Ontario Labour Relations Board
Parties: Labourers' International Union of North America, Local 1036, Applicant v. Future Care Limited and Kuco Construction Limited, Respondents
Before: Inge M. Stamp, Vice-Chair, and Board Members W. N. Fraser and C. A. Ballentine.
Appearances: L. A. Richmond and B. Suppa for the applicant; Mike Failes and P. Kuhn for the respondents.
Decision of the Board; August 22, 1990
Decision
1This is a referral of a grievance pursuant to section 124 of the Labour Relations Act alleging non-compliance with the collective agreement binding on the parties.
2In a separate section 1(4) application, the parties reached agreement and requested the Board to declare that Future Care Limited and Kuco Construction Limited constitute one employer for the purposes of the Act. Having regard to the agreement of the parties, the Board hereby declares that Future Care Limited and Kuco Construction Limited are one employer for the purposes of the Act.
3At this stage, the parties requested a hearing before the Board to deal with the respondent's request made in response to the above grievance, for a determination under section 150 of the Act. Section 150 provides 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).
4Notice was given to a number of parties who were identified as having an interest in the determination of whether the work performed on the respondent's retirement home project at 760 Great Northern Road in Sault Ste. Marie, Ontario, is work in the ICI sector of the construction industry.
5Hearings into the section 150 determination started on June 26, 1989 and were completed on October 19, 1989. Although notice had been given to thirteen contractors and the designated bargaining agencies, no one else appeared at the hearing, other than the parties to the section 124 application, to make any submissions with respect to the section 150 issue.
6The evidence is not in dispute. The witnesses were straightforward and credible. The project which is the subject of the section 150 determination is described as the Great Northern Retirement Home ("Great Northern") in Sault Ste. Marie. The respondent has built two other homes since being certified in 1986 by the applicant, one in Sudbury and one in Timmins. The respondent takes the position that these homes fall within the residential sector of the construction industry.
7The retirement home was built pursuant to the residential portion of the building code. The retirement home is privately funded, with no government financing and no application for government financing. It is not subject to any legislation affecting nursing homes, homes for the aged or homes for special care. The retirement home is targeted to persons 55 years and older, but is not restricted to persons of that age. There is no ongoing medical care provided and no doctor or registered nurse on staff. There is no association with any other institution or hospital. A nursing home on the adjacent property is owned by Tendercare Nursing Homes Limited (Tendercare). Great Northern bought the land next to the nursing home from Tendercare who took back a substantial mortgage. The land is zoned for institutional use.
8Both Tendercare and Great Northern have management contracts with Extendicare Health Services Inc. (“Extendicare"). There is no other tie-in or connection between Tendercare and the Retirement Home.
9The Corporation of the City of Sault Ste. Marie, in granting a building permit, advised the respondent "Your working drawings for this development has [sic] been thoroughly reviewed by this office and have been examined under the requirements for Group "C", Residential Occupancy. Part 9 of the Ontario Building Code applies". The building permit issued by the City of Sault Ste. Marie describes the retirement home as an "Institutional Building" (Exhibit 4). Mr. Kuhn testified that when he queried the Building Department on that issue he was advised that “institutional" was shown on the permit because of the zoning.
10The retirement home is a three-storey building. There are 120 suites, a number of stairwells and one elevator. There are two sizes of suites. A little over half the suites are private bed-sitting rooms and the rest are semi-private. There are two suites that can accommodate three persons. When they are not occupied by three persons, they become semi-private suites for two. There are six one-bedroom suites. There are fourteen units equipped with kitchens. If there is a demand for more units with kitchens, they can be added. Each unit has a four-piece bath.
11Portions of the 'Occupancy Agreement" (Exhibit 7) state:
In consideration of payment, by the Resident to the Owner, of the Occupancy Fee set forth in Schedule "A". the Owner shall provide to or for the benefit of the Resident, accommodation referred to herein, three (3) meals per day, maid service, laundry facilities and the right to use all recreational facilities within Great Northern Retirement Home.
- The Resident acknowledges that this Agreement is not assignable and further acknowledges that no person other than the Resident shall be permitted to use or