Ontario Labour Relations Board
[1985] OLRB Rep. May 743
0132-83-M United Brotherhood of Carpenters and Joiners of America, Local Union 27, Applicant, v. Janin Building and Civil Works Ltd., Sword Contracting Limited, Respondents, v. Labourers International Union of North America, Local 183, Intervener #1, v. The Form Work Council of Ontario, Intervener #2, v. The Ontario Form Work Association, Intervener #3, v. New Rise Forming, Intervener #4, v. Metropolitan Toronto Apartment Builders Association, Intervener #5
BEFORE: Ian C. Springate, Alternate Chairman, and Board Members J. Wilson and H. Kobryn.
APPEARANCES: Douglas J. Wray and John Cartwright for United Brotherhood of Carpenters and Joiners of America, Local Union 27; James B. Noonan, Richard Nixon and Christian Huc for Janin Building and Civil Works Ltd.; R. C. Filion, Q, C. and A. Gagne for Sword Contracting Ltd.; R. C. Filion, Q. C. and K. Mallette for Metropolitan Toronto Apartment Builders Association; S. B. D. WahI, L. Detoni and R. Lotito for Labourers International Union of North America, Local 183 and The Form Work Council of Ontario; Jeffrey Davis and Tony Michael for the Ontario Form Work Association and New Rise Forming.
DECISION OF THE BOARD; May 28, 1985
1This matter commenced as a referral of a grievance to the Board pursuant to the provisions of section 124 of the Labour Relations Act. One of the issues raised by the grievance was whether or not certain work comes within the industrial, commercial and institutional sector (the ICI sector) of the construction industry. The Board entertained the evidence and the representations of the parties with respect to this issue pursuant to the provisions of section 150 of the Act, which provide as follows:
The Board shall, upon the application of a trade union, a council of trade unions, or an employer or employers' organization, determine any question that arises as to whether work performed or to be performed by employees is within the industrial, commercial and institutional sector of the construction industry referred to in clause 117 (e).
2The work in question is connected with the construction of the Harold and Grace Baker Centre (the Baker Centre) in the City of York in the Municipality of Metropolitan Toronto. The Baker Centre is to be used primarily as a 120 bed nursing home and a 120 bed retirement home, although a certain amount of space has also been allocated for a day-care centre for 25 children and a smaller day-care facility for seniors. The United Brotherhood of Carpenters and Joiners of America, Local Union 27 (the Carpenters Union) contends that work on the project comes within the ICI sector of the construction industry. The other parties, however, contend that the work comes within the residential sector. This is the first time that the status of work on a nursing home or retirement home has been litigated before the Board. Given the complexity of the issues involved, a great deal of evidence was led by the parties. Indeed, a total of 49 individuals were called to testify. We have attempted in this decision to briefly summarize that part of their evidence we consider most relevant to the issue before us.
3The Baker Centre is named after Dr. Harold Baker, a former staff member of the Northwestern General Hospital in the City of York, and his wife Grace. The impetus for the construction of the Centre came from the Northwestern General Hospital. In 1981 the Hospital made arrangements with the Ontario Ministry of Health for the issuance of a nursing home licence. Subsequently, it was decided that the project would be expanded to also include a retirement home and day care facilities. The Baker Centre is located next to the Hospital. The land on which the Baker Centre is located is owned by the Centre. Most of this land was purchased by the Baker Centre from private owners. Some of the land, however, was transferred to the Centre by the Hospital at no charge. Another part of the land was previously owned by the City of York. This land was given to the Baker Centre by the City in return for the City receiving certain other lands from the Hospital.
4A brochure put out by the Baker Centre refers to the history and purpose of the nursing and retirement home portions of the Centre as follows:
For the first time in Metro Toronto, a non-profit nursing/retirement home will be associated with an active treatment general hospital.
In early 1981 Northwestern General Hospital was awarded a license by the Ministry of Health to build a 120 bed nursing home on its property, and since that time the concept has expanded to include a 120 bed retirement residence, a day care program for seniors and a day nursery for children.
The $11 million Baker Centre currently under construction on a 4-acre site adjacent to the hospital is scheduled to begin operation next spring.
Mr. Patterson, Chairman of the Baker Centre's Board, has been involved with the Baker Centre since planning began three years ago. He says the facility will introduce a continuous care concept that will allow the elderly person to remain in the same familiar environment as his accommodation and health care needs change.
For instance, a fairly healthy senior may live in the retirement residence or attend the senior's day care program. Should there be a health change, transfer to the nursing home section or into the hospital could be accomplished without the major upheaval normally associated with such a change. The individual would not be uprooted from friends, familiar doctors or the community, Mr. Patterson explains.
The Baker Centre, managed by its own Board of Directors, is a registered non-profit corporation and an integral part of the Northwestern Health Centre. The Board includes Hospital, community, Auxiliary and City of York representatives.
5As indicated in the above excerpt, the Baker Centre is part of the Northwestern Health Centre. In a 1983 edition of Horizons, a publication of the Northwestern Health Centre, the purpose of the Health Centre was described as follows:
Northwestern Health Centre, a new umbrella name to reflect the Hospital's expansion into other areas of health care, has been adopted by Northwestern's Board of Directors.
Morris Emer, Chairman of the Hospital's Board of Directors, says that the new name was adopted to better describe the overall complex which will include facilities now planned or under construction.
Northwestern's evolving into more than just a hospital, he explains. A nursing home and retirement residence are under construction and we are planning a senior's day care program and children's day nursery as well. In addition, a foundation has been established to generate funds in support of all components of the Health Centre.
Northwestern's Executive Director, Ron Woods, says that the new name nicely sums up what the Hospital and new facilities are coming to mean to the community they serve: A health centre does a lot more than provide treatment for severely ill patients. It's an important health and residential focus for the whole community.
6Although part of the Northwestern Health Centre, the Baker Centre has a separate legal existence from the Northwestern General Hospital. It is a corporation without share capital that is registered with Revenue Canada as a charitable organization. The Baker Centre has a 13-member board of directors. The bylaws of the Baker Centre stipulate that six of these directors, including the chairman of the Centre, must be approved by the Board of Directors of the Northwestern General Hospital. Another director, who must be a member of the medical staff of the Hospital, is to be approved by the medical advisory committee of the Hospital. The executive director of the Hospital is an ex-officio director of the Baker Centre. Another director of the Centre is to be approved by the Auxiliary of the Centre and/or the Auxiliary of the Hospital. Of the four remaining directors, one is to be approved by the City of York, and three are to represent the interests of the community.
7Close to 100 per cent of the cost of building the Baker Centre was raised by way of a mortgage. The mortgage is covered by loan insurance arranged through the Canadian Mortgage and Housing Corporation (CMHC). The CMHC also agreed to provide funds which would have the effect of lowering the mortgage interest with respect to most of the project by 2 per cent. This 2 per cent interest reduction covers what is referred to by the CMHC as the shelter component of the Baker Centre, but excludes the non-shelter component. The CMHC considers as part of the shelter component the bedrooms in both the nursing home and retirement home portions of the project, communal dining facilities, lounge areas as well as a beauty and barber shop. The part of the project considered as non-shelter component includes corridors, nursing stations, day-care facilities, a doctor's office and an infirmary. This non-shelter component accounts for 5.8 per cent of the Centre's total floor area. Ms. Shirley Brodeur, the Manager of Social Housing for the CMHC's Toronto office, testified that the Baker Centre received financial assistance from the CMHC under a non-profit housing plan because it will be providing shelter to senior citizens. Ms. Brodeur indicated that similar financial assistance had been given by CMHC to other non-profit nursing homes, senior citizens apartments and organizations that care for and house handicapped and disabled persons.
8The plans for the Baker Centre call for the construction of a building shaped somewhat like a horseshoe. The centre of the horseshoe is a six-storey block. Running out from both sides of this centre block are arms one-storey high. The ground floor of the centre block contains a lounge, greenhouse, offices, a tuck shop, washrooms, a kitchen, a dining room and a craft room. With the exception of a mezzanine floor, which contains a lounge, a library and certain other facilities, the other floors in the central block contain bedrooms, each with an attached washroom, to be used as the retirement home portion of the building. The bedrooms are for one or two people. The Baker Centre refers to the rooms as being either private or semi-private. The washrooms do not contain tubs, although each floor has a tub room. Individual units do not contain any cooking facilities, it being anticipated that residents will either eat in a common dining room or have tray service to their rooms. There is, however, a servery on each floor where residents can make themselves hot drinks and snacks.
9A basement located under the centre block of the Centre also extends under part of one of the arms. The basement contains a storage room, electrical and mechanical rooms, staff locker rooms, an office, day-care areas, a snack bar, servery, craft room, beauty and barber shop, volunteer room, sewing and mending area, as well as a shipping and receiving area. It is anticipated that areas such as the snack bar and servery will be utilized primarily by residents in the retirement portion of the building, although they will also be available for use by residents of the nursing home portion.
10There are no nursing stations in the retirement home portion of the Centre. However, an emergency call system in each bedroom has been roughed in. Mr. Douglas Anderson, the Vice-Chairman of the Baker Centre, testified that it is hoped that a service club will provide the money to pay for the installation of the call system. The literature put out by the Baker Centre to attract residents indicates that medical and nursing care will be available to retirement home residents if required. This point was reinforced by Mr. Anderson, who indicated that nursing staff from the nursing home portion of the Centre will be available to retirement home residents in need of assistance.
11The two arms running out from the centre block contain the nursing home portion of the complex. They contain a number of single and double bedrooms as well as some four-bed wards. There is also an office for a nursing director, nursing stations, tub rooms, a dispensary, lounges, and a dining room. Mr. Rick O'Donnell, the Executive Vice-President of Bestview Health Care Ltd., which has been awarded a contract to manage all of the Baker Centre, except for the day care facilities, testified that it is anticipated that one of the nursing home wings will house residents requiring light personal care, that is, about 1.4 hours of care per resident per day, while the other wing will be for residents requiring heavier care of about 1.8 or 1.9 hours per day. It is anticipated that most of this care will take the form of health care aides assisting residents with the activities of daily living, and that each resident will receive about 0.15 hours per day of care from a registered nurse.
12Mr. O'Donnell testified that the retirement/nursing home portions of the Baker Centre will be staffed by a director of nursing, two nurses on duty at all times~ as well as a number of health care aides. He anticipated that the Centre will also require the services of three cooks, between 15 and 20 kitchen helpers, eight housekeeping staff, two employees in the laundry, a maintenance person, an activities director in charge of activities and social programs, as well as a general office staff. According to Mr. O'Donnell, it has not yet been decided whether the beauty and barber shop will be staffed by employees of Bestview Health Care Ltd. or whether the operation of the facility will be contracted out.
13The construction of the Baker Centre was let by tender to a general contractor. For certain general contractors the tendering process raised the issue of whether the project comes within the ICI sector of the construction industry, in that they are obliged to honour the terms of a number of provincial agreements applicable to the ICI sector. A considerable amount of evidence was led concerning what sector participants in the construction industry generally view nursing homes, retirement homes, and senior citizen apartments as coming within. The evidence establishes that it is widely accepted among construction firms operating in the Toronto area that senior citizen apartments comprised primarily of self-contained apartment units come within the residential sector. It is of interest that in a relatively small number of senior citizen apartment buildings, which were apparently constructed on the understanding that they came within the residential sector, contain a common kitchen and dining room, although no personal care is provided to the residents. In dealing with the extent of the availability of common services in senior citizen apartment buildings, we would note that we have largely discounted the evidence of Mr. Kunst, the President of West York Construction Company. Mr. Kunst indicated that his firm had been involved in constructing a number of senior citizen apartment buildings containing common kitchens and dining rooms. Mr. Kunst's evidence with respect to certain of these buildings, however, was directly contradicted by other witnesses, including Mr. William Pinder, the manager of field operations for the Metropolitan Toronto Housing Company, the organization responsible for the construction of many of the facilities in question.
14Although participants in the construction industry in the Toronto area generally regard the construction of senior citizen apartment buildings as coming within the residential sector of the construction industry, the matter is not so clear with respect to the construction of nursing homes and retirement homes. It is noteworthy in this regard that frequently the issue of what sector these projects come within does not even arise. This is particularly true where the construction is being undertaken by general contractors (or owner-clients acting as their own general contractors) who are not bound to any construction collective agreements. When letting subcontracts, these builders generally need not, and do not, pay attention to the issue of whether the subcontractors they utilize have a union affiliation, and if so whether they will be performing the work under a residential or ICI collective agreement. A number of witnesses connected with non-union general contractors and owners who act as their own general contractors testified that when these firms build nursing and retirement homes, the work generally ends up being performed primarily on a non-union basis, although not infrequently some of the work is awarded to unionized subcontractors.
15As already indicated, for some unionized general contractors, particularly those bound to ICI provincial agreements, it is relevant as to whether a project is regarded as coming within the residential or ICI sector. Evidence was led with respect to a number of nursing/ retirement homes that were built by general contractors on the understanding that they were ICI projects. However, the evidence indicates that other general contractors built such facilities on the basis that they came within the residential sector. One large general contractor, Harbridge and Cross Ltd., appears to have built such facilities on an ICI basis in some instances, and on a residential basis in others. In 1979 Harbridge and Cross was engaged in constructing a building designed to eventually become a nursing home as if it came within the residential sector. The Carpenters Union applied to the Board for a declaration that the project came within the ICI sector. The General Contractors Section of the Toronto Construction Association, of which Harbridge and Cross was a member, settled the matter with the Carpenters union. One of the terms of settlement was that the General Contractors Section would advise its Toronto area members bound to the Carpenters provincial agreement that they should regard nursing home construction as coming within the ICI sector. A notice containing such advice was issued by the General Contractors Section on November 13, 1979.
16In addition to evidence relating to how general contractors regard the construction of nursing and retirement homes, considerable evidence was led concerning the involvement of companies belonging to the Ontario Form Work Association in the construction of these types of facilities. The companies involved are bound to a collective agreement between the Ontario Form Work Association and The Form Work Council of Ontario, being a council of trade unions comprised of Labourers International Union of North America, Local 183 (Labourers Local 183) and the International Union of Operating Engineers. Apart from crane operators, all employees working under this agreement generally belong to Labourers Local 183. Members of Labourers Local 183 working under the form work agreement perform certain work which is generally regarded as carpenters work when the Carpenters ICI provincial agreement is applicable. The evidence indicates that most of the work performed under the form work agreement in the Toronto area is residential apartment construction. However, there is nothing in the form work agreement that limits its application only to residential projects, and the bargaining relationship giving rise to the agreement has been exempted from the designations made pursuant to the provincial bargaining sections of the Act. Accordingly, it appears that forming contractors bound by the form work agreement are free to apply the agreement in the ICI sector. In some cases general contractors have utilized companies bound to the form work agreement to work on nursing homes and retirement homes because they regarded the work as coming within the residential sector. However, it appears that certain non-union general contractors and owner-clients acting as their own generals who do not have to be concerned about what sector the work comes within, have utilized firms bound to the form work agreement only on the basis of considerations such as cost. Accordingly, the mere fact that a company bound to the form work agreement has worked on a nursing home or retirement home project does not necessarily mean that the work was regarded as having been within the residential sector. This fact was driven home by the evidence of a number of owners of companies bound to the form work agreement who testified that in the Toronto area they have applied the agreement not only to the construction of nursing and retirement homes, but also to the construction of office buildings, hotels and churches. One owner testified that outside the Toronto area his company had applied the agreement to the construction of a hospital.
17In June of 1983 the Metropolitan Toronto Apartment Builders Association (the MTABA) and Labourers Local 183 entered into a collective agreement that deems an apartment building for the purposes of the agreement to include:
structures used for sleeping accommodation and/or occupancies in which persons, because of age, mental or physical limitations require special care or treatment and all facilities connected therewith.
The MTABA and Labourers Local 183 are active in residential apartment construction, and it may be to the advantage of one or both of them to take an expansive view of what constitutes an apartment building. It is noteworthy, however, that others active in the construction industry have not accepted this definition. This is in contrast to the narrower definition of an apartment building contained in agreements between the MTABA and the Toronto-Central Ontario Building and Construction Trades Council, a definition which the Board in the West York Construction Ltd. case, [1983] OLRB Rep. Dec. 2132 found to be generally accepted in the construction industry in Toronto.
18A number of general contractors submitted bids for the Baker Centre project. Among these general contractors were Milne and Nichols Limited, Varamae Construction Ltd., V. K. Mason Construction Ltd. and Pigott Construction Ltd., all of whom prepared their bids on the understanding that the job was an ICI project. However, at least three other general contractors, namely Sword Contracting Limited, West York Construction Ltd. and Bradsil Limited, prepared their bids on the basis that the project came within the residential sector. Sword Contracting, which is a member of the MTABA, was awarded the contract. In that Sword Contracting viewed the project as residential, it did not regard itself as bound by any obligation to limit itself to sub-contractors bound to ICI provincial agreements. We would pause at this point to note that it has not in fact been established that Sword Contracting is bound to any provincial ICI agreement. The Carpenters union contends that the respondent Janin Building & Civil Works Ltd. and Sword Contracting are carrying on related activities and that, pursuant to the provisions of section 1(4) of the Act, the Board should declare the two to be a single employer. The Carpenters union further contends that Janin Building & Civil Works Ltd. is bound to the Carpenters ICI provincial agreement and that the effect of a declaration of the type requested would be to also bind Sword Contracting to the agreement. To date the Board has not heard any evidence with respect to these submissions.
19Although Sword Contracting did not regard itself as bound to any ICI provincial agreement in the construction of the Baker Centre, this did not foreclose it from awarding subcontracts to firms employing tradesmen under the terms of various ICI provincial agreements. Several of the subcontractors utilized by Sword Contracting did, in fact, apply provincial ICI agreements on the job. The concrete forming work on the Baker Centre was awarded to New Rise Forming Co., a company bound to the collective agreement between the Ontario Form Work Association and The Form Work Council of Ontario. As already noted, although this agreement is generally associated with residential construction, it is not limited to that sector. Indeed Mr. Dominic Cipriani, the owner of New Rise Forming, testified that another company owned by himself had applied the same collective agreement on the construction of two office buildings. Partway through the construction of the Baker Centre, New Rise Forming ran into financial difficulties. Sword Contracting then directly hired the former employees of New Rise Forming to complete the work and applied the terms of an agreement between it and The Form Work Council of Ontario which picked up the terms of the collective agreement between the Council and the Ontario Form Work Association.
20As noted above, most of the Baker Centre is to be utilized as both a nursing home and a retirement home. This is somewhat unusual, since most retirement homes and nursing homes are not built under the same roof. The Baker Centre is somewhat unique in another way. Although most nursing homes and retirement homes in Ontario are built and operated as profit-making ventures, the Baker Centre will be built and operated by a non-profit organization.
21One of the witnesses who testified before the Board was Mrs. Pamela Cluff, an architect with extensive experience in designing facilities for the aged. Mrs. Cluff authored a book published in 1979 by the CMHC entitled Nursing Homes and Hostels with Care Services for the Elderly, Design Guidelines. In her book Mrs. Cluff described the function of a nursing home as follows:
Nursing Homes
Nursing homes can be defined in terms of function, length of stay, condition ot the resident, care given, staff requirements and facilities provided. The nursing home's primary function is seen to be the provision of accommodation on an extended basis. Accommodation of this kind is made necessary by the nursing home resident's need for personal care. This care may include help with dressing, grooming, bathing, eating and services such as help in walking, getting in and out of bed. It also commonly includes medical help in the form of special diets, medication and dressings, and restorative and recreational services. When these forms of aid are beyond the ability of the resident and his family and friends to provide, accommodation with services is required.
The average stay in a nursing home is four years, with a growing tendency to even longer periods. By contrast, the average length of stay in a hospital is seven to nine days. This difference is crucial and underscores the importance of a residential environment in long-term care facilities.
22In Ontario, nursing homes can only operate pursuant to a licence issued by the Ministry of Health. The Nursing Homes Act and regulations thereunder govern many of the details relating to the operation of a nursing home, and government inspectors are authorized to inspect any nursing home as well as its operating records to ensure that the Act and regulations are being complied with. The regulations set out admission requirements for nursing home residents, and require that at least three-quarters of the beds be available for extended care residents. These are residents who require at least ten and a half hours of nursing and personal care per week. All extended care residents must be eligible for extended care coverage under the Ontario Health Insurance Plan. Any other residents, who can constitute no more than 25 per cent of all residents, must require between seven and ten and a half hours of nursing and personal care per week. Mr. O'Donnell of Bestview Health Care Limited, who is also a past-president of the Ontario Nursing Home Association, testified that generally about one-third of the residents in a nursing home can move about without any assistance, one-third can move about with the assistance of a cane or other walking device, and one-third need the assistance of a wheel chair or the nursing home's staff. Generally nursing home residents leave the home either on account of death or transfer to a hospital.
23The regulations under the Nursing Home Act dictate the minimum size of residents' bedrooms, the minimum size of residents' beds, the placement of beds within bedrooms and the location of bedroom windows. The regulations require a nursing station as well as a sitting room on each floor. Also required is an area for a crafts and activities program, where the equipment must be in a good state of repair and an adequate supply. The regulations also deal in some detail with the staffing of nursing homes. They require that nursing service be provided 24 hours per day, divided into three shifts. Monthly in-service training programs for nurses are mandatory. The regulations also mandate the type of facilities that must be made available to employees of a nursing home.
24There are a range of retirement facilities other than nursing homes. One type, such as the retirement home portion of the Baker Centre, is similar in certain respects to a nursing home in that some care services are available and a resident has exclusive use only of a bedroom, and even then it may be a semi-private room shared with another person. Mrs. Cluff in her book referred to facilities such as these as hostels and commented on them as follows:
Hostels
A hostel may also be described as independent-living group accommodation for the elderly, in which there is sharing of one or more facilities such as dining room, kitchen, bathroom or living room, with or without minimal care services. Hostels do not necessarily offer more intensive levels of care although usually more on-site services and facilities are available. This form of support for the elderly in which the bedroom area is supplemented and balanced by planned living areas, where the normal activities of daily living can be enjoyed, represents a fairly new architectural and sociological approach.
25The evidence suggests that most retirement homes in Ontario provide staff to assist residents who require aid with their personal care. Generally the care is considerably less than that given in a nursing home. Some retirement homes, however, do give a level of care approximating that found in nursing homes, although unlike nursing homes, retirement homes receive no government funds and are not subject to the Nursing Homes Act. Onc witness, Mr. John Fydina, testified that he operates both a retirement home and a nursing home in Richmond Hill, and that there are some residents in the retirement home who receive the same services that they would receive in the nursing home. It is perhaps noteworthy that Mr. Fydina originally built the retirement home to be a nursing home, but was unable to obtain a nursing home licence for it. Mr. Fred Lafontaine, the president of Community Nursing Homes Limited, which operates eleven nursing homes and three retirement homes, when asked what was the difference between the two, remarked not a heck of a lot. Mr. Lafontaine did note, however, that although retirement home residents frequently need assistance with the functions of daily living, they generally require less assistance than nursing home residents. Even in retirement homes where relatively limited care is given, it is not unusual to find registered nurses on staff, although in such instances the registered nurses may be available primarily as a precaution in case a resident begins to have medical problems.
26Nursing homes and retirement homes are easily distinguished from hospitals. Unlike the lengthy stay of most residents in a nursing or retirement home, people generally stay in a hospital for a relatively brief period of time. Further, unlike the situation in nursing and retirement homes, hospital care is generally geared to treatment of the individual. There are, however, some exceptions to these generalizations. This is particularly true with respect to chronic care patients whose potential for rehabilitation is limited and who may be hospitalized for extensive periods of time.
27As already noted, one of the witnesses was Mrs. Pamela Cluff, the architect and author of the CMHC book. Mrs. Cluff has also served as a consultant on various aspects of care and housing for the elderly. When being examined in chief by counsel for Sword Contracting and the MTABA, Mrs. Cluff was asked where, in her opinion, the line should be drawn between residential and institutional facilities. Mrs. Cluff indicated that she would draw the line between hospitals, which are institutions, and nursing and retirement homes which she viewed as residential. Later, when being cross-examined, Mrs. Cluff agreed that she associated the term institution with the medical model of care for the elderly, which is a paternalistic and regimented model involving having others tell seniors how they should live. Mrs. Cluff added that people involved in the planning of care for the elderly do not view the opposite to the institutional or medical model as a residential model, but rather a social model. The social model centres around encouraging individuals to be autonomous, and as independent as possible. Mrs. Cluff agreed that when dealing with the elderly the term institution has a negative connotation, one which involves an image of care facilities which she and others are trying to change. Mrs. Cluff indicated that in her view whether or not a facility is an institution relates largely to the style of its operation. When asked how she would determine if the Baker Centre was institutional, Mrs. Cluff replied that she would like to know both the philosophy of management and philosophy of care in the facility, and perhaps observe the way it actually operates. Mrs. Cluff added the comment that an inspired administrator can de-institutionalize what you would regard as an institution. Mrs. Cluff indicated that although the medical or institutional model of care for the elderly predominates in some provinces, such as Alberta, in Ontario the competition between the two models is an ongoing one in which the social model is gaining greater acceptance.
28Mr. Gary Chatfield, the President of the Health Care Division of Extendicare, and previously an Assistant Deputy Minister with the Ontario Ministry of Health, and the Deputy Minister of Hospitals and Medical Care in Alberta, testified that in his view the line between residential and institutional facilities would best be drawn between nursing homes and hospitals. According to Mr. Chatfield he would draw the line at this point because in nursing homes the prime concern is the comfort of residents, which is not the case in hospitals. Mr. Chatfield added that nursing homes are geared more to people to people as opposed to people to machines as is found in hospitals. A similar view was expressed by Mr. Victor Heinrichs, a professional architect who has designed at least 150 facilities for the elderly. Mr. Heinrichs testified that while hospitals are primarily geared to medical ends, the main function of nursing and retirement homes is to assist elderly people to socially adapt and get on with living. Mr. Heinrichs noted that when designing facilities for the elderly, he attempts to express a residential feeling and character.
29As already noted, the task facing the Board is to determine whether the Baker Centre comes within the residential or the ICI sector of the construction industry. At one time, most building construction was viewed for collective bargaining purposes as a single division within the construction industry. However, in the 1960s there developed a move in the Toronto area towards treating building construction differently depending on whether it was residential or ICI. In 1971 the Labour Relations Act was amended to allow for the accreditation of employer organizations as the bargaining agent for employers in one or more sectors of the construction industry. The term sector was defined in what is now section 117(e) of the Act. This section, which is set out below, makes it clear that residential and ICI construction come within different sectors of the construction industry.
- In this section and in sections 118 to 136,
(e) sector means a division of the construction industry as determined by work characteristics and includes the industrial, commercial and institutional sector, the residential sector, the sewers and watermains sector, the roads sector, the heavy engineering sector, the pipeline sector and the electrical power systems sector.
30Although section 117 provides that sectors are divisions of the construction industry as determined by work characteristics, in fact both the residential and ICI sectors share many of the same work characteristics. In large measure, it is the existence of these shared work characteristics which lead to disagreements as to whether certain projects come within the residential or the ICI sector. These shared work characteristics also facilitate the movement of construction firms, including concrete forming contractors, between the two sectors.
31In 1978, the Labour Relations Act was amended to consolidate bargaining structures in the ICI sector and to specify what collective agreements could be applicable within the sector. This, in turn, made it increasingly important that employers and trade unions active in the construction industry be able to ascertain the limits of the ICI sector. The Legislature sought to accomplish this result through the introduction of section 150, which allows parties to ask the Board to determine whether any particular work is within the ICI sector.
32In the West York case, the Board was also asked to draw a dividing line between the residential and ICI sectors of the construction industry. In that case, the Board indicated that in instances where it is not clear what sector a construction project comes within, the Board will look to local area practice to see how trade unions and employers regard the work. In the West York case the Board found persuasive the fact that the type of projects in dispute were widely regarded as coming within the residential and not the ICI sector. With respect to the Baker Centre, however, while some general contractors have approached this type of project as being within the ICI sector, others have regarded it as being within the residential sector. Further, a substantial number of non-union general contractors and owners acting as their own general contractors have performed the work in circumstances where it mattered not to them whether the work was viewed as ICI or residential. As indicated earlier, while the involvement of forming companies belonging to the Ontario Form Work Association might suggest that the construction of nursing and retirement homes is regarded as residential work, given that the collective agreement binding on these companies is multi-sector in scope and has been applied to the construction of a number of what are clearly ICI buildings, no such general conclusion can be reached. In these circumstances, we are led to conclude that there is, in fact, no generally accepted local area practice to assist us in making a determination as to what sector the work on the Baker Centre comes within.
33In addition to the West York case we were referred to the decision of the County Court in Re Attorney-General of Ontario and Tufford Rest Home (1980) 1980 CanLII 1856 (ON HCJ), 30 O.R. (2d) 636. That case involved a question of whether a privately owned nursing home being operated as a profit making venture was an institution within the meaning of the Public Institutions Inspection Act, 1974 such as to be subject to an inspection by a panel established under that Act. The Court concluded it was not, reasoning as follows:
It would appear that the connotation of institution bears with it the concept of it having a public object. The evidence was that the private company operating the nursing home in this instance had the object of operating a nursing home for private profit. I hold that the concept of private profit is alien to the generally-accepted meaning of an institution. I note as well that the Act is entitled, in s.9, as The Public Institutions Inspection Act, 1974. (Emphasis added.) Accordingly, the concept of institution having a connotation of a public object, as distinguished from a private enterprise, is reinforced by the adjective public used in the title to the Act.
I accordingly hold that privately operated nursing homes are not institutions within the meaning of s.4 of the Public Institutions Inspection Act, 1974.
34This case was submitted to the Board by counsel for the MTABA and Sword Contracting in support of the proposition that a nursing home is not an institution. The issue before the Court in that case, however, was a fairly narrow one, and not directly related to the issue before the Board. Further, the decision of the Court appears to have been that the nursing home in question was not an institution because it was a commercial undertaking with the object of private profit. The Baker Centre, however, is not being carried on for profit. Rather, it is a non-profit organization whose purpose is to serve the community in which it is located. Further, both commercial operations and institutions fall within the ICI sector of the construction industry. Given these considerations, we do not believe the Tufford Rest Home case to be of much assistance in these proceedings.
35We thus find ourselves in a situation where we are required to determine what sector of the construction industry work on the Baker Centre comes within with little assistance from any generally accepted construction industry practice or the case law. We are of the view that the distinction drawn by Mrs. Cluff between the medical or institutional model of care and the social model is not a very useful one for our purposes. As Mrs. Cluff noted, the difference is essentially one related to the philosophy of management of a facility and its philosophy of care. To be meaningful as far as the construction industry is concerned, however, parties must be able to assess what sector work will come within prior to the commencement of the work, not after the work is completed and the facility in question operational. What we can draw from the evidence of Mrs. Cluff is that in Ontario there is a growing tendency to seek to ensure that residents of nursing and retirement homes will have as much autonomy as possible in their daily lives, and that such facilities are increasingly being designed with this goal in mind.
36A number of witnesses, including Mr. Chatfield and Mr. Heinrichs, expressed the view that nursing and retirement homes are residential because people live in them, and the comfort of the residents is a major concern. The fact that elderly people reside in such facilities also accounts for the role of the CMHC in financing facilities such as the Baker Centre. However, while the fact people reside in a facility is one factor that suggests that the construction of the facility comes within the residential sector, it is not by itself necessarily determinative. People reside in a number of facilities that do not come within the generally understood meaning of the term residence. For example, servicemen may reside in army barracks and convicted criminals reside in correctional facilities, and yet it is questionable whether the construction of either of these types of facilities involves work coming within the residential sector of the construction industry.
37In assessing what type of construction does come within the residential sector, the logical place to start is with the construction of a single family home to be owned by the family that will be residing in it. Such construction clearly comes within the residential sector. When one moves away from this clear-cut example, however, the matter becomes more complex. For example, it might be argued that the construction of a rental apartment building should be viewed as commercial construction because the owner intends to operate the facility to make a profit. On the other hand, however, once an apartment unit is rented out it becomes someone's home in the generally accepted use of that term. The residents carry out their activities of daily living in a physical area they have a tenancy interest in, and immediate control over. There has grown up a clear and generally accepted practice in the Toronto area of treating the construction of apartment buildings as coming within the residential and not the ICI sector of the construction industry. Based on this practice, the Board has in the Toronto area recognized such construction as coming within the residential sector. Indeed in the West York case, on the basis of a generally accepted local practice, the Board concluded that a building built by an institution but comprised primarily of self-contained apartment units also came within the residential sector. The Baker Centre is, however, even further removed from the example of the single family home. Although accommodation will be provided at the Centre, it will not be in self-contained units. Rather, individuals will be required to conduct a major part of their activities of daily living, including eating and bathing, in shared areas not under their direct control. No matter how concerned staff might be about giving residents as much autonomy as possible, it seems reasonable to assume that residents will have to conform to certain rules and norms relating to matters such as meal times. In the nursing home portion of the Centre, residents will be receiving daily nursing care under the direction of a professional nursing staff. Staff working in both the retirement and nursing home portions of the Centre will not be under the immediate direction of the residents, as would be the case of domestics employed in a home, but rather under the direction of a company hired for the express purpose of managing the Centre.
38In the health care field the word institution has developed a negative connotation, primarily because it connotes a medical model of care where an individual loses more autonomy over his daily living activities than is necessary. However, outside the health care field, the word institution has a much more neutral connotation. The term is generally used to refer to an organization established to provide a service viewed as being of benefit to either the public at large, or to some specific group. For example, schools, universities and churches are generally viewed as institutions. In this sense of the word, we also view the Baker Centre as an institution. It is a non-profit organization formed in part for the socially beneficial purpose of providing facilities for the elderly who are unable or unwilling to live independently. Through an outside management firm and a fairly large staff of employees, the Centre will be providing nursing care and other forms of assistance to its elderly residents. The Centre will also house day care facilities for children and elderly persons. The Baker Centre is held out to the public as being associated through the Northwestern Health Centre with the Northwestern General Hospital. The bylaws of the Baker Centre require that a majority of the directors of the Centre, including the chairman, either be connected with the Northwestern General Hospital or be approved by the board of directors of the Hospital. Given all of these factors, we are satisfied that the construction of the Baker Centre does come within the industrial, commercial and institutional sector of the construction industry as that term is used in the Labour Relations Act.
39In reaching this determination, we do not wish to be taken as saying that it is preferable that one group of companies or trade unions, as opposed to some other group, be involved in constructing facilities such as the Baker Centre. Nor are we in any way indicating a view with respect to the involvement of members of the Ontario Form Work Association on ICI sector projects. Those are matters outside the scope of the question before us, namely, whether or not the construction of the Baker Centre is work within the ICI sector of the construction industry. As already indicated, in our view, it is.
40As noted at the outset, this matter commenced as a referral of a grievance to the Board pursuant to the provisions of section 124 of the Labour Relations Act. The Registrar, in consultation with the parties, will re-list the matter for hearing with respect to all outstanding matters.
41This panel is not seized of any outstanding issues.