[1994] OLRB Rep. August 970
1678-93-M United Food and Commercial Workers International Union, Local 175, Applicant v. Branch 133 Legion Village Inc., Responding Party
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. W. Pirrie and E. G. Theobald.
DECISION OF THE BOARD; August 30, 1994
1This is a ministerial reference pursuant to section 3(2) of the Hospital Labour Disputes Arbitration Act. The question which has been referred to the Board for its advise is the following:
Is Branch 133 Legion Village a "hospital" within the meaning of the Hospital Labour Disputes Arbitration Act.
Statements of representations have been filed with the Board pursuant to an agreement between the parties to have the Board make the decision on written submissions.
2The Board has reviewed the written submissions and its advice to the Minister is that the answer to its question is yes, the Branch 133 Legion Village is a hospital within the meaning of the Hospital Labour Disputes Arbitration Act. The reasons for this advice follows.
3Fundamental to the determination of the question is the definition of the word hospital in the Hospital Labour Disputes Arbitration Act, which is as follows:
- (1) In this Act,
(a) "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 aged;
4It is our view that the operative part of that definition is the wording in the last phrase "and includes a home for the aged". Although the Legion Village is not a hospital in the ordinary sense of the word, the statutory definition is not limited to such narrow confines. We are of the view that the Legion Village is a home for the aged.
5A brief review of the facts submitted will serve to underline why we have concluded that the Village is a home for the aged, and thus a hospital within the meaning of the Act. The material before us indicates that the Village provides moderate priced residential accommodation for seniors, with a variety of kinds of services and care depending on the needs of the various residents. It is described in the material as a buffer between a house or apartment and a nursing home. The Ministry of Community and Social Services requires the corporation to provide health care at the health care aid professional level, but the Village has been able to attract employees with superior qualifications to that.
6The Village services senior citizens~ in self contained apartments (phase 1) for those 60 years of age and older, and in apartments with health care assistance (phase 2 and phase 3) for those 65 years of age and up. The criteria for eligibility for the apartments with the health care component are listed as follows:
Ambulatory with or without walking aids.
Independently mobile in wheel chair.
Self care with limited assistance.
Look after own medication.
Health care assistance is mainly linked with phase 2 and 3 units, and phase 1 is described as regular apartment living with no services provided. However, the phase 1 units also have suites designed for the handicapped. For phase 1 meals may be purchased in a dining room. For phase 2, two meals per day are provided as well as housekeeping, laundry and nursing services. An RNA is available for twenty-four hour emergency call, and assistance is given with baths. In the information package filed, the objectives of phase 2 are described as follows:
"To provide a sheltered environment for people in need of assistance while encouraging and maintaining independence in the activities of daily living. To provide health monitoring and supervision as required. To provide accommodation, meals, companionship and socialization for people who, because of age or infirmity, have suffered losses in health, mobility, sensory acuity or well being".
In phase 3 there is twenty-four hour limited nursing supervision, as well as the other services mentioned above, and three meals a day plus afternoon and evening tea are provided.
7The union's position is that because the Legion Village is a seniors' residence~ it should be recognized as a hospital under the Hospital Labour Disputes Arbitration Act. They observe that the employees have the same job classifications and duties as other nursing homes currently recognized under the Hospital Labour Disputes Arbitration Act. The Divisional Court has made clear in Carefree Lodge v. ONA (unreported decision dated November 2, 1976) that the words "home for the aged" are to be given their plain and ordinary meaning as opposed to any meaning that they may
have been given under other Acts, such as The Homes for the Aged and Rest Homes Act, or the Charitable Institutions Act. See, similarly, Nel-Gor Castle Rest Home v. London and District Service Workers Union, Local 220, (unreported decision of the Divisional Court dated March 19, 1985).
8The responding party's objection to being designated a hospital is the potential of an imposed financial burden through interest arbitration. It writes that any arbitrarily imposed financial settlement without corresponding financial support and commitment from the government or funding agents could lead to the closure of the aspect of the operation with health care assistance, since this corporation cannot support a financially deficit organization. Although the Village's concern is understandable, we are not of the view that it is a criterion which the legislature intended we take into account in determining the application of the Act. However, it is the type of concern that will likely play a major role at the bargaining table and at any subsequent interest arbitration.
9It is our view likely that the legislature intended homes for the aged to be included in the definition of hospital whether or not they meet the test of "being operated for the observation, care or treatment of persons afflicted with or suffering from any physical or mental illness..." as homes for the aged are in effect deemed to be hospitals. This conclusion is also consistent with the cases referred to by the union. It is not disputed that in the ordinary sense of the words home for the aged, i.e. an institution or establishment for the shelter and care of the elderly, the Legion Village would qualify. Nor was it by either party that a different result should flow for phase 1 than for phases 2 and 3. In any event, it is clear that phases 2 and 3 would comply with the more detailed test as well since the provision of care is clearly aimed at least at observation of the elderly with some infirmity. Moreover, it appears from the material that the employees in question are providing the services to phases 2 and 3 rather than phase 1, and thus it is not necessary to make a finding with respect to phase 1.