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Paul Hirtle, 13553692
The Member was found to have committed acts of professional misconduct by engaging in inappropriate conduct towards, and/or sexual harassment of, two nursing students by making sexual jokes and comments, staring at the students in an uncomfortable manner, winking at a student and rubbing her back and sending a voice message of a sexual nature to a student that stated “I miss you. My wife is away,” or words to that effect.
The Member was present and self-represented at the liability and penalty hearings.
The Panel found the Member guilty of:
- contravening a standard of practice of the profession or failing to meet the standard of practice of the profession; and
- engaging in conduct relevant to the practice of nursing, that, having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable and/or unprofessional.
The Panel made an order that included the following:
- an oral reprimand;
- a 5-month suspension;
- terms, conditions and limitations, including:
- attending a minimum of two meetings with a Regulatory Expert; and
- employer notification for 18 months.
Aggravating factors considered by the Panel included:
- the Member was in a supervisory role over nursing students and did not maintain professional behaviour;
- the Member’s conduct occurred over a period of time and he demonstrated an ongoing pattern of behaviour targeting two nursing students;
- the Member’s conduct occurred in a clinical setting and included a joke and comments with a sexual connotation directed towards two nursing students which was done in a manner that was humiliating and embarrassing to the nursing students;
- the Member’s behaviour of sending a voice mail to a nursing student was highly inappropriate given his supervisory role as the student’s clinical instructor; and
- the Member took advantage of his position of power over two nursing students in various ways.
Mitigating factors considered by the Panel included:
- the Member had no prior discipline history with the College of Nurses of Ontario; and
- the Member submitted good character evidence speaking to his clinical abilities in his role as a practicing nurse.
The Member appealed the Panel’s decisions.
Appeal
On June 7, 2022, the Ontario Superior Court of Justice, Divisional Court, released its decision on the appeal.
The issues on appeal included the following:
- whether the Panel failed to adequately assist the Member as a self-represented party during the hearing giving rise to a breach of procedural fairness;
- whether the Panel erred in certain evidentiary findings;
- whether the Panel erred in making a finding of misconduct that was outside the scope of the allegations in the Notice of Hearing; and
- whether the Panel erred in imposing an unfit penalty.
On each ground of appeal, the Court made the following findings:
- The Member did not show that the Panel failed to give him sufficient assistance as a self-represented party. The Member had a fair opportunity to present his case and the hearing was fairly conducted.
- The Member did not show that the Panel made a palpable and overriding error regarding their factual findings. Factual findings of the Panel are entitled to substantial deference.
- The Member’s argument that a finding of misconduct was outside the scope of the allegations was a challenge to the merits of the Panel’s findings and not a fairness issue. The Member did not show that the Panel made an error in principle in the application of the standards or about what would be regarded as disgraceful, dishonorable or unprofessional.
- The Member did not demonstrate that the penalty decision was clearly unfit. The penalty decision was entitled to substantial deference.
The Member also raised issues related to allegations where no finding of misconduct was made, but did not ask that the dismissal of those allegations be reversed on appeal. The Court concluded that there was no need to address these issues on the appeal given that the allegations were dismissed.
The Court dismissed the Member’s appeal and ordered that the Member pay costs in the amount of $20,000.
