Service Employees International Union, Local 532 v. Meadowcroft Holdings Inc.

[1995] OLRB Rep. November 1375

2444-95-U Service Employees International Union, Local 532, Applicant v. Mea­dowcroft Holdings Inc., c.o.b. as Execu-Care Nursing Services, SM Management Services Limited, and Meadowcroft Limited Partnership, c.o.b. as Meadowcroft Place (Guelph), Responding Parties

BEFORE: Laura Trachuk, Vice-Chair, and Board Members R. W. Pirrie and C. McDonald.

APPEARANCES: Luiza Monteiro and Ron Roscoe for the applicant; Wesley Emerson for the responding parties Meadowcroft Holdings Inc., c.o.b. as Execu-Care Nursing Services and Mea­dowcroft Limited Partnership, c.o.b. as Meadowcroft Place (Guelph); no one appearing for SM Management Services Limited.

DECISION OF THE BOARD; November 27, 1995

1. This is a ministerial reference pursuant to section 3(2) of the Hospital Labour Disputes Arbitration Act (referred to in this decision as HLDAA). The question which has been referred to the Board for its advice is the following:

Is the employer a "hospital" within the meaning of the Hospital Labour Disputes Arbitration Act?

The parties filed submissions with the Board and agreed on the first day of hearing that the Board should determine the matter on the basis of those materials.

2. After carefully reviewing the material filed, it is our advice to the Minister that the employer is a hospital within the meaning of the Hospital Labour Disputes Arbitration Act. Our reasons for that advice follow.

3. The parties agreed during the certification process that the three entities named as the responding party above were related employers for the purpose of the Labour Relations Act. Mea­dowcroft Limited Partnership, c.o.b. as Meadowcroft Place (Guelph) (referred to as "Meadow­croft" in this decision) is a residential facility for aged and infirm individuals. It provides accommo­dation and care services for residents which include: provision of meals; housekeeping; laundry; bathing assistance; nursing care; a call system and medication administration. Meadowcroft Hold­ings Inc., c.o.b. as Execu-Care Nursing Services (referred to as "Execu-Care" in this decision) pro­vides further care to the residents on a contractual basis. The related employers will be referred to together as the responding party in this decision.

4. There are approximately fifty residents at the facility, seventy-five percent of whom are over seventy-five years of age. They suffer from a wide range of ailments including; Alzheimer's disease; stroke related conditions; dementia; incontinence; deafness; blindness; mobility problems and diabetes. Two residents are developmentally disabled. There are approximately twenty rest-dents at the facility who require some assistance with the activities of daily living such as dressing and toileting. Approximately fifteen need only light assistance, although almost all require assis­tance with bathing. A disputed number (somewhere between three and twelve) require total care. The majority of the residents receive medication. Some require their blood pressure to be moni­tored and dressings changed. Periodic room checks are performed on the night shift to monitor the residents' condition.

5. The responding party has capacity for fifty-five residents. There is a common dining room where most of the residents take their meals, a kitchen, a laundry room and a small lounge. There are approximately sixteen private rooms and the remaining rooms house two or three resi­dents each. There are no kitchen facilities in any of the rooms. None of the rooms have locks on the doors. The front door of the facility is locked. Some residents have the code and some do not. Residents must sign in and out.

6. There are approximately twenty-seven employees in the applicant's bargaining unit including: a director of care/charge nurse; 7 registered practical nurses; 8 health care aides; 2 cooks; 3 housekeepers; 1 maintenance employee and 8 guest attendants. The home provides twenty-four hour nursing supervision and a minimum staffing level of one registered nurse, regis­tered practical nurse, graduate nurse and/or student nurse per shift. One health care aide is also assigned to each shift. The charge nurse or other registered nurses dispense the residents' medica­tions, both orally and by injection. There is no doctor on staff although a physician visits once per week.

7. Section 1(1) of HLDAA provides as follows:

1.-(1) In this Act,

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

"hospital employee" means a person employed in the operation of a hospital;

8. The Minister has had many occasions in which to declare that facilities are hospitals under HLDAA. The Courts have rendered a number of decisions reviewing the Minister's declara­tions. In recent years, the Board has also had a number of opportunities to advise the Minister. When the facts of this case are viewed in terms of that jurisprudence, we must conclude that the responding party is a "hospital" under HLDAA. The responding party is a long-term residential facility for people who require care of varying degrees. It is the sort of facility in which the resi­dents would be placed at risk in the event of a strike or lock-out. As more than seventy-five per­cent of the residents are over seventy-five years of age and all are over fifty years, it can be charac­terized as a home for the aged under HLDAA. In Carefree Lodge v. Ontario Nurses Association et. al. (Ont. Div. Ct. unreported, November 2, 1976), the Court held "that the words "home for the aged" in the Hospital Labour Disputes Arbitration Act are to be given their plain and ordinary meaning". (See also Nel-Gor Castle Rest Home v. London District Service Workers' Union et. al. (Ont. Div. Ct. unreported, March 19, 1985). The Court has also held that an institution need not be providing "observation, care or treatment" of a medical nature in order to be found to be a hos­pital under the Act. In this case the residents are receiving "observation, care and treatment" of both a medical and non medical nature. The "institution" in this case is similar to others which the Board has advised the Minister were hospitals under HLDAA in the past few years. The facts in this case are particularly similar to those in Goderich Place Retirement Residence, [1995] OLRB Rep. April 416.

9. The responding party argues that these facts are distinguishable from the previous deci­sions of Minister, Board and Court because the care provided by Meadowcroft and Execu-Care is contractual and the residents could purchase those services from another source although none of them do. The services provided by Meadowcroft as described in paragraph 3 of this decision appear to be included in the price of "accommodation" at the institution and are presumably an important part of the reason people become "residents" there, i.e. they need some care. The ser­vices provided by Execu-Care are more clearly contracted on an "as needed" basis. However, care is obviously being provided by the responding party, even if it is through one or two of the three companies which together comprise the employer in this case. The residents are dependent on the care being provided by the responding party employer and would be at risk in the event of a strike or lock-out in the same way as the residents in Carefree Lodge, supra, Ne-Gor Castle, supra, and Goderich Place, supra. The responding party relied upon the Board's decision in Canadian Red Cross Society, [1995] OLRB Rep. May 612. However, that decision is easily distinguishable on the facts. The applicant in that matter was a provider of part-time (up to 20 hours per week) care ser­vices to individuals in their own homes. The Board found that in those circumstances the provider of the service was not a "hospital" and therefore its employees were not hospital employees. In this case the responding party is providing accommodation in terms of a room and "observation, care and treatment" on a twenty-four hour basis. This responding party is, for all intents and pur­poses, a "hospital" for the purposes of HLDAA.

10. For all of the above reasons, the Board answers the question posed by the Minister in the affirmative.