Service Employees International Union, Local 204 v. North Yorkers for Disabled Persons Inc., 1995 CanLII 10024

[1995] OLRB Rep. July 1001

3756-93-M Service Employees International Union, Local 204, the Union v. North Yorkers for Disabled Persons Inc., the Employer

BEFORE: Pamela Chapman, Vice-Chair, and Board Members S. C. Laing and Pauline R. Seville.

APPEARANCES: Jeffrey Sack for the applicant; Bob Bass for the responding party.

DECISION OF PAMELA CHAPMAN, VICE-CHAIR, AND BOARD MEMBER PAULINE R. SEVILLE; July 6, 1995

1. This is a ministerial reference pursuant to section 3(2) of the Hospital Labour Disputes Arbitration Act ("HLDAA"), which was referred to the Board by the Minister on February 1, 1994. This reference followed a request by the union, on January 20, 1994, for a determination by the Minister that North Yorkers for Disabled Persons Inc. ("NYDP") falls within the jurisdiction of the HLDAA. The question which has been referred to the Board for its advice is the following:

Is North Yorkers for Disabled Persons Inc. a "hospital" within the meaning of the Hospital Labour Disputes Arbitration Act?

2. At the direction of the Board, the parties filed written representations concerning the question referred by the Minister. A hearing was then convened, at the outset of which the parties filed an "Agreed Statement of Facts" which set out most of the facts upon which they were relying. In addition, two witnesses were called by the employer, and one by the union, and a number of additional documents were admitted into evidence by agreement. We have considered all of the written material filed with the Board, together with the evidence and the oral representations of counsel made at the hearing in reaching our decision.

THE FACTS

3. As the statement of facts filed by the parties was quite lengthy, we will review it briefly rather than setting it out in full.

4. North Yorkers for Disabled Persons Inc. is a charitable, non-profit community service providing 24-hour attendant care to ten physically disabled adults in a group home located in North York.

5. The union holds bargaining rights for a single unit of employees which includes a total of fifteen full-time, part-time and relief attendants, one full-time cook, and one full-time house­keeper. The Executive Director, Manager of Operations and Manager of Tenant Relations are excluded from the bargaining unit.

6. The NYDP policy manual sets out the admission criteria for tenants of the group home, which is stated to be "determined by the physically disabled person's need for assistance with some or all of the activities of daily living". The following definitions are then provided:

Definitions:

1. Disability - a physical impairment or traumatic brain damage which prevents the indi­vidual from carrying out the activities of daily living:

• unaided

• without endangering self

• within a conventional time period

2. Activities of Daily Living:

Basic activities include:

• mobility, transferring and positioning

• meal preparation, eating, clean-up

• rising, dressing, undressing, going to bed

• washing, grooming, shampooing, toileting including bowel and bladder procedures

• physical body control

• essential communication

Additional to basic include:

• laundry

• housekeeping

• banking

Assistance with these complementary activities may be provided if the disabled person meets the basic eligibility criteria. The disabled person must be unable to get assistance from home support or chronic care services because of the intensity, irregularity or unpredictability of the requirements over a twenty-four hour period.

7. Other selection criteria provide that those persons accepted for residency must be over

18 years of age, must be capable or potentially capable of directing their own care and of determin­ing the need for assistance, must require assistance because the disability is likely to be permanent, but must be able to have medical needs met by the existing community health network. No more than 70% and no less than 50% of the tenants are either non-verbal or speech-impaired, defined as follows:

1. Applicants will be assessed according to the following definitions of speech ability:

Non-verbal: requires a specialized skill beyond listening to be understood.

Speech-impaired : requires a familiar listener to be understood.

Verbal: can be understood by the general public.

8. Priority is given to those residing in institutions or whose only alternative is an intolera­ble living situation. At least one-third of the space is allocated to those tenants who need at least three hours of attendant care daily.

9. We were provided with information about the 10 current tenants of the home. There are presently five females and five males, all of whom have been in residence for more than two years, and the majority more than nine years. Eight of the tenants have cerebral palsy, one has spina bifida, and the tenth was disabled by a stroke. As a result of these disabilities the clients have a number of special needs and restrictions on their abilities. Nine use wheelchairs for mobility, and the tenth sometimes requires assistance in walking. Attendants are required to lift and move seven of the tenants, sometimes using mechanical lifts. Four of the tenants are non-verbal and use a speech board for communication; three others have speech impairments. Eight of the tenants require assistance with toileting, which may include the use of bedpans, catheters, leg bags and/or enemas; tenants are occasionally incontinent. Two of the tenants take medication regularly, and others may from time to time require medication which is administered by the attendants pursuant to doctors' instructions.

10. Generally, attendants assist tenants with the activities of daily living, which include bathing, grooming, dressing, toileting, eating, laundry, shopping, banking, attending at appoint­ments, reading, telephone and other communications, and housekeeping. The cook shops for and prepares all meals during the week; attendants cook on the weekends. The housekeeper cleans the facility, including tenants' personal space. Four of the tenants can feed themselves, one is finger fed and the others are assisted by having food placed in their mouths or cut up for them. The non­verbal and speech-impaired tenants cannot be easily understood by the average person without their communication equipment and an attendant is often required to facilitate their communica­tion with others.

11. All of the tenants are active outside of the group home. Many of them are enrolled in college and other educational programmes and some work, including one tenant who works one day a week performing clerical work for NYDP. Tenants are also involved in wheelchair hockey, church groups, and some are active in the disabled community, attending meetings and sitting on boards. Many of them travel regularly. Generally, they either do not require attendant care out­side of the home, or they retain personal attendants or receive attendant care from other sources when they are away from NYDP.

12. The parties characterized the personal care needs of the tenants as "low", "medium", or "high", with reference to standards established by the Ministry of Community and Social Ser­vices ("COMSOC"). Four of the tenants require a high degree of care, and are provided with extensive assistance in getting out of bed, showering, dressing, washing, grooming and moving in and out of wheelchairs. Three require medium care with these functions, and the remaining three a low amount of care.

13. The Board heard evidence about the extent to which tenants are capable of directing their own care, as this fact, or at least its characterization, was in dispute. As noted above, the admission criteria for NYDP provides that tenants must be able or "potentially able" to direct their own care; "potentially able" is defined as "lacking experience with community living as a result of being institutionalized or living in a family home which did not encourage independence". Cathy Samuelson, the Manager of Operations, testified about the means provided for tenants to direct their own care. When a tenant is accepted for residency at the group home, he or she enters into a "Service Contract" with NYDP, which sets out the tenant's support requirements. These requirements are then transferred to daily "Booking Sheets", which are kept in a binder for all of the residents. When an attendant completes required care, he or she notes the time to complete each task on the booking sheet. Tenants may amend the booking sheets from time to time, for example when they are not going to be at the home. If services not set out on the booking sheet are performed, staff add a handwritten notation to that effect.

14. According to Samuelson, all of the tenants are capable of directing their own physical care, and all but one can direct their medical care as well. One tenant requires the assistance of her mother to direct attendants concerning her medical requirements.

15. Diane Walter testified as a witness for the union on the issue of direction of care. She has been an attendant at NYDP since 1989. In her view, two of the residents are not capable of directing their own care on a consistent basis, and the others are not fully capable of directing all of their care. With respect to the first two, attendants generally follow a standardized care plan. In other instances, care is provided by attendants at their own initiative, for example when a resident is incontinent and this is observed by an attendant. In addition, attendants are often able to antici­pate the care required by the residents as they are familiar with their needs.

DECISION

16. In order to answer the question referred by the Minister, reference must be had to the definition of "hospital" in the HLDAA:

"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.

17. It was not disputed that the question for the Board in the present case is whether or not NYDP is an "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". The responding party disputed, however, the application of any part of that definition to NYDP, submitting that the assistance with the activities of daily living provided by staff of NYDP does not constitute "observation, care or treat­ment" as those terms appear in the HLDAA, that the disabilities of the tenants are not "physical or mental illness, disease or injury", and that NYDP cannot be considered an "institution" within the meaning of the definition.

18. In a decision released since the hearing in this matter, George Jeffrey Children's Treat­ment Centre, [1994] OLRB Rep. Dec. 1656, the Board considered and commented upon argu­ments very similar to those made by the responding party in the present case. While we have not relied upon that decision in reaching our conclusion, the reasoning of the Board in George Jeffrey captures some of our thoughts in the present case, and for that reason it is convenient to reproduce an excerpt from that case. Beginning at paragraph 34, the Board made these comments:

19. Counsel took the position that in interpreting the term "other institution" I must consider whether or not George Jeffrey bears sufficient resemblance to other types of institutions specifi­cally named in the section, that is hospitals, sanitariums, sanatoriums, nursing homes and homes for the aged. The qualities which he asserted are common to these facilities are their medical nature, the fact that there is a residential or custodial component to the facility, and that the cli­ents are ill, diseased, injured, or chronically ill. The employer argued that none of these factors are present here.

20. The argument that the observation, care or treatment of persons in a HLDAA institution must be of a medical nature has been previously considered by various Ministers of Labour and also by the Divisional Court. In Dignicare Incorporated c.o.b. as Orleans Community Health Centre, (Divisional Court, File No.462/90, February 12, 1991, unreported), the Court quashed the decisions of two Ministers that the institution in question was not HLDAA designated, stat­ing as follows:

…..(T)he 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... 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...

36. The argument about medical nature made by the employer in the present case appears to be exactly the one rejected by the Divisional Court in Dignicare. Counsel for the employer submit­ted, however, that the Court in that decision did not preclude the consideration of whether or not the care was of a medical nature, but only said that it must not be the only basis for a deter­mination under HLDAA. I cannot accept this argument, given the clear statement by the Court that the observation, care or treatment referenced in the Act need not be of a medical nature.

For this reason, even if I conclude as the employer urged that none of the observation, care or treatment provided by staff to the clients in the residential care program is of a medical nature, this does not assist me in answering the question referred by the Minister. I am satisfied, and it was not seriously disputed by the employer, that the services provided by staff to the clients of the group homes do constitute observation, care or treatment, which are the terms set out in the

HLDAA.

37. Continuing with his argument about the essential qualities of the enumerated institutions in the definition, counsel for the employer submitted that group homes operated by George Jef­frey are not residential in the same sense as a hospital or nursing home, as they are not "institu­tional" in nature. Instead, they are very much "homes", as should have been clear from the view I took of the three residences.

38. With respect, I have concluded that this is a distinction without substance. The group homes in question are not private homes, but are fully staffed residences offering services unavailable to those living in private homes. In that sense, they can properly be termed "institutions" as that term appears in the HLDAA.

39. 1 must comment that the employer's arguments on this point, and in other parts of counsel's submissions, seem to arise from its abhorrence of the concept of "institutionalization", which it seems to link with the terms "institution" and "hospital" as they appear in HLDAA. It is under­standable that an agency like George Jeffrey, which is based on a commitment to "deinstitution­alization" and "independent living", would attach a stigma to the term "institutionalization". The use of those terms in the HLDAA, however, has nothing to do with arguments about the best way to deliver services to persons with special needs, in the community or elsewhere, but rather is focused entirely on a narrow labour relations purpose: to ensure the continuation of services to persons with special needs as defined in the HLDAA, wherever they are delivered, in the event of a breakdown in collective bargaining.

40. The final part of the employer's argument about the analogy between "other institutions" and those enumerated in the HLDAA definition had to do with the question of whether or not the clients of George Jeffrey are ill, chronically ill, diseased or injured. This would seem to be a relevant question even if I do not accept the employer's assertion that an "other institution" must be similar to those named in the section, given that the definition of "other institution" goes on to say that it must be operated for the care, treatment or observation of "persons afflicted with or suffering from any physical or mental illnesses, disease or injury" or "convales­cent or chronically ill persons".

41. George Jeffrey argued that the disabilities, both physical and developmental, which the cli­ents in the residential care program suffer from are not illnesses, diseases or injuries, as they are permanent conditions which cannot be treated with a view to a cure. Again, this is a distinction which I cannot accept. First of all, the very language used in the definition seems to contradict the notion of a "cure" being integral to the idea of an illness, disease or injury, as it specifically goes on to refer to chronic illnesses. Secondly, any dictionary definition would counter this assertion (see for example the definitions cited at paragraph 63 of the Board's decision in Surex Community Services, supra, reproduced in paragraph 42 below).

42. In Surex Community Services, supra, the Board faced an argument by the employer that developmental handicaps did not fall within the terms "physical or mental illnesses, disease or injury". The Board dealt with this argument as follows:

43. Counsel 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....

64. From 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.

65. In addition to their developmental handicaps, the majority of Surex residents also suffer from some other medical condition. Epilepsy, Scoliosis, Schizophrenia, Manic Depressive Disorder. Aizheimer's Disease, and various forms of mental illness are found among the resident population.

66. 1 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.

67. That reasoning is equally applicable to the present case, where each of the residents have either a physical or developmental disability which was caused by some underlying medical con­dition or injury. In most cases, in fact, residents have both physical and developmental disabili­ties, and may have other related impairments, such as difficulties with speech. In any case, I am satisfied based on the evidence about the residents which is detailed above, that they can all be said to suffer from "physical or mental illnesses, disease or injury", or indeed are "chronically ill" as those terms appear in the HLDAA.

68. Both the George Jeffrey and Surex decisions differ from the factual circumstances of the present case in that the residents of those group homes were developmentally delayed, in addition to having physical disabilities in many cases. Counsel for the responding party emphasized this dis­tinction, arguing that the comments of the Board in paragraph 66 of the Surex decision (quoted in paragraph 42 of George Jeffrey above) applied only to developmental disabilities, and not to physi­cal ones. Upon careful review, we are satisfied that this distinction is not a tenable one, having regard to the language of the HLDAA, and to the comments of the Board in Surex. The Board in that case noted that developmental handicaps may be the result of disease, illness or injury experi­enced pre-natally or during birth, with the result that persons suffering these handicaps experience some hurt or loss of functioning, and the normal functioning of their persons are "chronically dis­turbed". The Board saw "no reason to distinguish between conditions brought about by disease, illness or injury and the disease, illness or injury itself'. This reasoning applies equally to the types of physical disabilities experienced by the tenants of NYDP: in each case, their disabilities are caused by some underlying illness or injury, such as cerebral palsy, spina bifida, or a stroke.

69. It is also significant that the Board in Surex noted that in addition to developmental delay, most of the residents suffered from some other physical or mental illness which required special observation, treatment, or the administration of medication. This observation confirms that the Board's conclusions concerning the application of the HLDAA to the residents in Surex were not limited to the issue of developmental delay. Indeed, a review of the facts in that case confirms that some of the residents suffered from the same physical conditions experienced by the tenants at NYDP. For these reasons, we are satisfied that the tenants at NYDP can be said to require care because of some "disease, illness or injury".

70. Another distinction drawn by counsel for NYDP between the tenants of NYDP and the persons considered by the Board in Surex and by the Minister of Labour in earlier decisions, was their ability to direct their own care. With respect, we are unable to conclude that this factor has any relevance to the question before us. The emphasis in the definition of "hospital" in the HLDAA appears to be on the provision of care, and on the reason for that provision, but there is absolutely no reference to the issue of self-direction. Indeed, given the nature of the institutions specifically enumerated in the definition (hospitals, sanitariums and sanitariums, nursing homes and homes for the aged) reference to the ability to direct one's own care as excluding one from the definition would make no sense, as most of the persons receiving care in these types of institutions would be able, and indeed expected, to direct their own care. While it is understandable that self-direction forms an important part of the philosophy of NYDP, and presumably of many commu­nity services like it, it simply does not relate to the legal question raised by an application under the HLDAA, which is, as noted above, focused entirely on the need for certain care arising from a condition of the person. There is no dispute that the tenants of NYDP require care; indeed, that is a prerequisite for their admission to the group home as is revealed by the tenant selection criteria reviewed above.

71. For the same reasons, the degree of independence enjoyed by the tenants of NYDP is not a factor central to the exercise before us, except as it relates to the amount of care required by reason of their disabilities. Counsel for the employer relied upon a decision of the then Minister of Labour on March 28, 1988, in an application under HLDAA with respect to Bellwoods Park House and Service Employees International Union, Local 204, in support of his arguments about the significance of the ability of the NYDP tenants to direct their own care, and of their degree of independence. It is significant, however, that this decision was made by the Minister of Labour prior to the decision of the Divisional Court in Dignicare, supra. Having regard to the comments of the court in that decision about the approach to HLDAA determinations taken by the then Minis­ter of Labour, an approach which appears to have been taken by various other Ministers prior to Dignicare, such ministerial decisions may be of little value in considering the appropriate approach to the definition in the HLDAA. In any event, there are insufficient facts provided in the Bellwoods decision concerning the nature and degree of the personal care provided to residents for any comparison with NYDP to be useful.

72. In determining whether or not NYDP provides "observation, care or treatment" within the meaning of the HLDAA, we are of the view that it is appropriate to consider the nature and the extent of the care provided, and the extent to which a withdrawal of that care would endanger the continued health or safety of those in receipt of the care. In the present case, the care provided by attendants is extremely personal and seems fundamental to the well-being of the tenants. Fur­thermore, much of the care provided is closely related to the disabilities experienced by the ten­ants, as assistance is provided with movement, communication and various motor skills which have been impaired. Indeed, some of the care provided, such as assistance with medication and various aids around toileting, is somewhat medical in nature.

73. It is also fair to say that care is provided to a great extent, as most of the tenants have requested and receive assistance with virtually all aspects of their personal care. Four of the resi­dents were defined by the parties as "high-care", with a further three requiring a medium amount of care; the policy manual requires that at least one-third of the vacancies be set aside for tenants requiring at least 3 hours a day of attendant care.

74. Finally, having regard to the information provided by the parties about the condition of the tenants and the care they normally require, it is reasonable to conclude that a withdrawal of services by their normal care giver would likely result in a deterioration of their conditions. This is a particular concern where, as here, a majority of the tenants are non-verbal or speech-impaired, and would thus have difficulty communicating with an unfamiliar attendant. This factor was con­sidered by the Board in both the Surex and George Jeffrey decisions.

75. For all of these reasons, we are satisfied in the present case that the extent and nature of the care provided by staff to the persons occupying NYDP falls clearly within the terms "care, observation or treatment" in section 1(1) of the HLDAA, regardless of the fact that it is largely care of a personal rather than a medical nature, relating to the activities of daily living. This approach is in our view consistent with the decision of the Divisional Court in Dignicare, supra (quoted above in paragraph 35 of the George Jeffrey decision).

76. Finally, we are satisfied that the group home operated by NYDP is an "institution" within the meaning of the HLDAA. It cannot be considered a private home for numerous reasons, including the funding received from public sources, the nature of its facilities and the services pro­vided by staff, and the nature of the legal relationship between tenants and NYDP as evidenced by the "Service Contract" and "Lease" executed by tenants. Indeed, it is clear from the policy man­ual filed by the responding party that residence at the group home is considered to be something other than residence at "home", as admission is contingent on an applicant being "unable at present to obtain required care from home support programs

77. For all of the reasons set out above, therefore, it is the Board's advice to the Minister that North Yorkers for Disabled Persons Inc. is a "hospital" within the meaning of the Hospital Labour Disputes Arbitration Act.

DECISION OF BOARD MEMBER S. C. LAING; July 6, 1995

1. The Board must be prepared to determine that there are health related services which in their delivery, are not properly characterized as "observation, care or treatment". In this case it is crucial and in my view, determinative that the tenants of North Yorkers for Disabled Persons Inc. are capable of directing their own care and determining their own need for assistance.

2. Although theoretically, the majority's designation of this home as a "hospital" within the meaning of the Hospital Labour Disputes Arbitration Act is limited to labour relation matters; the reality of this label is much broader and rather alarming.

3. The philosophy of this home and the criteria for tenancy, clearly reinforce the funda­mental principle that these tenants are in control of their own care and continually strive for inde­pendence.

4. The institutionalization of such a home runs contrary to the progressive direction taken and the commitment held at North Yorkers for Disabled Persons Inc.

5. With respect, I cannot agree with such a finding.