For more than three decades, health regulatory legislation has moved towards zero tolerance for sexual abuse of patients by registrants. A recent Alberta Court of Appeal decision questions the core foundation of zero-tolerance, namely whether a power imbalance or patient vulnerability should be seen as inherent in the relationship.
In 2018, Alberta enacted amendments to the relevant legislation to implement zero tolerance requirements. The amendments required each health regulator to enact standards of practice giving effect to the initiative. Standard 7 for pharmacists specified when a registrant could provide professional services to a person with whom they are in an existing sexual relationship (i.e., an episodic professional service for a minor condition or where there is no expectation of further professional services; or where another practitioner is not readily available, etc.).
In Ahmed v Alberta College of Pharmacy, 2026 ABCA 15 (CanLII), both the pharmacist and the patient acknowledged a sexual relationship during the period in which the pharmacist prescribed medication six times for back pain, cold sores, and a yeast infection. The regulator found that sexual abuse had occurred contrary to the standards and revoked the pharmacist’s registration.
The Court, however, held that, in making a finding of sexual abuse, the discipline tribunal must not only find that the prescriptions went beyond those permitted by Standard 7, but it must also find that there was a power imbalance or that the patient was vulnerable. The Court used examples to illustrate why it would be “irrational and absurd” for a mere breach of the Standard 7 limits to constitute sexual abuse (e.g., issuing two successive prescriptions to a spouse for recurring cold sores). The Court concluded: “Without evidence linking the breach to sexual abuse, mere breach of the Standard 7 limits does not amount to professional misconduct ‘based in whole or in part on sexual abuse’”.
The Court also disagreed with the regulator’s interpretation of the phrase “episodic professional service”, for example, whether repeated services constituted something more than a single encounter or whether they were multiple “single encounters”. The Court also questioned whether the inference of intended further professional services could be based on the number of services provided or whether the tribunal must evaluate the pharmacist’s intent at the time of each service.
Similarly, the Court said that the interpretation of the phrase that another provider was “not readily available” required an assessment of “reasonable efforts, time away from other obligations, attempts to schedule appointments, reasonable wait times, reasonable distances, or reasonable expense”.
The Court’s interpretation of these provisions was based, in part, on the wording of the enabling statute and the regulator’s publications. For example, the enabling statute indicated that the regulator’s standards should consider “power imbalances, the nature of the relationship and the need for urgent care”. The introduction to the regulator’s standards said: “The College recognizes that regulated members have personal lives and that there are circumstances where there is no power imbalance and it may be appropriate for regulated members to have personal relationships with patients or former patients, including sexual relationships.”
It should be noted that Ontario’s zero-tolerance provisions are more definitive in describing the conduct that amounts to sexual abuse of a patient and the courts have studiously avoided introducing the need to evaluate whether there was an actual power imbalance or vulnerability. The Ontario legislation assumes that this is intrinsic to the nature of the professional relationship. In fact, many Ontario health regulators do not permit an exception for most treatment of spouses. Even where a regulation establishes a “spousal exception”, the definition of who constitutes a “spouse” is relatively narrow. Ontario courts have consistently upheld this approach: Mussani v College of Physicians and Surgeons of Ontario, 2004 CanLII 48653 (ON CA), RAR v College of Physicians and Surgeons of Ontario, 2006 CanLII 37118 (ON CA), Leering v College of Chiropractors of Ontario, 2010 ONCA 87 (CanLII).
