[1994] OLRB REP. OCTOBER 1430
0583-94-U Surex Community Services, Employer v. Ontario Public Service Employees Union and its Local 5102, Trade Union
BEFORE: Gail Misra, Vice-Chair.
APPEARANCES: J. Roffey, G. Anand, C. Hamilton and M. Bell for the employer; Ian Roland and Lilly Harmer for the trade union.
DECISION OF THE BOARD; October 28, 1994
1This is a ministerial reference pursuant to section 3(2) of the Hospital Labour Disputes Arbitration Act (also referred to hereafter as "HLDAA"). The question which has been referred to the Board for its advice is the following:
Are the employees of Surex Community Services "hospital employees" within the meaning of the Hospital Labour Disputes Arbitration Act?
2The parties filed submissions with the Board and requested that a hearing be held. Three days of hearing were held on July 19, 20, and 21, 1994. Three witnesses were called by the employer, and two witnesses were called in response by the union. In addition to the written submissions filed, three exhibits were filed. In making the findings and reaching the conclusions set forth in this decision, the Board has considered all of the oral and documentary evidence, the submissions of counsel, and the usual factors germane to assessing evidentiary credibility, including the demeanour of the witnesses, the clarity of their evidence, and the witnesses' apparent ability to recall events and to resist the tug of self-interest in their responses to the questions. The Board has also assessed what is most reasonable and probable in all of the circumstances of this case, and has considered the inferences which may reasonably be drawn from the totality of the evidence.
3For the reasons outlined below, it is our advice to the Minister that the employees of Surex Community Services are "hospital employees" within the meaning of the Hospital Labour Disputes Arbitration Act.
4The relevant sections of the Hospital Labour Disputes Arbitration Act are as follows:
- (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 aged;
"hospital employee" means a person employed in the operation of a hospital;
- (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 has been unable to effect a collective agreement, and sections 17 and 19 of the Labour Relations Act shall not apply. R.S.O. 1990, c. H.14, s.3.
(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. 1992, c.21, s.62.
5On April 22, 1994, the responding party (hereinafter also referred to as "OPSEU" or the "union") requested the appointment of a conciliation officer and on May 3, 1994, the Minister appointed a conciliation officer to confer with the parties and to endeavour to effect a collective agreement. The applicant (hereinafter also referred to as "Surex" or the "employer") requested that the Minister determine whether Surex Community Services falls within the jurisdiction of the HLDAA. What is unusual about this ministerial reference is that two years earlier, on June 29, 1992, the Minister of Labour had found Surex to be a "hospital" within the meaning of HLDAA and subsequent to that designation, the parties had reached a collective agreement. The term of that collective agreement expired on March 31, 1994, and it was when the parties were negotiating their second collective agreement that the employer requested that the Minister reconsider his previous decision.
Preliminary Objection
6At the outset of the hearing the union made a preliminary objection to the Board's jurisdiction to hear the matter as the union argued that the issue of "hospital" status was res judicata, or in the alternative, that the Minister, and therefore the Board, was functus officio.
7In arguing that the issue was res judicata, the union stated that the Minister's decision in the first instance was an administrative one, based on a statutory scheme. Therefore, the union argued, the question of the status of Surex had already been decided and could not be relitigated. The employer had judicially reviewed the Minister's June 29, 1992, decision and had not been successful, yet the employer was now seeking to re-litigate what had been both decided and appealed. According to the union there were no new facts being put forward by Surex which could not have been made available to the Minister at the time of the original decision-making process. The union therefore argued that on the principles of res judicata the Minister could not reconsider the designation of Surex as a "hospital", and if the Minister could not, then the Board, as the Minister's delegate, could not hear this issue either. The union also argued that the Board ought to apply the concept of issue estoppel. This concept prohibits a party to previous litigation from putting a concluded issue finally determined into contention again in a newly instituted proceeding before the same or a different tribunal which would also have the jurisdiction to adjudicate and determine that issue.
8In making the argument that the Minister, and therefore the Board, is functus officio, the union outlined the circumstances in which an administrative tribunal may review matters. Those circumstances have been found by the courts to be very narrow. In the absence of some statutory power granting an administrative tribunal jurisdiction to re-hear a matter already heard and decided, that tribunal does not have such jurisdiction. In exercising its discretion to re-hear a matter already litigated and decided, consideration is given to whether there is new evidence available which was not available, or could not have been available by the exercise of due diligence.
9Following the conclusion of the first day of hearing the Board issued an endorsement indicating that the union's preliminary objection was dismissed and that the hearing would continue. These are the reasons for that ruling.
10As noted earlier, Surex applied to the Divisional Court for judicial review of the Minister's June 29, 1992, decision designating Surex as a then "hospital" within the meaning of that definition in HLDAA. By an order of the Court dated December 1, 1993, the application for judicial review was quashed. The endorsement of Saunders J. is outlined below:
ENDORSEMENT
On motion by the respondent union, this application is quashed for reasons dictated.
Reasons
The Minister made a determination that the applicant was a "hospital" within the meaning of the Hospital Labour Disputes Arbitration Act. This meant that the parties were subject to that statute, rather than to the Labour Relations Act, in the determination of their respective rights.
A stay of the process was refused by this court. Under the process, a collective agreement was arrived at which expires in March of 1994. At the moment, there is no issue between the parties which can be assisted by the application. When the agreement expires, the applicant is in the position to apply to the Minister for a determination of its status and can make such submissions, and submit such material, that it sees fit in support of its position that it is not a hospital under the Hospital Labour Dispute Arbitration Act. The Minister then has the option of deciding the matter or referring it for a hearing by the Labour Relations Board. (emphasis added)
I would agree with counsel for the Minister that the current application, even if successful, would have no practical effect and, on that basis, the application should be quashed.
I might add that if I had reached a different conclusion, I would have struck out the affidavits referred to in the notice of motion of the union, in that while they may be relevant to the issue, they do not relate to the exercise by the Minister of his statutory power.
RELEASED: DEC - 2 1993 [signature] "F. Saunders"
11Surex acted on the Court's endorsement and upon expiration of the collective agreement requested that the Minister determine its status. The Minister, exercising discretion pursuant to section 3(2) of the Hospital Labour Disputes Arbitration Act (and as outlined in the Saunders, J. endorsement), referred the question outlined in paragraph Ito the Labour Relations Board.
12The Board's limited mandate in this case is to advise the Minister of what it believes the answer to the question referred by the Minister is. When the original determination of Surex's status was made the HLDAA did not contain the section allowing for a ministerial reference, and the Board was therefore not involved in any way in the Minister's decision-making. The Board is still not the tribunal which will determine the status of Surex employees, that being a decision which rests with the Minister.
13In order for the Labour Relations Board to meet its mandate in this case it must consider the evidence and submissions of the parties and then must advise the Minister with respect to the question posed. The Board would be unable to answer the Minister's question and would be abdicating its duty if it decided for the Minister that she should not consider the Surex request. If the union wishes to argue before the Minister that she is functus officio, and that the question is issue estopped or res judicata, it is open to the union to do so. In the circumstances, I therefore found that the Board was not barred from hearing this matter on any of the grounds argued by the union.
The Facts
14Surex Community Services is a charitable not-for-profit organization which provides services to adults with developmental handicaps in Metropolitan Toronto. The objects of the organization are as follows:
- to provide quality care, treatment and support to mentally handicapped persons;
- to promote the integration of mentally handicapped persons into the community;
- to promote public participation in the acceptance of mentally handicapped persons as part of the community;
- to enhance the growth and development of mentally handicapped persons in daily living; and,
- to promote the development of educational, employment and advocacy opportunities for mentally handicapped persons.
15The organization is funded by the Ministry of Community and Social Services, which ministry has overall responsibility for the provision of services to persons with developmental handicaps in Ontario. In keeping with the government of Ontario's goal of de-institutionalization, Surex is one of the organizations assisting in integrating persons with developmental handicaps into the community. Surex operates seven residential homes and one apartment program for forty-one adults with developmental handicaps.
16The history of Surex is that it grew out of a pilot project in 1980 to bring profoundly and severely handicapped individuals out of provincial institutions. From 1985 on Surex expanded its services dramatically, as more developmentally handicapped persons were de-institutionalized. The vast majority of Surex residents came to Surex after many years of having been in provincial institutions. Surex is designed to provide community living opportunities to persons with developmental handicaps, to integrate them into their communities, and to attempt to the extent possible, to normalize their lives.
17Surex operates out of small residential homes in established neighbourhoods. Most of the residents have their own bedrooms, although approximately fourteen residents share a bedroom with one other resident. The Surex staff work with the families of the residents and the residents themselves to create individualized programs to enhance the personal growth of each resident and to assist each resident to reach his or her full potential. Surex provides its residents with food and shelter, and whatever other services they need to meet all of their needs. What distinguishes Surex from the institutions most of the residents came from is its size, integration into the neighbourhood, and the individualized treatment each resident gets. Since its inception in 1980 two residents of Surex have left the homes to live on their own. One of those two residents now lives in the Surex Warden Woods project. A brief outline of each of the residences follows.
18The Hurndale Residence is a five-bedroom, two-storey detached home housing four male and four female residents. These residents need some assistance with hygiene or some verbal or gestural prompts to complete their hygiene or dressing. Residents can eat with minimal assistance, assist in preparation of meals, cleanup, laundry, shopping, and household chores. Some of the residents require substantial assistance in completing tasks, but the majority need minimal supervision. Medications are administered by Surex staff to some residents. All residents attend some day program.
19The Hampton Residence is a four-bedroom, three-storey detached home housing four young adult males who have varying levels of disabilities. Staff assist these men with dressing, making beds, and toileting. Breakfast is prepared for the residents but they are capable of feeding themselves. All four residents attend the Surex day program, assist in laundry, meal preparation, setting the table, and after-meal clean up. Staff assist all residents with bathing. The four men have the potential for being aggressive and therefore have programs in place to assist them in controlling these behaviours. Surex has a Behaviour Therapist on staff who assists staff members in formulating programs for residents to modify errant behaviour.
20The Manorwood Residence is a five-bedroom, split-level, detached home housing five female and two male residents between the ages of fifty-three years and seventy-one years. All of the residents of this house can dress and feed themselves, but they require supervision and assistance with cooking, laundry, and bathing. One of the residents can prepare her own breakfast on occasion. They are all given their medications by the Surex staff prior to attending the Day Programs. The residents assist in preparation of dinner, setting of the table, and clear up and drying of dishes. Residents assist in folding and putting away laundry. Some of the residents periodically become violent or self-injurious.
21The Corinne Residence is a four-bedroom bungalow for three female residents and one male resident, all between the ages of forty-five years and sixty-four years. Three of the residents can look after their own hygiene and dressing while one needs staff assistance. They attend the day programs; participate in preparing, serving, and cleaning up at dinner time; and being high-functioning, these residents also assist in the household chores, menu-planning, and shopping. The fourth resident suffers from a progressive deterioration of her health, suspected to be as a result of having Alzheimer's disease, and so requires supervision, pureed food, and has medical and behavioural problems.
22The Morrish Residence is a five-bedroom ranch-style, wheel-chair accessible house, for four males and one female between the ages of twenty-five years and forty-three years. The residents of this home are profoundly developmentally handicapped as well as being physically challenged and all are dependent on staff for some or most of their needs. Four of the five residents use wheelchairs or crawl. All require lifting and assistance in transfers. The Morrish residents require full assistance with all aspects of their personal hygiene, and some require full assistance with eating. They are all non-verbal or have a vocabulary of only a few words. They express themselves through vocalizations, actions, and facial expressions. Each has his or her own communication style which requires staff to do a significant amount of interpretation of what the resident wants or needs. Four of the five residents attend the day program and one resident, in the late stages of Alzheimer's disease, remains at home with an attendant dedicated to serving only his needs.
23The Military Trail Residence is a four-bedroom ranch-style, wheel-chair accessible home for three males and one female between twenty-three years and forty-four years. All residents require wheelchairs for mobility although two persons can crawl or walk with assistance when out of their wheel-chairs. All require lifting or assistance with transfers. The four residents also require full assistance with all aspects of personal hygiene and require varying degrees of assistance with all other tasks. None of the residents are verbal, but all communicate by using facial expressions, actions, or vocalizations in their individual styles. Staff are required to interpret client wishes having regard to the individual styles of communication. Three of the four residents require the administration of medications to control seizures.
24Dentonia Residence is a large home housing two males and six females who range in age from twenty-four to twenty-seven years. Their functional scale is however between the ages of two and ten years of age and most of the residents are non-verbal so that the predominant mode of communication is gestural. Formal signing is not used much in this home. The residents exhibit periodic behavioural challenges, including aggressive and self-injurious behaviours. All of the residents require some verbal staff prompting to complete tasks; one person can toilet and bathe independently, and can do laundry, meal preparation, dishes, garbage collection, and grocery shopping with minimal verbal prompting; five residents can complete tasks with moderate verbal and gestural assistance; and, two residents can only participate in tasks minimally and require high levels of staff assistance. Meals are prepared by staff for all the residents, staff administer medications, and assist all residents with dressing. All of the residents attend some day program. Four of the eight must be woken up every night to be taken to the washroom.
25The Warden Woods Apartments have one bachelor apartment in a seniors' building for a seventy-year-old man. This individual lives independently with intermittent support every week for shopping, banking, and social contact. He requires ten to fifteen hours of staff assistance each week.
26In addition to the residential programs, Surex provides vocational and developmental day programs for twenty-eight of its residents and three non-residents who were referred by other agencies. The programs include a sensory stimulation program utilizing arts, crafts, and domestic activities; a vocational program where four adults, two of whom are Surex residents, do work for pay; a seniors' recreational and leisure program; and, a developmental program designed to develop communication skills through some vocational contracts, skills training, arts and crafts, and lunch preparation. Of the thirteen Surex residents who do not attend the day programs, three are retired and stay at home (two of whom need to be supervised by Surex staff); one resident attends adult day classes operated by the Toronto School Board; and three residents attend a day program operated by the Metropolitan Toronto Association for Community Living.
27Surex employs one hundred and twenty-one employees to provide services to its forty-one residents. Of those involved in direct care or service with the residents are the 28 Primary Counsellors, 14 Overnight Counsellors, 2 Health Care Workers, and 57 Part-time and Relief Counsellors. All full-time counsellors are required to have pharmacology training in order to dispense medication, and must have first aid training certificates and non-violent crisis intervention training. Twenty-five Surex residents take psychotropic or anti-convulsant medication which is administered by Surex staff. Surex staff only administer medication which has been pre-authorized and prescribed by the resident's physician or psychiatrist.
28The only admission criterion for the Surex residential program is that an individual must be an adult with a developmental handicap. One of the goals of the organization is to provide individualized services and programs to meet the needs of each resident. The Surex "Mission Statement" includes that Surex will provide care, support and training to adults with developmental disabilities. "Care" is defined to include an individual's physical, emotional, and psychological well-being.
29By way of summary, of the forty-one residents of Surex, eighteen need full assistance or a lot of assistance with the requirements of daily living, twenty-two residents need varying degrees of assistance, and only one resident needs very little assistance and essentially lives on his own in a building for seniors. Except for the Warden Woods resident, all other residents are accompanied by Surex staff when outside of their homes. The vast majority of the residents require that medications be administered. Medications appear to range from anti-convulsants and anti-psychotic medications to medications for individual medical conditions. Many of the residents require some form of assistance with bathing, dressing, toileting, and with going out into the general community. While some residents assist in the preparation of meals, it appears that most meal preparation is done by staff. Staff are required to chop or puree food for a large number of the residents to facilitate eating. Some residents can assist in some aspects of housekeeping (e.g., putting laundry into the washing machine, assisting in menu planning, assisting in grocery shopping, etc.), but it does not appear that the residents do household cleaning and maintenance of the homes they live in. Approximately half of the residents are non-verbal, most of whom do not have the ability to sign many words. These residents must communicate through gestures and facial motions which staff are required to interpret in order to assist the resident.
30For the forty residents living in the group homes, Surex has forty-four full-time staff members and fifty-seven part-time and relief counsellors who provide direct care to the residents, suggesting a high ratio of staff to residents to provide the requisite services the residents of Surex need. The Primary Counsellor and the Part-time Counsellor job descriptions include the responsibility of assisting residents with the skills of daily living, meal preparation, being responsible for the clothing and personal needs of clients, administering and documenting medications, and basic home maintenance. Primary Counsellors are responsible for one or two residents. The Health Care Worker job description describes the basic function of this position as being to provide health care for all clients of the Surex program. There are only two Health Care Workers who work in the two homes which are wheelchair accessible. Their job includes the provision of assistance with bathing, feeding, changing, personal hygiene, positioning, and other health-related needs. Health Care Workers are also responsible for basic home maintenance and for administering and documenting medications provided to the residents. Overnight Counsellors assist the residents overnight and with morning routines. They too must carry out basic home maintenance, and must administer and document medications given to residents. In addition, they monitor, observe, and document sleep patterns of the residents and note any problems. In some instances they must get residents up at designated times during the night to ensure that residents go to the toilet. At two residences the Counsellor staff persons perform daily physiotherapy exercises with the residents. The counsellor staff tend to have a Developmental Service Worker Diploma from community colleges, or a degree in a related field. In addition, training is provided in first aid, pharmacology, and crisis prevention techniques. There is no training provided for sign language.
31Surex employs some staff in a Driver/Handyman capacity to transport the residents to the day programs and to make minor repairs on the houses. Housekeepers maintain clean environments at the Surex homes through regular household cleaning and home maintenance. A Behaviour Therapist, a member of the management team, works with the counsellors when counsellors note a resident has behavioural problems. With the training and assistance of the Behaviour Therapist with the counsellor, a plan is developed to try to modify the problem behaviour. The training is provided to the staff to ensure that there is consistency among staff in dealing with the resident and so that anyone on duty can monitor the resident's progress. At the time of the hearing only one resident was on an active behaviour program.
32Surex called Dr. Joseph Jacobs as an expert in the areas of mental retardation and developmental handicaps. The union accepted Dr. Jacobs as an expert in these areas. Dr. Jacobs has for some time been the medical physician for the Rygiel Home, a home for developmentally handicapped individuals of various ages in the Hamilton area. In November 1989 the then Minister of Labour found that the Rygiel Home was not a "hospital" within the meaning of the Hospital Labour Disputes Arbitration Act. Not unlike Surex in its focus, Rygiel Home provides residential services and day programs to up to fifty persons with developmental handicaps. However, unlike Surex, it provides shelter in only two homes, each housing approximately thirty and twenty persons respectively. From Dr. Jacobs' evidence, which it is unnecessary to outline in detail here, it was obvious that the Rygiel residents were similar to the Surex residents in their conditions and needs. Dr. Jacobs had visited the Surex facilities on one occasion in December 1992 and had observed the Surex residents on that visit which took place between 9:00 a.m. and 5:00 or 6:00 p.m
33The main thrust of Dr. Jacobs' evidence was with respect to the concept of "mental retardation", a term he preferred to use in giving his testimony. He defined mental retardation as a significantly sub-average general intellectual functioning which is quantified by looking at the deficit in relation to a person's ability to meet standards expected of someone of their age and cultural group. Social skills and abilities, communication skills, daily living skills, personal independence, and self-sufficiency are evaluated to arrive at a functional definition of a person who is "retarded". Dr. Jacobs maintained that mental retardation is not an illness or disease, although some diseases, like cerebral palsy and epilepsy, may lead to retardation. Most cases of mental retardation are caused by pre-natal or pen-natal effects; viral, bacterial, or trauma factors; or due to genetic abnormalities. Dr. Jacobs does not believe that mental retardation is an "illness", but accepts that those afflicted are disabled to some degree. He agreed that the Surex residents may also have other illnesses in addition to their mental retardation which illnesses may in fact have contributed to their retardation. He was, however, sceptical about the medical diagnoses made with respect to the Surex residents but, based on his limited observation, was not in a position to say that they were incorrectly diagnosed.
34Dr. Jacobs' evidence suggested that if the Rygiel Home had been found not to be a "hospital" under the HLDAA, then Surex could not be either. In addition, he testified that since developmental handicaps were not illnesses, services for persons with developmental handicaps should not be labelled as "hospitals" or treated as institutions.
35Residents of Surex are developmentally handicapped, with residents ranging from mildly to profoundly developmentally handicapped. A review of the biographies of each of the forty residents indicated that eleven residents have epilepsy (eight of whom receive anti-convulsant drugs to control their seizures); two suffer from Alzheimer's Disease; four residents have Down's Syndrome; two are affected by Cerebral Palsy; and three residents have Scoliosis. In the area of mental illness, a total of sixteen of the residents require drugs for various psychiatric disorders so that their self-injurious or aggressive behaviours can be controlled. Of these residents, two are diagnosed as Schizophrenic, one suffers from Manic Depressive Disorder, and three have phobias. Dr. Jacobs did not review each resident's biography in his evidence, and did not indicate specifically which diagnoses he disagreed with.
36Cohn Hamilton, the Executive Director of Surex, gave evidence of what the employer could do in the event of a strike if Surex is found not to be covered by the HLDAA provisions. He indicated some programming would be consolidated; families would be asked to house residents; managers would work in the homes to care for those who could not be placed elsewhere; and, using the replacement worker provisions of the Labour Relations Act, the employer would supplement its skeleton staff with replacement workers. It was his opinion that the safety of the residents would not be a concern, that their conditions would not deteriorate, and he believed residents would not face any problems from being surrounded by new faces in their homes.
37Mr. Hamilton indicated that the reason Surex is seeking to have the HLDAA designation revoked is that it has a very negative impact on how Surex services are viewed. In his estimation it was a "retrogressive step for community living" to be designated as a hospital. However, Mr. Hamilton testified that there was no evidence of any negative impact on Surex or its residents since the designation in June. 1992, and he indicated that the residents had continued to interact with the neighbourhood residents in the same way as they had before the designation.
38Mr. Hamilton did not disagree that the residents' disabilities were going to be with them for the rest of their lives. He also agreed that all of the residents need some assistance, with some needing significant amounts of assistance. There is 24-hour staffing of all of the homes, with between two and three staff people at each home on the weekends and at least one counsellor working at each residence overnight. During the day there are more staff present when the residents come home from the day programs and to assist throughout the evening. Mr. Hamilton indicated that even those residents who can perform some tasks of daily living need assistance with other tasks. Some residents, while ostensibly "able" to perform some tasks, are only able to do so because a counsellor assists with "hand over hand" assistance. This requires the counsellor to put his or her hand over that of the resident and guide the resident's hand to do the task, as an example, to brush hair, or to clean teeth. Residents are not under constant observation, but Mr. Hamilton agreed that the counsellors have to "keep an eye on everyone and on what they are doing". Due to the limited communication skills of most of the residents the counsellors have had to develop ways of communicating with each individual, recognizing their unique cues.
39According to Mr. Hamilton, counsellors may rotate between residents but he was not sure how often that happened. The counsellors have an ongoing relationship with the resident for whom they are primarily responsible, and have relationships with the other residents in each home. The relationships are an important part of helping the residents grow and develop, but residents do adapt to turnovers in staff. Mr. Hamilton indicated that each home has a routine or structure which the residents are familiar with and it is his preference not to disrupt that routine.
40Mr. Garry Pruden was called as a witness for the employer. Mr. Pruden is the Scarborough Regional Director for the Metropolitan Toronto Association for Community Living (also referred to as "MTACL"), and as such has responsibility for all pre-school, day, and support programs operated by MTACL in the Scarborough area. MTACL provides support and services to persons with developmental handicaps from early childhood through to when persons are elderly. Approximately 1200 persons are employed by MTACL to provide its services and most are unionized. MTACL is however not governed by the Hospital Labour Disputes Arbitration Act in its labour relations.
41Mr. Pruden gave evidence of the effect of a strike in 1984 on the services he was involved with. At that time a residential program had recently been opened six weeks prior to the strike, housing four residents. There was also a day program for approximately 15 people. He chose to close the residence and placed two of the residents in their family homes and two went to the Shadow Lake Centre, a summer camp program which the two residents had been at previously and where they knew other residents.
42The strike had an impact on the lives of everyone involved and changed the patterns of living for the residents. He indicated however that while there was some short-term impact on the residents of having the strike-induced dislocation, they suffered no long-term detrimental effects. He likened the strike to parents going on vacation and developmentally handicapped people having different care-givers while the parents were away.
43The union called Darlene Mitrovica and Maurice Breau as its witnesses. Ms. Mitrovica has worked at Surex for about eight years. She has worked as an Overnight Awake Counsellor at Manorwood Residence for three years, at the Warden Woods program for approximately three years, and is presently employed at the Corinne Residence as an Overnight Asleep Counsellor.
44As an Overnight Asleep Counsellor Ms. Mitrovica works from 11:00 p.m. on and is permitted to sleep from midnight to 6:00 a.m.. However, due to her responsibilities for residents and the actions of disruptive residents she and the other Counsellor on duty during the night often remain awake. Her duties include ensuring that the house is safe, calling an ambulance or supervisor if necessary, being alert, watching the residents before they go to sleep to observe if they have any "behaviours", and, checking on residents if they have any problems during the night. Between 6:00 and 9:00 a.m. she assists in waking up all of the residents and ensures that they are properly dressed, groomed, and that they eat their breakfast. The residents do not cook at all during the week, so meals are prepared by the staff. In Ms. Mitrovica's experience, the residents of Corinne are not very capable of caring for themselves. One of the residents of Corinne requires a significant amount of care and is only able to eat pureed foods. She is believed to be suffering from Alzheimer s disease and her medical condition has been deteriorating for some time so that she has an increased incidence of seizures, she bangs her head, does not wish to remain clothed, and disrupts the other three residents of this home.
45Ms. Mitrovica was working at MTACL during the 1984 strike, but had only been hired some months before the strike commenced. The Gladstone Group Home she was working in had to be closed down, but because the four residents of that home were quite aggressive they could not be placed in their own families and had to go to another group home for the duration of the strike. After the strike and when the residents and staff returned to Gladstone, it was Ms. Mitrovica's evidence that it took a long time to get the residents back on track as they were more aggressive and threatening, or alternatively, became withdrawn. One resident began to run away, only to return and break into the house later. In Ms. Mitrovica's experience the staff of these types of residences provide structure and consistency. The effect of the strike was to break all routines; programs designed to curb aberrant behaviours were not carried out with the individuals; and little documentation of resident behaviour was kept during the strike. The residents saw staff members they knew picketing outside the home they were moved to and could not understand why the staff would not come inside. Following the strike, staff had to rebuild trust with the residents, one of whom would cry every time he saw a staff member after the strike. In her estimation, the strike left the residents disoriented, their routines disrupted, and she believed it was a "gross injustice" to liken that period to a vacation. At MTACL the managers did all the work of the striking staff but those managers were not familiar with the residents or their routines. Nursing home staff were also employed through agencies, people with whom the residents were unfamiliar, to assist with resident care.
46Maurice Breau, a Primary Counsellor at the Morrish Road Residence, gave evidence of his experience working for Surex for the past two years. He works a 3:00-11:00 p.m. shift except for the odd weekend day-shift. Morrish Road is a total care residence for five profoundly developmentally handicapped individuals, four of whom are in wheel chairs. Only one of the four individuals can feed himself and can walk. That individual has several behavioural problems including pulling his own hair and that of others, or grabbing the throats of anyone within reach. He needs assistance to shower himself, brush his teeth, put on deodorant, wash his face, or comb his hair. Yet he needs less assistance than do the other residents of the home who require complete assistance, and cannot manage even the "hand over hand" assistance. The persons in wheelchairs require lifting in addition to all other care. None of the residents of Morrish Road can speak, so that all communication is by gestures, visual cues, or facial expression.
47When Mr. Breau is on an evening shift, two other primary counsellors and a person on placement from the Social Service Employment Program are on shift with him to take care of the five residents. They prepare and puree supper before the residents return from their day programs, set out clothing for after the evening baths, and read the day's log to inform themselves of the residents' moods and behaviour that day. When the residents return to the home in a van, all four staff help to unload them from the van and get them inside. Residents are undressed once inside, checked to see if they are wet (all wear incontinence briefs), and are given options to indicate what they wish to do. At dinner the residents are fed by the counsellors. Following dinner their teeth are brushed, faces washed, and then the counsellors do the dinner cleanup. Thereafter, baths are given to the residents, and they are later put into bed. When enough staff are available, one or two residents are taken out in the evening to movies, malls, restaurants, or to other group homes for visits. On outings one counsellor is required for each resident and a driver is usually contracted to drive the van.
ARGUMENTS
48Counsel for Surex made a four-pronged argument for the proposition that Surex Community Services is not a "hospital" within the meaning of the Hospital Labour Disputes Arbitration Act. She argued firstly that the essential characteristics of the services provided by Surex do not place Surex in the hospital services legislative scheme because Surex does not provide medical and nursing care or insured health services, and, it does not segregate patients from the community. Further, she argued that the meaning of "other institution" in the definition of "hospital" should be found by reference to the enumerated medical institutions in the Act. Surex is governed by legislation for developmentally handicapped persons, it is not operated for the "observation, care or treatment" of persons, but is more like a parent to developmentally handicapped persons, or like family members caring for an elderly family member in a home setting. It was argued that the degree of the residents' reliance on Surex services does not make Surex a hospital and that since the Rygiel Home had not been found to be a hospital, Surex should similarly not be found to be one. Counsel conceded that the Rygiel Home decision pre-dated the Divisional Court decision in Dignicare Incorporated c.o.b. as Orleans Community Health Centre, (Divisional Court, File No. 462/90, February 12, 1991, unreported), which the union is relying on.
49Surex maintains that its residents are not "persons afflicted with or suffering from any physical or mental illness, disease or injury" and that to find that Surex is a hospital, the Board would have to find that the Surex residents are diseased, injured, or suffering from physical or mental illnesses. Counsel suggested the services provided by Surex are not medical, but supportive services. In addition, it was argued that Surex residents are not "chronically ill persons" and Surex is operated to provide community living, not to provide care or treatment to chronically ill persons.
50The second aspect of the employer argument is that the policy of the provincial government is to encourage the de-institutionalization of developmentally handicapped persons and to foster their integration into the community at large. In 1974 the Developmental Services Act was passed shifting responsibility for services to people with developmental handicaps from the Ministry of Health to the Ministry of Community and Social Services (also referred to as MCSS). The MCSS was mandated to phase down the large institutions housing persons with developmental handicaps, to provide more support services to assist children with developmental handicaps to remain in their families, and to develop community-based support in residential programs and vocational programs for developmentally handicapped adults. In furtherance of its goal, it is argued that the government has committed significant funds to facilitate de-institutionalization. Since Surex was founded in response to the government initiative to de-institutionalize persons with developmental handicaps, it was argued that it would therefore be contrary to the government's goal to find Surex to be a "hospital" or "other institution".
51Surex's third argument is that by labelling Surex as a "hospital" or "other institution" the Board would be reviving the past and would do a disservice to the strides which have been made in integrating persons with developmental handicaps into the community.
52Finally, Surex argued that if it was not subject to HLDAA, and a work stoppage ensued, no risk would be created for the residents of Surex. The employer asked the Board to reject Ms. Mitrovica's evidence of her experience of a strike in 1984 at the Metropolitan Toronto Association for Community Living as Ms. Mitrovica had only been employed with MTACL for six weeks before the strike commenced and was therefore not in a position to opine on the effects of the strike. In addition, Ms. Mitrovica had only had contact with a minor fraction of the total residents of MTACL. The employer asked the Board to prefer the evidence of Mr. Hamilton and Mr. Pruden on what the effect of a strike may be.
53Counsel for Surex suggested that since the 1993 amendments to the Labour Relations Act, there is a framework in this Act to ensure that services are provided to persons with developmental handicaps in the event of a work stoppage. She argued that application of the replacement worker provisions in the Act would ensure that the well-being of residents of Surex would not be jeopardized so that it is unnecessary for the Board to interpret HLDAA so broadly as to include such services as Surex Community Services.
54Counsel for the union argued that the facts in this case support a finding that Surex Community Services is a "hospital" as defined by the Hospital Labour Disputes Arbitration Act. According to the union only 20% of the residents of Surex are not receiving medications. Surex employs a Behaviour Therapist to prepare plans of treatment for the residents who experience behaviour problems. Surex staff perform physiotherapy on residents. All of the residents are chronically disabled and the vast majority require significant daily on-going care to function. The union pointed out that although Surex programs are aimed to improve the capabilities of its residents, all residents are nonetheless provided with some degree of basic care to function and most will never be able to live in the community on their own without the type of care, supervision, and safe environment that Surex provides.
55The union relied on the Divisional Court's decision in Dignicare Incorporated, cited above, and argued that the Board has no discretion to decide not to apply that decision. It argued that in Dignicare Incorporated the Court has spoken about the meaning of the definition of "hospital" in HLDAA, and has found that the observation, care or treatment provided and referred to in that statute does not have to be of a medical nature. Therefore, the union postulated that the employer argument about legislation of a medical nature is irrelevant. In any event, the union suggested that the residents of Surex do suffer from physical and mental illnesses in addition to their developmental handicaps. The Court also dealt with the argument that direction about what institutions are to be covered by HLDAA is to be taken from the enumerated types of institutions in the Act, and it has rejected that suggestion, so the employer argument on that aspect is also irrelevant. The Court in that case adopted the position that the purpose of HLDAA is to ensure that persons with physical or mental disabilities were not left without care in the event of a strike or lock-out, and that if residents' health and safety was dependent on the services offered by the place they resided, then their health and safety could be jeopardized by a strike or lock-out in that facility.
56OPSEU argued that the difference between Surex and provincial institutions is the size because Surex has a series of small residential facilities instead of the large institutions which used to house most of the present residents of Surex. The residents of Surex share common areas like bathrooms, a kitchen, living areas, gardens and patios. Some residents also have to share a bedroom with another resident. The union pointed out that if one resident leaves, a new resident takes his or her place, in the same manner as in an institution. Regular and structured care and treatment are provided, and the residents' reliance on the services is substantial.
57The union argued that the employer argument with respect to labelling of residents as being in a hospital or institution was without any evidentiary basis as Mr. Hamilton had testified that there had been no effect on Surex and the community's relations since June 1992 when Surex was first designated as a "hospital".
58With respect to the Surex argument regarding the effect of a work stoppage, the union maintained that Surex was trivializing the services it provided and the level of care and relationship-building it fostered. The union argued that a strike or lock-out could harm residents emotionally, psychologically, and socially, in addition to the risk that the residents' basic needs may not be adequately met with reduced staffing. In any event, the union pointed out that the employer was in a worse position following the amendments to the Labour Relations Act because prior to the amendments it could have hired as many replacement workers as it wished. Following the amendments,it is limited in the pool from which it can draw replacement workers. Therefore, the union argues, the changes to this statute in no way change the way the Board should consider this matter.
DECISION
59I cannot accept the employer's argument that since the Rygiel Home was not found to be a "hospital", therefore Surex too should not be designated as a "hospital". The Rygiel Home decision preceded the Dignicare Incorporated Divisional Court decision, cited above, and is therefore of little assistance to the Board in this case.
60Since this case was argued before me, the Board has issued its decision in Select Living (1991) Ltd., (August 29, 1994, Board File No. 1615-93-M, unreported) [now reported at [1994] OLRB Rep. Aug. 1082], wherein the Board was asked by ministerial reference whether a retirement home, Barclay House, was a hospital within the meaning of the Hospital Labour Disputes Arbitration Act. The Board advised the Minister that Barclay House was a hospital within the meaning of the HLDAA as it is a home for the aged. In relying on Select Living, I am not relying on the Board's factual findings in that case, but on some of the legal propositions addressed therein and argued before me.
61The Board in Select Living relied in part on the Dignicare Incorporated decision, cited above, in reaching its conclusion and held that "observation" does not have to be of a medical nature to be covered by the definition in the HLDAA. The Board also rejected the employer argument that the replacement worker provisions in the 1993 amendments to the Labour Relations Act should influence the Board's interpretation of the definition of "hospital" in the HLDAA.
62In Dignicare Incorporated, cited above, the residence in question housed individuals suffering from mental retardation, alcoholism, depression, and various psychiatric illnesses, and provided residents with room and board, and personal care assistance. Two Ministers of Labour had determined that the residence was not a "hospital" within the meaning of the HLDAA because it did not provide "medical care or treatment", nor did it provide "care, observation or treatment of a medical nature". The union applied to the Divisional Court for judicial review of the ministerial decisions. The Court, in finding that the Ministers had been incorrect in their determination, stated as follows:
In light of the use of the words "observation, care or treatment" in the statute, the 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.
Reliance is placed by the Applicant upon the decision of the then Minister, dated December 19, 1986, in Re Bruce Retirement Villa and Service Employees Union, Local 210:
"The purpose of the Hospital Labour Disputes Arbitration Act is to ensure that persons who are afflicted with physical or mental disabilities are not left without care in the event of a strike or lockout. Elderly residents who require some form of support assistance with the activities of daily living, are exactly the type of persons which the Act seeks to protect."
Further reliance was placed on the decision of the then Minister on October 25, 1984 in Re Versa-Care of Hanover:
"The Act is intended to protect those who may not adequately be able to protect themselves if services provided by the Lodge were unavailable. If the health and safety of residents is dependent on services offered by the Lodge, their health and safety could be jeopardized by a strike or lockout. In these circumstances, the HLDAA provides that employees cannot strike or be locked out. Instead, the parties must resolve their disputes by means of binding arbitration."
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. We would therefore allow the application.
63Counsel 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.
64From 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.
65In 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.
66I 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.
67I agree with the Court's analysis in Dignicare and the Board's reasoning in Select Living. I am satisfied on the basis of the facts outlined above that while the nature of the "observation, care and treatment" of the residents of Surex is not necessarily of a medical nature, it is so fundamental to the maintenance of the residents' health, safety, and well-being that should they be deprived of the services of their primary care-givers as a result of a strike or lock-out, their condition would be jeopardized. Many of the residents of Surex do receive medication which must be administered by staff, and some residents receive physiotherapy from the Surex staff. Behaviour programs are in place to help train those residents who exhibit aberrant behaviour. At Surex, except for one resident, all of the residents require all services to facilitate them in the tasks of daily living, with some residents showing some capability in a few areas. It is also noteworthy that, except for the one individual living independently, Surex residents are always accompanied when going outside the homes. All of the above confirms the high level of dependence of Surex residents on the services provided.
68As did the Court in Dignicare, I reject the employer argument that the meaning of "other institution" in the definition of "hospital" in the Act must be derived from the enumerated facilities in the definition. By including "or other institutions" in the definition section, the legislature left open the possibility that there may be other facilities which provide services to individuals who may not be able to care for and protect themselves and who could be negatively affected by a work stoppage. From the facts before me, there is little doubt that Surex provides a significant amount of observation and care to its residents. It also provides some forms of "treatment", albeit not all of a medical nature. It is particularly noteworthy that many of the residents are non-verbal and communicate by gestures, sounds, and facial expressions. It is inconceivable that such individuals would not be affected by the loss of their regular care-givers in the event of a strike or lock-out as they would, in addition to all of the other disruptions in their lives and routines as a result of a work-stoppage, have to establish methods of communication with new people who may or may not be available for their care on a daily basis.
69Having regard to the level of care provided to' Surex residents and the potential impact of a work stoppage on the residents, I am not persuaded by the employer's argument that the replacement worker provisions of the Labour Relations Act should lead the Board to decide that this organization does not fall within the definition of "hospital" in HLDAA. In Select Living (1991) Ltd., cited above, the Board stated as follows:
- 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.
As did the Board in Select Living (1991) Ltd., I find that the replacement worker provisions enacted in 1993, as part of the amendments to the Labour Relations Act in no way influence the way in which the Board should consider the question of whether Surex is a "hospital" within the definition in the HLDAA. The HLDAA regime is designed to ensure that services to vulnerable people are not disrupted by a work stoppage. The Labour Relations Act replacement worker provisions simply ensure that any employer can, in certain circumstances, use some of its employees to do bargaining unit work in the event of a work stoppage. Prior to the enactment of the replacement worker provisions in 1993, employers were able to use as many strike replacement workers as they wished. It is therefore unclear how the employer can suggest that the 1993 amendments assist its argument.
701 am satisfied that the residents of Surex, as developmentally handicapped persons and, in many cases, also physically handicapped persons, are dependent on those who care for them in every aspect of their lives, and as such, the Hospital Labour Disputes Arbitration Act is designed to ensure that they receive continuing and uninterrupted care from their care-givers, the employees of Surex Community Services. There was nothing in the evidence or submissions before me to suggest that in the process of de-institutionalization the provincial government intended that these persons should be put at risk simply because they were to be housed in smaller, community-based homes. The level and quality of services which are being provided to the Surex residents appear to be more supportive than the services they received in institutions as Surex provides individualized care and programs to allow its residents to attempt to reach their full potential, however limited that potential may appear to those unfamiliar with each individual resident. I am therefore satisfied that Surex Community Services can be considered as a "hospital" within the meaning of HLDAA.
71The employer's argument that by finding Surex to be a "hospital" the Board would be participating in a labelling exercise and would be reviving the connotations of "institutionalization" is completely without merit. There was no evidence that there had been any impact on Surex as a result of having been designated as a HLDAA employer since 1992. The Hospital Labour Disputes Arbitration Act is a small piece of labour legislation, and it is unclear how designation under this Act would have negative consequences for Surex in the communities where it has residences. HLDAA designation has not affected the funding of Surex, and there was no evidence of any impact of the designation on the services provided, or on the people served. I therefore cannot find that Surex has suffered, or that it will suffer, any stigma as a result of being designated as a '~hospital".
72Having found that Surex Community Services falls within the definition of "hospital" in the HLDAA, it follows that the Board is in a position to advise the Minister that the employees of Surex are "hospital employees" within the meaning of the Hospital Labour Disputes Arbitration Act.