[1995] OLRB Rep. May 612
2306-94-U The Canadian Red Cross Society (Ontario Division), Employer v. Service Employees International Union, Local 204 (A.F.L., C.I.O., C.L.C.), Responding Party
BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members W. A. Correll and D. A. Patterson.
DECISION OF THE BOARD; May 31, 1995
This is a reference from the Minister pursuant to section 3(2) of the Hospital Labour Disputes Arbitration Act (the "HLDAA"). The reference provides as follows:
On July 29, 1994 the Union requested the appointment of a conciliation officer. On August 10, 1994 the Minister appointed a conciliation officer to confer with the parties and endeavour to effect a collective agreement.
By letters dated April 28, 1994 and August 25, 1994 the union requested that the Minister of Labour determine whether the Canadian Red Cross Society falls within the jurisdiction of the Hospital Labour Disputes Arbitration Act (HLDAA).
The Minister is of the view that it would be appropriate to refer to the Ontario Labour Relations Board the question of whether the HLDAA applies to the parties.
Accordingly the following questions are referred to the Board for its advice:
Is the Canadian Red Cross Society (Ontario Division) a "hospital" within the meaning of the Hospital Labour Disputes Arbitration Act?
Are homemakers employed by the Canadian Red Cross Society (Ontario Division) hospital employees within the meaning of the Hospital Labour Disputes Arbitration Act?
- The terms "hospital" and "hospital employee" are defined in section 1 of the Hospital
Labour Disputes Arbitration Act (the "HLDAA") 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.
It is the position of the union that The Canadian Red Cross Society (Ontario Division) Homemaker Services Program is a "hospital" and, further, that homemakers employed by the Canadian Red Cross Society (Ontario Division) (the "Society") are "hospital employees" within the meaning of the HLDAA. In the alternative, the union submits that homemakers employed by the Society are hospital employees because they are employed in the "operation of a hospital" by the Brant County Home Care Program ("Brant County"), a division of the Brant County Health Unit.
Brant County was provided with notice of the hearing and participated fully in the proceedings before the Board. Notice was also provided to the Ontario Nurses' Association which, the Board was advised, might have an interest in these proceedings, but it declined to participate.
Facts
The parties entered into the following agreed statement of facts:
The proper name of the Respondent is The Canadian Red Cross Society (Ontario Division) (hereinafter called the "Society").
The Society is a non-profit corporation incorporated under the laws of Canada.
The Service Employees International Union, Local 204 ("the Union") was certified on November 29, 1988 as the bargaining agent for all employees of the Society in Brantford, save and except supervisors, persons above the rank of supervisor, office and clerical employees and persons for which any trade union held bargaining rights as of November 29, 1988.
The Union and the Society have been parties to three collective agreements with regard to these employees. The most recent collective agreement was effective beginning September 1, 1992 and expired on August 31,1994. This agreement is attached.
The Union served notice to bargain on June 14, 1994, and requested the appointment of a conciliation officer on July 29, 1994. A conciliation officer was appointed on August 10, 1994 and the parties were unable to effect a collective agreement within the time allowed under section 19 of the Labour Relations Act.
The employees in this bargaining unit are all employed as "homemakers" in the Society's Homemaker Services Program.
The Homemaking Program is one of many programs run by the Society in Ontario. Other programs include:
Meals on Wheels / Meals to Wheels — This involves providing meals to people in their homes or bringing those people to communal dining centres.
Friendly Visiting — This involves the provision of visiting services.
Transportation Services — This involves the provision of transportation services to people in need.
Fun and Fitness
Home Maintenance
Assurance Services — This involves the provision of monitoring services for people in need.
Home Health Care Equipment Services — This involves the provision of health care equipment to individuals.
The Contractual and Statutory Context
- Over the years, the government has proposed reforms to the health care system. The overall intent of the reform proposals was to shift the emphasis, planning and funding from treating persons in hospitals to a community based service delivery system.
Increasingly, there is a trend towards community and home-based care for those who had previously required various forms of care through hospitals, nursing homes, etc. Homemaker service continues as an integral part of the Home Care Program and as a result of the increase in the number of persons with disabilities, and people who remained home during illness, who now require homemaking services, the demand for homemakers has increased dramatically.
- In Brantford (and in the rest of Ontario), the Society enters into contracts to provide homemaking services with:
(a) The Home Care Program (643 clients currently);
(b) Private clients (16 clients currently);
(c) Other agencies, such as, The Aizheimer Society, The Cancer Society and Department of Veterans Affairs (16 clients currently).
In Brantford, the services provided to the private clients or the agencies, other than the Home Care Program, are negotiated on a case-by-case basis; both with respect to the nature of the service and number of hours of service. (The arrangements with the Home Care Program are set out in later paragraphs.)
The majority of individuals who receive homemaking services in Brantford (as in Ontario generally) receive services through the Home Care Program.
The Home Care Programs are municipally or regionally operated community health services programs. There are 38 Home Care Programs operating throughout the Province. They are designated under the Homemakers and Nurses Services Act.
Services for Home Care Programs throughout Ontario are performed by, among others, union personnel from approximately seven different unions.
The Home Care Programs are financed by the Ministry of Health and operated by a variety of administrative bodies including Public Health Units, the VON hospitals and municipal social services.
The Home Care Program is an integral component of the health care delivery system that co-ordinates the provision of a range of health care services to individuals in their homes. Homemaking services are one of the services the Program arranges. Other services include nursing, occupational and physiotherapy; all of which are provided to individuals in their homes.
The Brant County HP, is a division of the Brant County Health Unit.
The homemaker services that Brant County HCP purchases from the Society's Homemaker Services Program, and which the Society homemakers perform for clients, are services purchased and performed in accordance with a statutory framework.
Homemaking services are not insured services under the Health Insurance Act.
Section 1 of Regulation 634 under the Homemakers and Nurses Services Act defines "homemaker services" as follows:
"homemaking services" means housekeeping services including:
a) the care of a child or children;
b) meal planning, marketing and the preparation of nourishing meals, and the preparation of special diets where required;
c) light, heavy and seasonal cleaning;
d) light laundry, ironing and essential mending of clothing;
e) personal care, including assistance in walking, climbing or descending stairs, getting into and out of bed, eating, dressing, bathing and other matters of personal hygiene;
f) simple bedside care, where required, under the direction of a physician or nurse, but not including nursing services, and
g) training and instruction in household management and care of children;
provided in accordance with section 6 of the Act by a homemaker qualified under this Regulation.
(emphasis added)
Brant County HCP has established written standards for the homemaking services it purchases from agencies such as the Society's Homemaker Services Program. These "Standards" include a detailed list of the homemaker services the Society contracts to provide and the Society homemakers in fact perform. A copy of these "Standards" is attached.
According to these "Standards", a homemaker's duties include reporting any observed deterioration of a client's mental or physical health. This does not include the kind of assessment or diagnosis which is provided by regulated health professionals. Another requirement of these "Standards" is that the "client receive service from the same homemaker, as much as possible, to provide continuity and maintain a consistent level of service of care".
There are 3 programs under which the individual can qualify for homemaking services:
(a) The acute program.
The eligibility criteria applied by the Brant County HCP is as follows.
A person who qualifies is a person:
(i) who presents a need for investigation, diagnosis or for definition of treatment requirements for a known, an unknown or potentially serious condition; and/or
(ii) who is critically, acutely or seriously ill (regardless of diagnosis) and whose vital processes may be in a precarious or unstable state; and/or
(iii) who is in the immediate recovery phase or who is convalescing following an accident, illness or injury and who requires a planned and controlled therapeutic and educational program of comparatively short duration; and/or
(iv) who has been discharged from an acute care hospital following day surgery or out-patient treatments who require short term monitoring; and/or
(v) who presents in the Emergency Department and a hospital admission can be prevented by short term intervention at home.
(b) Chronic Care
The eligibility criteria applied by the Brant County HCP is:
(i) long term (chronic) care is that required by a person who is chronically ill and/or has a functional disability (physical or mental) whose acute phase of illness is over, whose vital processes may or may not be stable, whose potential for rehabilitation may be limited, and who requires a range of therapeutic services. The period of time during which care is required is unpredictable but usually consists of a matter of months or years.
The common factor of both these programs is that there must be a professional service involved, such as nursing or physiotherapy. As well, the services must be provided only in the individual's home: Homemakers and Nurses Services Act, Regulation 634, s.9.
(c) Integrated Homemaker Program ("IHP")
The third way a person may be eligible to receive homemaking services is through the Integrated Homemaker Program. This is the program contemplated by the Homemakers and Nurses Services Act, Regulation 634, section 8(2). (See the Application) The major difference between this program and the Acute and Chronic Care programs is that eligibility for this program is not dependent upon the need for professional services. Again, the homemaking is to be provided only in the individual's home.
Accordingly, there are 3 separate programs under which the Home Care Program may provide homemaking services to an individual.
According to the legislation, a person may receive homemaker services through the Brant County HCP from the Society's Homemaker Services Program, if that person has been recently discharged from a public hospital and needs some kind of rehabilitative or palliative care, or if home care would help delay their residence in a residential care facility. However, under the IHP, homemaker services are also provided to individuals, in their home, who do not meet either criteria.
In Brantford, between April 1, 1993 and March 31, 1994, approximately 42% of the Society's caseload was chronic, 25% was acute, and 28% was IHP. From April 1, 1994 to December 31, 1994, the breakdown was 51% chronic; 21% acute and 23% IHP.
The Society's Relation to the Home Care Program
The Home Care Programs contract with independent provider agencies for the above-noted services, i.e., the Home Care Program will identify an individual who requires "home care" or homemaking services. A case manager from the Home Care Program will evaluate the individual's needs. The Home Care Program will then contract with a provider agency. It will specify the type of service and the number of hours of service to be provided. The provider agency will provide service to the individual within the Homemaker Service Agreement. An example of which is attached.
In Brantford, the Society contracts with the Brant County HCP. For the purposes of this hearing, this program is a completely separate entity from the Society and the Society does not exercise any control over the Brant County HCP operations.
The Brant County HCP does provide homemaking itself on the Six Nations and New Credit Reserves. These homemaking services, and the homemaking and other services for which it contracts, are not performed in any building that it owns, operates, or leases but are provided only in the individuals' homes.
Neither the Society nor the Brant County HCP are statutorily obligated to provide any homemaking services.
As indicated above, the Society enters into written contracts with the Brant County HCP. The contracts are for a one-year term. Pursuant to these contracts, the Society has the discretion to refuse any referral from the Home Care Program. The Home Care Program is free to and does use other provider agencies.
According to the terms of the contract between the Brant County HCP and the Society, the Society agrees to perform such homemaker services as the Brant County HCP may from time to time authorize. This authorization details the homemaker services to be provided and the patient for whom such services are requested. The contract between the Brant County HCP and the Society's Homemaker Services Program dated 1990 is attached.
Brant County HCP contracts with the Society Homemaker Services Program for the provision of homemaker services. As of March 1993, the Society was receiving 98% of Brant County HCP's homemaker client referrals.
Currently, the Society services approximately 56% of all homemaking services for Brant County HCP.
The Competitors
Throughout Ontario, a variety of commercial and not-for-profit agencies also provide homemaking services under contract to home care and regional government programs as well as to private clients.
In Brantford, the Brant County HCP also contracts for homemaking services with:
(a) Mohawk Medical Services;
(b) Med Care Partnership;
(c) Brant Norfolk VON Homemaker Service;
(d) First Nation's Nursing Services; and
(e) Com Care Woodstock.
These agencies are separate entities from the Society. They are all private agencies.
The Brant County HCP also contracts for the provision of "home care services" as defined in the Health Insurance Act with approximately nine agencies.
Jewish Elderly c.o.b. as Senior Care and Visiting Homemakers Association are two other agencies that provide homemaking services in Ontario and which compete with the Society.
The Nature of the Society's Homemaking Services
The Society first began to provide homemaking services in Ontario in 1923. Currently, the Society employs 6,500 of the approximately 14,000 homemakers across the Province.
The services performed by homemakers are set out and attached. The services range from light housekeeping to changing and cleaning colostomies. The precise duties performed by a homemaker on any particular assignment will depend on the nature of the assignment and the training of the homemaker.
The homemakers do not provide nursing services, occupational therapy, or physiotherapy. They do not administer medical care or medications of any sort. They are involved in the medication process as described in the medication policy.
The homemakers are not a regulated health profession.
All of the services provided by homemakers could be provided by the next level of caregiver, e.g., health care aide, RPN, RN, etc.; however, the homemakers share some functions to some extent with these caregivers. These services are also services that family members can and do provide in some cases; the family members may or may not need training. In other cases, the family members are not able to or available to provide these services.
The Level of Service
The Society provides homemaking services from a few hours per month to 24 hours per day. The Society only provides 24-hour homemaking services in limited instances. The 24-hour cases would usually be situations in which the homemakers are providing palliative care (i.e. care in the last few days of life), or providing caregivers with relief for a set period of time, i.e., 2 or 3 days.
The normal arrangement would be 20 hours of homemaking per month. This would involve a set number of visits per week for several hours at a time. There is a general trend to provide fewer hours of service per individual.
As well, there will be individuals for whom the Society only provides homemaking services on a much more intermittent basis.
Homemaker Training
- As indicated earlier, the homemakers are not a regulated health profession. The hiring qualifications are set out in the Regulations to the Homemaker and Nurses Services Act. There are three levels of homemakers within the Society:
Level I These are homemakers with no formal training of any sort. There are 13 employees at this level.
Level II These are homemakers who have completed basic training which consists of a 6-week course at a community college or vocational school known as Homemaking Level II. There are 115 employees at this level.
Level III At this level are homemakers who have completed the Homemaking Level III course which teaches more specific skills. There are 64 employees at this level.
The curriculum for the Level II and III courses is attached.
Location of Services
The homemaking services are provided at the individuals' homes. There may be one or two cases a year in which a homemaker provides mealtime assistance to individuals in a retirement residence in which they have rented their own apartments.
The Society does not provide any homemaking services at any building that it owns, operates or leases, etc. In fact, most homemakers only come into the Area Office to pick up or drop off employment related forms. They are scheduled over the telephone. They travel directly from their homes to the individuals' homes. All supervision is done in the individuals' homes.
Collective Bargaining
SEIU, Local 204 was certified on November 29, 1988 as the bargaining agent for the Society's homemakers in Brantford.
Currently, Local 204 represents approximately 188 homemakers. The majority of these employees work less than 24 hours per week.
SEIU, Local 532 holds bargaining rights for the Society's former homemaking operation in Dundas. Prior to March 10, 1993, the Society employed approximately 48 homemakers in Dundas. Local 204 and Local 532 have conducted their collective bargaining jointly with the Society. However, the locals enter into separate collective agreements. They are subject to separate certificates from the Board. They are represented separately at the bargaining table by different bargaining committees. They are covered by different conciliation reports. They take separate strike votes.
During the last round of collective bargaining between the SEIU and the Society, the parties were involved in a strike which lasted for 15 weeks, from March 1 to June 15,
During the course of the strike, the Union filed applications under section 91 of the Labour Relations Act alleging the Society, Brant County HCP and others had violated sections 65, 67, 71, 73.1 and 73.2 of the Act. A copy of the Board's decision on these applications dated January 10, 1994 is attached.
Prior to this strike, Society homemakers had been providing services to approximately 1,200 clients of the Brant County HCP.
In anticipation of the strike, Robert W. Little, the Society's legal counsel, wrote to the Union and stated that forty "high risk clients, i.e. clients whose lives, health or safety would be endangered by a withdrawal of services", had been identified. Mr. Little went on to state that the Society "recognize[s] that it is critically important to maintain continuity between high risk clients and their homemakers" and asked the Union "to consent to the use of bargaining unit employees to continue to service these clients". Mr. Little's letter dated February 11, 1993 is attached.
As a result of the strike, the Society was unable to provide service to any individuals.
Accordingly, the Home Care Programs in both Brantford and Dundas were required to use other agencies for homemaking services.
Accordingly, in anticipation of the strike, Brant County HCP assessed the clients being serviced by the Society and identified those requiring homemaking on an urgent or critical basis. Initially, eighteen clients were reassigned by the Brant County HCP to other service providers. Ultimately, 300 - 400 clients were reassigned. However, the Director of the Brant County Home Care felt obliged to ensure that homemaker services were provided, and did so. Approximately 700 -800 clients who had been receiving homemaking services prior to the strike did not receive any homemaking services at all for the entire period of the strike. In some cases, those individuals were discharged entirely from the homemaking program while others chose not to continue those services during the strike.
Individuals under private contract, either directly or through other agencies, were also provided with necessary service.
In the hearing of the Union's application in regard to the strike, representatives of both the Brant County HCP and the Society Homemaker Services Program repeatedly emphasized the importance of continuity of service to their homemaker clients, and this meant, in part, having the same homemaker continue to provide the service.
The homemaking services provided by the Society could also be provided by hospitals, homes for the aged, rest homes, nursing homes, etc. or the extended family or other paid help. That is, apart from the Society's competitors, these individuals could receive care at home or be placed in institutions throughout the Province although the parties disagree about whether those institutions could accommodate all of the individuals receiving homemaking services if a strike occurred today.
Submissions
On the basis of these facts, the Society and Brant County submit that homemakers are not "hospital employees" because neither the Society Homemaker Services Program nor the Brant County Home Care Program is a "hospital, sanatorium, nursing home or other institution . …” within the meaning of the HLDAA. According to the Society and Brant County, the phrase "other institution" is to be read ejusdem generis with the words that precede it, with the result that only "fixed facilities providing accommodation to persons under observation, care or treatment" qualify as "hospitals". In this case, the facts indicate that homemaking services are not provided in such facilities but in the patients' own homes.
In support of this interpretation, the Society and Brant County rely on three recent Ministerial decisions which predate the enactment of the referral power in 1992. The Society and Brant County also refer to provisions of the Homemakers and Nurses Services Act, R.S.O. 1990 c.H. 10 and Regulations, the Health Protection and Promotion Act R.S.O. 1990 c.H.7 and the Health Insurance Act R.S.O. 1990 c.H.6 to demonstrate that homemaking services are not "in sured services" and that neither agency is under any statutory obligation to provide them. Reference is also made to the Homemakers and Nurses Services Act and other health care related statutes which define the word "hospital" or use the word "institution" in a manner similar to that advocated by the Society and Brant County.
As a policy matter, the Society and Brant County submit that the HLDAA stands as an exception to the model of free collective bargaining and, accordingly, should be applied "circumspectly" (see e.g. Extendicare Diagnostic Services, [1982] OLRB Rep. Mar. 371). They argue that the purpose of the HLDAA is to ensure the continuation of certain kinds of services to persons who are dependent upon them for their life, health or safety. Persons who receive services in their own homes do not fall into this category, the Society and Brant County submit, because they have other care alternatives, e.g. attending at public hospitals, doctor's offices or having services provided by family members or other paid help. The Society and Brant County point out that these are the assumptions on which the industry has operated for many years and that contrary advice in this case would bring about a dramatic change to the status quo without any change in the nature (as opposed to the volume) of services provided by homemakers. In the same vein, the Society and Brant County argue that if a "fixed facility providing accommodation" is not a prerequisite to a finding of a "hospital", there would be no reason why doctor's offices, local medical clinics, private nursing services, radiology labs, meals on wheels programs, etc., would not also be included. According to the Society and Brant County, this would take the definition of a "hospital" well beyond what was intended by the passage of the HLDAA.
In arguing that the Society Homemaker Services Program and the Brant County Home Care Program fall within the statutory definition of a hospital, the union submits that the word "institution" has a very broad meaning and need not be restricted in the way advocated by the Society and Brant County. The union focuses on the nature of the services provided and the shift in government policy towards a community/home-based delivery system. Relying on the decision of the Divisional Court in Dignicare incorporated c. o. b. as Orleans Community Health Centre (Court File No. 462/90, released February 12, 1991, unreported) and more recent Board decisions in George Jeffrey Children's Treatment Centre, [1994] OLRB Rep. Dec. 1656 and Select Living (1991) Ltd., [1994] OLRB Rep. Aug. 1082, the union asserts that the services provided need not be of a "medical nature" and that the institution in question need not be "similar in nature to a hospital. .
The union also points out that homemaking services overlap, to some extent, with services provided by nurses (see e.g. Standards of Nursing Practice for Registered Nurses and Registered Nursing Assistants, College of Nurses of Ontario, 1990), and are necessary to enable those who might otherwise be resident in hospitals to receive proper care at home. Given that the services are the same as those that might be provided in residential care facilities and that the recipients of those services also qualify within the statutory definition, the union can see no valid reason why the providers of those services should be excluded from the operation of the HLDAA. If the object of the legislation is to ensure the continuation of services to those in need, the union asks, why should the physical setting in which the services are provided be determinative?
Decision
We agree with the result advocated by the Society and Brant County, but for somewhat different reasons. In our view, the question of whether the Society Homemaker Services Program and the Brant County Home Care Program qualify as "hospitals" within the meaning of the HLDAA cannot be decided solely by reference to the location in which the Services are provided, but must also include such factors as the nature and extent of those services. In our view, when all of the relevant factors are considered together, the Society Homemaker Services Program and the Brant County Home Care Program do not meet the statutory requirements of a "hospital" and, accordingly, homemakers employed by the Society do not qualify as "hospital employees".
We begin our analysis with a reference to the purpose of the HLDAA, and a review of the case law. In Extendicare Diagnostic Services Ltd., supra, the Board stated:
The Board has never before been faced with a dispute as to whether an individual is a "hospital employee" within the meaning of the Hospital Labour Disputes Arbitration Act. In order to make this determination we must look to the language of the definition read in the context of a statute whose overriding purpose is to prohibit work stoppages occasioned by labour disputes. The legislature has determined that the need of the public to uninterrupted hospital services takes precedence over the right of certain individuals to resort to economic sanctions in support of collective bargaining objectives. It is against this backdrop that effect must be given to the definition of who is a hospital employee. This is not to say, however, given the statutory encroachment upon individual freedoms, that the Board should not be circumspect in applying the definition.
The Board went on to note that the statutory definition of a "hospital" focuses "not on the identity of the employer, but on the function performed by those whose services are so important to society as to abridge their right to free collective bargaining." The Board continued:
- ... Because it is a person's function which is determinative of whether that person is a "hospital employee" and because a number of different types of institutions are covered by the definition of "hospital" contained in the Hospital Labour Disputes Arbitration Act, we accept that when determining if a person is a "hospital employee" reference should be had to the type of institution within which or to which that person provides a service or performs a function and to the statute which specifies the services which that institution is required to provide. At the least, it is the uninterrupted delivery of these services which the Hospital Labour Disputes Arbitration Act is designed to ensure.
On the facts, the Board found that persons employed by an outside agency to take blood samples and perform electrocardiograms on nursing home residents were not hospital employees within the meaning of the HLDAA. According to the Board:
Where, as in this case, the employees whose status is in issue are employed by an organization (Extendicare Diagnostic Services) which is not a "hospital" within the meaning of the Hospital Labour Disputes Arbitration Act and where, as in this case, the function they perform is not one which is statutorily required of the institution in respect of which they carry out their functions, support is found for the conclusion that they are not employed in the operation of that institution within the meaning of the Hospital Labour Disputes Arbitration Act. Where, in addition, the institution has uninterrupted access to the function performed by the person in dispute through the public hospital system or through alternate private suppliers, it is difficult to conclude, given the balancing of interests which must take place, that the legislature intended to deny those performing the function the right to engage in free collective bargaining.
In subsequent cases, the Board has applied the definitions of "hospital" and "hospital employee" in a variety of situations. For example, in George Jeffrey Children's Treatment Centre, supra, the Board advised the Minister that a facility in Thunder Bay operating three group homes for children and young adults with special needs, along with a number of non-residential programs including augmentative communication, seating, health services and client services, was a hospital. In coming to this conclusion, the Board reiterated the view expressed by the Divisional Court in Dignicare, supra, that the services provided need not be of a medical nature, and rejected the employer's arguments that the group homes were not "institutional". In a passage relied on by B rant County in this case, the Board dealt with the latter argument as follows:
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.
Having determined that the group homes qualified as "hospitals", the Board could see no reason to segregate, for collective bargaining purposes, the operation of the non-residential programs. In a passage relied on by the union in this cases the Board dealt with the provision of the non-residential services, in part, as follows:
Counsel for George Jeffrey submitted, however, that these aspects of the employer's operations do not meet the definition of a "hospital". He argued that the fact that the programs operated at Lillie Street were not residential in nature precluded a HLDAA designation. The requirement that the care, observation or treatment offered by an institution be residential in nature is not included in the definition in HLDAA, however, and for the reasons noted above I reject the notion that such a residential component must be "read in" to the definition given that the enumerated facilities are all residential in nature. It should be noted, in addition, that institutions such as hospitals routinely offer non-residential care and treatment, in many cases of the same sort as that offered by George Jeffrey at Lillie Street. In any event, I am not being asked to determine whether or not the non-residential programs, standing alone, meet the definition of "hospital" in HLDAA, but rather whether the institution as a whole should be so designated. Given the proportion of staff working in the residential care program, I am satisfied that it can be said that the institution as a whole has a substantial residential component.
In Surex Community Services, [1994] OLRB Rep. Oct. 1430, the Board advised the Minister that an organization operating seven residential homes and one apartment program for 41 adults with developmental handicaps qualified as a "hospital" within the meaning of the HLDAA. The evidence indicated that almost all of the residents were heavily dependent upon the care and assistance provided by the Surex primary care, overnight, part-time and relief counsellors and health care workers for almost all their needs of daily living, including the dispensing of medication. In dealing with a number of arguments raised by Surex as to the conditions of the residents and the extent to which they might be adversely affected by a work stoppage, the Board stated:
1 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 damental 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.
The Board's concern with the level of care provided to the Surex residents and the extent of their dependence on the care for almost all their needs of daily living, as indicia of "hospital" status, also emerges from the following passage:
- I 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.
(emphasis added)
Previously, in Select Living (1991) Ltd., [1994] OLRB Rep. Aug. 1082, the Board advised the Minister that a retirement home providing basic accommodation, meals, companionship and social activity for its residents qualified as a "home for the aged" and, therefore, a "hospital". Relying on Dignicare, supra, the Board stated that "observation" need not be of a medical nature and that the major component of the service offered by the home was the observation and assessment of its residents, including charting the residents' health and the ordering, reordering, dispensing, administering and managing of medications and treatments. These latter functions were carried out by full-time RNA's.
In the first case to come before the Board after the enactment of the Ministerial referral power in 1992, the Board advised the Minister that a seniors' residence qualified as a "home for the aged" and, accordingly, as a "hospital" within the meaning of the HLDAA. In Branch 133 Legion Village, [1994] OLRB Rep. Aug. 970, the evidence indicated that the residence was intended to serve as a "buffer" between a house or apartment and a nursing home, and was required by the Ministry of Community and Social Services to provide services at a health care aide professional level. The Board determined that the legislature "intended homes for the aged to be included in the definition of a 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 . .
Prior to the enactment of the Ministerial referral power, the question of whether certain institutions qualified as "hospitals" came before the Board infrequently. In Green's Ambulance, [1978] OLRB Rep. Oct. 919, the Board determined that a private ambulance service was not a "hospital", for reasons which included the following:
The definition of "hospital" as set out in the Act encompasses any "hospital, sanitarium, sanatorium, nursing home or other institution" which is operated for the observation, care or treatment of the sick or ill. While the phrase "other institution" when read in the abstract may be broad enough to include a private ambulance service, we are of the view, having regard to the use of the conjunctive and the ejusdem generis rule of construction - that is - that general words may be restricted to the same genus as the specific words which precede them, that a private ambulance service is not an "institution" within the meaning of the definition....
In coming to this conclusion, the Board also noted that its decision was "consistent with the historical practice of private ambulance services and trade unions to conduct their collective bargaining under the Labour Relations Act and not under the Hospital Labour Disputes Arbitration Act."
In the only other case in which the Board was required to determine whether a particular institution qualified as a "hospital", and prior to the statutory amendment expressly including "homes for the aged" within that definition, the Board ruled that a facility providing residential care for 170 elderly residents, only 80 of whom were ambulatory, was a "hospital": The Corporation of the County of Lambton, [1966] OLRB Rep. Aug. 306. As noted by the Board in that case, almost one-half of the employees in the home were "persons who by their classifications are commonly regarded as directly connected with the care of patients afflicted with or suffering from physical illness, disease or injury." These included nurses aides, orderlies, a head nurse, a part-time nursing supervisor, and two RNA supervisors.
Before concluding this review of the case law, reference should also be made to the decision of the Divisional Court in Dignicare, supra. In that case, the Minister had determined that a community care centre housing some 50 to 55 patients "suffer[ing] from mental retardation, alcoholism, depression, a fear of living alone and other psychiatric illnesses" was not a "hospital". The services provided to the residents included personal care, meals, medication, and housekeeping. Although a doctor was on call, "medical care or treatment" was not provided; nursing services were available as needed from the Victorian Order of Nurses. In rejecting the Ministerial ruling, the Court specifically refuted the assertion that "an 'other institution' is only covered by the Act if it is similar in nature to a hospital, sanitarium, sanatorium, or nursing home in that it provides care, observation or treatment of a medical nature to persons who are ill, diseased, injured, convalescent, or chronically ill." (emphasis in original)
As this review of the case law reveals, in determining whether a particular institution qualifies as a "hospital", the Board is required to weigh the private and institutional interests in favour of free collective bargaining against the public interest in the continued provision of hospital services. Given that free collective bargaining, backed-up by the right to strike or lock-out, is the norm in our collective bargaining system, and the imposition of terms and conditions of employment by a third party is the exception, a measure of care is required in applying the definition.
As the Society and Brant County correctly point out, given the balancing that must go on, it is not every provider of medical and related services to individuals ". . . afflicted with or suffering from any physical or mental illness, disease or injury . . .", that qualifies as a "hospital" or a "hospital employee". This much seems clear from the Board's decision in Extendicare, supra, and from at least certain of the examples cited by the Society and Brant County, to which no reference was made by the union. It is up to the Board, then, to attempt to give meaning to the relatively open-ended statutory language and to place it in purposive and practical context. The Board has attempted to fulfill this role by considering a variety of factors as relevant to the definition of "hospital" and "hospital employee", including:
(i) the nature or kind of care provided by the institution in question;
(ii) the degree or extent of the care;
(iii) the extent to which the recipients depend upon the care for their continued health or safety;
(iv) whether the institution is under a statutory obligation to provide the care;
(v) whether the individuals providing the care are employees of the institution or a third party;
(vi) the location at which the care is provided;
(vii) the existence of alternatives to the provision of the care by the employees in question;
(viii) the historical practice of collective bargaining in the industry.
When all of these factors are considered in this case, we are persuaded that neither the Society Homemaker Services Program nor the Brant County Home Care Program is a "hospital" within the meaning of the HLDAA.
First, we note that a substantial number of the services provided by the homemakers are not directed towards the care of the patient, but towards the care of the home (e.g. child care, cleaning and laundry). Although supportive of the patient, not only are these and other homemaking services not "of a medical nature", their focus is on the home environment rather than on the patient (hence, we would assume, the name "homemaker"). While other homemaking services may be more directly related to the patients' well-being (e.g., meal planning and preparation, and personal care), it is here that one must examine the degree or extent of the care.
As indicated in the agreed statement of facts, and except in limited instances, homemaking services are provided to a maximum of 20 hours per month. This stands in sharp contrast to the 24-hour per day service provided at the institutions specifically identified in the HLDAA and which have been considered by the Ministers, the Board and the Court to have been hospitals. It also leads us to a discussion of the next factor: the degree of dependence on the care by the recipients for their continued health or safety.
In this connection, the union points to the evidence gleaned from the last strike and notes that, prior to its commencement, the Society identified forty "high-risk clients, i.e. clients whose lives, health or safety would be endangered by a withdrawal of services". However, equally, if not more, significant in our view is the fact that all of these individuals were ultimately cared for by other agencies and that between 700 - 800 of the Society's clients declined the opportunity to receive homemaking services for the duration of the 15-week strike. This, together with the fact that neither the Society nor Brant County is under any statutory obligation to provide the services, suggests to us something less than the kind of pressing need for the continuation of homemaking services that would be sufficient to override the parties' traditional right to strike or lock-out in support of their collective bargaining objectives.
Other factors which lead us to conclude that the programs in question do not meet the statutory definition of a "hospital", and which may go some way towards explaining the experience during the last strike, are the location at which the services are provided and the existence of alternatives to the delivery of services by the Society's homemakers. As the Society and Brant County point out, the HLDAA is part of a network of statutes dealing with the provision of health care. These parties directed our attention to a number of statutes in pan materia which suggest that the words "hospital" or "institution" have a residential component which does not include the patients' own home. (Thus, for example, section 7 of the Homemakers and Nurses' Services Act, supra, allows for the provision of nursing services ... to enable the person to remain in his or her own home or to make possible his or her return to his or her home from a hospital or other institution"; similarly section 9(2)(b) of Regulation 634, passed pursuant to the same statute, sets as an eligibility requirement for access to the Integrated Homemaker Program that, ". . . the person requires homemaking services in order to remain in his or her home or to return to his or her home from a hospital or other institution".) Applying the ejusdem generis rule to the phrase "other institution" supports a similar result.
In practical terms, the provision of services in the patients' own homes also means that alternatives to the existing service may be more readily available. In this case, the parties agree that homemaking services could also be provided by other institutions, family members or other paid help. In this last connection, it is worth noting that homemaker services are not insured services in any event under the Health Insurance Act.
Finally, and as did the Board in Green's Ambulance, supra, we note that our view is consistent with the practice in the homecare "industry", which has always been to bargain collective agreements under the auspices of the Labour Relations Act and not the HLDAA. That practice, together with the absence of any evidence of public health concerns arising out of the exercise by homemakers or homemaker services agencies of their traditional rights to strike or lock-out, also lends support to our view that neither the Society Homemaker Services Program nor the Brant County Home Care Program qualify as a "hospital" within the meaning of the HLDAA.
For all of these reasons, we answer the questions posed by the Minister in the negative.