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| Sara Blake |
A regulator of a profession has a statutory mandate to enforce standards of practice and uphold public trust by regulating the profession in the public interest. Each regulator is managed by a board or council of which most of its members are elected by the licensed members of the profession.
Dr. Edward Agnew is a dentist. He had been elected by dentists to serve as a member of the board of their professional regulator, the Manitoba Dental Association.
In emails to current and past elected board members, Agnew made discriminatory comments concerning Indigenous people and recommended a link to a website post of a white supremacist. There were further exchanges in which the board relied on findings and recommendations of the Truth and Reconciliation Commission and Agnew responded with contrary opinions of a discriminatory nature.
The board gave Agnew written notice that the contents of his emails were offensive, violated the regulator’s principles and values, and were in contravention of the regulator’s code of conduct for elected members. The notice asked for his resignation.
Agnew attempted to justify the contents of his emails and refused to resign.
The regulator’s bylaws did not have any method to remove an elected member whose behaviour or actions were unacceptable. So, the board, by unanimous approval (Agnew abstained), amended the bylaw and code of conduct to provide for the removal of a board member for behaviour unbecoming of a member of the board. The amendments included a requirement that every board member sign the code of conduct. A board member who failed to sign the code of conduct or failed to comply with it could be removed by a vote of 2/3 of the board. The amendments were ratified by the members of the profession.
Agnew refused to sign the code of conduct. He was given written notice that, if he did not sign it, he could be removed from the board. He was given an opportunity to make written submissions but made none. He was removed by unanimous vote of the board (Agnew abstaining).
Agnew applied for judicial review alleging that the amendments to the bylaws and the code of conduct were made in bad faith to create a mechanism to get rid of him. His application was dismissed by Manitoba Court of Kings Bench.
First, the court found the actions of the board to be reasonable. The requirement that board members sign the code of conduct was to ensure that members acknowledge the expectations of those who serve the regulatory interests and commitments to the public and profession. Agnew was given notice and an opportunity to make submissions.
Second, the court rejected Agnew’s allegations of bad faith. Agnew failed to meet the heavy onus of establishing that a majority, or any, of the voting members acted in bad faith or for an improper purpose. The amendments to the bylaws and code of conduct were made to serve the public interest. At the time of the amendments, no decision had been made as to whether Agnew had violated the code of conduct or whether he should be removed. Before the decisions were made, Agnew received procedural fairness.
In my view, the right thing was done. The public interest is best served by regulators that uphold principles of respect for others and do not tolerate discrimination.
Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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