[1995] OLRB Rep. April 416
3314-94-M Goderich Place Retirement Residence, Applicant v. Service Employees' Union, Local 210, Responding Party
BEFORE: S. Liang, Vice-Chair, and Board Members J. A. Rundle and B. L. Armstrong.
DECISION OF S. LIANG, VICE-CHAIR, AND BOARD MEMBER B. L. ARMSTRONG; April 10, 1995
1This is a ministerial reference pursuant to section 3(2) of the Hospital Labour Disputes Arbitration Act. The question which has been referred to the Board for its advice is the following:
Is Goderich Place Retirement Residence a "hospital" within the meaning of the Hospital Labour Disputes Arbitration Act?
2The Board has before it a Statement of Representations from the union with attached documents. The employer has filed no representations; its representative has informed the Board that although in its view, the Residence is not a facility for which the Hospital Labour Disputes Arbitration Act is appropriate, the employer will not be filing representations. Neither party has requested a hearing in this application. Having regard to the material before it, the Board finds it appropriate to decide the issue on the basis of the written representations. Further, we take the facts which have been recited in the union's materials as unchallenged.
3Upon review of the materials, the advice of the Board is that Goderich Place Retirement Residence is a "hospital" within the meaning of the Hospital Labour Disputes Arbitration Act (referred to herein as "HLDAA")
4The word "hospital" is defined in HLDAA as follows:
- (1) In this Act,
(a) "hospital" means any hospital, sanitarium, sanatorium, nursing home or other institution operated for the observation, care or treatment of persons afflicted with or suffering from any physical or mental illness, disease or injury or for the observation, care or treatment of convalescent or chronically ill persons, whether or not it is granted aid out of moneys appropriated by the Legislature and whether or not it is operated for private gain, and includes a home for the aged;
[emphasis added]
5The critical portion of the above definition for our purposes is that portion which has been underlined: "and includes a home for the aged". As the Board has observed elsewhere, a retirement residence is not a hospital in the ordinary sense of the word; however, the statutory definition is not limited to such narrow confines: see Branch 133 Legion Village Inc., [1994] OLRB Rep. Aug. 970.
6In Branch 133 Legion Village Inc., the Board stated:
It is our view likely that the legislature intended homes for the aged to be included in the definition of hospital whether or not they meet the test of "being operated for the observation, care or treatment of persons afflicted with or suffering from any physical or mental illness... as homes for the aged are in effect deemed to be hospitals. This conclusion is also consistent with the cases referred to by the union. It is not disputed that in the ordinary sense of the words home for the aged, i.e. an institution or establishment for the shelter and care of the elderly, the Legion Village would qualify.
7In this case as well, the Board finds that in the ordinary sense of the words "home for the aged", the Goderich Place Retirement Residence qualifies.
8The Residence houses, at present, some 33 residents, ranging in age from the early 70's to the 90's. The residents range in their mobility, some being capable of walking unassisted, and other using walkers, canes or wheelchairs. All residents suffer to a greater and lesser degree from illnesses and disease associated with age. Each resident has his/her own personal physician from outside the Residence. Staff arrange medical appointments and physiotherapy appointments for the residents. Quarterly medical assessments are performed for each resident, checking for weight, vital signs, physical, mental and emotional status. Each resident has a chart on which staff record all doctor's orders. Staff at the Residence dispense medications to the residents, topical solutions, administer nitro medication, take vital signs, apply dressings and administer eye drops, nose sprays etc. Residents receive physiotherapy and range of motion exercises from staff 3 times per week.
9The staff at the Residence includes Registered Practical Nurses and Certified Health Care Aides. There is one Registered Practical Nurse on day shift and evening shift 7 days per week. On midnight shift, there is a Registered Practical Nurse on duty approximately 4 times per month. There are Certified Health Care Aides on duty 24 hours a day, 7 days a week.
10In addition to health-related services, the staff also assist residents with all aspects of personal hygiene, such as nail care, shaving, washing and bathing. A number of residents are incontinent and require changing by staff. Some residents require assistance in toileting and dressing. Bed baths are provided as needed.
11Staff do "rounds" to check on residents every two hours. Each resident's room is equip-
ped with a call bell to call staff. Residents are required to sign in and out of the building when leaving the premises. The main entrance and exit to the building is locked at 11:00 p.m. each night. Access to and from the Residence is controlled by alarm systems.
12Staff do most residents' laundry. All meal and housekeeping services are provided to the residents. All beds are stripped and made each day. Meals are served in a central dining area. Staff are present during meals and provide assistance if required. Special diets are provided in accordance with physicians' orders.
13Based on the above, we are satisfied that the Residence is an institution or establishment for the shelter and care of the elderly, in which full service and assistance with daily living is provided. We find no meaningful distinction between the nature of this home and that discussed in the Board's decisions in Select Living (1991) Ltd., [1994] OLRB Rep. Aug. 1082 and Branch 133 Legion Village Inc., [1994] OLRB Rep. Aug. 970.
DECISION OF BOARD MEMBER J. A. RUNDLE; April 10, 1995
I do not believe the Hospital Labour Disputes Arbitration Act was ever intended to apply to the sort of residence that is the subject matter of this referral. One can only speculate as to why a trade union would apply under section 3(2) of this Act which would result in, if they were successful, their members losing the right to strike.