MA v Alberta College of Pharmacy, 2023 ABKB 522

Court of King’s Bench of Alberta Citation: MA v Alberta College of Pharmacy, 2023 ABKB 522 Date: 20230915 Docket: 2301 11541 Registry: Calgary Between: MA Applicant - and - Alberta College of Pharmacy Respondent Restriction on Publication Identification ban –inherent jurisdiction Pursuant to the Court’s Order made September 13, 2023 any information from this Court’s proceedings that could identify the complainant shall not be published in any document or broadcast or transmitted in any way.

This Order does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community, including use of the information in the ongoing disciplinary proceedings of the Respondent. These reasons were drafted in compliance with these directions.

Corrected judgment: A corrigendum was issued on September 15, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Oral Judgment of the Honourable Justice J.T. Eamon _______________________________________________________

Introduction [ 1 ] The applicant is a registered pharmacist in Alberta. He is the subject of disciplinary proceedings with the Alberta College of Pharmacy. The allegations included that the Applicant’s consensual sexual intercourse with the complainant constituted sexual abuse under the Health Professions Act , RSA 2000, c H-7 (“ HPA ”) and prevailing professional standards concerning sexual abuse and sexual misconduct (Alberta College of Pharmacy, Standards of practice – Sexual abuse and sexual misconduct (the “Standards”). The Standards permit sexual contact with a patient in limited cases.

The issue pertaining to the sexual abuse allegation was mainly whether the sexual contact was or was not permitted under exceptions set out in the Standards, particularly the exception for episodic care under para 7 thereof. [ 2 ] The discipline matter is proceeding in a two step process: a merits hearing to decide whether and why the Applicant committed unprofessional conduct, followed by a sanctions hearing if such findings are made.

This bifurcated process of addressing guilt or responsibility in one hearing followed by addressing sanctions in a subsequent hearing is typical in professional disciplinary and regulatory cases under the HPA and many other statutes, as well as in criminal cases and contempt of court cases. [ 3 ] In July 2023 a hearing tribunal found, following the merits hearing, that the Applicant had committed unprofessional conduct including sexual abuse (Decision of the Hearing Tribunal, July 12, 2023, “Merits Decision”). [ 4 ] Under

section 81.1(1) of the HPA , the hearing tribunal was required to suspend the Applicant’s practice permit if it found sexual abuse. The tribunal found that the instances of sexual intercourse were sexual abuse as defined in the HPA and suspended the Applicant’s permit. The sanctions hearing has not yet taken place. It is apparently proceeding by written submissions, which are currently in progress. [ 5 ] The Applicant sought to appeal the Merits Decision to the Council of the College under

section 87 of the HPA and sought a stay from the Council of the mandatory suspension under

section 86. [ 6 ] Both efforts failed. In late August and early September 2023 an Appeal Panel of the Council and a Stay Committee of the Council found the matters premature. The Appeal Panel found the Applicant did not have a right of appeal until the hearing tribunal completed the sanctions phase, and the Stay Committee found that the stay application was premature until the hearing tribunal completed the sanctions phase. [ 7 ] The Applicant then applied urgently to this Court for a stay. Where the person or committee designated by the Council (

a) decides not to stay the decision of the hearing tribunal, or (

b) does not make a decision within 10 days, excluding holidays, on [sic] the application, the applicant may apply to the Court of King’s Bench for a stay of the decision of the hearing tribunal pending an appeal to the council ( HPA , section 83(3) ). [ 8 ] The issues before the Court are (1) whether the Applicant’s appeal and stay application were premature, and (2) if not premature, should the Court grant a stay pending the appeal of the Merits Decision to the Council?

The findings and proceedings in the College [ 9 ] In the Merits Decision, the hearing tribunal found that the complainant was a patient of the Applicant when they engaged in consensual sexual intercourse on several occasions between February 22, 2020 and June 8, 2020, and that limited exceptions under the Standards that would permit such activity did not apply. The hearing tribunal recognized its obligation arising under

section 81.1 of the HPA , stating: 163. As such, in accordance with

section 81.1 [1] of the HPA , the practice permit of [the Applicant] is immediately suspended until an order is made under

section 82 of the HPA . [ 10 ] The hearing tribunal stated it would hear submissions from the complaints director and the Applicant with respect to orders to be made by the hearing tribunal under

section 82 of the HPA and if the parties were unable to agree on a process it would provide further direction. This sanction phase of the proceeding is ongoing. [ 11 ] After the hearing tribunal issued the Merits Decision, the Applicant filed a notice of appeal with the hearings director of the Council to appeal the findings of professional misconduct pursuant to

section 87 of the HPA , and sought a stay of the suspension and publication of the hearing tribunal’s Merits Decision pursuant to

section 86 of the HPA . [ 12 ] The Appeal Panel of the Council issued a Preliminary Decision on September 1, 2023 finding that the appeal was premature because the hearing tribunal had not completed and decided on the sanctions phase of the discipline matter. It held that a right to appeal under

section 87 of the HPA only arises when all the proceedings before the hearing tribunal have concluded and a written decision has been issued that addresses the hearing tribunal’s findings, reasons, and all the orders issued under

Part 4 of the HPA . [ 13 ] As mentioned, a Stay Committee of the Council decided (on August 30, 2023 with written reasons shortly thereafter) that the stay application was premature. It found that a decision of the hearing tribunal under

section 86 of the HPA means “one or more decisions that, taken together, include the Hearing Tribunal’s findings, reasons for their findings, and all orders issued pursuant to

section 82 of the HPA ”. Legislative background [ 14 ] The College operates under the HPA , an umbrella statute that governs many self-regulating professions that provide health

care services. Under the HPA , each self regulating profession has jurisdiction over complaint proceedings. [ 15 ]

Part 4 of the HPA governs these proceedings. The statute establishes a fairly typical self-regulatory complaints and discipline process.

The system permits the public to make complaints; provides for management of complaints through a complaints director; provides for alternative resolutions (except in allegations of sexual abuse or sexual misconduct), investigations and other processes; permits the director of complaints to dismiss complaints summarily; provides for appointment of committees with power to impose interim suspensions pending hearings of complaints; provides for complaints to be referred to a hearing tribunal for determination and sanctions; and provides for appeals to the Council of the College. [ 16 ] Section 80(1) of the HPA provides: 80(1) The hearing tribunal may decide that the conduct of an investigated person does or does not constitute unprofessional conduct. [ 17 ] Pursuant to section 82(1), if the hearing tribunal decides that the conduct of an investigated person constitutes unprofessional conduct, the hearing tribunal may make a variety of orders listed in

section 82 (as supplemented by

schedule 19 to the HPA ). [ 18 ] A recent amendment to the HPA (made April 1, 2019) provides as follows: 81.1

(1) If the subject matter of a hearing relates to a complaint alleging sexual abuse, and the hearing tribunal decides that the conduct of an investigated person constitutes unprofessional conduct based in whole or in part on sexual abuse, the hearing tribunal must immediately order the suspension of the investigated person’s practice permit until an order is made under

section 82. [underlining added] [ 19 ]

Section 83 provides that the hearing tribunal must, within a reasonable time after the conclusion of a hearing before it, make a written decision on the matter in which it: (

a) describes each finding made by it, (

b) states the reasons for each finding made by it, and (

c) states any order made under [Part 4]. [ 20 ] The statute does not prevent a hearing tribunal from delivering written reports after each of a merits hearing and sanction hearing as occurred in the present case and is common practice of disciplinary tribunals. [ 21 ] The tribunal must forward the decision under

section 83 and its record to the hearings director, who notifies the parties of the outcome and appeal rights (section 84). [ 22 ] Appeal rights are governed by

section 87 . It provides [1] : 87(1) An investigated person or the complaints director, on behalf of the college, may commence an appeal to the council of the decision of the hearing tribunal by a written notice of appeal that (

a) identifies the appealed decision, and (

b) states the reasons for the appeal.

(2) A notice of appeal must be given to the hearings director within 30 days after the date on which the decision of the hearing tribunal is given to the investigated person.

(3) A hearings director must, on being given a notice of appeal, (

a) give a copy of the notice of appeal, and make a copy of the decision and record of the hearing available, to each member of the council or of the panel of council hearing the appeal, (

b) ensure that the complaints director, the investigated person and the complainant are given a notice of the hearing of an appeal that states the date, time and place at which the council will hear the appeal, and (

c) ensure that the investigated person and the complaints director are given a copy of the record of the hearing. [ 23 ] Section 86(1) provides for a stay: 86(1) A decision of the hearing tribunal remains in effect pending an appeal to the council unless the person or committee designated by the council, on written application, stays the decision pending the appeal. [ 24 ]

Section 88 imposes time limits in which to set the date for the appeal. The appeal hearing date, however, is discretionary. There is no statutory time limit on the hearing date itself. [ 25 ]

Section 89 sets out the extensive powers of the Council to decide an appeal. Appeals to the Court of Appeal are available from any finding, order or direction of the Council ( HPA

section 90 ). Submissions

[ 26 ] The Applicant submits the hearing committee made a decision and the decision is appealable under

section 87 . The statute should be read in its grammatical and ordinary sense, consistent with the scheme of the Act and the intention of the legislature. Section 80(1) authorizes the tribunal to decide that conduct does or does not constitute professional misconduct. Exercising a power to decide results in a decision.

Section 87 provides for an appeal of the decision. Bifurcated proceedings have been found to be separate proceedings in other contexts. The Applicant points to case law holding that in a bifurcated proceeding for civil contempt, appeal periods commenced running separately for the merits proceeding and the sanction proceeding ( AHS v Pawlowski , 2021 ABCA 344 at para 7 ).

In that case Strekaf JA found that time to appeal the contempt finding had expired: [7] I am satisfied that the contempt finding was a “decision” within the meaning of Rule 14.8, and that the running of the appeal period with respect to that decision commenced when it was made. In Slawsky v Edmonton (City) , 2019 ABCA 302 this Court noted at paragraph 29 that, while “Rule 14.9(

c) makes a single appeal of two related decisions possible in some circumstances, … it does not mean that the deadline for appealing the two decisions is the same. Determining the deadline for filing a notice of appeal is the job of r 14.8(1), not r 14.9(c).” Generally, contempt “proceedings are bifurcated into a liability phase — where the case on liability proceeds and a defence is offered — and, if liability is established, a penalty phase.

In contempt proceedings, liability and penalty are discrete issues”: Carey v Laiken , 2015 SCC 17 at para 18 , citing College of Optometrists (Ont) v SHS Optical Ltd. , 2008 ONCA 685 at paras 72-75 . [ 27 ] The concept of bifurcated decisions of each phase of a bifurcated proceeding having a separate appeal period is not new. The criminal appeal rules have long (since at least 1993 -- Criminal Appeal Rules , SI/93-169 ) provided a solution to the issue of bifurcated appeals where a convicted person might appeal either or both of conviction and sentence.

Section 4(2) provided: “Where the appeal is from conviction, sentence, or both, the notice of appeal shall be served within thirty days after the day of the sentence.” [ 28 ] The current Alberta Court of Appeal Criminal Appeal Rules, SI/2018-34 , which replaced the 1993 rules, similarly provide: 16.5 In this Part, “date of decision” means the later of (

a) the date that the decision being appealed is made, and (

b) for a conviction appeal, where the sentencing occurs later than the conviction decision, the date that the sentencing decision is made. [ 29 ] The Applicant submits that the Jinnah v Alberta Dental Association and College , 2022 ABCA 226 case is an example of two separate appeals existing in a bifurcated disciplinary proceeding.

However, the reasons of the Court in that case do not indicate that there were two separate appeals commenced, and in any case the question was not in issue. [ 30 ] The Respondent points out that the HPA refers, with reference to decisions of hearing tribunals, to a “decision” in the singular, not plural. It submits that the context of this usage makes clear that there is only one decision for appeal purposes, therefore only one appeal from a hearing tribunal proceeding. The Respondent submits that

section 83 makes clear the tribunal must make a written decision after the conclusion of the hearing before it. The hearing is not concluded until sanctions are addressed and orders under

section 82 are made. Further, the tribunal must forward its record to the hearings director, who must give a copy of the decision to the Complainant.

Section 85 then deals with who can examine the record. This cannot occur if the hearing tribunal requires the record for ongoing sanction proceedings. [ 31 ] The Respondent submits in its written brief: When these sections of the HPA are considered, they make clear that a decision of a Hearing Tribunal is not complete and finished until the hearing tribunal has issued a written decision setting out its full reasons dealing with any orders made including sanctions.

This has not happened in this case. [ 32 ] The Respondent points out that this conclusion is aligned with Sabourin v Laiken , 2011 ONCA 757 at paras 7 and 9 , where the Court observed a tribunal has not expressed its final view until sanction has been imposed. However, the Respondent did not cite Sabourin and Sun Group of Companies v Laiken , 2013 ONCA 530 where the Court at para 31 clarified that its earlier decision was not meant to suggest the merits decision in a contempt proceeding was provisional or that the law contemplates a judge revisiting and reversing an initial finding of contempt.

The Supreme Court of Canada on appeal agreed, stating that generally the finding of contempt (that takes place in the merits phase) is final. See Carey v Laiken , 2015 SCC 17 at para 65 .

Strekaf JA followed this decision in Pawlowski holding that the time to appeal the contempt finding ran from the date of that decision, not the date of sanction. [ 33 ] I note that in Denis v Sauvageau , 2022 ABCA 166 Khullar JA now CJA refused a stay on an appeal from a contempt finding but did not make a determination on the procedure to be followed at that time when the sanction hearing had not yet been held (para 40). [ 34 ] The Respondent also points out, in respect of the context of the statute, the negative consequences of litigating by instalment and bifurcating appeals.

See, for example, Khullar JA’s recent review of the problems this can cause in Denis and Feehan JA’s decision in Fawcett v College of Physicians and Surgeons of Alberta (Complaint Review Committee) , 2022 ABCA 416 .

Standard of review [ 35 ] In an application to stay the proceedings, the Court should consider whether to defer to a decision of Council refusing to accept an appeal or entertain a stay. [ 36 ] Neither party made submissions in this regard, but stated for the purpose of this application the question whether Council properly declined the appeal and properly refused to consider the stay application, is a question of law that should be assessed on the correctness standard. [ 37 ] In my opinion, this is the appropriate basis for the assessment. The issue is similar to judicial review in that the Council was

interpreting its home statute. In such cases, the presumptive standard of review is reasonableness (Canada (Minister of Citizenship andImmigration) v Vavilov, 2019 SCC 65 , [2019] 4 SCR 653 at paras 10, 17).

However, certain cases require correctness review(Vavilov at paras 69 and 70; Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association,2022 SCC 30 at paras 26, 27, and 28). [38] The categories where the reasonableness standard does not apply include where courts and administrative bodies haveconcurrent first instance jurisdiction over a legal issue in a statute (Society of Composers, Authors and Music Publishers of Canada atpara 28). [39] The questions of appeal jurisdiction that arise in the present case are common to several health profession regulators under theHPA.

The statute provides appeals from Council decisions to the Alberta Court of Appeal. Both circumstances imply correctness reviewon questions of law. However, the Court recognizes that two panels of the College have provided detailed reasons why the Applicant’sright to appeal, and consequently his right to apply for a stay, have not yet arisen under the HPA. I have given respectful attention to theirreasoning, but in my opinion these decisions are incorrect.

Analysis [40] The Respondent’s position that there is only one decision to appeal, is mainly premised on the legislature’s reference, in thevarious provisions under consideration, to a “decision” in the singular, rather than more than one decision such as a merits decision or asanction decision.

They infer from the use of the singular that the legislature intended that all the tribunal’s findings and orders aretogether, one decision. [41] This may simply be a matter of drafting style and a court should be cautious in drawing such conclusions from the use of theplural vs the singular in reference to a decision that is subject to appeal. The

Interpretation Act, RSA 2000 c I-8 26(3) provides “In anenactment, words in the singular include the plural, and words in the plural include the singular.” [42] The use of the singular in the HPA does not suggest there can be only one decision. It is equally consistent with the legislaturecontemplating that one may appeal the outcome of any hearing. [43] The tribunal may decide that the conduct alleged in a complaint is or is not unprofessional conduct (section 80(1)). Decidingone or the other is, in plain language, a decision. [44]

Section 83 requires the tribunal to provide written reasons after the “conclusion of a hearing before it”. This is equallyconsistent with bifurcating a discipline hearing into 2 hearings – merits and sanction. If the tribunal proceeds in that way, it might deliverone set of reasons or two sets depending on the circumstances. For example, where a tribunal provides an oral decision on the merits itmight proceed to sanctions shortly thereafter and provide one written report later. Where a tribunal reserves and provides extensivereasons those may well be in writing as occurred in the present case. Seen this way,

section 83 does not require a single set of reasons atall. It requires reasons for the matters at the hearing, not all matters in the entire proceeding. In tandem with that,

section 84 requires thehearings director to deliver notice of the reasons and notice of appeal rights, as the written reasons are delivered. [45] Tribunals generally have discretion to adopt procedures suitable for the specific case before them. Disciplinary tribunals havelatitude within the confines of the legal requirements of fairness, to bifurcate hearings into a merits phase and a sanction phase anddiscretion to deliver bifurcated findings with associated reasons and orders if any for each phase depending on the circumstances. Appealrights arise when such decision is pronounced.

To be clear, however, the right of appeal is distinct from the time limitation in which toappeal. The legislature intended that appeal time limitations run from delivery of the written hearing report. When a tribunal decides todeliver a separate written report for each of the merits phase and the sanction phase, the right of appeal arises from the decisions and timestarts to run.

Where there is an oral decision, the right of appeal from a decision arises when it is pronounced with oral reasons but timedoes not start to run until the written report is delivered. [46] The Court does not suggest that the legislature intended a regulated professional could appeal from each ruling or findingduring the course of a specific hearing (merits or sanction). The dangers to the conduct of hearings posed by appellate intervention inspecific rulings made during the course of a hearing are well known.

Section 83 does not suggest the existence of such appeals. Thelegislature did not intend such appeals. Rather, the legislature intended one appeal from the outcome of a hearing. Thus one appeal froma merits hearing and one appeal from a sanction hearing, but not multiple appeals from a single hearing such as separate, immediateappeals of evidentiary or other rulings made in the course of a hearing.

Such interlocutory appeals would be abusive, outside thecontemplation of the HPA, and properly ignored. [47] In terms of the object and purpose of the HPA, the statute is directed at maintaining the public confidence in the profession ina manner that is reasonably fair to the regulated professional in the complaint process. [48] The integrity of the process does not require that the subject of a discipline proceeding be deprived of appealing a meritsdecision until the conclusion of a potentially lengthy sanction process, the pace of which is largely out of their control.

Interpreting thestatute to recognize the Council’s jurisdiction to entertain a bifurcated appeal provides flexibility and enhances fairness to those subjectto discipline proceedings. [49] The flexibility of appeal scheduling and the power to grant a stay in appropriate cases, is an appropriate balancing of economyand efficiency considerations with the need for fairness in administrative proceedings.

The Court recognizes that the HPA requires thescheduling of an appeal date within fixed time frames, but this provision does not require the appeal to be heard within any time frame.The scheduling period will allow the parties to confer and build a

schedule that serves the parties’ needs including those of economy andefficiency. The Council may direct the appeals be heard together as a scheduling matter, to avoid the harms arising from bifurcatedappeals in the vast majority of cases and in exceptional cases it might be desirable to hear the appeals separately. In rare cases it may notbe possible to

schedule the appeals for hearing together within the confines of section 88(1) and in such a case it might be necessary to

hear the appeals on a bifurcated basis. [ 50 ] In these circumstances, the Court refuses to conclude that the legislature intended only one appeal in each discipline matter. The hearings are bifurcated. An appeal is available from the outcome of each of the merits hearing and the sanction hearing. Council may consolidate the appeals, within the scheduling confines of section 88(1).

The Court does not see any persuasive consideration – whether in the statute’s language, object, purpose, or context - that the legislature intended to eliminate all risk of bifurcated appeals at the cost of fundamental fairness to the subject of the proceeding. [ 51 ] If this is thought inconvenient in some cases, that is a matter for the legislature to consider. It might well implement the same solution as found in the criminal appeal rules referenced earlier or provide some other clarification. Conclusion [ 52 ] An appeal lies from each of the merits and sanction hearings.

The appeal committee erred in law in finding the Applicant did not have a right of appeal, and the stay committee erred in law in refusing to consider the Applicant’s stay application. Presently, the merits decision is pending appeal to the Council. The Applicant had the right to have his stay application considered. The Court further notes that the tribunal was obliged under the statute to make the suspension order. However, the statute does not prohibit a stay of the tribunal’s order. Consequently, the Court has jurisdiction under

section 83 to grant a stay. [ 53 ] I turn to whether the Court should stay the order. Stay application [ 54 ] The Court considered whether to adjourn the determination whether to exercise its discretion to grant a stay until the Council had an opportunity to consider the Court’s finding that Council was legally obliged to consider the Applicant’s application to the Stay Committee. Normally, the Council ought to decide whether to grant the stay in the first instance and its views should be available to the Court.

However, given the urgency of the matter and the delay that has already been occasioned by Council’s error in refusing to consider the stay application, it is in the interests of justice that the Court consider the application now.

The Applicant is incurring significant and irreparable financial harm from the suspension and it is not fair that he incur further delay and further losses in having his application in this Court decided only after allowing Council a further opportunity to express its views. [ 55 ] The test for a stay pending appeal requires that there is a serious question to be determined on appeal, that the applicant will suffer irreparable harm if the stay is not granted, and that the balance of convenience favours granting the stay (see, for example, Denis at para 17 ). [ 56 ] The Court does not find it necessary to address all the lengthy grounds of appeal that are written in the notice of appeal.

The mandatory suspension order was triggered by the finding that the Applicant committed sexual abuse because he provided non-episodic professional services to a person with whom he was having a sexual relationship. The Court will limit its assessment of whether there is a serious issue to be appealed, to those grounds. [ 57 ] Under the

definitions in

section 1 of the HPA , “sexual abuse” means: ... the threatened, attempted or actual conduct of a regulated member towards a patient that is of a sexual nature and includes any of the following conduct: (

i) sexual intercourse between a regulated member and a patient of that regulated member; ...; [ 58 ] Also under the HPA , “patient”, for the purposes of a complaint made in respect of unprofessional conduct in relation to sexual abuse or sexual misconduct, means “a patient as set out in the standards of practice of a council”. [ 59 ] The definition of a “patient” under Council’s Standards defines a patient as “any person to whom a regulated member provides professional service...”. [ 60 ] This definition has to be read with

section 7 of the Standards.

Section 7 permits some types of professional services by a pharmacist to a person with whom the pharmacist has an existing sexual relationship. It provides: 7.

A regulated member may provide a professional service to a spouse, an adult interdependent partner, or other person with whom the regulated member is in an existing sexual relationship, but only if a. the professional service is an episodic professional service; b. the professional service, in the context of the personal relationship, constitutes an activity of daily living; or c. another regulated member or another appropriate regulated health professional is not readily available to provide the professional service. [ 61 ] The HPA does not authorize the Council to change the definition of sexual abuse.

It appears that

section 7 of the Standards is in substance, a limitation on the definition of “patient” in the Standards - a term that Council is authorized to define.

[ 62 ] In the present case the Applicant claimed that he considered the boundaries imposed by the Standards, considered himself in an existing sexual relationship with the complainant, and therefore periodically agreed to provide the complainant only with a limited professional service being of an episodic nature. [ 63 ] The Applicant provided such service on five occasions. The hearing tribunal found this did not meet the single encounter requirement of

section 7 of the Standards. It found that a pharmacist can only provide such a service one time, presumably only once per lifetime. This is arguably a problematic

interpretation, because the Standard does not limit the number of occasions on which an episodic service is provided, but rather limits the number of attendances in respect of a single service. It is an issue that merits appellate review. [ 64 ] The Applicant testified that each of the services was unrelated to the others. He provided the services because the complainant could not get a timely appointment with their doctor, and with the onset of the covid pandemic could not get to see their doctor.

The Court can take notice that the early months of the covid pandemic were a time of uncertainty and there was reduced access to professional services as distance limitations, closures, and other public health measures were implemented. In short, the Applicant claims he assisted the complainant on a one-off basis with acute issues on a few occasions when they could not get to see their doctor. See Merits Decision, paras 70-73. [ 65 ] If the hearing tribunal rejected the Applicant’s evidence, then arguably it did not meaningfully explain why it did so.

Vavilov observes that failure of a tribunal to “grapple” with the main contentions of a party to the hearing might amount to a lack of transparency or justification in an administrative decision, and the omission may be more acute where the consequences of the decision for the party are particularly severe or harsh ( Vavilov at para 134 ). [ 66 ] The tribunal further reasoned that the service must be provided in circumstances where neither the regulated member nor patient have the expectation that the member will provide further services.

The tribunal, at para 118 of its reasons, found that the patient expected further services for acute conditions, but did not explicitly find (or reject the Applicant’s evidence to the contrary) that the Applicant did not expect to do so. [ 67 ] The existence of a serious issue is a low threshold. The Court cannot say that the arguments in subparas 8 (

f) and (

g) of the Applicant’s notice of appeal are frivolous or totally lacking in merit. Of course, it will be for the Council to decide whether to accept them. It is not the Court’s role to prejudge them and the Council is not bound by the Court’s comments on these issues. Some of the Applicant’s other arguments are difficult to understand, but this is an urgent application filed only about a week ago in this Court and perhaps will be better explained in an appeal.

For now, there are sufficient grounds to meet the low threshold. [ 68 ] The Court is satisfied that the Applicant is suffering and will continue to suffer serious irreparable financial harm from the immediate suspension. He is involved in an owner operated pharmacy and is helping a related person get another pharmacy off the ground. His inability to practice is causing uncertainty among his patients whether the businesses will be closing. He has business expenses to pay and his ability to earn the necessary revenue has been seriously impaired.

He is funding the operations from savings and fears he will soon be unable to pay relief pharmacists hired to cover him, other employees, and landlords while he must also provide for his family. In making these findings, the Court recognizes that the Applicant cannot act as the licensee for both businesses as the Respondent’s complaints director points out.

However, the current suspension is seriously impacting both pharmacies by causing uncertainty among patients as to continuation of the businesses and has significantly increased operating expenses at least for the established pharmacy where the Applicant is the licensee. [ 69 ] Turning to the balance of convenience, the Court may consider the potential negative impacts to the Applicant’s employees should the pharmacy business fail. [ 70 ] The Court must also weigh the irreparable harm to the College in the balance of convenience.

Case law and legislatures have recognized the pernicious impact on patients of sexual relationships with their health care providers, given their trust and reliance on, and sometimes vulnerability to, their health care providers. These impacts extend to consensual sexual relationships. [ 71 ] The Applicant’s submission that the sexual conduct was consensual and therefore not as offensive as other types of cases is not persuasive, given the College’s intention to establish almost zero tolerance for sexual relationships with patients.

James T Casey’s work on professional discipline, The Regulation of Professions in Canada (Carswell, looseleaf) at Appendix IF-20 provides a detailed history of these types of provisions and, generally, the public and regulatory repugnance for sexual contact between patients and regulated professionals. A Court should not lightly discount the potential negative impact to public confidence only because the relationship was consensual. [ 72 ] Consequently, lack of consent is aggravating but presence of consent is not mitigating.

The public would rightly ask, why is a pharmacist found guilty of professional misconduct for crossing the line into sexual abuse permitted to practice? There is a clear risk of irreparable harm to the reputation of the profession.

How should these competing harms be balanced? [ 73 ] A reasonable person, having thought the matter through, would consider that (1) the Applicant should have a reasonable opportunity to appeal and may lose much of the benefit of the appeal should financial ruin ensue in the meantime; (2) there is no evidence that the Applicant has a past disciplinary record or misconduct findings over his career spanning more than 10 years; (3) there is some evidence that the Applicant might not follow practice or ethical requirements arising from the tribunal’s findings that he accessed the Complainant’s health care records for improper purposes; (4) notwithstanding the findings of his ethical non-compliance in this specific case, there is no evidence that he will not comply with a court order designed to protect the reputation of the profession by ensuring that such misconduct will not reoccur pending the appeal hearing. [ 74 ] A reasonable person would not consider the reputation to the profession tarnished or lose confidence in the profession, only because the Applicant is permitted to practice under conditions aimed at preventing the risk of further misconduct for a short period of

time so that his appeal to Council can be heard. [ 75 ] The harm to the Applicant and to the profession are best accommodated by granting a stay of the suspension order pending appeal to the Council.

During the term of this stay: (1) the Applicant is prohibited from consulting with or providing professional services to patients in private areas of the pharmacy including consultation rooms unless accompanied by another employee of the pharmacy during such consultation. (2) the Applicant is prohibited from providing professional services, episodic or non-episodic, to any person with whom he has had, currently has, or has in the future, a sexual relationship as defined in the Alberta College of Pharmacy Standards of Practice – Sexual abuse and sexual misconduct and shall not invoke or rely on the exceptions in paras 7 or 8 of the Standards. (3) the Applicant is prohibited from relying on the permission to enter a sexual relationship with a former patient provided in para 11 of the Standards. [ 76 ] The Court further directs that this stay expires upon the Council issuing its decision on the appeal of the Merits Decision. [ 77 ] A party may apply to any judge of the Court to modify or terminate this stay on notice to the other party. [ 78 ] As to the request for a stay of publication of the Merits Decision, the evidence indicates the Council does not intend to publish it but the outcome of my reasons is that Council is required to distribute the Merits Decision in accordance with

section 84 of the HPA . [ 79 ] The parties did not address this issue. They may provide further submissions on it. [ 80 ] The Court reserves the right to publish these oral reasons in the usual way including assigning a CanLii citation. If there is an issue whether the decision should be withheld from the public or published under pseudonyms, they may address directions for deciding that. [ 81 ] [The Court invited submissions with respect to publication bans, and anonymizing the Applicant’s name pending completion of the appeal, and costs.

The reasons for the Court’s directions on these matters are recorded in the transcript of the hearing.] [ 82 ] It is ordered that that any information from this Court’s proceedings that could identify the complainant shall not be published in any document or broadcast or transmitted in any way. [ 83 ] It is ordered that the Applicant's name on this decision will be in the form of the pseudonym MA.

This direction expires upon expiry of the stay. [ 84 ] Costs, if any, to be addressed in an appeal, if any, from a decision of Council on the appeal. [ 85 ] Notice of the publication ban will be placed on any copy of the Court’s reasons that are released. [ 86 ] [Following the hearing the Court noted its omission to provide an appropriate exception to the publication ban order allowing reporting internally in the College for the purpose of the ongoing disciplinary proceedings or use of information in the ongoing disciplinary proceedings.

The Court further directs: This Order does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community, including use of the information in the ongoing disciplinary proceedings of the Respondent. If the parties have any issue with this direction, they may arrange to speak to same.] Heard on the 12 th day of September, 2023. Delivered orally the 13 th day of September, 2023 Dated at the City of Calgary, Alberta this 14 th day of September, 2023. J.T. Eamon J.C.K.B.A. Appearances:

David J. Marshall and Giovanni Perri (student at law) for the Applicant David N. Jardine for the Respondent _______________________________________________________ Corrigendum of the Oral Judgment of The Honourable Justice J.T. Eamon _______________________________________________________ 1. Para 1, substitute “Alberta College of Pharmacy” for “Alberta College of Pharmacists” wherever it appears. 2. Para 3, “2013” is corrected to “2023”. 3. Para 50, replace “appeal hearing” with “sanction hearing”. 4. Para 68, “the licensed pharmacist” is corrected to read “the licensee”. 5. Under the heading “Appearances”, correct “David Marshall” to “David J. Marshall”.