Meeting

[30]        The regularly scheduled two-day Board meeting for February began on Friday, February 1.  Dr. Wang was present throughout the day.  She assumed that it was business as usual at the meeting.  She had no reason to suspect otherwise.  She was unaware that some of her fellow board members had planned to raise for discussion a matter not shown on the agenda.

[31]        The last item on the agenda for February 1, was the president’s report.  Normally, the meeting would have adjourned by 5:00 pm.  However, at 5:15pm, Dr. Appleton raised the matter of Dr. Wang’s DOCLOUNGE Emails.  Dr. Wang had been given no prior notice that this subject was going to be discussed.

[32]        I accept Dr. Wang’s evidence that Dr. Appleton opened the discussion by saying that Dr. Wang’s DOCLOUNGE Emails were of “major concern” to him and the executive committee.  He referred to the “seriousness of the situation” in that “senior management expressed significant concern of the functioning of the executive committee”.  Dr. Wang claims that Dr. Appleton actively participated in the discussion and spoke against her in strong language.  She describes the involvement of the respondent, Dr. Carole Williams, in similar terms.  Dr. Appleton suggested that by sending the DOCLOUNGE Emails, Dr. Wang had breached the Code of Conduct.

[33]        In the course of the discussion, Dr. Wang says that she was asked to step down as director and honourary secretary-treasurer pending a decision by the “conduct committee”.  She refused.  She was also repeatedly asked to leave the meeting.  Again, she refused.  Dr. Wang says that some Board members made vague allegations that she was in a conflict of interest position merely by remaining at the meeting. 

[34]        At the time, Dr. Wang voiced an array of concerns including that the entire process was infringing her entitlement to natural justice and contrary to due process.  She asked for the right to legal counsel.  She asked why, if the matter was considered to be so serious, she had not been given advance notice so that she could properly prepare to discuss the Board’s stated concerns.  In her defence, Dr. Wang pointed out that the portion of the executive committee meeting where the Forms Motion had been referred to staff, and which she had mentioned in one of her DOCLOUNGE Emails, had not been conducted in camera and was not confidential.  She says that this remark prompted Dr. Carole Williams to make a motion that all future meetings of the executive committee be conducted in camera

[35]        The chair allowed the discussion to continue for nearly one hour.

[36]        It is the ordinary practice of the Board to circulate written agendas with documents relating to agenda items to all directors in advance of a Board meeting.  The subject of Dr. Wang’s participation in the DOCLOUNGE Emails had not been placed on the formal agenda.  There can be no doubt that several Board members in attendance, were well aware that the DOCLOUNGE Emails would be raised for discussion at the close of the first meeting day.  There had been plenty of time throughout the day for the Board members to pay Dr. Wang the simple courtesy of alerting her to what lay ahead.  However, no one bothered to mention it to her. 

[37]        The Board meeting reconvened on the morning of Saturday, February 2, as scheduled.  This time, the Board’s legal counsel was in attendance.  Legal counsel is not typically present at Board meetings. 

[38]        Before the meeting was called to order, the chair asked Dr. John Turner, a past-president who had attended the meeting the day before, to address the Board.  Dr. Turner expressed his view to the effect that the “authority of the chair… must be maintained”.  He went on to state that to challenge the chair’s authority the person “should resign or be treated as persona non grata.”  He was clearly speaking about Dr. Wang.  His remarks reflect that he had taken a very dim view of her conduct during the previous day’s meeting.  The chair did not permit Dr. Wang to respond to Dr. Turner’s comments.

[39]        Dr. Wang claims that Dr. Turner’s negative comments set the tenor of the Board’s discussion for the rest of the day.  She recounts that there were repeated attempts by the chair and other directors to expel her from the meeting.  This was the case even where issues unrelated to her DOCLOUNGE Emails were being discussed, such as the referendum to modify the governance structure of the BCMA.  The Board’s legal counsel voiced the opinion that Dr. Wang could be excluded from the debate.  There were renewed requests she leave the room.  The same legal counsel had authored the opinion to the Board in 2005 about the scope of a director’s entitlement to express dissent publicly, and with whom Dr. Wang’s lawyer had disagreed.  Dr. Wang was steadfast in her refusal to leave the meeting or resign her office.  She recalls that a few Board members suggested that she should be denied the right to speak for the balance of the meeting.

[40]        Dr. Wang deposes that Dr. Carole Williams was very active in the discussion of whether she should be required to leave the meeting.  The general tenor of her comments were that Dr. Wang was committing misconduct simply by refusing to leave.

[41]        It was troubling to Dr. Wang that the Board had arranged in advance to have legal counsel present to discuss her ejection from the meeting.  She had not had a reasonable opportunity on Friday evening to retain her own legal counsel for the Saturday meeting.  Dr. Wang once again asked for the right to speak to her own legal counsel.  I accept that in doing so and in refusing to leave the Board meeting, Dr. Wang did not intend to defy any legitimate decision of the Board or its chair.  She simply wished to consult counsel, as the Board had obviously done, on whether it was lawful to exclude her from participating in the debate.  Her request for an opportunity to speak to her own legal counsel was not accommodated by the Board.

[42]        Around mid-morning, the chair asked observers to leave the room.  He then conducted the next part of the meeting in camera.  He posed two questions to Dr. Wang.  The first question was along these lines: would she agree to hold the minutes and proceedings of executive meetings in camera?  The second question was whether she would agree to abide by the ruling of the chair and the Board.  Dr. Wang says that the chair would not allow her to answer in her own words.  She further claims that she was not permitted to comment or give explanations in response.  Instead, the chair insisted that she give a “yes” or “no” answer.

[43]        By this stage, Dr. Wang felt that she had become the target of an inquisition. 

[44]        Eventually, a motion was made and carried that the issue of Dr. Wang’s conduct be referred to a Code of Conduct committee.  That resolution is important.  I will return to it later in these reasons.

[45]        According to Dr. Wang, at 4:30 p.m. on February 2, a motion was brought to the floor by two senior Board members resolving that “the president is directed to advise the members that a committee has been appointed to investigate allegations of breach of the Code of Conduct by Dr. Caroline Wang, the committee being constituted of Drs. Golbey, Shukin, and a parliamentarian, and that in so advising the members, the president otherwise maintains the confidentiality of the proceedings”.  Evidently, that motion was carried.

[46]        The Board did not specify any provision of the Code of Conduct or of the BCMA constitution or bylaws that Dr. Wang’s DOCLOUNGE Emails or any other conduct was said to violate.

[47]            Immediately after the meeting, Dr. Wang expressed her concern to the CEO of the BCMA about Dr. Golbey sitting on her conduct review committee and stated that she did not accept his involvement.  The CEO responded, “Leave it with me”, which Dr. Wang interpreted to mean that her request that Dr. Golbey not participate would be honoured.

[48]        It is significant that none of the individual respondents or the chair, Dr. Saunders, disagree in any material way with Dr. Wang’s description of the goings-on during the February Board meeting.  I accept that her description represents an accurate account of what transpired.

(f)      Dr. Appleton’s February 2, 2008 Letter to the Membership

[49]        Just minutes before closing the meeting on February 2, Dr. Appleton sent an email letter to the entire membership of the BCMA.  The letter was sent on BCMA letterhead.  It was titled: “PRESIDENT’S LETTER”.  The contents of it are relevant to this application and, for that reason, are set out in full below:

February 2, 2008

Dear Colleagues:

Your Board of Directors met yesterday and today.  It is with some regret that I advise you that the Board has initiated action to review the conduct of one of our members.

The Board has activated a provision of the BCMA’s Code of Conduct to review some of Dr. Caroline Wang’s actions relative to her duties as a Board and Executive Committee member.  A series of events over a considerable period of time has led the Board to believe that this review is necessary to allow the Board to function, as it must, in order to meet its obligations to the membership.

This decision was not made lightly and it is certainly unfortunate that this action had to be taken.  The vast majority of the Board supported the need to conduct a review.

A three-person review team will address the specific issues that are in question.  It would be inappropriate for me to share the details of these issues prior to the review team’s assessment and judgment.  The review team includes Dr. Michael Golbey, a past president of the BCMA Board, Dr. Evelyn Shukin, a current BCMA Board member, and a parliamentarian, who is yet to be selected, will complete the team.

The Board requested that Dr. Wang step aside from her position as Honourary Secretary Treasurer while the review is being conducted.  She has elected not to do so.

While a firm deadline for the review has not been set, the team will complete its assessment as quickly as possible.  The BCMA will seek legal counsel as required to deal with this matter.  This circumstance may require that a special meeting of the BCMA membership at large be called.

I will update you on this issue when the review process is complete.


Geoff Appleton, MD

[emphasis added]

[50]        Dr. Appleton’s letter was rich with innuendo.  It did not identify any specific offensive conduct alleged to have been carried out by Dr. Wang.  Instead, it raised the spectre of her involvement in a “series of events” of misconduct that left it to the imagination of the members to speculate on the details.  Reporting that Dr. Wang had been asked to step aside from her position carries an accusation, by innuendo, that her misconduct under investigation was so grave that there was a danger in allowing her to remain in her post; there was a further accusation, by innuendo, that her decision not to step down was, of itself, improper.  

(g)     Events after the February Board Meeting

[51]        Not surprisingly, Dr. Wang retained her own legal counsel soon after the February Board meeting. 

[52]        Dr. Appleton’s February 2 letter sparked discussion among the membership.  On February 9, Dr. John Turner, the vice-delegate who had been present and spoke out against Dr. Wang during the February Board meeting, sent an email to DOCLOUNGE purporting to provide the viewpoint of “someone who has some knowledge of the BCMA and its various structures”.  Dr. Turner’s communication refers to the Code of Conduct at length and ties it directly to the Board review of Dr. Wang.  He poses some rhetorical questions about Dr. Wang’s conduct and states that whether she has “committed an offence or not under the Code, she is entitled to due process and an ad hoc committee has been duly constituted.”  Dr. Turner was especially critical of Dr. Wang’s refusal to resign from her elected position:

Under normal parliamentary procedure a minister who is under investigation for unethical or unparliamentary conduct should step down/ step aside or resign from their ministry or office during the investigation.  This I understand Dr. Wang has declined to do and while there is no doubt precedent I would suggest that an ethical officer of any organization should take that step until exonerated.

[53]        That same day, Dr. Carole Williams sent a brief email to DOCLOUNGE thanking Dr. Turner “for clarifying this issue”.  She referred to February 1 as “indeed a stressful and frankly sad day” and indicated optimism that “we will resolve this issue and be able to move on to the business of the organization”.

[54]        Shortly afterward, Dr. Williams nominated herself to serve and was appointed as a member of the special committee to review Dr. Wang’s conduct.

[55]        Dr. Wang says that in response to Dr. Appleton’s February 2 letter and the DOCLOUNGE emails of Dr. Turner and Dr. Williams, she decided that the BCMA members should be told more about the nature of her alleged misconduct and the surrounding circumstances.

[56]        I accept Dr. Wang’s evidence that for many years, the BCMA has had a practice of allowing delegates to the Board to use the BCMA membership list to send their own reports of proceedings to members.  It was this broadcast vehicle that Dr. Appleton had used to send his February 2 letter.  Dr. Wang asked, and was denied, permission to use that email distribution list to send a statement of her own to the members.

[57]        On March 3, 2008, at her own expense, Dr. Wang sent a letter to a number of BCMA members.  Sensitive to the issue of confidentiality, she kept her communication fairly cryptic, reporting on the accusation that she had breached confidentiality, her view of it and why she felt she was being treated unfairly.  Dr. Wang also contributed an article to the BC Medical Journal touching on the matter.  It was published in the March issue.  Dr. Appleton prepared a counter point of sorts which appeared in the same issue.

[58]        Proceedings at Board meetings have traditionally been tape recorded.  Dr. Wang understands that this has been the practice at the BCMA for over thirty years and that copies of the tapes are generally kept for two years.  Prior to the meeting of the executive committee on January 18, 2008, Dr. Wang asked, in writing and in person, for portions of certain transcripts and tape recordings.  The executive committee passed a motion that copies of the tape recordings and transcripts would not be released without a court order.  That decision was ratified by the Board at its February meeting.  The executive committee was also actively considering whether the tapes and transcriptions of past Board meetings should be destroyed once the minutes of the particular meeting were ratified.

[59]        On February 29, 2008, Dr. Wang’s legal counsel wrote to Dr. Appleton requesting that that the Board take practical steps to preserve the transcripts and audio recording of the February Board meeting for use as evidence.  On March 7, after receiving this request by Dr. Wang’s counsel, the executive committee resolved to destroy the tapes and transcripts of Board meetings.  Dr. Wang immediately advised her lawyer who, in turn, wrote to Dr. Appleton, once again requesting that the tapes and transcripts be preserved.  The executive committee did not reconsider its decision to destroy the tapes and transcripts.

[60]        On March 6, 2008, Dr. Appleton, in his capacity as president, sent a second letter to the membership.  The subject line read:  Re: Code of Conduct Review.  In it, he made references to the “Code of Conduct Review” relative to Dr. Wang.  He assured members that once the committee concluded its work, their report and recommendation would be made available to the membership.

[61]        On March 17, 2008, Dr. Wang’s counsel asked Dr. Appleton for a copy of the tape recordings and transcripts for the February Board meeting and the meeting held on November 30/December 1, 2007.  Dr. Appleton’s response was that Dr. Wang already had access to the transcripts of the November 30/December 1, 2007 meeting, and that if she wished to review the transcripts and tapes of the February meeting, she could do so at the BCMA office.  He stated that actual copies of the transcripts or tapes would not be made available to anyone.  The position of Dr. Wang was that reviewing the material at the BCMA office was not adequate because she may need to refer to them more than once in preparing for her appearance before the special committee, that her legal counsel may wish to consult with her about them in a more confidential environment and that those materials may be necessary for court.

[62]        In his next letter of reply, Dr. Appleton informed Dr. Wang’s counsel that he would have to apply to court for an order to be provided copies of the tape recordings and transcripts he had requested.  Dr. Appleton assured counsel that Dr. Wang was not being singled out and that no exceptions would be made for any person including the special committee.  

[63]        Dr. Appleton evidently failed to appreciate that the only person whose conduct had been put into issue was Dr. Wang’s and that an aspect of the impugned conduct was alleged to have occurred at the February Board meeting in respect of which copies of the tapes and transcripts were sought.  I find it astonishing that the executive of the Board would move to destroy tapes and transcripts of its February Board meeting in circumstances where it was plain by virtue of the Board’s own accusations that Dr. Wang’s conduct during the February meeting was in issue.  The audio tapes, in particular, would be the best evidence of the exchange during that meeting.

(h)       The Special Committee

[64]        The special committee was originally comprised of Drs. Golbey and Shukin, and Mr. Mina, a parliamentarian.  On February 18, 2008, Drs. Golbey and Shukin circulated draft terms of reference of the special committee to the Board members for comment.  They also recommended that a third member of the special committee be appointed to replace Mr. Mina, the parliamentarian, who was to take on an advisor role to the special committee.

[65]        The Board approved the terms of reference as of February 22, 2008.  Thereafter, Dr. Saunders, at the suggestion of legal counsel, invited nominations for a third member of the committee.  As mentioned, Dr. Carole Williams nominated herself and was ultimately approved by the Board.  I pause here to note parenthetically that the process used to constitute the members of the special committee does not appear to comply with the BCMA bylaws 9.1(a) and (b) which are applicable to ad hoc committees.

[66]        The recitals to the terms of reference explicitly refer to the undertaking of the special committee as a conduct review of Dr. Wang and to the formation of the special committee for that reason:

WHEREAS the board of directors of the British Columbia Medical Association (“BCMA”) has determined that it is in the best interests of the BCMA to complete an independent review (the “Conduct Review”) of the facts and circumstances surrounding the conduct of one of its directors and officers, Dr. Caroline Wang, with a view to determining what action, if any, is necessary or desirable to be undertaken by the Board of Directors in connection with such conduct.

WHEREAS for those reasons, the board of directors of the Corporation has established a committee of independent persons to be referred to as the “Special Committee”, with the responsibilities and powers contemplated hereunder.

(bolding in original)

[67]        Paragraph 2 of the terms of reference sets out the responsibility and powers of the special committee:

The Special Committee be authorized and empowered to take the following actions:

(a)    to review, consider and evaluate the facts and circumstances surrounding the conduct of Dr. Caroline Wang in her capacity as director and officer of the BCMA;

(b)    to review, consider and evaluate the duties and obligations of Dr. Caroline Wang and the Board of Directors of the BCMA in light of the Constitution and the Bylaws of the BCMA, the code of conduct established by the Board of Directors, the common law duties of directors and officers and best governance practices; and

(c)    to take such other action as the Special Committee determines to be necessary or appropriate to properly advise the board of directors in connection with the Conduct Review and to fulfil its responsibilities set forth above.

[68]        Paragraph 4 addresses the matters upon which the special committee is expected to report and make recommendations:

The Special Committee shall provide a report and recommendation to the board of directors with respect to:

(a)    the facts and circumstances with respect to the conduct of Dr. Wang underlying the Conduct Review;

(b)    the duties and obligations of Dr. Wang and the board of the directors of the BCMA arising in connection with the findings of the Conduct Review, having regard to the best interests of the BCMA and all other relevant considerations; and

(c)    other matters considered by the Special Committee to be reasonably ancillary to the Conduct Review and its responsibilities hereunder;

and the board of directors has acknowledged that it will give full weight to such recommendations.

[69]        The special committee wrote its first letter to Dr. Wang on March 17, 2008.  By now, it had retained legal counsel.  Dr. Shukin introduced herself as the chair and represented to Dr. Wang that the special committee had been “formed to review, consider and evaluate [her] conduct in [her] capacity as a director and officer of the BCMA”.    Dr. Shukin “offered” Dr. Wang “an opportunity” to meet with the special committee and its counsel at the BCMA offices on April 4.  She explained that the primary purpose of the meeting would be to “discuss [Dr. Wang’s] views with respect to the conduct of the Board of Directors meeting held on February 2, 2008 as well as the treatment of confidential information held from time to time by Board members”.  She also told Dr. Wang that she was free to bring her own legal counsel to the meeting.

[70]        The ensuing two weeks or so saw a regular exchange of communication between Dr. Wang’s legal counsel, and the special committee and its legal counsel.  Dr. Wang’s counsel repeatedly asked the special committee for a copy of the complaint that had triggered the investigation into Dr. Wang’s conduct under the Code of Conduct and for particulars of her alleged misconduct.  Her counsel also requested that Drs. Golbey and Williams be replaced as committee members because they had been critical of Dr. Wang in the recent past and were, therefore, not impartial.

[71]        On March 26, 2008, counsel for the special committee wrote to Dr. Wang’s counsel enclosing the special committee’s terms of reference and advised:

·         the special committee’s terms of reference are not limited to a consideration of Code of Conduct;

·         the terms of reference do not allege that the provisions of Code of Conduct have been breached;

·         only one portion of the special committee’s mandate is to review, consider and evaluate the facts and circumstances surrounding the conduct of Dr. Wang in her capacity as a director and officer of the BCMA;

·         that Dr. Wang raise her concerns about bias of the committee members with the Board.

[72]        The next day, Dr. Wang’s legal counsel wrote a lengthy letter to counsel for the special committee explaining Dr. Wang’s position.  Dr. Wang’s counsel reiterated his requests for timely notice of Dr. Wang’s conduct under investigation as well as the rule or policy she allegedly violated.  On the understanding that one of the complaints against Dr. Wang centred on her participation in the proceedings of the February Board meeting, her counsel again requested a copy of the transcript of the exchange in which her allegedly improper comments and/or conduct occurred.

[73]        On March 28, 2008 counsel for the special committee replied to Dr. Wang’s lawyer confirming that, “Dr. Wang does not stand accused of anything before the special committee.”

[74]        After further prodding by Dr. Wang’s counsel, the special committee, through its counsel, eventually identified three aspects of Dr. Wang’s conduct that it wished to review: (1) her posting of the DOCLOUNGE Emails; (2) her general understanding of her obligation to maintain confidentiality; (3) the events leading to the chair’s decision to ask Dr. Wang to leave the February Board meeting and her refusal to do so.  This disclosure came three days before the April 4 meeting.  It did not reveal anything about Dr. Wang’s specific conduct that the special committee believed called for an answer or justification.  There was no mention of any breach of any rule of the Code of Conduct or the constitution or the bylaws.  Prior to this time, no one from the Board or the special committee had ever even expressed that Dr. Wang’s email to DOCLOUNGE regarding the committee selection process violated any applicable rule or was a matter of concern.  At no time since the special committee was created has it or anyone associated with it identified any rule that that particular email contravenes.  At the April 4

(i)       The April 4, 2008 Meeting

[75]        On April 4, 2008 Dr. Wang appeared before the special committee.  In attendance with Drs. Shukin and Williams were the special committee’s lawyer, a consultant on corporate governance, and Mr. Mina, the special committee’s advisor.  Dr. Golbey was away on vacation.

[76]        Dr. Wang’s evidence about the discussion at the April 4 meeting is basically uncontradicted.  I accept her account as accurate.

[77]        Dr. Wang says that Dr. Shukin opened by stating that the purpose of the meeting included finding facts and circumstances of events of the February Board meeting, and the confidentiality of communications between Dr. Wang and BCMA members.

[78]        Dr. Shukin went on to confirm that the special committee was the process that Dr. Appleton had referred to in his letter of February 2.  Yet, at the same time, she maintained that the meeting was not a conduct review pursuant to the Code of Conduct.

[79]        Dr. Wang had earlier asked the special committee if she could have a court reporter in attendance at the hearing.  The special committee would not permit a court reporter on the basis that its intention was to have a dialogue with Dr. Wang and believed that the presence of a court reporter would create a counter-productive atmosphere at the meeting.  Dr. Shukin confirmed that Dr. Golbey would be participating in the deliberations of the special committee, even though he was not present at the meeting.  As the meeting was not recorded, I presume that it was intended that Dr. Golbey would learn of Dr. Wang’s position based on the reports of other committee members and the consultants in attendance.

[80]        Dr. Wang’s counsel posed a series of questions to clarify the nature and purpose of the meeting.  In particular, he asked what provision of the Code of Conduct, the constitution or the bylaws Dr. Wang was said to have breached.  Dr.  Shukin confirmed that there was no complaint that Dr. Wang had violated the Code of Conduct.  Counsel to the special committee explained that the mandate of the special committee was to evaluate the best practices for the conduct of the organization as a whole.  He acknowledged that the special committee recognized that Dr. Wang’s integrity and reputation had been put into issue.

[81]        Counsel to the special committee said that the special committee had two questions of Dr. Wang.

[82]        The first question was why Dr. Wang chose not to leave the February Board meeting when the chair asked her to do so.  Dr. Wang’s counsel answered on her behalf.  The essence of those answers can be summarized this way:

·         At no time did Dr. Wang intend to defy a lawful order of the chair.  However, she had reasons to doubt the chair’s authority to exclude her from the debate at the February Board meeting.

·         Dr. Wang felt that she had been deliberately blindsided by the Board when they raised issues about her without any notice to her, but with apparent notice to others.  She felt that she was being denied natural justice and had asked repeatedly for opportunity to obtain legal advice.

·         Even if Dr. Wang was technically in the wrong about remaining at the February Board meeting, it was obvious that the whole issue was legally complicated because the Board itself had arranged to have its own lawyer present to give legal advice.  Since the Board considered that it required legal advice, it would be obvious that Dr. Wang needed legal advice also.  He suggested to the special committee that Dr. Wang should be forgiven if she committed any technical error by declining to leave the meeting as her decision was made in the absence of legal advice when she had repeatedly made it known to the Board that she wanted to obtain legal advice.

[83]        The second question pertained to the DOCLOUNGE Emails.  Specifically, they asked why Dr. Wang had posted the DOCLOUNGE Emails before information about those meetings had been disseminated to the membership as a whole.  Through the discussion, it became apparent that any concern about the DOCLOUNGE email regarding the methodology of selecting committee members had been abandoned; the focus of the special committee was on Dr. Wang’s DOCLOUNGE email about the Forms Motion.

[84]        Dr. Wang’s counsel responded that the minutes of the executive committee are not circulated to the membership so if Dr. Wang had not reported what occurred, members would have no way of knowing.  He asked what rule or policy forbids disclosing the occurrence of events at the meeting until after the minutes have been published.  No one from the special committee or its counsel provided an answer.

[85]        Through her counsel, Dr. Wang answered every question that the special committee and its counsel asked of her during the April 4 meeting.

[86]        Dr. Wang brought this application within days of the April 4 meeting.  Her essential contention is that the special committee was conceived by the Board as a Code of Conduct committee, but was not validly constituted in accordance with the Non-compliance Provision of the Code of Conduct.  She says that even if the special committee had been validly established, she has been deprived of her right to procedural fairness.  Dr. Wang asserts that, in both events, the special committee ought to be dissolved and prevented from taking any further steps in terms of the preparation or circulation of its report or recommendations.

[87]            For the purposes of this application, it is unnecessary for the Court to evaluate whether Dr. Wang did offend any rule of confidentially.  However, it is notable that is none of the affidavits filed by the respondents provide any substantive objection to Dr. Wang’s DOCLOUNGE Email concerning the Forms Motion.


[88]            The pivotal issue is whether the special committee was constituted under the provisions of the Code of Conduct or is some other kind of ad hoc committee formed under the bylaws of the BCMA (as distinct from the Code of Conduct) that has a broader mandate than merely reviewing Dr. Wang’s conduct.  The balance of the issues flow from this determination and can be summarized generally as:

(i)   if the special committee was convened as a Code of Conduct committee, was it validly formed pursuant to the Non-compliance Provision of the Code of Conduct;

(ii)  if the special committee is not a Code of Conduct committee but is an ad hoc committee established under the BCMA bylaws, does it have jurisdiction to review Dr. Wang’s conduct as a director; and

(iii) if the answer to sub-issue (ii) is yes, does the special committee owe a duty of procedural fairness to Dr. Wang and if it does, was it breached on the grounds of bias.


(a)      The Nature of the Special Committee

[89]        The respondents deny that the special committee was established pursuant to the Non-compliance Provision of the Code of Conduct.  While they admit that it was originally contemplated that Dr. Wang’s conduct would be referred to a committee invoked under the Code of Conduct, they contend that, as things evolved, the special committee was established as an ad hoc committee pursuant to the Board’s general power to create committees contained in the bylaws.  In a similar vein, the respondents agree that Dr. Wang’s conduct provided the initial impetus for the formation of the special committee, but they say that the scope of the special committee’s mandate, as captured in its terms of reference, developed into a far broader inquiry than simply reviewing Dr. Wang’s conduct.  They say that its mandate expanded to include a review of the duties of the members of the Board.  Based largely on the evidence of Dr. Saunders, and supported in a general way by Dr. Golbey, the respondents also appear to be contending that the matter of Dr. Wang’s conduct was referred to a Code of Conduct committee, which was already in existence, having been constituted pursuant to the Code of Conduct in December 2007. 

[90]        The respondents’ characterization of the special committee as an entity that is something other than a Code of Conduct committee is not supported by the evidence.  I will go so far to say that the respondents’ depiction amounts to a distortion of the real state of affairs.

[91]        The BCMA acts through its Board on its own accord and by ratifying decisions made by the executive committee.  It is, therefore, of critical importance to examine the Board’s resolution in relation to the course of action taken in respect of Dr. Wang.  The respondents themselves tendered as evidence page 1 of the draft minutes of the February Board meeting.  Under the separate heading entitled “Confidentiality Issues”, the minutes report that the chief subject of concern raised by Dr. Appleton was Dr. Wang’s DOCLOUNGE email about the Forms Motion.  In the context of that topic, the minutes state:

Several members suggested that the matter be referred to a committee as set out in section 13.3 of the BCMA Code of Conduct and the following motion was introduced:


That the matter pertaining to item 13.3 of Agenda be referred to the Code of Conduct Committee

ACTION:  Chief Executive Officer/President Chief Operating Officer

[92]        The minutes go on to make additional references to the Code of Conduct committee and reflect the discussion about Dr. Wang excusing herself from participating further in the February Meeting:

A member suggested that Dr. Wang step down pending a recommendation from the newly created committee.  Dr. Wang stated that the suggestion was not appropriate and noted that she had brought to the attention of the Board Chair other breaches of confidentiality that had not been dealt with.  Several members suggested that Dr. Wang be requested to leave this portion of the meeting, however, Dr. Wang stated that as the principle of natural justice, and in order that she may be aware of any allegations with respect to her conduct, that she would not leave the meeting.

The Chair relying on paragraph three, page two of the BCMA Code of Conduct, then formally ruled that Dr. Wang leave the meeting.  Dr. Wang advised that she did not think it was appropriate that she be asked to retire from the meeting.

[93]        In my opinion, the resolution of the Board, which was carried, is unambiguous on its face – Dr. Wang’s conduct was to be referred to a Code of Conduct committee, which I take to mean a committee formed pursuant to the Code of Conduct.  There is no evidence to indicate that the draft minutes put into evidence by the respondents, inaccurately records the resolution passed by the Board.  Accordingly, I find that they accurately reflect the matters to which they refer.  There is no evidence that there was a subsequent Board resolution modifying that resolution or resolving to strike an ad hoc committee for the purpose of investigating Dr. Wang’s conduct at large or the duties and obligations of the Board or Board members more generally.

[94]        That the Board had on February 2 resolved to establish a Code of Conduct committee in respect of Dr. Wang’s conduct is supported by Dr. Appleton in his February 2 letter.  He informed the members that the Board had “initiated action to review the conduct of one of our members,” and that it had “activated” a provision of the Code of Conduct to review some of Dr. Wang’s actions relative to her duties as a board and executive committee member.  Dr. Appleton wrote that letter in his capacity as president of the BCMA.  Article 8.1(c) of the bylaws stipulates that the president is the official spokesperson of the BCMA.  The president’s unique role as the BCMA spokesperson is also expressly acknowledged in the Code of Conduct itself.

[95]        It is significant that the Code of Conduct provides for the formation of a committee in one discrete instance only; that is where a “complaint of non-compliance with [the] Code of Conduct” has been lodged.  At no time has Dr. Wang or her legal counsel been notified of a complaint or an allegation that she violated any provision of the BCMA constitution, bylaws, Code of Conduct, or any common law duty of directors and officers.

[96]        The Code of Conduct stipulates that the composition of a Code of Conduct committee is to be as follows:

1.         the immediate past president of the Board,

2.         a director who is not a member of the executive committee, and

3.         a non-director parliamentarian

(or such other committee as the board may constitute).

[97]            In his February 2 letter, Dr. Appleton reported that a three person review team would address the issues of Dr. Wang’s conduct: Dr. Golbey, a past president of the Board, Dr. Shukin, a current Board member, and a parliamentarian yet to be selected.  The composition of the committee described by Dr. Appleton follows exactly the composition of a committee established under the Code of Conduct with one exception.  That exception is that the Code of Conduct calls for the immediate past president to be a committee member.  Dr. Golbey is a past president but is not the immediate past president.  The evidence indicates that the immediate past president may not have been available to serve on the committee due to personal health reasons.  In any event, the Code of Conduct explicitly permits the Board to deviate from the enumerated committee composition.

[98]            It remains to add that the fact that a parliamentarian had not yet been selected is incompatible with the respondents’ argument that the Code of Conduct committee being referred to was one which had already been formed in 2007. 

[99]            Notable also is that at the close of Dr. Appleton’s February 2 letter, he alerts members that “this circumstance may require that a special meeting of the BCMA membership at large be called”.  In my view, his prediction was referring directly to the Non-compliance Provision of the Code of Conduct, which enables a Code of Conduct committee to make an array of recommendations including that there be a special resolution to remove an offending director.  This would be achieved by convening a special meeting of the members.

[100]            In his March 6 communication to the members, Dr. Appleton made it abundantly clear that the review of Dr. Wang was a Code of Conduct review.  It is not insignificant that his mailing was made after the terms of reference of the special committee had been fixed and approved.

[101]            Dr. Appleton’s letters are supportive of the fact that, as far as the Board was concerned at that time, the committee charged with reviewing Dr. Wang’s conduct had been formed pursuant to the Code of Conduct.   They were obviously also reflective of Dr. Appleton’s understanding of the matter.  There is evidence that other Board members, such as Dr. Turner, shared Dr. Appleton’s understanding, as indicated by Dr. Turner’s email to DOCLOUNGE.

[102]            I consider it revealing that Dr. Appleton has not sworn an affidavit in these proceedings to dispute or otherwise explain or clarify the Board’s February 2 resolution, or the intended meaning of his clear references to “activating” a Code of Conduct committee in his February 2 letter, and to the “Code of Conduct Review” in his subsequent letter of March 6.

[103]      In sum, the Board’s resolution and its president’s letters to the membership reporting on the action that the Board had resolved to take, pertain exclusively to the conduct of Dr. Wang, and not to the conduct of any other director.  To my mind, it is apparent that the Board resolved and that Dr. Appleton understood and, accordingly, faithfully represented to the members, that Dr. Wang’s conduct would be investigated by a committee formed pursuant to the Code of Conduct.

[104]            In its initial letter to Dr. Wang, the special committee represented that it had been formed to review, consider and evaluate her conduct in her capacity as a director and officer of the BCMA.  There was no hint that the conduct of any other director was in the contemplation of the special committee.  Dr. Shukin agreed that the special committee was the review committee that Dr. Appleton had described to the members in his February 2 letter.

[105]             In a subsequent letter, the special committee acknowledged to Dr. Wang’s counsel that it had a duty to perform its duties vis-a-vis Dr. Wang “with respect and impartiality”.  That phrase is a direct quote from the Non-compliance Provision of the Code of Conduct where it is used to describe the manner in which a Code of Conduct committee is to comport itself in investigating a complaint of misconduct.  That the special committee considered itself bound by those descriptors found in the Code of Conduct is further evidence that it was conceived as and understood to be a Code of Conduct committee.

[106]            Dr. Saunders’ evidence is that in October 2007, Dr. Wang had made an allegation against a former board member.  The allegation was denied, and evidently, a member of the Board expressed concern that Dr. Wang’s conduct in making the unsubstantiated allegation violated the Code of Conduct.  At the November 30/December 1, 2007 meeting, the Board passed the following resolution:

That all issues arising from an email from Dr. Wang addressed to the BCMA Board of Directors dated October 27, 2007 be referred to a committee in accordance with the BCMA Code of Conduct.

[107]            Dr. Saunders deposes that Drs. Golbey and Shukin were appointed members of that committee along with a registered parliamentarian.  His affidavit does not identify the name of that parliamentarian.  Dr. Saunders explains that Dr. Wang subsequently expressed regret to the Board for any misunderstanding that may have arisen as a result of her allegation.  He says that in light of that communication, no further steps were taken at that time to have Dr. Wang’s conduct reviewed by that Code of Conduct committee.

[108]            According to Dr. Saunders, at the February Board meeting the concern over Dr. Wang’s conduct centered on her DOCLOUNGE email about the Forms Motion, specifically, whether by posting it she had breached her duty of confidentiality.  His perspective was that Dr. Wang was in a conflict position in refusing to leave the meeting.  He explains that it was within this context that the Board resolved to refer the question of whether Dr. Wang was in breach of the Code of Conduct to the committee that he says had been previously established in December 2007.

[109]            Later in his affidavit, Dr. Saunders states that, while it was initially contemplated that Dr. Wang’s conduct would be referred to this Code of Conduct committee already established in 2007, the special committee is not a Code of Conduct committee.  He claims it is an ad hoc committee appointed by the Board pursuant to the bylaws.

[110]            Dr. Saunders’ evidence that the issue was referred to an existing Code of Conduct Committee conflicts with his evidence that it was referred to an ad hoc committee constituted under the bylaws.  His evidence is also at odds with the actual resolution passed by the Board and with the unambiguous communications of Dr. Appleton to the membership at large.  Additionally, I conclude that it is not entirely compatible with the earlier communications of the special committee to Dr. Wang and/or her counsel.  Dr. Saunders’ evidence about the genesis and characterization of the special committee does not reflect two sides of the same coin.  To the contrary, it is patently inconsistent.  

[111]            Also undercutting the respondents’ position is the fact that based on the explicit terms of the Code of Conduct, the Code of Conduct committee described by Dr. Saunders and Dr. Golbey as having been constituted in late 2007, could have only been formed to investigate a particular complaint of non-compliance with the Code of Conduct.  That complaint, if one indeed had been made, would have been in relation to Dr. Wang’s conduct on October 27, 2007.  That conduct is unrelated to the conduct which provided the impetus for the Board resolution passed on February 2.  A Code of Conduct committee such as the one purportedly formed in relation to Dr. Wang in 2007, is not an ongoing standing committee intended to deal with any and all of a director’s alleged transgressions then or in the future.  When it was determined that the investigation into the complaint about Dr. Wang’s conduct which allegedly gave rise to the establishment of that 2007 Code of Conduct committee would not proceed, that committee became functus and was effectively dissolved.

[112]            Additionally, the respondents’ lines of argument suggest that an ad hoc committee and a Code of Conduct committee are necessarily entirely distinct creatures.  An ad hoc committee is formed for a particular purpose.  It is distinguished from a standing committee which typically assumes a more permanent life.  A committee established under the Non-compliance Provision of the Code of Conduct is an ad hoc committee of sorts.  It is formed for a particular purpose, that is, to investigate a specific complaint that a particular director has breached the Code of Conduct.

[113]            Dr. Saunders’ evidence is to the effect that the terms of reference empower the special committee not only to review Dr. Wang’s conduct, but also the duties and obligations of all members of the Board.  In Dr. Williams’ affidavit, she characterizes the mandate as including the review of broader Board governance issues, as well as Dr. Wang’s conduct.  The respondents say it follows that because its mandate goes beyond reviewing Dr. Wang’s conduct, the special committee is not a Code of Conduct committee.  It is difficult to give credit to this contention.  In the first place, there is no evidence from the respondents, apart from broad quotations of the terms of reference, that there was any genuine intention to review and make findings of fact about the duties and obligations of other Board members or governance issues, or that the special committee has in fact done so.  More importantly, no where in the terms of reference does it mention governance issues at large or empower the special committee to review the duties and obligations of the members of the Board, other than Dr. Wang.

[114]            The terms of reference explicitly refer to the duties and obligations of the Board as a whole and not to the individual members apart from Dr. Wang.  They authorize the special committee to review the duties and obligations of the Board.  Importantly, they further circumscribe the ambit of the special committee’s report and recommendations to the duties and obligations of the Board arising in connection with the findings of the review of Dr. Wang (defined as the Conduct Review), as opposed to the duties and obligations of the Board at large.

[115]            I am unable to agree with even the basic assertion urged by the respondents that the terms of reference contain an expanded mandate to inquire into the conduct, duties or obligations of individual members of the Board, beyond Dr. Wang, or review Board governance issues.  On my reading, the terms of reference in relation to the Board are narrow.  They are specifically linked to the findings made about Dr. Wang’s conduct.  Those narrow terms made perfect sense in the circumstances.  The evidence establishes that the Board as a whole encountered unexpected difficulty during the February Board meeting when confronted by Dr. Wang’s steadfast refusal to leave, despite repeated requests that she do so.  Her conduct was variously viewed by Dr. Williams, Dr. Turner, Dr. Appleton and others as insubordination, improper and/or unethical.  The Board looked to its legal counsel for guidance about its entitlement to expel Dr. Wang from the meeting.  When considered in light of this surrounding factual matrix, I interpret the terms of reference as limiting the special committee to review and make recommendations on the duties and obligations of the Board in relation to its dealing with Dr. Wang’s perceived defiance of the chair and alleged breaches of confidentiality.  In my view, this interpretation is harmonious with the Non-compliance Provision of the Code of Conduct which speaks to the consequences that flow from a finding of misconduct such as censure, request for resignation etc.  On a proper interpretation of the terms of reference, the mandate of the special committee was completely in keeping with the Non-compliance Provision of the Code of Conduct – it was to review Dr. Wang’s conduct and make recommendations, including how the Board ought to address her conduct. 

[116]            In any event, even if my interpretation of the parameters of the special committee’s mandate is incorrect, it would not affect the outcome on this application.  This is because I, nonetheless, find as a fact that the Board intended and resolved that a review of Dr. Wang’s conduct, and only hers, was to be undertaken by a committee established in accordance with the Non-compliance Provision of the Code of Conduct.  To put it another way, I find that when the Board created the special committee, it was relying on the powers conferred upon it by the Code of Conduct and not any general power to strike an ad hoc committee granted by the bylaws. 

[117]            The power of the Board to validly create a committee to carry out a review under the Code of Conduct is predicated on a complaint of a violation of the Code of Conduct having been made.  The complaint defines the parameters of the investigation in the sense that the committee is struck to investigate the conduct at the root of the complaint and report to the Board with its recommendations.  The existence of a complaint of defalcation is an essential pre-condition to the legitimate creation of a committee pursuant to the Non-compliance Provision of the Code of Conduct.  It is absent in this case.  The failure to satisfy that pre-requisite means that the underpinnings of the special committee are faulty.  It follows that the special committee was not validly formed.  In that sense the special committee is void ab initio, meaning null from the beginning.  No amount of expansion to Board approved terms of reference to appear to broaden its scope beyond simply reviewing Dr. Wang’s conduct can rectify this fundamental flaw or convert a Code of Conduct committee into a non-Code of Conduct committee.

[118]            In summary, I find that the Board resolved that Dr. Wang’s conduct relative to her posting of the DOCLOUNGE email about the Forms Motion and her refusal to leave the February Board meeting were to be referred to a committee established under the Code of Conduct.  The Board was without authority to properly constitute a Code of Conduct committee because the essential triggering event, namely an actual complaint of misconduct, had not been made.  Consequently, the special committee was not validly formed.

[119]            The Code of Conduct came about by way of a Board resolution.  Section 25 of the Society Act provides as follows:

Duties of directors

25  (1)  A  director of a society must

(a)        act honestly and in good faith and in the best interests of the society, and

(b)        exercise the care, diligence and skill of a reasonably prudent person,

in exercising the powers and performing the functions as a director.

(2)        The requirements of this section are in addition to, and not in derogation of, an enactment or rule of law or equity relating to the duties or liabilities of directors of a society.

[120]            Section 26 of the Society Act states:

No exceptions from statutory duties

26        Nothing in a contract, the constitution or the bylaws, or the circumstances of a director's appointment, relieves a director

(a)        from the duty to act in accordance with this Act and the regulations, or

(b)        from a liability that by a rule of law would otherwise attach to the director in respect of negligence, default, breach of duty or breach of trust of which the director may be guilty in relation to the society.

[121]            The statutory standard of conduct expected of directors set out in s. 25 of the Society Act is endorsed in the Code of Conduct, both expressly and by implication through its reference that a director must comply with applicable law.  It is reasonable to infer that the Board resolved to create the Code of Conduct because it considered that doing so was in the best interests of the BCMA.  I have found that the Board failed to comply with its own procedural requirements stipulated in its Code of Conduct.  This basic failing was directed to its attention by Dr. Wang and by her counsel.  Rather than disbanding the special committee and starting anew by adhering to the procedure it designed, the Board and the special committee appeared to entrench in the ill-conceived position that the special committee was not a Code of Conduct committee.  This position was contrary to the Board’s resolution and the president’s representations to the members.

[122]            It is difficult to imagine how the conduct of the Board, which fails to adhere to its own Code of Conduct designed to govern its own directors, could nevertheless be said to be acting in the best interests of the BCMA.  On this basis alone, it can be said that the directors have acted in contravention of s. 25 of the Society Act, and with unintended irony, are thereby in breach of the Code of Conduct itself.  Along the same lines, I question how the Board’s conduct can reasonably be seen as being in good faith.  This statutory breach on the part of the BCMA justifies intervention by the Court. 

(b)         Duty of Fairness owed to Dr. Wang

[123]            Even if the special committee had been validly constituted, it nevertheless must be restrained from pursing its terms of reference.  This restraint stems from the fact that Dr. Wang was denied the procedural fairness to which she was entitled.

(i)         Relationship between Dr. Wang and the BCMA

[124]            In exploring this issue, I will first direct my mind to the question of the relationship between Dr. Wang and the BCMA.  In general terms, the relationship between a voluntary association and its members is contractual in nature.  This dynamic was explained by Lord Denning in Lee v. Showmen's Guild of Great Britain, [1952] 2 Q.B. 329, [1952] 1 All E.R. 1175 at 1180 (C.A.) [Lee]:

The jurisdiction of a domestic tribunal, such as the committee of the Showmen's Guild, must be founded on a contract, express or implied. Outside the regular courts of this country, no set of men can sit in judgment on their fellows except so far as Parliament authorises it or the parties agree to it. The jurisdiction of the committee of the Showmen's Guild is contained in a written set of rules to which all the members subscribe. This set of rules contains the contract between the members and is just as much subject to the jurisdiction of these courts as any other contract.

[125]            There is a wide spectrum of voluntary associations, spanning from social clubs to sporting organizations to religious groups to professional associations.

[126]            In Lee, Lord Denning acknowledged that the requirement of natural justice is more rigorous where a person’s employment is at stake, than where the club is merely social.  Dr. Wang likens the BCMA to a trade union, rather than to a social club.  Her assertion finds some support in the core purposes of the BCMA laid out in its constitution, which indicate that the BCMA plays an important economic and advocacy role in the lives of its membership.  While it is true that in the present case the Board does not have the power to prevent Dr. Wang from exercising her profession, there can be no doubt that adverse findings of fact about her conduct have the real potential to taint her reputation and stature within the community and her profession.  In this regard it is important to recall that one of the BCMA’s constitutional purposes is to promote the integrity and honour of the medical profession.  

[127]            In Ireland v. Victoria Real Estate Board (1987), 13 B.C.L.R. (2d) 97 (S.C.) [Ireland] Bouck J. addressed the issue of whether incorporation under the Society Act was sufficient to convert a voluntary, professional association to a statutory body.  He concluded that the rules of governance for associations incorporated under the Society Act are chiefly contained in the rules established by the membership for their own purposes; they are not imposed by the provisions of the Society Act.  Consequently, he concluded that organizations incorporated under the Society Act are generally not statutory bodies; rather, the relationships are contractual in nature.  His analysis, at 102-103 is set out below:

            One question which arises is whether the relationship between the members and an incorporated society such as the board is converted from one based on contract to one founded on statute. In my view, the rights and obligations remain essentially contractual in nature notwithstanding incorporation. All the Society Act does is compel inclusion of provisions governing membership and the like in the by-laws and regulations, but it does not specifically define the rights to membership or the conditions under which it may be revoked. In that sense it contrasts with professional organizations, which are governed by statute. They spell out how a person may become a member and in what instances he or she may be expelled or disciplined.

            By-laws of a society incorporated under the Society Act are much like the articles of association of a company. Articles of association of a company "constitute a contract between the company and the shareholders which every shareholder is entitled to insist upon being carried out": Theatre Amusement Co. v. Stone (1914), 50 S.C.R. 32 at 37, 6 W.W.R. 1438, 16 D.L.R. 855 [Alta.].

            While an incorporated society is governed to some extent by the Society Act, the relationship between the members and the society as spelled out in its by-laws is contractual and not statutory. The business practices committee and the directors are merely domestic tribunals whose decision may be overturned by means of an action, but not through the device of a prerogative writ as contemplated by the Judicial Review Procedure Act.

[128]            The characterization of the obligations between incorporated professional associations and their members as being contractual in nature has been widely recognized and adopted by Canadian courts.  It has been found to apply even where membership in the association has some implications for livelihood and/or reputation: see, for example: Senez v. Montreal Real Estate Board, [1980] 2 S.C.R. 555, 35 N.R. 545 [Senez]; Ireland; Kaplan v. Canadian Institute of Actuaries (1994), 25 Alta. L.R. (3d) 108 28 Admin. L.R. (2d) 265 (Q.B.) [Kaplan]; Chaudhary v. The Canadian Society of Respiratory Therapists, 2007 BCSC 467 [Chaudhary].

[129]            In my view, the relationship between Dr. Wang and the BCMA is contractual in nature.

(ii)        Terms of the Contract

[130]            As Lord Denning observed in Lee, the contractual terms can be both express or implied.  Given that the relationship between Dr. Wang and the BCMA is contractual in nature, the focus of the inquiry then narrows to a consideration of the terms of that contract.  Drawing on the principles laid out in the case authorities, such as Ireland and Senez, it appears that the express terms of the contract between Dr. Wang and the BCMA are to be found, at a minimum, in its constitution and properly enacted bylaws.  However, the scope of the contract could be much broader depending on the nature of the implied contractual terms stemming from the parties’ reasonable expectations (see generally: Chaudhary and Kaplan).  Dr. Wang asserts that the Code of Conduct forms part of the express terms of the contract and that an implied term of the contract is that any investigation of her conduct by the BCMA in her capacity as director must be in accordance with the terms of that Code.

[131]            In Street v. B.C. School Sports, 2005 BCSC 958, the coach’s code of conduct was included in the society’s competitive rules and regulations, and not its bylaws or constitution.  The rules provided for a complaint procedure where a violation was alleged against a member school coach.  The question at issue was whether those procedures had been followed by the society.  Silverman J. characterized the society’s handbook & directory, which included the code of conduct, as the contractual basis of the relationship between a private, voluntary sporting organization incorporated under the Society Act and a coach who had been suspended for violating a rule against recruiting.

[132]            In the present case, the obvious purpose in establishing the Code of Conduct was to articulate the minimum standard of conduct expected of a director of the BCMA and to give directors notice of conduct considered to be impermissible.  It would be illogical to create a detailed Code of Conduct with specific provisions pertaining to the creation and composition of an independent conduct review committee, and then leave it open to the BCMA to disregard that Code by permitting it to establish instead an ad hoc committee to conduct a roving inquiry into a director’s conduct, with a view to determining whether it might be contrary to any fiduciary duty.

[133]            In my view, Dr. Wang and the BCMA reasonably expected that an implied term of their contract was that any investigation into a director’s possible misconduct would be carried out in accordance with the Non-compliance Provision of the Code of Conduct.  That means that in this case, it would not be open to the Board to strike an ad hoc committee, other than a Code of Conduct committee, to review Dr. Wang’s conduct in her capacity as a director.  It also means that before the Board could activate a review, there had to be a complaint of misconduct lodged against Dr. Wang.  Accordingly, had I concluded that the Board had not relied on the Code of Conduct in forming the special committee and accepted the respondents’ argument that it was merely a separate ad hoc committee, the formation of that ad hoc committee would have been in breach of an implied term of the contract governing the relationship between Dr. Wang and the BCMA.

(iii)       Procedural Fairness and Bias

[134]            Leaving aside for the moment the fact that the special committee was not validly constituted, I wish to address an important aspect of the argument made by Dr. Wang that she was owed, but not accorded, a duty of fairness.

[135]            It has been widely acknowledged by the case authorities that there is an implied term of procedural fairness, which forms part of the contract between a voluntary association and its members.  It is a basic tenet of natural justice: see, for example, Senez; Ireland, Chaudhary.  Using the legal label of natural justice, Lord Denning explained the principle in Lee at 1180-81:

Although the jurisdiction of a domestic tribunal is founded on contract, express or implied, nevertheless the parties are not free to make any contract they like.  There are important limitations imposed by public policy.  The tribunal must, for instance, observe the principles of natural justice.  They must give the man notice of the charge and a reasonable opportunity of meeting it.  Any stipulation to the contrary would be invalid.  They cannot stipulate for a power to condemn a man unheard.  …They cannot prevent its decisions being examined by the court.

[136]            In Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165 at 195-6, 97 D.L.R. (4th) 17 [Hofer], the Supreme Court of Canada laid out the fundamental features of natural justice in the context of a decision to expel a member:

            The content of the principles of natural justice is flexible and depends on the circumstances in which the question arises. However, the most basic requirements are that of notice, opportunity to make representations, and an unbiased tribunal.

1.         Notice

            A member must be given notice of the cause for which he is to be expelled. It is insufficient merely to give notice that the conduct of a member is to be considered at a meeting. This is what was done in Cohen v. The Congregation of Hazen Avenue Synagogue (1920), 47 N.B.R. 400 (S.C.). The member had been repeatedly disruptive at meetings of the synagogue, and notice was given of a meeting to consider his conduct. The court found, at p. 409, that this was insufficient notice for the purposes of an expulsion:

Before the plaintiff could properly be adjudged guilty of an offence warranting his suspension for life he should, according to the most elementary principles of right and justice, have been informed of the nature of the charge against him, and given an opportunity to answer the same.

            Likewise in Young v. Ladies' Imperial Club, [1920] 2 K.B. 523 (C.A.), the notice indicated only that the conduct of a particular member would be reported on and discussed. The court held that this was insufficient notice to allow for a decision to expel. Sterndale L.J. agreed that it would be sufficient if the notice made it quite clear to everyone what would happen at the meeting, but decided that the notice in question did not even convey in substance what would happen (at p. 531):

I quite agree with what has been said to the effect that one ought not to examine this agenda and these notices of meetings too particularly and too meticulously; if in substance they convey to the members of the committee what is going to be done, that is sufficient, although one might have thought it might have been better done.

            As is apparent in Young, adequate and timely notice is as important for two reasons. First, it gives the person who may be expelled an opportunity to consider his or her position and either see the error of his or her ways and seek reconciliation, or prepare to defend himself or herself. Second, adequate and timely notice allows the members of the group who are to make the decision an opportunity to ensure that they will be able to attend the meeting and contribute to the discussion, or perhaps to ask for an adjournment if they are unable to attend.

2.         Opportunity to Make Representations

            The member who is to be expelled must also be given an opportunity to respond to the allegations made against him or her. There is some flexibility in the scope of the opportunity required, but this issue does not need to be addressed in this case.

[137]            The scope for review by the court of the conduct of a voluntary association is narrow.  The degree of reluctance on the part of the judiciary to exercise their limited supervisory jurisdiction over private bodies is dependant upon the right or interest at stake: Peerless (Guardian ad litem of) v. B.C. School Sports (1998), 157 D.L.R. (4th) 345 (B.C.C.A.) [Peerless].

[138]            In North Shore Independent School v. B.C. School Sports Society, 1999 CanLII 6539 (B.C.S.C.), Brenner J., (now Chief Justice of this Court), considered the circumstances where a court might interfere with the decisions of a voluntary association.  He concluded that issues related to process such as jurisdiction, bad faith and natural justice, will warrant judicial intervention but that the court will not interfere in order to substitute its substantive answers for those of domestic tribunals.  His clarifying remarks are found at paras. 36-37 and 55:

36        The narrow scope for judicial review of the decisions of a domestic tribunal was noted by Dohm J. in Vancouver Hockey Club Ltd. v. 8 Hockey Ventures Inc. (1987), 18 B.C.L.R. (2d) 372 (B.C. S.C.) at 375:

The review by the court of orders made by an unincorporated association such as the N.H.L. through its president and chief executive officer (a domestic tribunal as it were) is limited. The power in no way includes the right in the court to substitute its decision for that of the domestic tribunal. The court is not the court of appeal. Rather, its power is narrow and it may only interfere if the order was made without jurisdiction (or against the rules) or if it was made in bad faith or contrary to the rules of natural justice. In addition, the courts will be reluctant to interfere with the decisions of a domestic tribunal where it is shown that internal remedies have not been exhausted. And there is even greater reluctance to interfere if the decision is based upon opinions regarding the standards of propriety and conduct appropriate for members of a particular association. Dawkins v. Antrobus (1881), 17 Ch. D. 615 (C.A.); Lee v. Showmen's Guild of Great Britain , [1952] 2 Q.B. 329, [1952] 1 All E.R. 1175 (C.A.); Harelkin v. Univ. Of Regina, [1979] 2 S.C.R. 561, [1979] 3 W.W.R. 676, 96 D.L.R. (3d) 14, 26 N.R. 364 (Sask.]. These well-known principles provide the foundation for the court's review.

37        These cases show that the courts are prepared to interfere with the decision of a domestic tribunal where it can be shown that the tribunal exceeded its jurisdiction or failed to comply with the rules of natural justice or otherwise acted in bad faith. What these cases also demonstrate is the reluctance of the courts to intervene by substituting the court's judgment for the judgment of the tribunal on a matter of substance within the tribunal's jurisdiction.

55        The court's role in cases of this nature is to focus on process: that is, was the decision made without jurisdiction or in bad faith or contrary to the rules of natural justice? Matters of substance such as the proper interpretation of phrases such as "extraordinary circumstances" clearly within the jurisdiction of the domestic tribunals in this case are best left to those tribunals.

[139]            A survey of the case law indicates that the court is prepared to intervene where matters of livelihood or property interests are at stake: see, for example, Lee; Kaplan; Chaudhary; Senez; Hofer.  Courts have also demonstrated a willingness to interfere where other interests are engaged, such as instances where a high school coach has been disciplined or a young person has been prohibited from playing sports: Street and PeerlessOnce the court makes a decision to intervene in the activities of a voluntary association, the approach taken is the same as in the administrative law context: Chaudhary.

[140]            In the present case, Dr. Wang is asking for the Court to intervene on matters of jurisdiction and natural justice.  These matters come within the limited supervisory role of this Court. 

[141]            The relationship between Dr. Wang and the respondents is contractual in nature.  The terms of that contract include the constitution, the bylaws, as well an implied term that Dr. Wang’s conduct as a director can only be investigated pursuant to and in accordance with the Code of Conduct.  Moreover, regardless of whether the Code of Conduct or the implied term forms part of the contract, there is an implied contractual term of procedural fairness owed to Dr. Wang.

[142]            At its most elementary level, procedural fairness refers to a person’s right to an effective opportunity to participate in the decision-making process and to be evaluated by an impartial decision-maker.  Integral to the principle of procedural fairness is the precept that the decision-maker is to perform its functions free from actual bias or even a reasonable apprehension of bias.   The rule against bias or a reasonable apprehension of bias is designed to ensure that the decision-maker is not subject to improper influences or considerations when performing its duties.  The law demands that certain adjudicative decision-makers not only be impartial in fact, but that they also appear to be impartial.  For that reason, it is unnecessary for a reviewing court to inquire into the subjective state of mind of the particular decision-maker.  It has been observed that such an inquiry is not even appropriate because bias operates in such an insidious manner that the person alleged to be biased may be quite unconscious of its effect: R. v. Gough, [1993] A.C. 646 at 672, per Lord Woolf (H.L.).  Accordingly, a component of the rule is whether in all of the circumstances there was a reasonable apprehension of bias.  Early on, legal counsel for Dr. Wang put the special committee on notice that she had an apprehension of bias on the part of Drs. Golbey and Williams.  She reiterated her concern at the start of the April 4 meeting.  Presumably neither the Board nor the special committee shared Dr. Wang’s concerns as they took no steps to replace those committee members.

[143]            The reasonable apprehension of bias test was set out in the dissenting judgment of Grandpré J. in the decision of the Supreme Court of Canada in Committee for Justice and Liberty v. National Energy Board [1978] 1 S.C.R. 369 at 394, 68 D.L.R. (3d) 716:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically ─ and having thought the matter through ─ conclude.

[144]            Since its articulation this test has been adopted by all levels of court including the Supreme Court of Canada: see, for example Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, 122 D.L.R. (4th) 129; R. v. S.(R.D.), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193.

[145]            At one time, the duty of impartiality arose only in instances only where the decision-maker was acting “judicially” or adjudicating.  That has not been the state of the law for many decades.  As the concept of procedural fairness has developed, the posture of impartiality has expanded to include a much broader range of administrative decision-makers.  Consequently, the standard of impartiality conferred by the duty of fairness is contextually determined and depends upon the functions of the decision-maker, the nature and impact of the decision to be made and the relationship between the decision-making body and the individual: Knight v. Indian Head School Division No. 19 of Saskatchewan, [1990] 1 S.C.R. 653 at 669, 69 D.L.R. (4th) 489.

[146]            An agency or tribunal that exercises an adjudicative function will be held to the higher standard of impartiality usually applicable to a court: Grant Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Commission) (1993), 13 O.R. (3d) 824 (Div. Ct.).  At the other end of the spectrum are boards with elected members such as those dealing with planning and development and policy issues, which generally will be held to a much more lenient standard: Newfoundland Telephone Company v. Newfoundland Public Utilities Board, [1992] 1 S.C.R. 623, 89 D.L.R. (4th) 289 [Newfoundland Telephone].  Cory J. discussed these principles in Newfoundland Telephone at 638-9:

It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts. That is to say that the conduct of the members of the board should be such that there could be no reasonable apprehension of bias with regard to their decision. At the other end of the scale are boards with popularly elected members such as those dealing with planning and development whose members are municipal councillors. With those boards, the standard will be much more lenient. In order to disqualify the members a challenging party must establish that there has been a pre-judgment of the matter to such an extent that any representations to the contrary would be futile. Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal councillors. For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the Legislature.

[147]            While this less demanding standard, sometimes referred to as the “open mind test” and other times as the “closed mind test”, originally developed in the context of municipal councillors making policy decisions, it has been adopted in other contexts where the nature and functions of the decision-maker warrant a less stringent test for bias: Newfoundland Telephone

[148]            In Zündel v. Canada (Attorney General) (1999), 4 F.C. 289, 175 D.L.R. (4th) 512 [Zündel] the open mind test was held to apply to the decision of the Deputy Commissioner of the Human Rights Commission in determining whether a human rights tribunal ought to be appointed to inquire into complainants that Mr. Zündel had caused hate messages to be communicated through a website.

[149]            The more relaxed open mind approach requires that the party alleging disqualifying bias must show that there is a prejudgment of the matter, to the extent that the decision-maker has closed his/her mind and is not amendable to being persuaded otherwise: Newfoundland Telephone; Zündel; CBC v. Canadian Human Rights Commission et al (1993), 71 F.T.R. 214 (F.C.T.D.).

[150]            Boards whose main role is to formulate policy do not typically decide issues that focus on the vital interests of an identified individual.  Rather, they decide broad questions of more general application.  In the present case, the respondents contend that the open mind standard of bias applies because the special committee’s powers are merely advisory and it is not adjudicating the issue per se.  In my view, that contention understates the true power and role of the special committee and fails to sufficiently acknowledge the potential impact upon Dr. Wang of the fulfilment by the special committee of its terms of reference.  While the special committee’s report and recommendations could either be accepted or ignored by the Board, it does not necessarily follow that it has no decision-making power that could meaningfully affect Dr. Wang’s vital interests.  It is of compelling significance that the special committee is empowered to consider and evaluate the facts surrounding Dr. Wang’s conduct and is therefore, in a very real sense, the finder of fact in relation to whether Dr. Wang has breached her fiduciary duty as a director.  That is a basic and important component of adjudication. 

[151]            In his February letter, Dr. Appleton referred to the special committee’s “judgment” and in his second letter he promised to share the special committee’s report and recommendations with the members.  The terms of reference state that the Board has agreed in advance to give “full weight” to the recommendations of the special committee.  There can be no intelligent doubt that the role of the special committee will be extremely significant in the overall determination of the propriety of Dr. Wang’s conduct.  Dr. Wang’s reputation and integrity could well be affected by the findings and recommendations of the special committee, whether or not they are fully embraced by the Board at the end of the day.  It is conceivable that for all intents and purposes the special committee will be the final arbiter of the facts about Dr. Wang’s conduct which have been promised to be broadcast to the membership, and will form the basis for the recommended consequences.  To say that Dr. Wang has a personal interest in the proceedings and the outcome of the fulfilment of the special committee’s mandate is an understatement.  In my estimation, the more stringent reasonable apprehension of bias test should apply to the special committee in this instance.

[152]            It is no answer to a finding of reasonable apprehension of bias to say that the affected person should simply proceed with the hearing and wait to see whether the decision reflects bias.  If a reasonable apprehension of bias is established, then there has been a denial of procedural fairness and the hearing is void and its decision invalid: Newfoundland Telephone at 645.

[153]            Therefore, if there is a reasonable apprehension that either Dr. Golbey or Dr. Williams are biased, it is no answer to require Dr. Wang to wait for the special committee’s report to see whether it demonstrates bias in fact.  The proper recourse is to declare that Dr. Golbey and/or Dr. Williams are disqualified and that the steps carried out by the special committee, including the preparation of any report, are void.

[154]            I will turn next to the question of whether Dr. Wang’s apprehension of bias is reasonable.

[155]            Dr. Williams does not dispute Dr. Wang’s evidence that she repeatedly spoke against Dr. Wang in strong and antagonistic language at the February Board meeting.  I accept that she did so.  She was an antagonistic participant in the very incident where Dr. Wang supposedly comported herself improperly, which is an issue before the special committee.  That, of itself, is disqualifying.

[156]            In his email to DOCLOUNGE, Dr. Turner expressed two basic thoughts: (1) there is a complaint worthy of investigation that Dr. Wang committed an “offence” against the Code of Conduct; and (2) whether or not she is guilty of the underlying offence under investigation, she was guilty of misconduct by not stepping down from office while the first offence was being investigated.  Both of those issues were front and centre before the special committee.  Dr. Turner voiced his judgment about the second issue in extremely disparaging language, suggesting that Dr. Wang had acted “unethically”.  It was an indictment of her conduct.

[157]            Dr. Williams’ decision to thank Dr. Turner for his “clarifying” comments cannot be reasonably understood in any way other than as an endorsement of Dr. Turner’s pejorative remarks about Dr. Wang.  It should not be overlooked that Dr. Williams was not thanking Dr. Turner for his clarification privately.  By doing so on a widely accessed physician discussion format, she was prepared to align herself publicly with his views.

[158]            Dr. Williams was not originally a member of the special committee.  After her endorsement of Dr. Turner’s DOCLOUNGE email, she took the opportunity to nominate herself to join the committee and was approved by the Board.

[159]            In these circumstances, I have little difficulty in concluding that Dr. Wang has demonstrated a reasonable apprehension of bias in relation to Dr. Williams.

[160]            I am also satisfied on the evidence that Dr. Wang and Dr. Golbey have been direct combatants over the years in relation to many disputes about the governance of the BCMA.  Dr. Golbey does not deny that he has engaged in disputes with Dr. Wang.  His evidence is that he does not have an antagonistic relationship with Dr. Wang and that their past disputes have not created a bias on his part, such that he cannot fulfil his duties in an impartial and fair way.  However, like Dr. Williams, Dr. Golbey had been a witness to and an actual participant in the very event where certain aspects of Dr. Wang’s impugned conduct are said to have occurred. 

[161]            The evidence shows that there have been a number of meetings of the special committee where they have reviewed documents and consulted with advisors.  Dr. Wang has never received any information about these meetings.  She was not even aware that they had taken place until the respondents’ evidence was filed in this proceeding.  Dr. Wang has been given no information concerning the subject matter of those consultations and has no idea what documents or other evidence the committee members might have reviewed.  She, therefore, has had no legitimate opportunity to offer a reply or explanation of any kind.

[162]            While it would seem as though Dr. Golbey chose to attend the special committee meetings that Dr. Wang knew nothing about, he chose to miss the April 4 meeting that Dr. Wang was invited to attend.  The special committee denied Dr. Wang’s request to have the April 4 meeting recorded.  Therefore, Dr. Golbey has no way of knowing what she said, except as reported to him by other committee members and the advisors.  Obviously, that would not provide a full transcription of the exchange.  That is deeply troubling in light of the role of the special committee to review, consider and evaluate the facts surrounding Dr. Wang’s conduct.  It is difficult to comprehend how Dr. Golbey had in mind he could participate in making any findings of fact about Dr. Wang when he was not present to hear her side.

[163]            I find that Dr. Wang has demonstrated a reasonable apprehension of bias on the part of Dr. Golbey. 

[164]            Consequently, even if the special committee had been validly constituted, two of its members would be disqualified for bias and the special committee thereby rendered impotent.


[165]            Dr. Wang has brought this proceeding by way of a petition seeking declarations and injunctive relief.

[166]            In Ireland, the court stated that the appropriate way to seek an injunction or declaratory relief in instances where a breach of contract is alleged, is by way of an action, that is a writ, and not via a petition.  (see also Mohr v. Vancouver, New Westminster & Fraser Valley District Council of Carpenters (1988), 32 B.C.L.R. (2d) 104, 33 Admin. L.R. (154 (S.C.).

[167]            However, more recently in Parks (Guardian ad Litem of) v. B.C. School Sports (1997), 145 D.L.R. (4th) 174, 9 Admin. L.R. (3d) 142 (B.C.S.C.), the court concluded that it had the discretion to allow the proceeding initiated by petition even though the correct way was to commence it by writ.

[168]            Rule 2(3) of the Rules of Court stipulates that:

(3)        The court shall not wholly set aside a proceeding on the ground that it was required to be commenced by an originating process other than the one employed.

[169]            Arguably, Dr. Wang has technically erred by filing a petition rather than a writ, however, that does not pose an absolute bar.  The court has discretion to permit her to proceed and grant her the relief sought.  I have exercised my discretion in her favour, as there is no prejudice to the respondents in my doing so.


[170]            To conclude, the special committee is not properly constituted to carry out a review of any kind relative to Dr. Wang’s conduct as a director.  Even if the special committee had been validly formed, Dr. Wang has demonstrated a reasonable apprehension of bias on the part of both Drs. Golbey and Williams such that they are disqualified.  Consequently, the special committee ought to be disbanded.

[171]            Dr. Wang’s position is that the remedies for oppression set out in s. 200 of the Company Act which are imported into the Society Act by virtue of s. 71 are available to her.   I find that those provisions would apply only on an application for the winding-up of the BCMA which has not been brought here.  In any case, resort to that forum of redress is not necessary.

[172]            At the conclusion of this hearing, counsel for the respondents agreed that the special committee would not forward its report or recommendations to the Board pending the issuance of this ruling.  I would expect that in light of these reasons, it will permanently comport itself in accordance with that agreement.  Even so, I order that the members of the special committee are restrained from exercising any of their powers.  They are restrained from issuing any judgment, report or recommendation in relation to any matter relative to the terms of reference.  The BCMA is likewise restrained from receiving any such report or recommendation and from communicating the contents thereof.

[173]            I cannot leave these reasons without remarking that, from the outset, the Board appeared to be heavy handed and misguided in its treatment of Dr. Wang.  The elections for the Board were scheduled to commence on April 10, 2008 with the final mail-in ballots to be received by May 20.  Dr. Wang intended to run in the election.  She claims that the proximity of the election and the Board’s timing in purporting to activate a review of her conduct and announcing it to the membership at large, was not coincidental.  She says that it belies a conscious effort on the part of the Board to undermine her ability to succeed in the election.  Based on the evidence before me, I cannot say whether Dr. Appleton or any member of the Board deliberately intended to sabotage Dr. Wang’s participation in the election.  However, it would have been reasonably foreseeable to them that the contents of the February 2 letter put her reputation and integrity squarely in issue and would cast a dark cloud of suspicion over Dr. Wang.  The impression I am left with is that the Board’s conduct was due in large measure to the human dynamics at play, specifically the perception held by some directors that strident measures ought to be taken to put an end to Dr. Wang’s chronic public dissension, combined with feelings of annoyance and, possibly, outrage at her perceived defiance in refusing to leave the February Board meeting.  It would seem that those personal features overtook the process of fair-minded and informed decision-making on the part of the Board.

VII.       COSTS

[174]            If the parties are not able to agree on costs within four weeks time, they have liberty to make written submissions.  Dr. Wang’s counsel will have 60 days to file written submissions and the respondents will have 30 days after receipt of those submissions to respond, with a further 15 days to Dr. Wang’s counsel for reply.

“The Honourable Madam Justice Ballance”