What are the fiduciary duties of directors of the BC Medical Association?

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Vancouver, BC - Z. Essak, April 22,  2014

The BC Medical Association (BCMA), now rebranding itself as the DoctorsOfBC, is a non-profit Society in BC. It is a voluntary professional association of physicians that purports to represent all BC physicians in negotiations regardless of whether or not physicians choose to be a member.

The 2014 BCMA elections are now underway. Which way are the winds blowing? Are they winds of change? Are they strong enough? Will we see openness, transparency and accountability emerge or continued substitution with opaque communications and marketing?

What are the fiduciary duties of directors of the BCMA, a non-profit association?

When it comes to important unanswered questions for the BC Medical Association, indeed all doctors in BC, the first that comes to mind is what are the fiduciary duties of directors and how do they relate to the Code of Conduct for Directors?

To whom are directors of non-profit Societies, Associations, Unions and others accountable?

This is a question that has been unanswered since the 2005-2006 term.

The question emerged following the disclosure in the summer of 2005 by Dr Caroline Wang, a director of the Board, to the general membership of serious flaws known by the Board yet withheld from the membership when an agreement was sent to referendum; flaws persuasive enough that when disclosed the GPSC agreement was defeated by the membership.

In November 2005, the Board received a legal opinion from Lawson Lundell, one the Board had not requested but rather the request was initiated by a senior staff person.

In May 2006, Dr Wang obtained a legal opinion at her own expense from Davis and Company.

"it would be incompatible with ... your fiduciary duty ... not to speak out"

A significant difference was apparent. The Davis and Company opinion stated, "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."

For years the Board has continued to hold fast to the Lawson Lundell opinion as the basis of attitudes while amending the Code of Conduct for directors and refused to send the legal opinions to the members for consideration or the Code to the members for ratification despite requests to do so.

The Board directors even walked out of the 2007 AGM to quash the quorum when a motion on the matter was moved and seconded.

Both the Lawson-Lundell and the Davis and Company legal opinions were presented in BC Supreme Court at the 2012 Trial in Wang v BCMA and named defendants. As such they are public documents available from the Courts and are attached to this post for convenient reference and consideration.

"the Davis and Company opinion is more compelling"

Both of these opinions were the subject of discussion on the doclounge list serv back in 2006 and 2007. One doctor said, "the Davis and Company opinion is more compelling."

The 2012 Trial Judge also highlighted the difference in his written Judgment in March 2013:

“[54] Like Ms. Murdoch, Mr. Morrow pointed out that directors owe their duties to the Association as a whole, not to the board. He went on to explain that subject to the same limitations he had previously set out, "it would be incompatible with the proper exercise of your fiduciary duty to the Association, not to speak out on important issues..."

And the Judge went on to say, on the subject of the philosophical divide,

“[74] I may not have done justice to one or both positions, and it is certainly not part of my role to decide whether one is preferable to the other. That is a matter for the members of the BCMA.”

Even now in 2014 the membership still have not been provided an opportunity to have their say on the matter.

What is the current view of the Board?

Meanwhile, what is the current view of the BCMA Board?

This year, in the BC Court of Appeal respondents factum filed on January 31, 2014 by lawyers Shapray and Cramer for the BCMA and named defendants paragraph 45 contains, "The Code is not a BCMA Bylaw but rather a policy, and subject to variation or revocation by the Board. It sets out general duties that are owed by the directors to the BCMA."

Duties owed by the directors to the Association, without discussion by the members, without ratification by the membership and subject to variation and revocation at the will of the Board?

To whom are directors of non-profit Societies, Associations, Unions and others accountable?

Is it unto themselves as directors who are paid to attend meetings of the Board and committees they are on? Or is it to the general membership?

What do directors and officers on the BCMA (DoctorsOfBC) Board stand for?

What do candidates for the 2014 BCMA elections stand for?

What do doctors in BC think and what are they going to do?

Or are doctors resigned to having little or no influence on the bodies that govern the medical profession and health care despite paying thousands of dollars each in annual fees as the cost of doing business?