Appeal granted, unprofessional conduct findings remitted to tribunal
The Alberta Court of Appeal has ruled that a podiatrist did not sexually abuse his employee under s. 1(1)(nn.1) of Alberta’s Health Professions Act, 2000, because she was not his patient when their sexual relationship started.
In Sefcik v College of Podiatric Physicians of Alberta, 2025 ABCA 263, the appellant, who had a podiatry practice, provided minor healthcare services or treatment to AA in 2016 and 2019.
In February 2016, the appellant treated AA’s ingrown toenail on one occasion. AA eventually began working as his medical office assistant. She complained about a sore ankle at work.
In April 2019, the appellant referred AA for an x-ray to assist with an ankle pain diagnosis. He later discussed the x-ray results with her and suggested that she consult her family physician for further care if the pain persisted.
The appellant and AA had a consensual extra-marital affair from late May or early June 2019 to May 2020. Upon discovering the affair, AA’s husband reported the appellant to the College of Podiatric Physicians of Alberta.
The regulator’s hearings director referred two allegations to a hearing tribunal. First, the director alleged that the appellant committed sexual abuse by having a sexual relationship with a patient under s. 1(1)(nn.1).
Alternatively, the director alleged that the appellant committed unprofessional conduct under s. 1(pp)(ii) of the Health Professions Act by having a relationship with a former patient before the passage of one year since the last clinical visit.
The director claimed that the appellant failed to follow the procedures for relationships with former patients under the regulator’s Practice Standards for the Protection of Patients from Sexual Abuse and Misconduct.
Following the referral, the hearing tribunal determined that AA was the appellant’s patient as defined by the Practice Standards when their sexual relationship commenced, so his sexual relationship with her was sexual abuse under s. 1(1)(nn.1).
The tribunal cancelled the appellant’s practice permit and registration with no opportunity for reinstatement, as the Health Professions Act required for cases involving sexual abuse. The tribunal ordered the appellant to pay $62,612, representing 75 percent of the costs of the investigation and hearing.
Alternatively, if AA was not a patient, the tribunal said it would consider her a former patient. The tribunal noted that it would have found unprofessional conduct under s. 1(pp)(ii) because the appellant failed to comply with the Practice Standards’ requirements for having a sexual relationship with a former patient.
The council of the College of Podiatric Surgeons dismissed the appeal. The council saw no reviewable error in the tribunal’s sexual abuse finding, refused to consider the challenge to the unprofessional conduct finding based on that finding being merely “supplemental” or “obiter,” and ordered the appellant to pay $25,000 in appeal costs.
Sexual abuse not found
The appellant challenged the council’s decision. The Court of Appeal of Alberta allowed his appeal and quashed the sexual abuse finding, sanctions, and costs awards against him. The appeal court remitted the unprofessional conduct finding to the council.
The appeal court found no sexual abuse under s. 1(1)(nn.1) of the Health Professions Act because AA was not the appellant’s patient at the time they began their sexual relationship.
The appeal court noted that the appellant’s treatment of AA’s ingrown toenail one time in 2016 was a minor healthcare service as defined by the Practice Standards.
Regarding the appellant’s health service to AA in 2019, the appeal court found that:
- AA did not mention any other health issues requiring podiatric services
- The appellant did not treat her ankle or identify any podiatry treatment that could help her
- The circumstance did not require him or another podiatrist to furnish her with follow-up, recurring, or ongoing care
According to the appeal court, the only issue left was whether the tribunal erroneously stated that, even if AA was not the appellant’s patient, it would have found him liable for unprofessional conduct, given his sexual relationship with somebody to whom he had previously provided episodic and minor healthcare services.
The appeal court noted that the council had not yet answered this question. The appeal court considered it appropriate to remit this issue since it was not well-positioned to rule on the merits of the tribunal’s unprofessional conduct finding relating to the standards applicable to relationships with former patients who received episodic or minor healthcare services.
