Service Employees Union, Local 183 v. Sisters of St. Joseph of the Diocese of Peterborough, 1991 CanLII 6156

Ontario Labour Relations Board

[1991] OLRB Rep. December 1406

2304-91-R Service Employees Union, Local 183, Applicant V. Sisters of St. Joseph of the Diocese of Peterborough, Respondent

BEFORE: S. Liang, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.

APPEARANCES: Norman Dunlop for the applicant; and D. K. Gray, G. I. Campbell, Sister Jean Smith and Sister Hilda Maloney for the respondent.

DECISION OF THE BOARD; December 4, 1991

1. The name of the respondent is amended to read: "Sisters of St. Joseph of the Diocese of Peterborough".

2. This is an application for certification. Prior to the hearing the parties met with a Labour Relations Officer of the Board and reached agreement on all matters relating to this application, save one.

3. The outstanding issue relates to the position taken by the respondent that the employees encompassed by this application for certification are excluded from the provisions of the Labour Relations Act ("the Act"). The respondent submits that these employees are excluded from the Act by virtue of section 2(a), which reads as follows:

4. This Act does not apply

(a) to a domestic employed in a private home;

4. The bargaining unit for which this application is made and which the respondent, subject to its objection under section 2(a) agrees is appropriate, is the following:

all lay employees regularly employed for not more than twenty-four hours per week and students employed during the school vacation period of Sisters of St. Joseph of the Diocese of Peterborough at 1545 Monaghan Road, Peterborough save and except supervisors, persons above the rank of supervisor, office and clerical staff, registered and graduate nurses.

5. By way of background, in 1988 this applicant was certified as bargaining agent for all lay employees of Sisters of St. Joseph of the Diocese of Peterborough at 1545 Monaghan Road, Peterborough save and except supervisors, persons above the rank of supervisor, office and clerical staff, registered and graduate nurses, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period ("the full-time unit"). Since that certificate was issued, the parties have negotiated two successive collective agreements with respect to this unit. The most recent agreement expired on May 31, 1991 and we were advised during the hearing that the parties are presently negotiating for a new collective agreement.

6. The applicant and respondent are currently parties to a dispute which has been placed before the Minister of Labour in which the applicant seeks to have the provisions of the Hospital Labour Disputes Arbitration Act apply to the full-time unit. The respondent has taken the position in that dispute, most recently in correspondence to the Ministry of Labour dated October 18, 1991, that the employees working for the respondent are domestics employed in a private home and therefore not subject to the Labour Relations Act.

7. At the hearing before this panel, the applicant did not object to our hearing the issue raised by the respondent on its merits and we accordingly proceeded to hear evidence and argument on the issue.

8. Sister Jean Smith gave evidence for the respondent. Sister Smith described the origins of the Sisters of St. Joseph. This religious order was founded in France and moved into Ontario in the late 19th century. At present, there are six independent congregations in Ontario, based in Toronto, Peterborough, London, Hamilton, Pembroke and Sault Ste. Marie. The congregation based in Peterborough currently has about 150 sisters. Among other things, the congregation operates two hospitals and a home for the aged in the area. Each of the congregations has a building known as the "Mother House". In Peterborough, the Mother House is also called Mount St. Joseph and is located at 1545 Monaghan Road. At present 67 sisters from the Peterborough congregation live at Mount St. Joseph (or "the Mount").

9. Sister Smith described the process for entering the congregation. She related that it may involve approximately nine years from the time a woman becomes interested in joining the congregation, to the taking of final vows. Upon final vows, the sisters regard the congregation as their "first family". From that time forward, any salary or remuneration which a sister receives belongs to the congregation and in return, the congregation looks after the sisters until death.

10. Sister Smith stated that upon the taking of final vows, the sisters regard Mount St. Joseph as their "home". Apart from Mount St. Joseph, sisters belonging to the Peterborough congregation may live in other congregation houses, in their own dwellings, and with or without other members of the congregation. There are sisters who belong to the Peterborough congregation who live and work outside of Ontario and even outside of Canada.

11. In addition to housing 67 sisters of the congregation, Mount St. Joseph also serves as the home base for the sisters' activities throughout Canada and abroad. The sisters meet every four years at Mount St. Joseph to discuss the work of the congregation. Sister Smith is a member of the general council, which plays a leadership role in carrying out the mandate of the congregation. As well, Sister Smith is the co-ordinator of Mount St. Joseph. In this capacity, she co-ordinates the relations between the sisters, the staff and the lay supervisors with respect to the running of the house.

12. Evidence was led regarding the physical layout of Mount St. Joseph. Without reciting all the details offered in evidence, the ground floor facilities include a kitchen, laundry, academic wing, dining room and indoor swimming pool. Also located on the ground floor are two large activity rooms which are rented out to senior citizens. There is also an auditorium which the sisters use for their own purposes and rent out to the public for meetings. The second floor of Mount St. Joseph includes a chapel, guest rooms, the office of the general council, some bedrooms, the main entrance and a switchboard room. The third floor includes a vocation centre, consisting of several rooms which can be rented to individuals or groups for retreats. Also on this floor is the infirmary in which twenty-three sisters live. The fourth floor of the building consists of two main sitting rooms, a television room, a small kitchen area and about thirty-five bedrooms.

13. While many of the sisters living at Mount St. Joseph are infirm or not actively working, others work outside of the Mount, in teaching, tutoring or pastoral care.

14. There are approximately twenty-five full-time employees at the Mount and sixteen part-time. The full-time staff consists of persons employed in maintenance, dietary, infirmary and house-keeping. The part-time staff consists of people employed in dietary and infirmary. The part-time staff generally have the same duties as the full-time staff. The staff in the infirmary are supervised by a registered nurse and include registered nursing assistants, and health care aides. The staff in the infirmary work on shifts. The shifts are 7:00 a.m. to 3:00 p.m., 3:00p.m. to 11:00 p.m., and 11:00 p.m. to 7:00 a.m. The infirmary staff take care of the sisters confined there, bathing them, helping with their general care, feeding them and distributing medication.

15. The dietary staff at the Mount prepare and clean-up after meals. At each meal, one employee prepares trays carrying meals for the sisters who live in the infirmary. There is one main cook, who is full-time. Part-time staff replace full-time staff on weekends or days off. Lay staff who work at the Mount are offered meals during their shifts, with the residents.

16. Sister Smith also gave evidence as to the funding of the Mount. She testified that Mount St. Joseph receives no government funding, and is supported by the incomes and pensions of the sisters.

ARGUMENT OF THE PARTIES

17. Counsel for the respondent pointed out for the Board that the term "private home" as contained in the office consolidation, contains a misprint in that it has a hyphen between the words "private" and "home". In fact, in the statute, there is no hyphen. No reliance was placed upon this, and the Board does not find it of significance. Counsel for the respondent submitted that the interpretation of section 2(a) of the Act requires the Board to interpret three separate terms: "domestic", "private" and "home". He dealt in turn with each of those, referring the Board to dictionary definitions, the Employment Standards Act and its Regulations, and common law cases discussing these and related terms. We were referred to the following cases: Re: Estlin; Prichard v. Thomas (1923), 2 Ch. 407; Cameron v. Royal London Opthmalmic Hospital, [1941] 1 K.B. 350; Protestant Old Ladies' Home v. Provincial Treasurer of Prince Edward Island, 1941 CanLII 337 (PE SCAD), [1941] 2 D.L.R. 534; Wawanesa Mutual Insurance Co. v. Bell And Bell (1957), 1957 CanLII 16 (SCC), 8 D.L.R.(2d) 577; In re Unemployment Insurance Act, 1920; In reApplication By Junior Carlton Club, [1922] 1 K.B. 166; Wardley v. Bringloe, [1914] 1 Ch. 682.; Jackson v. Hamilton, [1923] 2 Ch. 365; Endersby v. Robert Simpson Company Limited, [1950] 0. R. 645.

18. Counsel urged us, relying on the above sources, to find that "domestic" refers to a person who is employed in a private residence, and whose duties are devoted to the affairs of the household. Counsel argued that the Sisters of Mount St. Joseph constitute a household collectively. The Mount is their home, and since it serves no other purpose (except for some extraneous purposes such as lease of space to senior citizens and others), the Mount is a "private" home. He submitted that the home has no commercial characteristics, is composed of persons whose income is given to the collective household, and is maintained without any government funding.

19. The Board was also referred to Wellington Mushroom Farm, [1980] OLRB Rep. May 813, in which the Board found that employees of a mushroom factory were "employed in agriculture" and therefore excluded from the provisions of the Labour Relations Act by section 2(b) of the Act. Counsel urged this panel to adopt the approach of the Board in that case, in looking to the ordinary meaning of the statutory exclusion without regard for legislative purpose.

20. In sum, the argument of counsel was that the employees in question are "domestics", since they are employed to provide services to a household. The residence is "private"- it does not receive any funding, has no commercial aspect, and is exclusive (except for certain minor activities). It is a "home" in that the sisters regard it as their home and regard each other as their family.

21. The representative for the union submitted that the fact situation before the Board was no different from that of employees working in various retirement homes throughout the province, whose rights to organize under the Labour Relations Act has never been questioned. In his submission, the fact that this home is based on a religious order does not distinguish it from other retirement homes where individuals pay their pension incomes or a portion thereof to a home which provides for lay employees to care for them. The infirmary at Mount St. Joseph is similar to those sections of some retirement homes where additional care is provided for residents who are infirm; in both cases, if greater care is needed the residents are taken to a hospital. He also referred us to Nucleus Housing Inc., [1984] OLRB Rep. Jan. 64 in which the Board considered the application of section 2(a) of the Act to employees of a non-profit corporation which provided attendants to disabled residents of an apartment building. In that case, the Board considered an argument that these employees were excluded by the provisions of section 2(a) of the Act and concluded that as the employees in question were employed by the corporation instead of by each tenant, they were not domestics employed in private homes within the meaning of section 2(a).

DECISION OF THE BOARD

22. Apart from Nucleus Housing Inc., supra, there has been no case in which the Board has been asked to interpret section 2(a) of the Act. Although relevant, the Board does not find the dictionary definitions provided for the terms "home", "private", and "household" to be terribly persuasive in defining the provision as a whole. Dictionaries often give several alternative meanings for a given word, and we do not find it helpful to define a word used in a statute without regard for the full context within which it is used. As cited in Elmer Dreidger, Construction of Statutes (2nd edition), 1983, "words, and particularly general words, cannot be read in isolation; their colour and their content are derived from their context" (p. 4). Driedger states the modern principle of statutory interpretation as follows: "today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" (p.87).

23. The phrase "domestic employed in a private home", like many phrases, is capable of more than one meaning. At its most exclusive, the concept of "private home" could also mean a single family dwelling inhabited by persons related in blood or other traditional familial bond. We agree with counsel for the respondent that an analysis of the individual terms in section 2(a) of the Act, having reference to dictionary definitions and to the manner in which these terms have been used in common law cases, and without regard for their statutory context, might lead to an interpretation of section 2(a) which covers the employees in this case. However, such an approach in our view is highly abstract.

24. The facts of this case involve a group of persons who are related by beliefs but unrelated by blood. Sixty-seven members of this religious order reside together in a common residence that they consider their home. In addition to housing the residents, the Mount also contains some facilities which are rented to outside groups, and is the site of the offices of the congregation. Some forty-one employees are involved in the running of the Mount, and in caring for the residents. Employees work set shifts and have established duties. Certain routines of the Mount, such as meal times, are set institutionally. The degree of control that each resident has over the running of the Mount is attenuated, as is the degree of control that each of the residents has over the employees working there. The relationship between the residents and the operations of the Mount and between the residents and their employees, is mediated through co-ordinating bodies consisting of lay supervisors and designated sisters.

25. In our view, the term "domestic employed in a private home" in its ordinary and natural meaning defined in light of the context of this Act, does not extend to the employees working at the Mount. Although we do not need to, and do not intend to provide an exhaustive definition of section 2(a), we prefer to give these words a meaning which does not exclude the employees of Mount St. Joseph from the provisions of the Labour Relations Act. We find it more consistent with the overall context of the Act, having regard to its stated purposes, to read section 2(a) in a narrower sense than that urged upon us by counsel for the respondent. Where there are words in the statute which are capable of more than one meaning, we feel bound to adopt the interpretation which is most consistent with the preamble of the Act which states that it is in the public interest of the province to, among other things, encourage the "practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees". We were not directed to any policy which favours the interpretation urged upon us by the respondent and we find it more consistent with the stated policy of the Act to exclude from section 2(a) those households which bear "institutional" elements and therefore resemble other workplaces where employees engage in collective bargaining under the Act. This interpretation also recognizes the reality that there is little in the way of an "employment relationship" between each individual resident at the Mount and its employees, and is thus consistent with Nucleus Housing Inc., supra.

26. We observe that nothing in the cases submitted by the respondent causes us to doubt our finding. None of them deal with an interpretation of the phrase in section 2(a) Rather, they interpret terms such as "domestic servant", "home" and "household" within contexts as diverse as succession law, insurance contracts and negligence law and are thus of limited assistance. Moreover, in several of the cases, where "domestic servant" is interpreted, the courts adopted the framework of personal service within a single family household.

27. We find, therefore, that the employees of Mount St. Joseph are not covered by the term "domestic employed in a private home" and are therefore not excluded from the provisions of the Labour Relations Act.

28. The Board has found the applicant a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

29. Having regard to the agreement of the parties, and our findings above, the Board finds that:

all lay employees regularly employed for not more than twenty-four hours per week and students employed during the school vacation period of Sisters of St. Joseph of the Diocese of Peterborough at 1545 Monaghan Road, Peterborough save and except supervisors, persons above the rank of supervisor, office and clerical staff, registered and graduate nurses,

constitute a unit of employees of the respondent appropriate for collective bargaining.

30. The Board is satisfied on the basis of all of the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on October 24, 1991, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

31. A certificate will issue to the applicant.