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Statutory office holder entitled to procedural fairness
December 2, 2005

The B.C. Court of Appeal has ordered the College of Traditional Chinese Medicine Practitioners and Acupuncturists to reinstate its former registrar with back pay after finding that it denied him procedural fairness in dismissing him.

The former registrar, Mr. Wong, was appointed to his position pursuant to the Health Professions Act, and as such was a statutory officer holder. Under the Act, Mr. Wong was responsible for the overall administration of the College, including financial matters.

In late 2003, after receiving an accountant’s report into the College’s financial affairs, the College decided to terminate Mr. Wong’s employment. The College did not disclose the report to Mr. Wong before dismissing him.

Mr. Wong filed an application for judicial review of the decision to terminate his employment, claiming the board breached his right as a statutory office holder to procedural fairness. The B.C. Supreme Court dismissed the application, and Mr. Wong appealed to the Court of Appeal.

The Court of Appeal held that the judge had erred by mixing the merits of the decision to terminate Mr. Wong with the process of the termination. As a statutory office holder, Mr. Wong was entitled to procedural fairness, which included the right to be notified of the reasons for his potential dismissal, and the right to respond before the board made its decision. The primary reasons for Mr. Wong’s dismissal were set out the accountant’s report. Mr. Wong never saw the report before his termination and had no inkling that his position was in jeopardy.

The Court of Appeal held that the lack of procedural fairness rendered the dismissal void and Mr. Wong therefore was entitled to be reinstated, with full back-pay and benefits, less any earnings from other employment. However, as the College had already hired a replacement registrar, the College did not need to return Mr. Wong to active service.

Although the principles in this case apply only to statutory office holders, it is clear that employers of such employees must be careful to follow the principles of procedural fairness, or risk a significant financial penalty.

Wong v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia,2005 BCCA 509