Alberta court looks at relationship between pharmacist, part-time worker
A recent decision from an Alberta court highlights how policies on sexual misconduct and relationships must distingish genuine abuse from technical or boundary breaches in consensual relationships.
Recently, the Court of Appeal of Alberta overturned a finding that a Calgary pharmacist committed sexual abuse of a patient, quashing the Alberta College of Pharmacy’s disciplinary decision and sending the matter back to the College’s council for reconsideration.
The pharmacist — licensed since 2009 with additional prescribing authority from 2016 — owned and operated a community pharmacy where "X" worked part‑time as a pharmacy assistant starting in October 2019. Both testified that they were in a sexual relationship by late 2019, and the Court recorded that they “had sexual intercourse on eight occasions from February 22 to June 8, 2020,” during which time the pharmacist also prescribed the worker several medications.
On June 11, 2020, X reported to the police that the pharmacist had raped her on June 8, but denied having had a physical relationship with him previously. The criminal charges were withdrawn in the fall of 2021. The pharmacist then sued X for defamation, and she then filed a complaint with the Alberta College of Pharmacy in March 2022 “for the express purpose of seeking the College’s help in defending the defamation claim" and "to save me from his evil intentions and greediness.”
Previously, a Canada Post employee who served as a shop steward at a Prince George, B.C. depot was found guilty of sexually assaulting a co-worker.
'Sexual abuse' of patient
A Hearing Tribunal of the College of Pharmacy found that the pharmacist breached Standards 1, 2, 4 and 6(a) on sexual abuse and sexual misconduct by engaging in sexual activity with X while also providing her with professional services, concluding his conduct was “sexual abuse” of a patient under the Health Professions Act.
The Tribunal cancelled his practice permit, imposed a lifetime ban on owning or operating a pharmacy, and ordered him to pay 60 per cent of investigation and hearing costs, and an Appeal Panel mostly upheld these findings and costs.
The Appeal Panel reasoned that “a patient relationship is created upon the rendering of a professional service, even in a pre‑existing sexual relationship, unless the professional service is provided within the parameters of Standard 7,” which narrowly governs when pharmacists can provide care to spouses or existing sexual partners.
Sexual harassment is a persistent liability problem for employers.
Court’s key finding
The Court of Appeal of Alberta rejected the College’s interpretation of its Standards of Practice – Sexual abuse and sexual misconduct, especially Standard 7, which permits limited care to existing sexual partners. The Court concluded that “a member who exceeds the Standard 7 limits in providing services to existing sexual partners does not, without more, commit ‘unprofessional conduct based in whole or in part on sexual abuse or sexual misconduct’ for the purposes of s 82(1.1) of the HPA.”
The Court said it is “illogical to jump from a finding of unprofessional conduct through breach of Standard 7 to the conclusion that such unprofessional conduct is ‘based in whole or in part on sexual abuse’,” stressing that “there must be an evidentiary finding linking the unprofessional conduct under Standard 7 to exploitation of a vulnerability or power imbalance in the sexual relationship.”
The Court also found legal and procedural errors in how the College decision‑makers interpreted “episodic professional service” and the exception where another health professional is “not readily available.” It described the Tribunal’s reading of “episodic” as “clearly unreasonable” and held that the Appeal Panel erred by relying on a repealed Standard 14.8(a) about follow‑up care to infer the pharmacist’s expectations, even though that standard was never charged or argued.
'Breach of procedural fairness'
The Court held that this reliance on an uncharged, repealed standard “constituted a significant breach of procedural fairness as the pharmacist was not given an opportunity to know and respond to the case against him,” and it also faulted the Panel for upholding conclusions about the availability of other providers “in the absence of relevant evidence and factual findings.”
In its disposition, the Court of Appeal of Alberta stated that “the Panel’s finding of unprofessional conduct relating to sexual abuse of a patient is quashed, as is the subsequent sanctions and costs decision,” remitting the case to the College’s council under section 92(1)(c) of the Health Professions Act “for further consideration.” The Court said the pharmacist was entitled to costs of the appeal and directed the College to repay “all the cost of preparation of the record referred to in s 91.”
Recently, the Vancouver Symphony Orchestra (VSO) said it will largely abandon the use of non‑disclosure agreements (NDAs) in matters involving sexual misconduct, following public criticism over its handling of a former musician’s allegations.
