Ontario Labour Relations Board
[1994] OLRB Rep. August 1082
1615-93-M Practical Nurses Federation of Ontario, Applicant v. Select Living (1991) Ltd., Responding Party
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. W. Pirrie and E. G. Theobald.
DECISION OF THE BOARD; August 29, 1994
- This is a ministerial reference pursuant to section 3(2) of the Hospital Labour Disputes Arbitration Act (referred to below sometimes as HLDAA). The question which has been referred to the Board for its advice is the following:
Is Barclay House a hospital within the meaning of the Hospital Labour Disputes Arbitration Act.
The parties have filed submissions with the Board and have agreed that an oral hearing is not necessary.
From the material filed, it is our advice to the Minister that Barclay House is a hospital, as it is a home for the aged. Our reasons for that advice follow.
The material discloses that Barclay House is a retirement home owned by Select Living (1991) Ltd. and is managed by Beacon Hill Lodges Management Inc. It is described in counsel's submissions as a residential facility which provides basic accommodation, meals, companionship and social activity for its residents. It is said that Barclay House only accepts residents if they are capable of functioning without the assistance of others in regards to the activities of daily living, feeding, dressing and moving around the home and that due to the criteria for admission, all residents are fully independent and ambulatory, although ten residents walk with the assistance of walkers, and eight with the assistance of canes. Services are available for purchase from Barclay House which are not included in the price of basic accommodation. These include medication administration, bathing assistance, laundry service and daily housekeeping. At the time of the submissions, there were 60 residents, whose age ranged from sixty-five to ninety-seven.
The facilities contain sixty-three suites housing up to seventy-two private and semiprivate residents. Each suite has a four piece bath, but no kitchen facilities. The entrance door is from a common hallway which has a lock for which the resident controls the key, although staff have access to be used in the case of emergencies. Each room has a call bell which rings in the nursing station, and the nursing staff carry a beeper if they are away from it. Residents are permitted to come and go as they please, however they are asked to advise a staff member when leaving the building. All exit doors are locked at 7:00 p.m. each evening, and the alarms on the doors are triggered if, for example, a resident attempts to leave the building. There is a shared dining room, cafeteria, reception area, chapel, library, laundry facility and lounges. All meals are provided in a dining room and cafeteria, and room service is not available except for when a resident is ill.
The level of independence of the residents seems quite high. However, the residents are characterized generally as the frail elderly and there are residents who have the potential to be wanderers, some who are incontinent, and some with diabetes.
Staffing provides RNA coverage for day and evening shifts, one on each shift. Personal service attendants are available for more hours than that.
All residents require some form of medication but forty-two percent of the residents are self medicating. Registered Nursing Assistants and personal service attendants dispense medication, if an individual resident has contracted the service option of medication dispensing. This is the only "medical" service provided by the facility on a regular basis. Physicians make house calls and visit their patients in the residence, and services of outside agencies such as Red Cross or VON are sometimes provided at the home. Residents are also able to subscribe to a bathing option to receive assistance in bathing once a week.
The admission policy of Beacon Hill Lodge says that the facilities are intended to provide long term, supportive and/or restorative quality care, and thus it is necessary to limit admission to applicants for which the facility adequately provides such quality care. The occupancy agreement contains the following (part of paragraph 2):
The resident acknowledges that the owner provides general supervision of health care needs, but should any nursing care or other assistance be required by the resident in excess of that specifically set forth in the said Schedule "A", the resident and where applicable the guarantor agrees at their own expense to use the services of such qualified supplier of nursing care as it appears on Schedule "A" or such other qualified supplier as deemed appropriate by the owner from time to time.
And further (part of paragraph 6):
All resident care needs will be assessed quarterly by the personal care committee (Manager, Nursing Supervisor and Residence Physician). The resident further acknowledges that, due to the fact that the residence is not equipped to provide special or additional nursing or medical care, and [in] the event that the resident shall require special or additional nursing or medical care (as determined by the Resident Physician)... the owner shall be entitled to terminate this agreement.
On Schedule "A" the services provided are set out. Weekly housekeeping is provided by the owner. Daily housekeeping carries an extra cost, and is used by forty percent of the residents. Supply and laundering of sheets and towels are the home's responsibility, but personal laundry service is optional at an extra cost (used by twenty percent of residents). The fact that qualified nursing staff will be available twenty-four hours per day with sufficient support staff to provide supervision of health care needs is also mentioned on Schedule A. Additional personal nursing care is to be purchased by the resident. A self medication waiver is attached to the agreement as well which provides for a resident who is going to self medicate to be responsible for the administration of his own medications, and to not hold the owner responsible for any error associated with that. Further, it provides that the resident acknowledges that at some time in the future at the discretion of the residence nursing supervisor, the owner may deem the resident incapable of accurately monitoring and administering his own medication, and may take over these functions on the resident's behalf.
The job description for the RNA indicates that the major functions of an RNA include being a professional medical support for the residents of the Barclay House, assisting in co-ordinating care of the residents and assisting in monitoring and ensuring the maintenance of high standards of nursing assistance. It further requires the ability to understand and assess the demands of the residents. The specific duties include providing care to the residents of the retirement home within the guidelines of the College of Nurses for an RNA, to keep accurate records on each resident, including charting of any and all pertinent data regarding the resident as well as any significant change in the condition of the resident which would be vital knowledge in the medical treatment of this resident, and reporting to the resident's physician when warranted. This includes ordering, reordering, dispensing, administering and managing medications and treatments.
The disputed facts are minor and nothing turns on them for the purpose of this decision. The parties disagree on whether there is an RN employed as an RNA and as to whether some residents are waiting to move into nursing homes.
It is the employer's submission that what is fatal to the union's claim in this case is that the house is not operated for the "observation, care or treatment" of either category of persons set out in the definition of hospital in the Hospital Labour Disputes Act. Persons needing observation, care or treatment would be in a nursing home or a more active treatment centre, in the employer's submission. The employer submits that there are no elements of observation care or treatment with respect to any residents.
Further, the employer submits that the house is not a home for the aged. The employer quotes the Minister of Labour in the Hawkesbury Villa decision dated November 14, 1985:
"The words 'home for the aged' are to be given their plain and ordinary meaning in light of the purpose of the Act. The words suggest a residence for elderly individuals, the amenities of which and the services provided are shared in common. The intention of the legislation is to ensure that services provided by certain institutions to persons of advanced years who may be in a vulnerable physical or mental condition are not disrupted by reason of a work stoppage."
The employer submits that in that case the Minister of Labour focused on the residents' dependence on physical care and supervision provided by the Villa to justify declaring it to be a hospital. It was not the fact that an institution is a residence for aged persons that made the Minister of Labour determine it to be covered by the HLDAA, submits the employer. Rather, it was because the Minister felt he was satisfied that the residents received such personal care and assistance that its disruption would result in not only an inconvenience, but also discomfort and ultimately might jeopardize the physical well-being of the residents.
The employer argues that there would not be such a disruption in any such services due to a work stoppage because the residents can still be supplied with necessary care through management staff, and the compliance with the replacement worker provisions of the Act~ sections 73.1 and 73.2 of the Act. In short, the purpose behind the HLDAA would not be advanced by determining that the house is a home for the aged, submits the employer. The employer urges the Board not to follow Dignicare Incorporated c. o. b. as Orleans Community Health Centre, (Divisional Court), File No. 462/90 February 12, 1991) as argued by the union.
The union asserts that most of the residents suffer from some kind of mental or physical limitations to varying degrees, and that they move into the home because they need some assistance with the tasks of daily living. This is more or less supported by the employer's submissions, although their emphasis is on the maintenance and encouragement of independent living.
The union relies on two cases. The first of them is Dignicare Incorporated, cited above. The court was dealing with orders of two Ministers of Labour who had ruled that the HLDAA did not apply to the employer's operation. The facts recited in that case indicate that although a doctor was on call, the Orleans Community Care Centre did not provide medical care or treatment to its residents. The court decided that the observation, care or treatment referred to in the HLDAA definition did not have to be of a medical nature and that the Ministers erred in so finding.
The second case relied on by the union is Extendicare Diagnostic Services, [1982] OLRB Rep. March 371, and in particular paragraphs 12 to 17 thereof. The paragraphs referred to specifically discuss the purpose of the HLDAA. The Board refers to the legislature's having determined that the need of the public to uninterrupted hospital services takes precedence over the right of certain individuals to resort to economic sanctions in support of collective bargaining objectives.
However, it points out that given the statutory encroachment on individual freedoms, the Board might be circumspect in applying the definition. In that case the Board concluded that the employees whose status was in issue were employed by an organization which is not a hospital. Their functions were available from the hospital on an uninterrupted fashion as an alternate to private suppliers. The Board therefore found it was difficult to conclude, given the balancing of interests which must take place, that the legislature intended to prevent the employees in question from engaging in free collective bargaining. The context of that case is very different from the one before us.
Management's reply to these submissions is that the policy reason for defining an employer's operations to be a hospital within the meaning of the HLDAA is to prevent work stoppages from disrupting essential health care services. In the absence of a disruption of these services, the free collective bargaining process should prevail. The employer submits that there is no evidence to suggest a work stoppage of four RNA's would disrupt the provision of services to the residence, as management and personal service attendants currently hand out medication, and provide care to residents. As well, management trains RNA's. Therefore they could continue to provide the service. Accordingly, the company submits that the policy behind the Labour Relations Act, free collective bargaining, should guide the Board to decide that the home is not a hospital within the meaning of HLDAA.
The union's submissions in reply emphasise that the RNA's and sometime the personal service attendants handle the charting for all residents, making regular monthly nursing notes on each resident, plus additional notes if something of importance occurs. They highlight the role of the residence physician. Although acknowledging that his use is optional, they note that the doctor takes care of approximately twenty out of the sixty residents whom he sees in the nursing station or in a resident's room.
The union further highlights that in order to be hired as a RNA by the employer, an RNA is required to have a medication and administration certificate which is not part of regular RNA training, but requires a further three month college course. Personal Service Attendants are not qualified or trained to give medication. However, it is submitted that since the Barclay House's facilities are not government regulated, presumably they are free to request personal service attendants to give out medication. The union also provided additional factual statements as follows in their reply. Barclay House advertises that it provides convalescent care for patients released from hospital, but not yet ready to care for themselves at home. Social workers regularly attend at the facility to deal with the residents suffering from confusion, depression and alcoholism. A gerontologist from the psychiatric hospital sees three residents at least three times per month. The union submits that people move into facilities such as the home for the very reason that they have difficulty living on their own. It is said that they require care and assistance with eating, bathing, medication, laundry and so on, and that they need and want twenty-four hour supervision. Further, the union disputes the employer's assertion that a strike or lockout would not disrupt any services provided to the persons at the home. It notes that the employer has difficulty hiring RNA's to fill its existing requirements on an ongoing basis, and that neither of the two existing management persons are qualified nurses, or even personal service attendants.
We have carefully considered the material before us. We view the statute in a manner consistent with that of the decision of the Divisional Court in Dignicare Incorporated, cited above, and therefore are persuaded that Barclay House should be covered by the HLDAA. We agree with the court's finding that observation does not have to be of a medical nature to be covered by the definition. From the material before us it is clear that a major component of the service offered by Barclay House is the observation and assessment of its aged residents. This is sufficient for it to be covered by the HLDAA. Further, the legislature did not distinguish between homes for the aged with a relatively well population and those with a very dependent population.
We have considered the argument made by the employer about the purpose of HLDAA in light of the replacement worker provisions enacted in 1993. We are not of the view that it is appropriate to hold that they influence the definition of the word hospital in HLDAA in the way suggested. Although it may be that the replacement worker provisions mean that a strike would be less disruptive than without such provisions, we are not persuaded that they can be construed as changing the meaning of the words in the definition of hospital in the pre-existing HLDAA. If the legislature had wished to make such an intention clear it could have, but did not.