Executive Summary: Key Legal and Evidentiary Issues

• Central issue was whether Dr. Sefcik’s consensual sexual relationship with AA constituted “sexual abuse” under the Health Professions Act, based on her status as a patient at the relevant time.

• Interpretation and application of the College’s Practice Standards, specifically the definition of “patient” and the role of “minor healthcare service,” were pivotal to the outcome.

• The validity of the Practice Standards was challenged on the basis of alleged non-compliance with statutory requirements for consultation and approval under section 133.1 of the Health Professions Act.

• The Hearing Tribunal and Council’s failure to assess the nature and extent of health services provided to AA was found to be a legal error.

• The Court of Appeal determined AA was not a “patient” when the sexual relationship began, quashing the finding of sexual abuse and all related sanctions and costs orders.

• The issue of whether Dr. Sefcik committed unprofessional conduct by engaging in a relationship with a former patient was remitted to the Council for further consideration.

Background and facts

Dr. Ben Sefcik, the appellant, had a consensual extra-marital affair with his employee, AA, from late May or early June 2019 to May 2020. AA began working as Dr. Sefcik’s medical office assistant about six months before the affair, as an extension of her work at her brother-in-law’s wellness clinic, where Dr. Sefcik’s podiatry practice was located. When AA’s then husband discovered the affair, he and his sister reported Dr. Sefcik to the College of Podiatric Physicians of Alberta.

The College’s Hearings Director referred two allegations to a Hearing Tribunal: (1) that Dr. Sefcik committed “sexual abuse” by having a sexual relationship with a patient, and (2) in the alternative, that he engaged in “unprofessional conduct” by having a relationship with a former patient within one year of her last clinical visit and without following the procedures set out in the College’s Practice Standards for the Protection of Patients from Sexual Abuse and Misconduct.

Dr. Sefcik had provided healthcare services to AA on two occasions: in February 2016, treating her in-grown toenail, and on April 18, 2019, referring her for an x-ray after she complained of a sore ankle at work. The Hearing Tribunal found that Dr. Sefcik must have examined her ankle in April 2019, despite denials from both parties, and that after receiving clear x-ray results, he discussed them with AA and suggested she follow up with her family doctor if symptoms persisted.

Based on the April 2019 service, the Hearing Tribunal found that when the sexual relationship began in late May or early June 2019, AA was a “patient” as defined by the Practice Standards. The Health Professions Act defines “sexual abuse” to include sexual intercourse between a regulated member and a patient, and mandates cancellation of the member’s practice permit and registration with no opportunity for reinstatement. The Tribunal imposed this sanction and ordered Dr. Sefcik to pay 75% of the investigation and hearing costs, amounting to $62,612.

In the alternative, the Tribunal found that if AA was a former patient, Dr. Sefcik had not complied with the requirements in the Practice Standards for such relationships and stated it “would have found” this to be unprofessional conduct.

Dr. Sefcik appealed both the finding of sexual abuse and the costs orders to the Council of the College of Podiatric Physicians of Alberta. The Council found no reviewable error regarding sexual abuse and declined to consider the unprofessional conduct finding, characterizing it as “supplemental” or “obiter.” The Council ordered Dr. Sefcik to pay an additional $25,000 in costs for the appeal.

Policy terms and clauses at issue

The Health Professions Act and the College’s Practice Standards were at the center of the dispute. The Act defines “sexual abuse” as sexual intercourse between a regulated member and a patient, with a mandatory sanction of permanent cancellation of the member’s practice permit and registration. The Practice Standards define “patient” as someone currently receiving health services or treatment and include a glossary definition for “minor healthcare service” as discrete, episodic care not involving ongoing treatment. The Standards also set out specific requirements for sexual relationships with former patients, especially if less than one year has passed since the last clinical visit.

Dr. Sefcik challenged the validity of the Practice Standards, arguing that the College had not complied with section 133.1 of the Health Professions Act, which required consultation with registrants and approval by the Minister before adoption. The Court found there was insufficient evidence to establish non-compliance and held the Practice Standards were valid and applicable.

Tribunal and Council decisions

The Hearing Tribunal found AA was a “patient” at the time the sexual relationship began, based on the April 2019 healthcare service, and concluded Dr. Sefcik committed sexual abuse. The mandatory sanction of cancellation of his permit and registration was imposed, along with an order to pay 75% of the investigation and hearing costs ($62,612). The Tribunal also stated that, if AA was a former patient, Dr. Sefcik’s failure to comply with the Practice Standards would have constituted unprofessional conduct.

The Council upheld the finding of sexual abuse and the sanctions, and ordered Dr. Sefcik to pay an additional $25,000 in costs for the appeal. The Council declined to consider the alternative finding of unprofessional conduct, treating it as “obiter.”

Court of Appeal decision and reasoning

The Alberta Court of Appeal allowed Dr. Sefcik’s appeal. The Court held that the Hearing Tribunal and Council erred by failing to consider the nature and extent of the healthcare services provided to AA, specifically the significance of “minor healthcare service.” The Court found that the brief and non-recurring care provided to AA did not support her continued status as a patient by the time the sexual relationship began. The Court concluded that AA was not a “patient” when the sexual relationship began, and therefore Dr. Sefcik did not commit “sexual abuse” as defined by the Health Professions Act.

The Court also addressed the challenge to the validity of the Practice Standards, concluding that Dr. Sefcik had not provided sufficient evidence to show they were ultra vires. Since the finding of sexual abuse was quashed, the associated sanctions and costs orders were also set aside.

The issue of whether Dr. Sefcik committed unprofessional conduct by engaging in a relationship with a former patient, without following the required procedures, was remitted to the Council for consideration. The Court noted that if the Council upholds a finding of unprofessional conduct, it must also address the sanction and whether Dr. Sefcik should be responsible for any costs of the regulatory proceeding, given his success on this appeal.

Dr. Sefcik was successful in overturning the finding of sexual abuse and the related penalties. The previous costs orders ($62,612 and $25,000) and the cancellation of his practice permit and registration were quashed. The exact amount to be awarded or ordered, if any, regarding the unprofessional conduct allegation will depend on the Council’s further consideration.