Disqualifying a Board Member

As the “culture wars” become more frequent in Canada, regulatory Boards (sometimes called Councils) will not be immune from challenges to its authority. Difficult decisions will have to be made as to where diversity of viewpoints transition to opinions that are incompatible with the values of the regulator. The dental regulator in Manitoba recently faced such a situation.

In Agnew v. The Manitoba Dental Association, 2023 MBKB 98 (CanLII), a Board member of the MDA expressed opinions in an email (sent primarily to those within the regulator’s circle), suggesting that Indigenous peoples were using “hate hoaxes” to financially benefit from their experience in Canada. The email contained a link to a video by a purported white supremist that “minimizes the atrocities of the cultural genocide of Indigenous peoples in Canada and denies the existence of graves of students at the Kamloops Residential school.” The Board of the regulator was concerned. The content in the email was contrary to the values of inclusiveness and reconciliation held by the organization, was contrary to its initiatives to participate in the Truth and Reconciliation process, and could bring reputational harm to the regulator.

The Board member refused to resign and the regulator had no means to remove him. The regulator amended its by-laws (which required membership approval) to include a process for removing Board members who either did not comply with its Code of Conduct, or refused to “respect, read and sign the Code at the commencement of their term on the Board and following any amendment.” The Board member refused to sign the Code arguing, among other things, that he was elected to his position before the changes were enacted. The Board then disqualified him from serving on the Board solely on the basis that he had not signed the Code.

The Court upheld the Board member’s removal. The Court rejected several technical arguments (e.g., that the by-law changes were not amendments, but constituted a new Code of conduct). The Court held that the reasons for making the changes were appropriate, including enhancing “the confidence of the public and members that [the regulator’s] Board is aligned with current societal values.” A fair procedure was followed in that the Board member was given notice and an opportunity to make submissions before being removed. The Court also said:

The requirement that Board members sign the Code was to ensure that members acknowledge the expectations of those who serve the interests of the MDA and its commitments to the public and profession.

The Court also found that the changes to the by-laws were not passed for an improper purpose or in bad faith, even though they were made in response to the conduct of the Board member. The Court was of the view that the Board member had the onus to establish that the majority of the voting members acted inappropriately, but that onus had not been met. Addressing a governance gap discovered when the member refused to resign was appropriate. The Court was “satisfied that the amendment to the Bylaw was to enable the Board to carry out its ‘duty to govern, determine, control and administer’ the MDA’s affairs.” At that point no decision had been made to remove the Board member. Also, a fair process was used throughout.

Regulators should ensure that their provisions address the removal of Board members who do not comply with their Code of Conduct. It is prudent for the provisions to also require Board members to sign an acknowledgement that they understand and agree to comply with the Code of Conduct.

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