Canadian Union of Public Employees, Local 3101 v. Maison Mere des Soeurs de la Charite D'Ottawa, 1995 CanLII 10013

[1995] OLRB Rep. July 978

1562-93-M Canadian Union of Public Employees, Local 3101, Applicant v. Maison Mere des Soeurs de Ia Charite D'Ottawa, Responding Party

BEFORE: K. G. O'Neil, Vice-Chair.

APPEARANCES: Pascale-Sonia Roy for the applicant; Andre Champagne for the responding party.

DECISION OF THE BOARD; July 13, 1995

1. This is a reference by the Minister under The Hospital Labour Disputes Arbitration Act, (HLDAA). The Board has been asked for its advice on the following question:

Is Maison Mere des Soeurs de la Charite d'Ottawa a "hospital" within the meaning of the Hos­pital Labour Disputes Arbitration Act?

2. It is the position of the Canadian Union of Public Employees, Local 3101, (CUPE) that the Maison Mere should be regarded as a hospital under the HLDAA, given the services rendered to the aged population who reside there. By contrast, the employer says that the Maison Mere is not a hospital. Rather, it is the headquarters of an international order of nuns, which among many other activities, cares for its aging members.

3. Having considered the evidence before us, and the written and oral submissions of the parties, our advice to the Minister is that the HLDAA does not apply to the Maison Mere, as it is not a hospital or a home for the aged as defined therein, for the reasons that follow.

4. To start, a brief summary of the facts, which were not seriously disputed, is in order. The Board heard the evidence of Sister Bibiane de Lavictoire, whose evidence we accept, and the parties were able to agree on certain facts which they stipulated orally as well.

5. The Sisters of Charity is an order of nuns which was established in the Ottawa area 150 years ago. It has about 900 members, worldwide, of whom about 700 live in Canada. Its headquar­ters is the Maison Mere in Ottawa. All of its members have taken religious vows, renouncing their secular lives, in return for which the order commits to provide for them throughout their lives. Nei­ther the Order nor the Maison Mere receives any government funding.

6. The Canadian nuns live in community in five separate groups designated as provinces. One of these provinces, La Province du Sacre Coeur, is based at the Maison Mere and is made up of local communities, of up to 30 sisters. Four of these communities are in the Maison Mere and two associated houses are nearby. For the members of the Order, the Maison Mere serves the function of a family home. Many reside there and others return, either for visits or to retire. Eighty rooms are set aside for visitors. For the 133 nuns that live there, it is their residence, where they carry on the activities of daily life. As well, and central to the dispute in this case, there is an infir­mary on the third floor, with approximately 45 beds, where the sick and aging members of La Province du Sacre Coeur are cared for. Other residents can call on the services of the infirmary as needed. As much as possible, residents of the infirmary are included in the collective religious life of the Maison Mere.

7. Each of the provinces of the order has its own infirmary, usually situated in or near the local residence. The infirmary of one of the provinces external to the Maison Mere is also currently situated there, on the fourth floor, although it has not always been, and it is not clear how long it will be there. Nothing turns on any issue particular to this other infirmary for the purposes of this decision.

8. Each of the residents of the Maison Mere who is able takes some part in the Order's work. These activities include teaching, the religious development of its members, and the provi­sion of food, clothing and shelter to them, a hostel for battered women, a centre for the distribu­tion of food and clothing to the poor, a museum, a centre for research, as well as the offices of the campaigns to have Elizabeth Bruy~re, the order's founder, and Jean Vanier, the former Governor General, declared saints. The Maison Mere is also the head office for the whole Order and the executive and administrative functions necessary to its ongoing existence are carried out there. Physically it is a large building, housing a chapel seating 600, a meeting room for 500 and rooms for all its functions, which need to be looked after and managed. A separate province of the Order, housed outside the Maison Mere, runs a large public hospital.

9. It is a fact of the current demography of many religious orders in North America that the numbers of aging members is not equalled by young entrants. The Maison Mere is not exempt from this trend. The residents of the third floor infirmary are over 65, some in their 90's. The large majority of the other residents could be deemed aged as well.

10. CUPE represents a bargaining unit of approximately 33 people most of whom work in the third floor infirmary. Others do maintenance throughout the building. The employees working in the infirmary are nine Registered Practical Nurses, nine health care aides and two maintenance workers. A Registered Nurse who is not in the bargaining unit is on call, as is a medical doctor.

11. Sister Lavictoire characterized the care given to the nuns in the infirmary as the ordi­nary care a family would render, not dissimilar to care that would be given by visiting nurses. There is twenty-four hour care available, which includes the observation of the residents, through regular rounds. The residents of the infirmary suffer from a variety of chronic ailments including alzheimers, heart conditions, depression, cancer and multiple sclerosis, which make it impractical for them to live independently in their own rooms. The range of autonomy is from bedridden to those who can move about only with help. Administration of a wide variety of medication is super­vised by the nursing staff. Some seriously ill patients have been transferred to hospital. The evi­dence is persuasive that there is no significant difference between much of the care given in the infirmary and that given in facilities which have been found to be homes for the aged.

12. We turn now to the statute and the submissions. The HLDAA requires that hospital employees and their employers submit disputes over the contents of their collective agreements to arbitrage, rather than resolve them by means of strikes and lock-outs. The legislature has defined a hospital as follows:

1(1) "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;

1(2) Unless the contrary intention appears, expressions used in this Act have the same meaning as in the Labour Relations Act.

1(3) A laundry that is operated exclusively for one or more than one hospital shall be deemed to be a hospital for the purposes of this Act.

1(4) A stationary power plant as defined in the Operating Engineers Act that is operated princi­pally for one or more than one hospital shall be deemed to be a hospital for the purposes of this Act.

13. The current definition includes homes for the aged and nursing homes. When the Act was first introduced in 1965, on the heels of the 1964 Bennett Report, whose focus was recent strike action in large public hospitals, those two categories were not in the definition. They were added to the definition in 1969, removing any doubt as to whether they should be considered as hospitals for the purpose of removing the right to resort to economic sanctions. At the same time, section 1(3) was added to the definition to provide that a central laundry or a heating or power plant operated exclusively for more than one hospital was deemed to be a hospital. The definition was amended again in 1972 to provide that power plants be covered if they operated principally, rather than exclusively, for one or more hospitals.

14. The Board's task is to look for the intention of the Legislature in passing the HLDAA as amended, to determine if the facts before us fall within the scope of what the Act was trying to achieve. It is clear that the central focus of the Act is the prevention of disruption of care to people dependent on certain institutions. What is not clear from the statutory definition is the extent of the legislature's reach - exactly how far the legislature meant to go in drafting the somewhat open-ended definition of "hospital" in the Act. Thus the debate before the Board in this case. What is not controversial is that the physical care given the sisters in the infirmary at the Maison Mere is not different in any significant way from the care given in many facilities which have properly been found to be subject to the HLDAA. (See Dignicare Incorporated, c. o. b. Orleans Community Health Centre (Divisional Court, File No. 462/90, February 12, 1991, unreported, and Select Living (1991) Ltd., [1994] OLRB Rep. Aug. 1082 and Legion Village, decision dated August 30, 1994 which adopt the reasoning in Dignicare in the context of homes for the aged.) It is the nature of the Maison Mere as an institution which is at the centre of the dispute between the parties, rather than any difference over the type of care given. Although it has an undeniably institutional aspect, and the type of care given in the infirmaries is within the scope of the definition, it is not obvious that the Maison Mere is the type of institution which the legislature intended to regulate.

15. In giving meaning to the word "institution" in the context of the statutory definition, it is relevant that both the word "institution" in its dictionary sense and the words which follow it in the statute make the purpose of the institution relevant. For example, the most pertinent definition of "institution" in the Oxford English Dictionary is the following:

An establishment, organization or association instituted for the promotion of some object, esp. one of public or general utility religious, charitable, educational, etc.

[emphasis added]

The relevant definition of the French word "etablissement" in the Le Petit Robert is not inconsis­tent:

"Ensemble des installations establies pour l'exploitation, le fonctionnement d'une entreprise, et par ext. l'entreprise elle-meme".

In the statutory definition it is an "institution operated for the observation, care or treatment of

persons afflicted" and a "home for the aged" that are included. The Legislature could have easily said that a hospital is an institution in which certain care is provided, or a home where elderly peo­ple live, but it did not, and that choice must be given meaning.

16. Employer counsel focused on this aspect of the case, arguing that if the "raison d'etre" of the organization is not the provision of care to patients or the provision of a home for the aged, the HLDAA should not apply. Employer counsel submits that the infirmary service is an incidental function to the totality of the functions of the Motherhouse. In his submission, this is very relevant to a finding as to whether this is an institution covered by the HLDAA definition. Referring to the many activities of the Motherhouse, counsel analogizes the role of the infirmary to the percentage of floor space it takes up, about 10%. About one third of the nuns who live in the Motherhouse stay in the infirmary rather than in their own rooms. Counsel poses the question: does the Mother-house exist for the infirmary? The answer being no, that should be the end of the legal question in his submission. Counsel submits that all the decided cases have a statistical notion within them, whether explicit or not. He refers to Select Living (cited above) at para 21, where the finding was that a major component of the service provided was observation, care and treatment.

17. Counsel for Maison Mere supports his argument with the decision of the then Minister of Labour in Service Employees Union, Locals, 183/663 and Sisters of St. Joseph of the Diocese of Peterborough, dated June 23, 1992. In this decision a mother house of another order of nuns was found not to be a home for the aged, as indicated in the following excerpt from the decision:

The institution operated by the Sisters of St. Joseph of the Diocese of Peterborough is not a "hospital, sanitarium, sanatorium or nursing home". The issue, therefore, is whether it is some other kind of institution "operated for" the observation, care or treatment of persons who are mentally or physically ill, diseased, injured, convalescent or chronically ill, or alternatively, whether it is a "home for the aged".

With respect to the "other institution" issue, while there are persons resident in the institution who fit the description of being ill and those persons do receive care and treatment and may per­haps be said to be subject to observation, it is clear that this is not the reason for the existence of the institution. The institution is "operated for" the purpose of providing a residence for nuns. While some of the nuns may be infirm, the observation, care and treatment of those nuns is an incidental aspect of the institution's purpose, which is to provide a home for the nuns of the con­gregation, the majority of whom are not infirm.

A "home for the aged" has historically been interpreted to mean a communal living facility for elderly persons who are in any way dependent on the services provided by the institution, including non-medical services such as meal preparation, personal care and hygiene assistance. However, the institution in the present case does not exist as a communal living facility for elderly persons, it exists as a communal living facility for religious persons, regardless of age.

18. Union counsel argues that this is wrongly decided, and should not be followed by the Board.

19. Union counsel strenuously opposes using the purpose of the institution as the determin­ing criterion, and proposes instead that the nature of the care be determinative, since otherwise it would be too easy to arrange matters to avoid the operation of the HLDAA. Counsel urges an analysis which starts with the question of whether the medical care furnished to the people in the infirmary would be negatively affected if the services were stopped. If the answer is yes, the union submits that the employees fall under the HLDAA.

20. Counsel submits that the services the bargaining unit provides in the infirmary are unquestionably the kind of services to vulnerable people that the legislature had in mind when it prohibited strikes in hospitals, nursing homes and homes for the aged. It is the degree of depen­dence on the care, and thus the impact of any interruption which is the informing idea, in the union's view. The Maison Mere should be covered for the simple reason that a cessation of care would have a negative effect on the nuns who need the care. Although the total goal of the Maison Mere may not be to care for the aged, the daily reality is that it does care for the aged. In support of this, union counsel relied on cases decided by the Board which have focused on the kind of care given, including Surex Community Services, [1994] OLRB Rep. Oct. 1430 and Select Living and Legion Village, cited above.

21. Surex Community Services dealt with an organization providing services to adults with developmental handicaps in residential settings. The level of dependency on the care provided and the nature of the organization lead the Board to find that it was within the HLDAA definition "other institution operated for the care..." It was important to the Board's decision that it found that the dependency of the residents on the care provided was such that their condition would suf­fer from the cessation of care from their regular care givers in the event of a strike. It is clear from the facts set out in the decision that there was no dispute related to the purpose of the organiza­tion, which was the provision of care to developmentally handicapped people, although there was some dispute concerning the issue of deinstitutionalization. Thus, although we agree with that decision, it does not deal with the issue before us - which is the relevancy of the purpose of the institution. And it is distinguishable factually because the relationship between the residents and the facility existed because of special needs and the care the facility could provide to meet them, while the relationship between the residents of the infirmary and the Maison Mere was not formed because of the care available in the infirmary, but because of a decision to enter a religious order.

22. Counsel for the union says that the St. Joseph's case is inconsistent with Dignicare Incorporated, cited above, because it did not follow the court's analysis which is based on an inquiry as to whether the consequences of a strike or lock-out would be negative. The decision in Dignicare is a Divisional Court decision reviewing the decision of two different ministers to the effect that Orleans Community Health Centre was not subject to the HLDAA because it did not provide medical observation or treatment. The Court was clear that the definition did not require medical treatment in the following passage which represents the rationale for the decision:

The Ministers of Labour erred in law when they determined that an institution must be provid­ing "medical care or treatment to its residents" (July 21st decision), or "care, observation or treatment of a medical mature" to its residents (December 8th decision) in order for the institu­tion to be a "hospital" as defined by the Act.

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 the 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.

The decision in the Sisters of St. Joseph's, cited above, does not refer to Dignicare Incorporated, although it was made after it. However, we do not find the two decisions inconsistent. The main thrust of the Dignicare decision is that care does not have to be medical in nature to fall within the HLDAA definition of hospital. The St. Joseph's case is simply based on a different point - that the convent in question did not qualify as the kind of institution covered by the definition.

23. Further, there are important differences of fact between this case and Dignicare, analo­gous to our comments above concerning Surex Community Services. The institution in question in Dignicare was the Orleans Community Care Centre in Ottawa, which the decision notes houses and provides personal care assistance to patients suffering from mental retardation, alcoholism, depression, and psychiatric illness and who are not in a position to provide room and board to themselves. There was no suggestion that the relationship between the centre and its clients had any basis other than the services provided to meet their health needs.

24. Further, it is not the Board's view that a finding that there would be some negative effect from the cessation of care is sufficient to resolve the dispute before us, and we do not think Dignicare stands for that proposition. Presumably any care undertaken of the elderly or infirm is intended to have a beneficial effect, and thus its cessation would accordingly be negative. But we are not of the view that the Legislature intended for all care given to all elderly or infirm people to attract the coverage of the HLDAA, given the choice of words in the definition. So, although the extent of dependency on the care is a relevant factor in determining the question before us, we do not think that the fact of establishing that the patients in question are in need of care, and thus would be negatively affected by a work stoppage, can entirely answer the question before us.

25. The union says that the employer failed to show that alternative measures could be taken to provide care for the sisters. Although it is true that this aspect was not dealt with in detail, neither did the union suggest that there were no alternative measures available. In any event, facts that are in evidence, including that the most serious cases are sometimes transferred to hospital, that many of the nuns at the Maison Mere are not ill and that there are other infirmaries operated by the Order in Ottawa, all warrant the inference that the sisters are not without their resources in this respect. In any event, for the purposes of this decision, we are prepared to assume that the care of the sisters in the infirmary would suffer somewhat if their normal caregivers were on strike, at least for the time it would take to reorganize their care, and this decision should not be taken to suggest otherwise. (Nor should it be taken as any comment on the proper application of the replacement worker provisions in the event of a strike.)

26. Regardless of the potential availability of alternative measures we have found above that the kind of care provided in the infirmaries at the Maison Mere is indistinguishable from insti­tutions that have been properly found to be homes for the aged and thus under the HLDAA. But the provision of care is only a minor facet of what the Maison Mere does. We return to the rele­vancy of this latter fact, on which there was extensive argument before me.

27. The union does not dispute that the Motherhouse carries out many activities other than

taking care of the infirm or that it is just those affiliated with the order who receive care there. But the union is firmly of the view that these matters are not relevant to the legal determination that the Board is required to make.

28. The union is of the view that to base a decision on the fact that the Maison Mere is not exclusively for the care of the elderly would be to introduce a factor into the definition which is not part of the law. Counsel correctly notes that even within the definition, the legislature was capable of using quantitative notions where it wished, but did not do so in regards to the primary portion of the definition in section 1(1). Section 1(3) provides that the Act applies where a laundry is oper­ated "exclusively for one or more hospital", and that it applies to a stationary power plant oper­ated "principally for one or more than one hospital". In the circumstances, it is argued that it is against all the canons of statutory interpretation to give a quantitative threshold. Counsel proposes an example where a hospital was involved 95% of the time in research, and 5% of its activity was patient care, and argues that the HLDAA would still surely apply.

29. There is merit in this submission, and the basis of this decision is not a quantitative one. However, the Board is not persuaded that counsel's point goes as far as argued. The process of determination of how to categorize an institution with more than one function inevitably includes looking at what it does to see how closely it fits the definition. And this will usually have a quanti­tative as well as a qualitative aspect to it. We are not of the view that looking at the quantitative aspect of the facts amounts to importing criteria into the statutory definition that are not there. The quantitative aspect of activities is often very relevant to a more qualitative question. It may not be determinative, but it is at least a factor to be considered.

30. And we have considered union counsel's argument about the fact that the legislature put in the word "exclusively" in dealing with laundries and "principally" in dealing with power plants. In those cases quantitative evidence will not just be evidence of one factor relevant to the question; it will be necessary to the determination. But in my view, it does not detract from the fact that quantitative considerations are not improper when attempting to categorize an institution.

31. In a related point, we agree with the union's argument that the nature of the clientele of the institution, i.e. the fact that these are elderly nuns does not determine whether or not it is a hospital. By this we mean that the fact that an institution is operated for the housing of a particular category of the aged, as in those who speak a certain language, or those with a particular category of need, would not be determinative of the question of whether or not it is a hospital. But it would be relevant to know if a residence was operated for example, for persons speaking a particular lan­guage, regardless of age, while some of them incidentally needed care. And it is relevant to the question before us that the purpose of the Maison Mere in aid of which the infirmary is operated is to house members of their religious order, whether they are aged or not.

32. It is also our view that the fact that at this point in history the Maison Mere is a place where the large majority of the residents are properly categorized as aged, does not make it a home for the aged within the meaning of the statute. It is our view that the meaning of "home for the aged" in the statute is a home intended for the aged, i.e. housing the aged in particular, (rather than the young, the disabled, or those who have taken religious vows, for example). It is not a sound basis for statutory interpretation to define a term in a manner that could change according to who happened to be living there, rather than by a change in the nature of the institution. If, of course objects of an institution were drafted as a pretext, to avoid the application of the statute, or facts showed that the stated objects were not actually the ones being pursued, that would be another matter. The Board always considers substance over form. However, that is not the case on the facts before the Board. The stated objects of the Maison Mere are to provide for its members

and to carry on their charitable work. It is not to provide a home for the aged in particular. The objects of the Order do not prevent the operation of a hospital or home for the aged, and the Order does for instance operate a public hospital elsewhere in Ottawa. But the evidence does not establish that the Maison Mere itself is operated for the purpose of providing a home for the aged. It is operated to house its members and to be the home base for their work.

33. We have carefully considered union counsel's submission that the Maison Mere is a retirement home according to Sister Lavictoire's evidence and therefore a home for the aged. Although some of the sisters clearly do use the Maison Mere as their retirement home, it is equally clear that many of the residents are not properly considered retired, given the activities described in the evidence. Again, we are not persuaded that the use of some sisters of the Maison Mere as their retirement home or the place they live in their old age is sufficient to render it a home for the aged.

34. In a related point, with which the Board agrees, employer counsel underlines that the common denominator for the residents of the Maison Mere is not age, or state of health, but their allegiance to their congregation. The average age of the residents should not be the basis of the legal conclusion about the application of HLDAA, in counsel's submission. Counsel submits that in all the decided cases where the HLDAA has been found to apply, the common denominator of the residents was age or state of health.

35. Although it is not determinative by itself, a factor in this decision is that for the individ­uals who live there, the Maison Mere is a private residence, however it may appear from the out­side. We are not of the view that it is likely that the legislature had care in a person's private resi­dence in mind when it passed the HLDAA. The Maison Mere is undoubtedly a private residence, both in the sense that it receives no government funding and that it is entitled to restrict access to its members who consider it their family home. The fact that it is a large, or a collective home, should not render it any less a private residence, in our view. However, to say. that the Maison Mere is a private residence is not a sufficient answer to the question before us.

36. As union counsel correctly observes, there is nothing in the definition of hospital which excludes private homes explicitly, and the question of public/private in the economic sense is spe­cifically rendered irrelevant by the words in the definition of hospital, "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 thus we agree that whether it is public funds or private ones that pay for care is irrele­vant to the matter before us. In any event, although the Maison Mere is a family home, and the Order a family in all but the biological sense to its members, it also has another dimension. Because of the diversity of its activities (social services, museum, research centre, etc.), extent of its organization in the corporate sense and its size, it has an undeniably institutional aspect to its life. For a discussion of this dual nature of a similar institution in another context see Sisters of St. Joseph of the Diocese of Peterborough, [1991] OLRB Rep. Dec. 1406, where the Board found that employees of that Motherhouse were not domestics employed in a private home (before a recent amendment to the Labour Relations Act which deleted an exclusion for domestics working in a pri­vate home).

37. Nonetheless, the fact that the members of the order consider the Maison Mere their family home is one factor relevant to its purpose, and thus to how it should be characterized under the HLDAA. Employer counsel argued that the true intention of the legislature was to protect members of the public who leave their private residences because of their health. In his submis­sion, one of the most fundamental points to consider is that these nuns have never left their private home. Related to this is the point made above, that the reason the sisters live together is not their age or their state of health, but their religious vows.

38. We have considered all the above matters, as well as the fact that the norm in Ontario is collective bargaining with the right to strike or lock-out rather than resort to compulsory arbitra­tion. The scheme of compulsory arbitration in the HLDAA is the exception, and as the Board said in Extendicare Diagnostic Services, [1982] OLRB Rep. Mar. 371, there is reason to apply it cau­tiously.

39. In sum and on balance, although the Maison Mere provides care in its infirmaries which make the union s argument a credible one, we are not of the view that the Maison Mere is the type of institution the legislature intended to regulate. The Board is persuaded by the evidence and argument that the Maison Mere is not operated for the provision of that care and is not a home for the aged. The relationship between the patients in the infirmary and the Maison Mere does not exist because of the infirmary services. In all the decided cases, where an institution was found to be a hospital, the reason for the relationship between the client and the institution was the provi­sion of the services of care, treatment, observation, or a home for the aged. Here the relationship between the residents and the institution has to do with mutual commitments made long before the infirmities of age, which are focused on the work of the Order as a whole, not on the services of the infirmary.

40. For all the above reasons, we are of the view that the Maison Mere is not a hospital under the HLDAA.