George Jeffrey Children's Treatment Centre v. Service Employees Union, Local 268, 1994 CanLII 9803

[1994] OLRB Rep. December 1656

0019-93-R; 1103-93-M George Jeffrey Children's Treatment Centre, Applicant v. Service Employees Union, Local 268, Responding Party; Service Employees Union, Local 268, the Union v. George Jeffrey Children's Treatment Centre, the Employer

BEFORE: Pamela Chapman, Vice-Chair.

APPEARANCES: Stephen J. Wojciechowski, Laura McGowan, Mike Kubinec, Margaret Fulton for the applicant; Glen Oram, Bill Liggins, Janine Letwin, Roy Sportak, Jeff Rooney and Roberta Thompson for the responding party.

DECISION OF THE BOARD; December 9, 1994

1. Board file 0019-93-R is an application for combination of bargaining units pursuant to section 7 of the Labour Relations Act, which was filed by the applicant ("the employer") on March 26, 1993. The employer seeks to combine the following three units of employees represented by the responding party ("the union") into a single unit:

all Speech Language Pathologists, Speech Therapists, Augmentative Communication Assis­tants, Physiotherapists, Occupational Therapists, Physiotherapy Assistants, Social Workers, Education Consultants, Therapy and Rehabilitation Technicians and Volunteer Co-Ordinators employed by George Jeffrey Children's Treatment Centre in the City of Thunder Bay, save and except Supervisors and persons above the rank of Supervisor, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period;

all Speech Language Pathologists, Speech Therapists, Augmentative Communication Assis­tants, Physiotherapists, Occupational Therapists, Physiotherapy Assistants, Social Workers, Education Consultants, Therapy and Rehabilitation Technicians and Volunteer Co-Ordinators employed by George Jeffrey Children's Treatment Centre in the City of Thunder Bay, who are regularly employed for not more than 24 hours per week and students employed during the school vacation period, save and except Supervisors and persons above the rank of Supervisor;

all employees of George Jeffrey Children's Treatment Centre employed in Residential Care in the City of Thunder Bay, save and except Supervisors, persons above the rank of Supervisor, Office and Clerical Staff, Maintenance and Custodial employees, and employees in the bargain­ing units for which any trade union held bargaining rights as of September 2, 1992.

2. Board file 1103-93-M is a ministerial reference pursuant to section 3(2) of the Hospital Labour Disputes Arbitration Act ("HLDAA"), which was referred to the Board by the Minister on June 23, 1993. This reference followed an initial request by the union, on February 12, 1993, for a determination by the Minister that the residential care program of the George Jeffrey Children's Treatment Centre ("George Jeffrey" or "the employer") falls within the jurisdiction of the HLDAA. The questions which have been referred to the Board for its advice are the following:

Is the George Jeffrey Children's Treatment Centre Residential Care Program a "hospital" within the meaning of the Hospital Labour Disputes Arbitration Act?

If so, should this ruling apply to the whole of the George Jeffrey Children's Treatment Centre?

3. By decision dated May 2, 1994, the Board ordered that the two applications, that is the combination application filed by the employer, and the ministerial reference initiated by the union, be consolidated and dealt with together. Both parties filed extensive written submissions, including documents, and two days of hearing were held on June 27 and 28, 1994. At that time, the parties filed a "Joint Submission" which set out the facts upon which they had been able to agree. In addi­tion, I agreed to take a view of the premises in issue, and as a result toured each of the buildings operated by the employer, together with counsel for each party, one representative of manage­ment, and an employee. Two witnesses were called by the employer, and a number of additional documents were admitted into evidence by agreement.

4. While the two proceedings were consolidated and heard together, as noted above, I intend in this decision to deal first with the ministerial reference, as it was initiated by the union prior to the application for combination having been filed by the employer. I note that the evi­dence and argument proceeded in the same order at the hearing in this matter. I will begin, how­ever, by setting out the facts, which as noted above were not largely in dispute. For this reason, I will provide a general, rather than a detailed, review.

THE FACTS

5. George Jeffrey is a facility in Thunder Bay which offers a variety of services to children and young adults with special needs living in north-western Ontario. For the purposes of these applications, it is useful to divide it into two parts: the residential care program, which operates a number of group homes housing young adults with physical and/or developmental handicaps; and the non-residential programs, which are delivered from the employer's main premises at 507 North Lillie Street ("Lillie Street").

6. As is clear from the bargaining unit descriptions set out in paragraph 1 above, the union holds bargaining rights for three different units: one unit of full and part-time employees working at the group homes in the residential care program; and two units, one of full-time and the other of part-time employees, working at Lillie Street as speech language pathologists, speech therapists, augmentative communication assistants, physiotherapists, occupational therapists, physiotherapy assistants, social workers, education consultants, therapy and rehabilitation technicians and volun­teer co-ordinators. For ease of reference, I will refer to the latter two units as the "therapy" units. The employees in the therapy and residential care groups do not interact during a normal work day, and there has been no history of movement between the two groups.

7. The therapy units were certified on July 7, 1992, and the residential care unit on September 16, 1992. While bargaining has commenced with respect to both groups, no collective agreements have been made.

8. In the residential care program, George Jeffrey operates three group homes housing up

to 12 clients, at various locations throughout the city. According to the program's "Guidelines for Admissions", those persons accepted for residency must be young adults with physical and/or mul­tiple disabilities requiring support services of a physical, medical, or money management nature, who are compatible with the other residents of the home, and capable of benefiting from the pro­grams and environment. The physical support specifically referenced in the admission criteria is with respect to mobility, eating, dressing, bathing, toileting, shopping, communication, laundry and housekeeping. Priority is given to those confined to hospitals, nursing homes, and homes for the aged, or at home with family members/caregivers and in danger of institutionalization.

9. I was provided with information about the 11 current residents of the home. (Some information was provided at the hearing about the resident who recently filled the remaining vacancy, but as that information was not complete I have not included it here.) There are presently six females and five males, between the ages of 22 and 33 years, divided evenly between the three houses. Ten of the residents have conditions which have resulted in physical disabilities, including cerebral palsy, spina bifida, quadriplegia, spastic hemiparesis, and epilepsy. In addition to these physical challenges, eight of the ten are developmentally delayed, five minimally and three severely. The other two are memory impaired due to an acquired brain injury. The eleventh resi­dent has no physical disability, but is severely developmentally handicapped.

10. As a result of these disabilities the clients have a number of special needs and restric­tions on their abilities. Five use a wheelchair, one uses a wheelchair or a walker, and two addi­tional clients use a wheelchair outside of the home. Four of these clients also require the use of a hoyer lift to transfer them from their chairs into bed, the shower, etc.. One resident uses a speech board for communication; two are non-verbal and two others have speech impairments. The cli­ents take a number of medications, including anticonvulsants, multivitamins, sedatives, tranquillis­ers, gastroesophageal reflux therapy, stool softeners, a histamine receptor antagonist, and various creams and ointments.

11. The clients require assistance generally with bathing, dressing, toileting, and eating, sometimes with resident participation. Staff assist in lifting and transferring residents, sometimes with resident participation, and depending on their needs. They assist some of the residents with a basic range of motion exercises following the instructions of a physiotherapist, and assist residents in taking their medication, ranging from distributing medication to those clients who can take it themselves, to putting the medication in clients' mouths. No injections are given. Staff are also required to carry out bowel disimpactions and to change dressings. They attend to residents having seizures in order to ensure their safety. Any more significant medical needs would be met by the attendance of a VON nurse or other community agency at the home, or by taking the resident to see a doctor or to a local hospital.

12. Staff also assist residents in grocery shopping, meal preparation, housekeeping and laundry. Some residents are able to participate in these activities to varying degrees.

13. Finally, staff arrange for and accompany most clients to medical and dental appoint­ments.

14. The parties attempted to characterize these various needs as "low", "moderate", moderate to high", or "high". They defined "low needs" as meaning that assistance is mainly of a supervisory nature, "moderate needs" as requiring some assistance with resident participation, moderate to high needs" as requiring assistance, and "high needs" as being totally dependent on the support staff. The residents were then described as follows:

House #1

Female - moderate to high personal care needs

Male - moderate to high personal care needs

Female - low personal care needs

House #2

Female - moderate personal care needs with high medical needs

Male - high personal care needs with low medical needs

Male - high personal care needs with moderate medical needs

Female - low personal care needs with low medical needs

House #3

Male - high personal care needs with low to moderate medical care needs Female - moderate to high personal care needs with high medical needs

Female - low to moderate personal care needs with low medical care needs and moderate to high behavioral care needs

Male - moderate to high personal care needs, moderate medical care needs with low behavioral care needs

15. Approximately fort-two staff provide these various services to the clients on a 24 hour-per-day basis. The bargaining unit staff are generally classified as either Residential Care Workers, working rotating shifts during the day, afternoon, and evening, Night Care Workers, who work on the overnight shift, and part-time Relief Staff, who are called in as needed to cover for other staff. All of these positions require employees to "provide high quality care in a home like environment that encompasses all facets of the client's needs and promotes ultimate individual independence". Each group home also has a House Supervisor, which position is outside the bargaining unit, and a Housing Co-ordinator is in charge of the residential care program as a whole. In addition, there is a non-bargaining unit position called Life Skills Worker, which is currently held by two different people on a contract basis.

16. The houses themselves are small bungalows located in residential neighbourhoods. While they have been renovated to make them as accessible as possible, and to install special equipment such as hoyer lifts, special efforts have been made to retain a home-like atmosphere. Each of the residents has his or her own bedroom, and they share bathrooms, the kitchen, dining room, and other common living areas. One room in each house is set aside for staff use and func­tions as a small office.

17. The remainder of the programs at George Jeffrey are delivered from their main facility on Lillie Street, which is a large building housing numerous offices, meeting rooms, treatment rooms, and a day-care centre (which is not staffed by members of these bargaining units and is thus not affected by the present applications). No-one resides at this location, and all of the programs are thus delivered to clients who visit Lillie Street, or indeed out in the community in the case of the School Health Support Services Program, generally during normal office hours. The clients of the non-residential treatment programs are children and adults with special needs.

18. The Augmentative Communication Program provides for the assessment of children and adults with face to face and/or written communication difficulties, the prescription of a system for augmenting communication where appropriate, which may include boards which utilize pic­tures, symbols, bliss symbols, words or alphabet, and/or electronic aids including computers, cus­tomizing equipment for clients including software and hardware modifications, providing training and follow-up to clients, and loaning equipment to clients throughout Northwestern Ontario. The employees working in this area include a Medical Consultant who conducts assessments, a Reha­bilitation Engineer, and in the bargaining unit, a Speech Language Pathologist, Occupational Therapist, Rehabilitation Technologist, Education Consultant, and Augmentative Communication Assistant.

19. The Seating Program offers assessment of children and adult clients and prescription where appropriate of assistive seating devices, including wheelchairs and adapted strollers. Bar­gaining unit employees delivering this service include an Occupational Therapist, Physiotherapist and Seating Technician.

20. The School Health Support Services Program provides services to children at their schools. Therapy staff from George Jeffrey attend at schools and provide assessment of children with physical disabilities, fine-gross motor problems, communication difficulties and/or learning disabilities, treatment or prescription of assistive devices where required and appropriate in the school setting, consultation with teachers and parents, counselling, in service training, and devel­opment of suitable programs. The Occupational Therapist, Physiotherapist, Speech Language Pathologist and Social Worker, all bargaining unit staff, are involved in this program, together with a Case Manager from the Thunder Bay Home Care Program, an outside agency which runs the program, and a Liaison Teacher with the Board of Education.

21. Finally, the Centre Client Services Program provides a variety of services to clients with special needs on an out-patient basis. The Social Worker provides support and resource services to clients and their families, including referrals to the appropriate community services, counselling, advocacy, and the recruitment and supervision of home workers. Physiotherapy is offered through a Physiotherapist who assesses and then treats difficulties with movement. An Occupational Thera­pist assesses sensory, fine-gross motor and visual perception skills as they relate to self-care, pro­ductivity and leisure, and then provides therapy, education and/or prescription of assistive devices to aid in the development of these skills. The Speech Language Pathologist assesses communica­tion difficulties and intervenes to provide treatment where infants and children are at risk for com­munication delay or disorder. And an Itinerant Teacher, a position outside of the bargaining unit, provides a link between George Jeffrey staff, clients, their families and their schools.

22. The final factual area which was explored by the parties is the status of George Jeffrey under the Public Hospitals Act, R.S.O. 1990, c.P-40 ("PHA"). The union submitted a letter from an official of the Ministry of Health, Community Hospitals Branch, which stated that as of Novem­ber 20, 1992, George Jeffrey was listed under Group K of Regulation 964 under that Act. The employer acknowledged that George Jeffrey was listed as a hospital under the regulations to the PHA, but called evidence to establish that this designation was only for the purposes of retaining capital funding, and that the Ministry of Health had transferred the responsibility for program management of children's treatment centres, including George Jeffrey, to the Long Term Care division of that Ministry, effective July 1, 1993. According to the witness called by the employer, who is the Assistant Executive Director of Administrative and Support Services, the Association of Treatment Centres of Ontario, of which George Jeffrey is a member, has been working for some time to effect this move, which they expect will eventually result in children's treatment centres being removed from the jurisdiction of the PHA, once legislative amendments are drafted. The employer offered no evidence, however, as to when this change will be effected, or even of any clear commitment by the government to remove George Jeffrey from the list of hospitals under the regulations to the PHA.

MINISTERIAL REFERENCE

Jurisdictional Objection

23. George Jeffrey made two objections to the jurisdiction of the Board to deal with the ministerial reference. The first had to do with the second question referred by the Minister. As noted above, the question first put to the Minister by the union as to the application of the HLDAA dealt only with the residential care program of the applicant. After reviewing the parties' submissions, however, the Minister chose to refer the two questions set out in paragraph 2 above.

24. George Jeffrey took the position that the Minister of Labour was without jurisdiction to refer to the Board the second question set out in the reference dated June 23, 1993. Put simply, the employer submitted that the Minister should not have referred to the Board a question which he himself was not asked. For the Board to answer this question, then, in the submission of the employer, would constitute an error of law.

25. The second objection had to do with the timing of the request made to the Minister by the union and the Minister's subsequent referral to the Board. The employer argued that the Min­ister had no jurisdiction to answer or to refer the question in June, 1993, as the parties had not yet entered into, much less exhausted conciliation.

26. The following are the sections of the HLDAA relevant to the present application:

1.- (1) In this Act,

"hospital" means any hospital, sanitarium, sanatorium, nursing home or other institution oper­ated for the observation, care or treatment of persons afflicted with or suffering from any physi­cal or mental illness, disease or injury or for the observation, care or treatment of convalescent or chronically ill persons, whether or not it is granted aid out of moneys appropriated by the Legislature and whether or not it is operated for private gain, and includes a home for the the aged; ("hopital")

"hospital employee" means a person employed in the operation of a hospital; ("employe d'hopital")

"Minister" means the Minister of Labour; ("ministre")

"party" means the trade union that is the bargaining agent for a bargaining unit of hospital employees, on the one hand, or the employers of such employees, on the other hand, and "par­ties" means the two of them. ("partie", "parties")

2.- (1) This Act applies to any hospital employees to whom the Labour Relations Act applies, to the trade unions and councils of trade unions that act or purport to act for or on behalf of any such employees, and to the employers of such employees.

(2) Except as modified by this Act, the Labour Relations Act applies to any hospital employees to whom this Act applies, to the trade unions and councils of trade unions that act or purport to act for or on behalf of any such employees, and to the employers of such employees.

3.- (1) Where a conciliation officer appointed under section 16 of the Labour Relations Act is unable to effect a collective agreement within the time allowed under section 18 of that Act, the Minister shall forthwith by notice in writing inform each of the parties that the conciliation offi­cer had been unable to effect a collective agreement, and sections 17 and 19 of the Labour Rela­tions Act shall not apply.

(2) The Minister may refer to the Ontario Labour Relations Board any question which in his or her opinion relates to the exercise of his or her power under subsection (1) and the Board shall report its decision on the question.

4. Where the Minister has informed the parties that the conciliation officer has been unable to effect a collective agreement, the matters in dispute between the parties shall be decided by arbitration in accordance with this Act.

5. These sections establish the basic scheme of the HLDAA. If an institution is deter­mined to be a hospital within the meaning of section 1(1), then the HLDAA applies to its employ­ees who bargain collectively within the meaning of the Labour Relations Act, and to their bargain­ing agent(s) and to the employer, wherever the provisions of the HLDAA differ from the Act. Sections 3 and 4 establish the main difference in the schemes of the two Acts with respect to collec­tive bargaining, which is that the Minister under HLDAA does not issue a no-board report if con­ciliation is unsuccessful, which would otherwise be required by sections 17 and 19 of the Act. Instead, a collective agreement is settled by arbitration.

6. Section 3(2) states that the Minister may refer to the Board any question which in his or her opinion relates to the notice to the parties that conciliation has failed, and that the Board shall report its decision on the question (emphasis added). Thus~ a question may arise, and often does~ as to the application of section 3, and thus section 4, to the bargaining unit at a particular institution~ requiring an answer to the question of whether or not that institution is a hospital within the mean­ing of section 1(1).

7. On its face, this power to refer questions to the Board is not limited to any question raised by the parties, or to any particular time period. Indeed, there is no reference anywhere in the HLDAA to questions as to the status of an institution being raised by anyone other than the Minister, although practically that is how they generally come to the attention of the Minister. It is difficult to accept, therefore, that the Minister is limited in any way by the question or questions framed by the parties. Similarly, the Act does not support the notion that the Minister may only refer a question as to HLDAA designation after conciliation has commenced or been completed. (It is also important to note that the written submissions filed by the employer indicate that concili­ation has begun with respect to the therapy bargaining units, with one date held on June 21, 1993; the date on which conciliation was requested is not provided.)

8. In any event, the Board is required by section 3(2) of the HLDAA to report its decision on any question put by the Minister which in his or her opinion is relevant to the application of sec­tion 3(1), which suggests that the determination of jurisdiction under this section is a power which rests with the Minister, rather than with the Board. In this regard, I agree with the comments made by the Board in paragraphs 12 and 13 of the decision in Surex Community Services (unreported decision, Board file 0583-94-U, dated October 28, 1994) [now reported at [1994] OLRB Rep. Oct. 1430], which was issued since this case was argued, as to the limited mandate of the Board in the case of a ministerial reference.

9. For these reasons, I have concluded that I am bound to answer both questions referred by the Minister.

Residential Care Program

32. The first question put by the Minister, and the one raised by the union, is whether or not the residential care program of George Jeffrey is a hospital within the meaning of HLDAA.

33. Having regard to the definition, and to the facts outlined above concerning the residents of the group homes and the services provided to them by staff, the residential care program would appear at first instance to be an "other institution operated for the observation, care or treatment of persons afflicted with or suffering from any physical or mental illness, disease or injury" or of "chronically ill persons". George Jeffrey advanced a number of arguments, however, as to why the definition of "hospital" in the HLDAA does not apply to the residential care program.

34. Counsel took the position that in interpreting the term "other institution" I must consider whether or not George Jeffrey bears sufficient resemblance to other types of institutions spe­cifically named in the section, that is hospitals, sanitariums, sanatoriums, nursing homes and homes for the aged. The qualities which he asserted are common to these facilities are their medi­cal nature, the fact that there is a residential or custodial component to the facility, and that the cli­ents are ill, diseased, injured, or chronically ill. The employer argued that none of these factors are present here.

35. The argument that the observation, care or treatment of persons in a HLDAA institu­tion must be of a medical nature has been previously considered by various Ministers of Labour and also by the Divisional Court. In Dignicare Incorporated c. o. b. as Orleans Community Health Centre, (Divisional Court, File No.462/90, February 12, 1991, unreported), the Court quashed the decisions of two Ministers that the institution in question was not HLDAA designated, stating as follows:

…..(T)he Ministers erred in determining that an institution would fall within the definition of "hospital" in the Act only if the care, observation or treatment provided by the institution was of a medical nature and only if the institution was similar in nature to a hospital, sanatorium, sanitarium, or nursing home.. In our view, in light of the purpose of the Act the observational care provided by an institution to its residents need not be of a medical nature to bring the insti­tution within the definition of "hospital" and within the scope of the Act...

36. The argument about medical nature made by the employer in the present case appears to be exactly the one rejected by the Divisional Court in Dignicare. Counsel for the employer sub­mitted, however, that the Court in that decision did not preclude the consideration of whether or not the care was of a medical nature, but only said that it must not be the only basis for a determi­nation under HLDAA. I cannot accept this argument, given the clear statement by the Court that the observation, care or treatment referenced in the Act need not be of a medical nature. For this reason, even if I conclude as the employer urged that none of the observation, care or treatment provided by staff to the clients in the residential care program is of a medical nature, this does not assist me in answering the question referred by the Minister. I am satisfied, and it was not seriously disputed by the employer, that the services provided by staff to the clients of the group homes do constitute observation, care or treatment, which are the terms set out in the HLDAA.

37. Continuing with his argument about the essential qualities of the enumerated institu­tions in the definition, counsel for the employer submitted that group homes operated by George Jeffrey are not residential in the same sense as a hospital or nursing home, as they are not "institu­tional" in nature. Instead, they are very much "homes", as should have been clear from the view I took of the three residences.

38. With respect, I have concluded that this is a distinction without substance. The group homes in question are not private homes, but are fully staffed residences offering services unavail­able to those living in private homes. In that sense, they can properly be termed "institutions" as that term appears in the HLDAA.

39. I must comment that the employer's arguments on this point, and in other parts of counsel's submissions, seem to arise from its abhorrence of the concept of "institutionalization", which it seems to link with the terms "institution" and "hospital" as they appear in HLDAA. It is understandable that an agency like George Jeffrey, which is based on a commitment to "de­institutionalization" and "independent living", would attach a stigma to the term "institutionaliza­tion". The use of those terms in the HLDAA, however, has nothing to do with arguments about the best way to deliver services to persons with special needs, in the community or elsewhere, but rather is focused entirely on a narrow labour relations purpose: to ensure the continuation of services to persons with special needs as defined in the HLDAA, wherever they are delivered, in the event of a breakdown in collective bargaining.

40. The final part of the employer's argument about the analogy between "other institu­tions" and those enumerated in the HLDAA definition had to do with the question of whether or not the clients of George Jeffrey are ill, chronically ill, diseased or injured. This would seem to be a relevant question even if I do not accept the employer's assertion that an "other institution" must be similar to those named in the section, given that the definition of "other institution" goes on to say that it must be operated for the care, treatment or observation of "persons afflicted with or suf­fering from any physical or mental illnesses, disease or injury" or "convalescent or chronically ill persons".

41. George Jeffrey argued that the disabilities, both physical and developmental, which the clients in the residential care program suffer from are not illnesses, diseases or injuries, as they are permanent conditions which cannot be treated with a view to a cure. Again, this is a distinction which I cannot accept. First of all, the very language used in the definition seems to contradict the notion of a "cure" being integral to the idea of an illness, disease or injury, as it specifically goes on to refer to chronic illnesses. Secondly, any dictionary definition would counter this assertion (see for example the definitions cited at paragraph 63 of the Board's decision in Surex Community Services, supra, reproduced in paragraph 42 below).

42. In Surex Community Services, supra, the Board faced an argument by the employer that developmental handicaps did not fall within the terms "physical or mental illnesses, disease or injury". The Board dealt with this argument as follows:

43. Counsel for Surex argued that Surex residents are not persons "afflicted with or suffering from any physical or mental illness, disease or injury" and are not "chronically ill persons". The Shorter Oxford English Dictionary (Third Edition, Volume I) defines the words "illness", "dis­ease ", "injury", and "chronic" as follows:

Illness ... 3. Bad or unhealthy condition of the body (or, formerly, of a part); the con­dition of being ill (ILL a. 8); disease, ailment, sickness.

Disease ... 2. A condition of the body, or of some part or organ of the body, in which its functions are disturbed or deranged....

Injury ... 3. Hurt or loss caused to or sustained by a person or thing; harm, detriment, damage; an instance of this ME.

Chronic ... 2.... Lasting a long time, lingering, inveterate; opp. to acute 1601....

64. From the evidence and submissions before me, it is clear that all of the residents of Surex suffer from some medical problem which has caused them to be developmentally handicapped. The residents suffer degrees of developmental handicap ranging from mild to profound. Those with more severe forms of developmental handicap need a great deal of care to manage the most basic tasks of daily living. Dr. Jacobs, in his evidence, agreed that to be developmentally delayed is a permanent condition of mental retardation. He, however, was of the view that one should look to each individual's capability or potential rather than at his or her disability. One does not have to disagree with Dr. Jacobs' latter proposition to find that the residents of Surex have special needs because of their physically and mentally impaired conditions, needs which can only be met through the provision of specialized care, observation, and treatment.

65. In addition to their developmental handicaps, the majority of Surex residents also suffer from some other medical condition. Epilepsy, Scoliosis, Schizophrenia, Manic Depressive Disorder, Alzheimer's Disease, and various forms of mental illness are found among the resident population.

66. I am satisfied that on a purposive reading of the definition of "hospital" in the HLDAA, and having regard to the dictionary definitions of "illness, disease or injury", the services pro­vided by Surex fall within the "hospital" definition to the extent that Surex is an institution which is operated for the observation and care of persons who are afflicted with or suffer from physical and mental illnesses, diseases or injuries. This finding is not to be taken to suggest that a developmental handicap is a disease or a mental illness, but it is to say that a developmental handicap may be the result of a disease, illness or injury experienced pre-natally or during birth. Surex residents have sustained some hurt or loss of functioning, and the normal functioning of their persons has been chronically disturbed. In any event, I see no reason to distinguish between conditions brought about by disease, illness or injury, and the disease, illness or injury itself, especially where the level of care required to deal with the person's condition may be greater than that provided by hospitals. In addition to being persons with developmental handi­caps, most of the residents of Surex do also suffer from other physical and mental illnesses which require special observation, treatment, and the administration of medication.

67. That reasoning is equally applicable to the present case, where each of the residents have either a physical or developmental disability which was caused by some underlying medical condition or injury. In most cases, in fact, residents have both physical and developmental disabili­ties, and may have other related impairments, such as difficulties with speech. In any case, I am satisfied based on the evidence about the residents which is detailed above, that they can all be said to suffer from "physical or mental illnesses, disease or injury", or indeed are "chronically ill" as those terms appear in the HLDAA.

68. The employer's final argument related to the purpose of the HLDAA designation, which is, as noted by the Divisional Court in Dignicare, to ensure that persons who are afflicted with physical or mental disabilities~ such that they are unable to care entirely for themselves~ are not left without care in the event of a strike or lockout. Counsel submitted that the facts did not disclose that the clients in the residential care program are dependent on the services of the staff to this extent. With respect, I must disagree. Given the needs of the clients for support from staff in various aspects of living, including their personal care and medical needs, which are integral to their health, safety and general well-being, I am satisfied that a withdrawal of this care by their usual care-givers would have a negative impact on their conditions.

69. The employer argued further, however, that such a purposive interpretation of the HLDAA definition should now be modified in light of the addition of section 73.2 to the Labour Relations Act, which deals with specified replacement workers. One of the categories of employers which are permitted under this section to use specified replacement workers in the event of a strike or lockout are agencies providing "residential care for persons with behavioural or emotional prob­lems or with a physical, mental or developmental handicap" (section 73.2(2)2). Counsel submitted that this modification of the Act had to be interpreted as a clear statement that agencies providing services of this nature are not intended to be included under HLDAA.

70. I cannot agree that these amendments can be taken as a clear statement about the appli­cation of HLDAA, given that corresponding amendments to the definition of HLDAA were not made at the same time. In any event, this interpretation of section 73.2 seems to misapprehend the fundamental nature of the replacement worker provisions in the amended Act. Prior to the passage of sections 73.1 and 73.2, an employer like George Jeffrey would presumably have had the unre­stricted legal right to hire replacement workers in the event of a strike (although they may none­theless have encountered difficulty finding qualified persons who were willing to cross the picket line). With the amendments made in 1993, employers are now generally prohibited from hiring replacement workers, with some exceptions, including those contained in the specified replacement worker provisions in section 73.2 for employers providing certain "essential" services. Even under section 73.2, however, employers are limited in the extent to which they can use replace­ment workers. Thus, it is likely now more, rather than less difficult for an agency like George Jef­frey to use replacement workers in the event of a work stoppage. The amendments to the Act, then, have not lessened the threat posed by a strike or lockout to clients like those at George Jef­frey or their need for protection in such a situation.

71. The final aspect of the parties' submissions to consider is their comments about the sig­nificance of the Public Hospitals Act. As noted above, George Jeffrey is included in Group K of Regulation 964 under that Act, which provides as follows:

1.-(l) Hospitals are classified as general hospitals, convalescent hospitals, hospitals for chronic patients, active treatment teaching psychiatric hospitals, active treatment hospitals for alcohol­ism and drug addiction and regional rehabilitation hospitals, and are graded as,

(k) Group K hospitals, being separate organized facilities approved as such by the Minister, to provide local diagnostic and treatment services in a com­munity or district to handicapped or disabled individuals requiring restor­ative and adjustive services in an integrated and coordinated program;

48. While this is not determinative of the question referred by the Minister, it does seem to confirm that George Jeffrey is the type of institution which would be likely to fall within the HLDAA. In particular, it suggests that an argument could even be made that George Jeffrey is in fact a "hospital" rather than an "other institution" as those terms appear in section 1(1) of the HLDAA, given its classification as such under the Public Hospitals Act. Neither the fact that there may be an intent on the part of the government to alter this classification at some point in the future, although the evidence on this point was not conclusive, nor the employer's evidence about the purpose of the continued designation, can alter the fact that George Jeffrey has been for many years recognized legally as a hospital. It is not necessary for me to determine the question of whether or not George Jeffrey is a "hospital" as a result of its classification under the PHA, how­ever, given my conclusions generally about the application of the definition of "other institution" in the circumstances of this case.

49. For all of the reasons set out above, therefore, it is the Board's advice to the Minister that the employees of the residential care program of the George Jeffrey Children's Treatment Centre are "hospital employees" within the meaning of the Hospital Labour Disputes Arbitration Act.

Non-residential Programs

50. The second question referred by the Minister is whether the whole of the George Jef­frey Children's Treatment Centre should be so designated under the HLDAA.

51. Having regard to the evidence concerning the programs offered by George Jeffrey other than the residential care program, and in particular the staff involved in this program delivery and the nature of their work, it appears that the institution as a whole might also be considered to meet the definition of "hospital" in the HLDAA. The programs delivered by staff at Lillie Street and in schools generally involve assessment, treatment, prescription of assistive devices and counselling for children and adults with special needs, including physical and developmental disabilities. As such, it would appear to be an "other institution operated for the observation, care or treatment of persons afflicted with or suffering from any physical or mental illness, disease or injur " or of "chronically ill persons".

52. Counsel for George Jeffrey submitted, however, that these aspects of the employer's operations do not meet the definition of a "hospital". He argued that the fact that the programs operated at Lillie Street were not residential in nature precluded a HLDAA designation. The requirement that the care, observation or treatment offered by an institution be residential in nature is not included in the definition in HLDAA, however, and for the reasons noted above I reject the notion that such a residential component must be "read in" to the definition given that the enumerated facilities are all residential in nature. It should be noted, in addition, that institu­tions such as hospitals routinely offer non-residential care and treatment, in many cases of the same sort as that offered by George Jeffrey at Lillie Street. In any event, I am not being asked to determine whether or not the non-residential programs, standing alone, meet the definition of "hospital" in HLDAA, but rather whether the institution as a whole should be so designated. Given the proportion of staff working in the residential care program, I am satisfied that it can be said that the institution as a whole has a substantial residential component.

53. It is also relevant to the second question that the designation of George Jeffrey as a "hospital" under Group K of Regulation 964 under the Public Hospital Act applies to the whole of the institution, rather than just the residential care program. This would seem to confirm the notion that hospital may have a non-residential component, and for the reasons set out in para­graphs 47 and 48 above also confirms generally the characterization of George Jeffrey as a "hospi­tal".

54. The employer argued further that the programs offered by George Jeffrey at Lillie Street and in the schools were just that - "programs" - and could not be considered care, observa­tion or treatment. I cannot accept this distinction: it seems to me clear that the assessment of cli­ents with special needs requires observation, and that providing therapy of various sorts, including physiotherapy, occupational therapy, speech pathology treatment, and counselling, as well as the prescription of assistive devices, involves both care and treatment. Indeed, it is interesting, given the employer's focus on the lack of a medical quality to the care provided by the residential staff, that the care and treatment provided by the staff at Lillie Street is of such a medical nature.

55. Finally, George Jeffrey submitted that a purposive interpretation of the definition would not result in a HLDAA designation as there was no threat posed by a work stoppage to the clients of the programs at Lillie Street as they were not in residence. While I agree that the threat to non-residents is not as great as that posed to the clients of the residential care program, I do not accept that a work stoppage would have no impact. In fact, given the nature of the treatment being received, in most cases by children with special needs who would seem to be particularly vulnera­ble, I am satisfied that the withdrawal of their regular treatment might have seriously negative effects on their health and well-being.

56. For all of these reasons, therefore, it is the Board's advice to the Minister that the employees of the whole of the George Jeffrey Children's Treatment Centre are "hospital employ­ees" within the meaning of the Hospital Labour Disputes Arbitration Act.

APPLICATION FOR COMBINATION

57. The employer has applied for combination of the two therapy bargaining units with the bargaining unit made up of residential staff. It takes the position that combination of the units would reduce fragmentation, enhance viable and stable bargaining, and would not cause serious labour relations problems.

58. The union opposed this application, asserting that serious labour relations problems would arise if the units were combined as requested. Its main argument, however, was based on the possibility of the Board combining the residential and therapy units in the event that only the residential unit was found to be made up of "hospital employees" within the meaning of the HLDAA. It did not seriously dispute that a combination would reduce fragmentation and enhance viable and stable bargaining, or assert that serious labour relations problems would result other than those associated with a bargaining unit made up in part of HLDAA designated employees.

59. Given our responses to the questions referred by the Minister, then, the problems iden­tified by the union will not arise in the present case. As significant argument was made by both parties concerning the impact of a combination of HLDAA and non-HLDAA bargaining units, however, I will comment briefly on the issues which were presented.

60. The union identified a number of practical problems which would be faced by a bargain­ing unit made up of hospital and non-hospital employees. The first related to the access to the pro­cedures set out in either the Hospital Labour Disputes Arbitration Act or the Labour Relations Act in the event of a breakdown in collective bargaining. As noted above, the HLDAA provides that once conciliation has been exhausted the collective agreement will be settled by arbitration. By contrast, non-hospital employees may strike or be locked out after a no-board report is issued, except in the case of a first contract where arbitration may be accessed as of right. It is unclear, then, how the collective agreement would be settled in these circumstances. Would the arbitrator have the power to settle terms relating to the employees on strike, and if not, how would he or she meet the mandate under sections 4 and 9 of the HLDAA that all matters in dispute between the parties, and in any event all matters necessary to be decided in order to conclude a collective agreement, are to be settled at arbitration? Similarly, it is not clear whether concessions extracted through economic sanctions undertaken by only a part of the bargaining unit could be applied to the remainder of the group at arbitration, for the reasons discussed below concerning the conduct of votes.

61. Once interest arbitration is completed~ the requirements of the HLDAA might cause further problems for the parties. Section 10(5) requires the parties to execute a document giving effect to the decision of the arbitration board within five days after a decision has been received~ and provides that this document then constitutes a collective agreement. Would this then become the collective agreement binding all of the employees, even those possibly on strike? There seems to be no way that the parties could avoid this outcome, given that section 10(7) provides that the decision of the board of arbitration becomes a collective agreement within the meaning of the Labour Relations Act, even if not executed by the parties. Sections 10(8), (9), (10), (11), (12) and (13) also provide for effective dates and terms of collective agreements settled by arbitration, which presumably might also be applied to the non-hospital employees.

62. A further practical problem relates to the conduct of strike and/or ratification votes. Section 74(5) of the Act provides that all employees in a bargaining unit shall be entitled to partici­pate in a strike or ratification vote. This presumably means that hospital employees who would not be permitted to strike would nonetheless be entitled to vote on whether or not a strike should be undertaken, and also on whether or not an offer would be accepted. This could make it very diffi­cult for a union to get adequate support for a strike, or conversely might mean that employees who would not suffer the repercussions of a strike could be decisive in a decision to walk out. Equally, it might be difficult to settle a strike if part of the unit wanted to take their chances with interest arbitration, which could lead to extremely long strikes given the normal pace of arbitration. Fur­thermore, this section has taken on new significance since the passage of section 73.1 of the Act, which prohibits the use of replacement workers. A condition of an application under section 73.1 is that a strike vote be conducted pursuant to section 74(5), and that support be obtained from at least 60% of the employees in the bargaining unit. This means that employees who are not them­selves striking may once again have a decisive impact on the way in which a strike will be con­ducted.

63. I have also considered other problems relating to the application of section 73.1 of the Act. The use of the term "bargaining unit" in this section makes it very difficult to predict who would be permitted to act as replacement workers in the event of a strike by a part of the bargain­ing unit, or indeed whether these sections of the Act could be applied at all. Section 73.1(3)(a) pro­vides that a bargaining unit is considered to be locked-out if any employees in the bargaining unit are locked-out. Similarly, section 73.1(3)(b) says that a bargaining unit is considered to be on strike if any employees in the bargaining unit are on strike. The definition section establishes that the "place of operations in respect of which the strike or lock-out is taking place" includes any place where employees in the bargaining unit who are on strike or who are locked-out would ordi­narily perform their work.

64. The problem created by these definitions in the context of a part-HLDAA unit is clear when one considers section 73.1(4) which provides as follows:

(4) The employer shall not use the services of an employee in the bargaining unit that is on strike or is locked out.

This suggests that an employer with a bargaining unit split between HLDAA and non-HLDAA employees would in effect be prohibited from employing any members of that unit once any employees were on strike or locked out. At the same time, section 11(1) of the HLDAA provides that no hospital employees shall strike and no employer shall lock them out, despite anything con­tained in the Labour Relations Act. It is not clear, however, that the replacement worker provi­sions, which do not require these employees to strike but rather prohibit the employer from employing them, are in conflict so as to clearly resolve the question of how and if these employees may continue to work. A similar problem arises with section 73.1(7), which permits employees in the bargaining unit on strike to refuse to do any work at a place of operations in respect of which the strike or lock-out is taking place, which would include the part of the operations designated as a hospital under HLDAA. It may be that for some institutions employing HLDAA-designated employees these issues can be resolved by reference to section 73.2, which deals with specified replacement workers, but there still appears to be a difficulty in predicting clearly what impact a strike will have.

65. There are numerous other inconsistencies between the two Acts, including the provi­sions relating to open periods. What all of these potential problems point to is a significant lack of certainty in the relations between employer and bargaining agent, and even between the hospital and non-hospital employees, as to their rights and obligations under the two Acts during bargain­ing and in particular after a breakdown in bargaining. The union argued that problems of this sort would lead to disputes and litigation over the appropriate approach in the event that the parties were not able to agree quickly on a collective agreement covering both groups of employees, which would mitigate against viable and stable bargaining and against harmonious labour relations.

66. The Board has not yet dealt conclusively with the question of whether or not a combina­tion of HLDAA and non-HLDAA bargaining units will be granted. The only reference so far in the growing caselaw on combinations is in the decision in The Governing Council of the Salvation Army in Canada and Bermuda, [1994] OLRB Rep. Jan. 85, at paragraphs 23 and 24:

67. The only troublesome aspect of the instant case is the plea that a part of the employer's organization might be found to be a "hospital" - as we understand it, because there is a consult­ing psychiatrist (not an employee) and the service of counsellors is directed to the clients' mental health.

68. However, as we understand it, there are no nurses involved, nor is it evident that the service involves the kind of medical care associated with what one usually considers to be a hospital. But the concern is, at present, entirely speculative, and even if one location were found to be a "hospital" within the meaning of the HLDAA , it is not at all clear that the situation would be so legally or functionally different in this fragment of the employer's organization that it demands a separate bargaining unit. Municipalities provide a variety of counselling services, and large ones, like the Municipality of Metropolitan Toronto, have within their ranks, and within the same bargaining grouping, employees covered by the HLDAA, and employees (the majority) who are not. We are not aware of any concrete collective bargaining problems arising from this mixing of employees - although, of course, the HLDAA "employees" may not have the right to strike.

69. It is clear from these comments that the Board did not deal thoroughly with the possibil­ity of a HLDAA and non-HLDAA combination, given that this prospect was not squarely before them. Certainly none of the arguments canvassed above seem to have been considered. It is also important to note that the situation in that case would have involved one small unit being carved out of a larger whole, creating, as the Board says in paragraph 24, a "fragment" of the employer's operation. Similarly, the example cited by the Board of a group of combined HLDAA and non­ HLDAA employees is a large municipal unit, with only a minority of employees covered by the HLDAA. It may be that in cases where the HLDAA employees would make up only a small frag­ment of the bargaining unit some of the problems identified above would not arise~ as the unit would be more clearly rooted in the regime under the Labour Relations Act. Where, as in the present case, however, the two groups of employees are relatively evenly matched, these problems may be more significant.

70. As noted in paragraphs 58 above, it is not necessary given my findings on the ministerial reference to deal conclusively with the question of whether or not the problems canvassed above may in fact be so significant as to fall within the notion of "serious labour relations problems" as that term appears in section 7 of the Act. This question, however, is one which will undoubtedly be given serious consideration by the Board in determining whether or not to combine HLDAA and non-HLDAA units into a single bargaining unit.

71. In the circumstances of this case, however, having regard to the criteria in section 7 of the Act, and in light of the finding that all of the employees in the three bargaining units are "hos­pital employees" within the meaning of the HLDAA, the Board directs that the bargaining units in the application before us be combined into a single unit. I will remain seized with regard to any further remedial relief arising from the combination.