Bellwoods Centre for Community Living Inc. v. Service Employees International Union, Local 204, 1997 CanLII 15571

[1997] OLRB REP. MAY/JUNE 331

1709-96-U Bellwoods Centre for Community Living Inc., Applicant v. Service Employees International Union, Local 204, Responding Party

BEFORE: S. Liang, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.

DECISION OF S. LIANG, VICE-CHAIR AND BOARD MEMBER H. PEACOCK; June 25, 1997

1. This is a proceeding in the matter of a reference to the Board pursuant to subsection 3(2) of the Hospital Labour Disputes Arbitration Act (HLDAA), wherein the Minister of Labour has referred the following question to the Board for its advice:

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

2, This proceeding was initiated by a request from the union, dated July 22, 1996, in which the union asked the Minister to determine whether the employer falls within the jurisdiction of the HLDAA.

Introduction

3. The employer, Bellwoods Centre for Community Living Inc, ("Bellwoods") is a non-profit organization which provides services to physically disabled adults. The union, the Service Employees International Union, Local 204 ("Local 204"), represents a bargaining unit consisting primarily of support service workers employed by Bellwoods. There are approximately 93 persons in the bargaining unit, 31 of whom work full time and 62 of whom work part time. There are, coincidentally, about 93 clients who receive services from Bellwoods, 36 of whom live in their own private homes and 57 of whom live in one of three housing projects operated by Bellwoods.

4. The services provided by Bellwoods through its staff consist primarily of assistance in carrying out basic daily activities such as getting in and out of bed, dressing, personal hygiene routines, bowel and bladder routines, preparation and consumption of food, and housekeeping. The level of assistance required by clients of Bellwoods varies greatly, according to the level and type of physical disability. The services provided by Bellwoods are intended to enable its clients to live as independently as possible in the community. There are no fees for any of the services provided by Bellwoods. Bellwoods is funded by the Ministry of Health, through Long Term Care funds.

5. The union and the employer have been in a collective bargaining relationship for some time. In or about 1987, the union sought a determination from the then Minister of Labour as to whether or not Bellwoods was a hospital for the purposes of the HLDAA. Written submi~sions were presented to the Minister by the parties, and by decision dated March 28, 1988, the Minister dismissed the union's application.

6. In 1992, the union once again sought a determination of the same issue to the Minister, relying on a decision of the Divisional Court (Dignicare Incorporated, unreported, February 12, 1991), to justify its request for reconsideration of the matter. The employer opposed the application, taking the position that the Minister ought not to retry the issue which had already been decided. The Minister of Labour informed the parties in response that he was "not persuaded that re-consideration of the question as to the applicability of the HLDAA to the bargaining relationship of the parties is appropriate at this time."

7. On February 6, 1996, the Union once again made a request that the Minister exercise her authority to determine that the employer was a hospital within the meaning of the HLDAA. By letter dated February 9, the employer responded by objecting to the request, on the basis that the matter had already been decided twice by the Minister. The employer asked that the matter be dismissed. On February 27, 1996, the Minister's delegate advised the parties that since the conciliation process had not been exhausted by the parties, the request by the union was premature. On July 22, 1996, the union reiterated its request after attending a conciliation meeting. Once again, the employer raised the same objections, in a letter dated August 9. On September 10, the Minister's delegate referred the question set out above to the Board, attaching only the request from the union dated July 22 and the request for the appointment of a conciliation officer.

8. On September 18, 1996, the employer sent the Minister's delegate further submissions and attachments documenting the previous applications to the Minister in 1988 and 1992. The employer submitted that it would amount to an abuse of process to require Bellwoods to litigate the issue for a third time. These submissions and materials were sent to the Board as an Addendum to the Ministerial Reference dated September 10.

9. We have set out these events in detail because the employer has submitted that the Board ought not to answer the question of whether it is a hospital within the meaning of the HLDAA. In its brief, it has submitted that the union's application ought to be dismissed as there have been no relevant legislative or factual changes in the period between the Ministers' previous decisions and the present. In final argument, the employer expanded on its position, asserting that the Board ought not to answer the question on the merits because of the application of res judicata, or abuse of process. The employer submitted in the alternative that the union should not succeed on the application where it has not shown any changes to the facts or legislative background, and (apparently) in the further alternative, asked the Board to find that the Minister was functus officio after the decision in 1988. The employer requested that the Board either dismiss the application because of its arguments, or advise the Minister accord­ingly.

10. The above "process" arguments (i.e. res judicata and the related arguments) were raised for the first time during final argument. The union did not object to the arguments being raised in this manner, addressing them on their substance. In our view, they are the sorts of issues which should have been canvassed at the beginning of the hearing. If there had been any merit to the employer's positions, the evidence which this panel heard over the course of a number of days would have been entirely unnecessary. It might further have influenced the manner in which the panel decided to deal with this reference. Having considered these submissions once made, however, we have determined that the Board must and ought simply to answer the question which has been put, that is, whether Bellwoods is a hospital within the meaning of the HLDAA.

11. We arrive at this conclusion after considering the statutory context of the Board's role in this reference, and the Board's duties within that context. The relevant provisions of the HLDAA are as follows:

Sec. 1. (I) 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:

"Minister" means the Minister of Labour:

'party" means the trade union that is the bargaining agent for the bargaining unit of hospital employees, on the one hand, or the employers of such employees, on the other hand, and "parties" means the two of them.

Sec. 3. (1) Where a conciliation officer appointed under section 16 of the Labour Relations Act is unable to effect a collective agreement within the time allowed under section 18 of that Act, the Minister shall forthwith by notice in writing inform each of the parties that the conciliation officer has been unable to effect a collective agreement, and sections 17 and 19 of the Labour Relations Act shall not apply.

(2) The Minister may refer to the Ontario Labour Relations Board any question which in his or her opinion relates to the exercise of his or her power under subsection (1) and the Board shall report its decision on the question.

12. The notable elements of the above statutory scheme for the purposes of the present argu­ments are as follows, The Minister has a power given by these provisions to determine whether the mechanisms of the HLDAA or the mechanisms of the Labour Relations Act, 1995 apply to the resolution of collective bargaining disputes for an employer and its employees. The Minister may, but does not have to, refer to the Board any question which in his or her opinion relates to the exercise of his or her power to make that determination, The Minister has a discretion as to the scope of any question referred to the Board, Once a question has been referred, the Board has a duty to provide an answer, The Board's role is thus slightly different than in most other matters before it. The Board answers to the Minister and not strictly speaking to the parties in a proceeding under s. 3(2) of the HLDAA. Furthermore, the Board's answer is not a final determination on the issue; it is for the Minister to decide what weight to give the Board's advice.

13. In the case before us, the employer wishes to raise issues which do not relate to the merits of the question of whether it is a hospital within the meaning of the HLDAA. The employer's argument, whether it is characterized as res judicata, issue estoppel, abuse of process or functus officio, is essentially that this matter should not be revisited. This was an argument which the employer made in response to the union's application for a HLDAA determination, in its letters of February 9 and August 9. This is also an argument which was made in more detail in the employer's correspondence of September 18, after the matter was referred to the Board, The issue of whether or not the Minister ought to reconsider her predecessor's earlier decisions had therefore been raised by the employer prior to this reference. Despite this, the Minister has referred the above question to the Board for its advice, and has not sought the Board's advice on whether there is any impediment to the relitigation of this very question.

14. It is also of significance that in a previous application by the union in 1992, the Minister accepted the employer's argument that he should not re-consider the issue of the applicability of the HLDAA.

15. Given this background, the Board's statutory role and the question referred to it, the Board concludes that it is not within the scope of the question to answer the "process" issues (as the parties have put it) raised by the employer. They are matters properly before the Minister. To the extent that there is an issue raised as to whether the union's request should be entertained on its merits, it is for the Minister to decide and the Minister has not referred a question to the Board for advice on this aspect of the matter. We are supported in our conclusion by the comments of the Board in Surex Community Services, [1994] OLRB Rep. Oct. 1430 (para. 13) and George Jeffrey Children’s Treatment Centre, [1994] OLRB Rep. Dee, 1656 (para. 30).

16, Finally, whether or not the Board can or should adopt a “changes only” approach to these matters where there has been a previous Ministerial determination, the Board is not inclined to give much weight to the Minister’s decision in 1988 in this case, for reasons given below.

17. We therefore turn to a consideration of the question before us.

18. Bellwoods has existed since the 1950's, providing services to physically disabled adults. The current model of service was first established in 1983, with the renovation and opening of' residential facilities on Shaw St. and Church St. in Toronto. The Executive Director of Bellwoods described how in that year, Bellwoods went from a "medical" model of providing services, to an "independent living" model. The independent living movement arose during the 1970's as a movement of disabled persons who were dissatisfied with the prevailing model of institutional care. Many of these persons felt left out of the direction of their care and futures. The application of this movement to a service-provision model means that the goal of services to the disabled is to establish the supports that enable the disabled to live as independently as possible in the community.

19. At Bellwoods, this is accomplished by providing services to clients in a variety of living situations. At present, there are approximately S7 clients living at three housing projects, commonly referred to as Shaw St., Church St., and Mimico. There are also approximately 36 clients who receive services from Bellwoods' outreach service in their own homes.

20. Clients living at one of the three housing projects sign a Support Service Agreement and Individual Service Plan which outline the services provided by Bellwoods as well as the responsibilities of clients. In the Support Service Agreement, it is provided:

21. SUPPORT SERVICES

It is the intention of Bellwoods and the Client that Support Services will be provided, to the extent that Bellwoods can reasonably do so, in support of independent living, which is the concept of providing choice and opportunity for clients to direct as best they can the activities of everyday living.

In this Agreement, "Support Services" means assistance with the activities of daily living which the Client is unable to perform independently because of his or her physical disability, and includes whenever applicable, assistance with the following functions:

(a) personal grooming and hygiene;

(b) bathing and washing:

(e) mobility, including assistance with wheelchairs, climbing stairs, walking and transfer­ring;

(d) dressing and undressing;

(e) skin care;

(f) toiletting;

(g) ventilation and tracheotomy assistance, but only if the Client provides instructions to Bellwoods Staff which in Bellwoods' opinion, acting reasonably, are sufficient to enable Bellwoods Staff to safely provide such assistance;

(h) meal preparation and meal clean up;

(i) eating and drinking;

U) essential communication, including writing and telephone use; and

(k) housekeeping.

Support Services may also include the following services, to the extent that they can be provided in the sole discretion of Bellwoods:

(aa) grocery and personal shopping [NOTE: this service is not provided at Mimico Apartment Project];

(bb) banking and budgeting [NOTE: this service is not provided at Mimico Apartment Project];

(cc) escorting the Clients on essential appointments and errands [NOTE: this service is not provided at Mimico Apartment Project]. Bellwoods staff will not perform other errands for the Client; and

(dd) other types of informal living training or support as defined individually.

Support Services do not include any medical services or professional nursing care. Support Services will be provided by Bellwoods only if and when (i) the Client can responsibly and safely be left unattended when Bellwoods Staff are not providing Support Services to the Client, and (ii) the Client is capable of fulfilling his or her responsibilities under this Agreement.

21. In general, it is the responsibility of Bellwoods to provide the support services and the responsibility of the client to work towards independence and self-direction and to direct his or own care in support of that.

22. The client and Bellwoods also prepare an Individual Service Plan which provides a detailed summary of the services provided to that client, the frequency of provision of that service, and the estimated time required for each service.

23. At Shaw St., clients also sign a lease with Bellwoods, since Bellwoods owns the premises. At Church St., Bellwoods holds a head lease with the Metro Toronto Housing Authority, and sublets to its clients. The Bellwoods facility at Mimico is part of a co-operative housing project. The co-operative reserves a certain number of spaces for Bellwoods clients. Upon establishing a relationship for services with Bellwoods, clients become members of and are provided housing in the co-operative.

24, The Shaw St. housing project consists of 32 self-contained apartment units in which 33 individuals reside (one apartment is occupied by a married couple). Each apartment contains private living quarters including a bathroom and complete kitchen. There are certain features of the physical space which reflect the nature of the tenants. The apartments are designed to be handicapped-accessible, with such features as roll-in showers, lower counters, and angled mirrors. Each apartment is equipped with call bells in bedroom and bathroom. The doors to the apartment have remote control door openers which do not require a key.

25. Bellwoods maintains an office in the Shaw St. housing complex, which is staffed 24 hours per day. Support service workers work on a day shift, afternoon shift and night shift. There are between 3 to 6 support service workers on a given shift. There is also a housekeeper who works Monday to Friday, 9 a.m. to 5 p.m. The main Bellwoods administrative office is also located at the Shaw St. housing project. Working at this office are management personnel, office and clerical staff and program personnel.

26. Generally, Bellwoods staff provide services to the clients in the apartments according to a booking system. There is a booking sheet in which appointments for each client are noted. Staff enter the apartments by being let in by the client, or by the use of a master key if a client is physically unable to open a door. One client leaves his door open all the time due to his total incapacity. Pre-booked services include assistance with morning routines (getting out of bed, toileting, showering, shaving, brushing teeth, dressing etc.), nighttime routines (similar to morning routines), bowel and bladder routines (catheters, leghags, nightly drainage bags, diapers etc.), meal routines (cooking, cutting food, feeding etc.), housekeeping (laundry etc.). In addition, staff assist with such matters as suctioning (in the case of tracheotomies), bed turns, menstruation, and medication. In addition to pre-booked services, staff are sometimes called upon to assist a client who has, for instance, fallen or dropped something that he or she cannot retrieve.

27. Bellwoods staff are not medically trained. The support services provided are not generally of a medical nature, although some may be viewed as medically-related. For instance, there are certain procedures, such as those associated with intermittent catheters or the suctioning of persons with tracheotomies, in which Bellwoods staff are required to be or have been trained by medically qualified personnel. Staff help with the administration of medication, in the sense of offering clients dosages of medication which have been pre-measured by a person (such as a nurse or family member) with the authority to do so. Some clients are unable to take their own medication because of physical limitations and staff sometimes administer it.

28. The clients who live at the Shaw St. housing complex vary in disabilities and needs. Most use wheelchairs, and some use walkers or canes. Many require the use of a mechanical lift to get in and out of bed. A few are speech-impaired and use computers or boards to communicate. One client requires very little from Bellwoods in the way of services, while others require assistance with virtually every aspect of daily living. The severity of a client's level of disability is not necessarily correlated with that person's activity in the community. Some clients who are highly disabled and require a great deal of assistance with personal routines nevertheless leave their apartments by such means as WheelTrans and participate in outside activities. Some clients rarely leave their premises; others go shopping, attend school, socialize, or work. Clients are free to come and go as they wish, at all hours. There are likewise no restrictions on visitors.

29. Bellwoods clients also make use of outside agencies from time to time, such as nursing services, WheelTrans, and Meals on Wheels. There are some clients, for instance, who receive visits from organizations such as the Victorian Order of Nurses for such services as the changing of catheters or dressings.

30, Clients are responsible for the provision, however managed, of their own groceries, furniture and personal items. There is a van operated by a Bellwoods employee two days a week, which clients sometimes use for grocery shopping or medical appointments or other outings.

31. Shaw St. also houses the Bellwoods Transitional Living Program. Fourteen of the 33 tenants of Shaw St. participate in this program. The purpose of this program is to teach life skills to clients to foster their ability to live independently. It is intended that clients who live at Shaw St. as part of this Program will be able to move out into another living arrangement within about 18 months; in reality, some may stay up to four years before suitable other arrangements are found. Clients of Bellwoods outside of the Transitional Living Program may have a much longer relationship with Bellwoods. Some have lived at a Bellwoods facility for several decades.

32. The Church St. location consists of housing for 12 clients, in three units. Each unit consists of private bedrooms and common kitchens, eating areas and bathrooms. The Bellwoods units are a part of a larger residential structure. In addition to the three units, Bellwoods has a office used by its on-site supervisor and staff, an office for its project director and a recreation room for the clients. Each unit has a lock at its main door. Each private bedroom has a lock, but they are generally kept unlocked by their residents. As with Shaw St., the units are designed to be accessible for the physically disabled.

33. As with Shaw St., Church St. is staffed by Bellwoods personnel 24 hours per day, over three shifts. There are generally two service workers present at all times. In addition, there is a housekeeper and a cook that work an average of five days per week each.

34. Of the twelve clients that live in the Church St. facility, eleven use wheelchairs, and one a walker. As with Shaw St., the level of assistance provided to each client varies. Some require minimal assistance with their daily activities. Some require a great deal of assistance with anything from transfers from bed to wheelchair, personal hygiene, toiletting and meals. The level of outside activities varies amongst the residents, some having regular engagements most days of the week and others staying for the most part at home. The residents are free to come and go as they wish, however, and receive visitors as they wish. Two of the residents have difficulty in communicating, and one uses a language board.

35. The types of services provided by Bellwoods staff at Church St. are similar to those provided at the Shaw St. facility. Like the Shaw St. facility, clients receive both pre-booked services, and ad hoc services on demand. Meals are provided by the cook at Church St., and if she is not there, generally by the staff. Unlike the Shaw St. facility, staff do "night checks" of the three units, walking through common areas and glancing into open bedroom doors to ensure nothing is out of order.

36. The Mimico project consists of twelve apartments which are part of a larger co-operative housing project, housing twelve clients plus the spouse of a client. There is an office for Bellwoods staff on the premises. Bellwoods staff are on site 24 hours per day. There is at least one female and one male service worker on every shift, with additional personnel for part of each day. The apartments are like regular apartments in many ways, although they are modified for the needs of the clients. All have front door locks, with remote entry. Bellwoods has keys for all apartments and some residents permit the use of keys by staff to obtain access on a regular basis.

37. As with the other projects, staff provide services to the clients at Mimico on the basis of a booking system. In addition, staff will provide services to clients upon request and as needed. Clients can contact staff by phone, or by pager. Some of the phones are specially equipped, for instance, to be voice activated.

38. The services provided are similar to those at Shaw St. and Church St., and vary with the disabilities and needs of the clients. Most clients need assistance with morning and night routines. For about half the clients, mealtime assistance is required which involves daily assistance with the prepara­tion and sometimes eating of meals. For other clients, assistance may only be required occasionally, or with cleaning up dishes. For the clients that require the greatest level of services, staff may spend up to an hour and half on a morning routine, including rising, dressing, showering and breakfast.

39. Some clients engage in activities out of the building, such as school or volunteer activities, and use WheelTrans and occasionally the Bellwoods van for transportation. One resident has his own van.

40. In addition to providing services at the three housing projects, Bellwoods also has an outreach component, in which services are provided to clients in their own homes. There are approxi­mately 36 clients who receive services in this way, and about 25 part-time staff engaged in this part of Bellwoods' work. Clients sign Support Service Agreements and Individual Service Plans which are similar to the ones signed by clients in the housing projects. The services provided are substantially similar to those provided at the housing projects, though not as extensive. Most clients receive daily assistance with morning and evening routines which might include getting in and out of bed, toiletting (which might involve either transfers to and from a toilet or catheters or urine bags), showering, changing and meals. Staff do not, however, assist clients in the outreach program with housekeeping chores, nor with grocery shopping, banking or escorting them to appointments. All services are pre­booked, and are provided between 6 am. and midnight.

41. As with the rest of the Bellwoods clients, the level of disability of the clients in the outreach program varies and the level of involvement in the community varies. Some of the outreach clients are active in the community despite requiring assistance with many aspects of daily life, attending school, working at home by computer, and taking part in volunteer activities.

42. Some outreach clients also receive nursing services from such organization as the Victorian Order of Nurses, or homemaker services.

43. Based on the Support Service Agreements, the Executive Director of Bellwoods estimates that clients receive an average of 2.25 hours of service per day. Some of the evidence from the support service workers suggested a slightly higher average, which may reflect the addition of unscheduled services. It is reasonable to conclude that clients that require a high level of care receive about 3 to 4 hours of services per day, a few clients receive very little daily care, and the majority fall in between with the average between 2 to 3 hours per day.

44. The services provided by Bellwoods are regulated by the Long Term Care Act, 1994, S.O.1994, c,26. One of the purposes of this Act is to "ensure that a wide range of community services is available to people in their own homes and in other community settings so that alternatives to institutional care exist" [s.1(a)]. As an approved agency under this Act, Bellwoods receives a grant for the purpose of allowing it to provide services.

45. The Executive Director of Bellwoods testified about a group called the Provincial Associa­tion of Senior Managers (PASM), which is a voluntary support group of executive directors of similar organizations around the province. There are about 33 organizations in this group, which meet to share concerns and ideas about the work of these organizations. The common link between the organizations is that they provide services on a non-prot'it basis primarily to the physically disabled and receive funding under the Long Term Care Act, 1994. Thirty-one of the 33 organizations provide support services like those provided by Bellwoods while two are sheltered workshops. About half of these organizations are unionized. Of the ones which are unionized, three (not including Bellwoods) have been the subject of HLDAA determinations by a Minister of Labour. The Minister found two to be covered by HLDAA, and the other not,

46. There are many other organizations in Ontario, at least 100 and perhaps more, which receive Long Term Care funding to provide services to the physically disabled but which are not part of PASM. In addition, there are a number of commercial agencies which provide support services for a fee to the physically disabled, Bellwoods from time to time engages the services of these agencies, and has stated its intention to do so in the event of' a strike by its staff.

47. Counsel for the union submitted that Bellwoods is an "other institution" within the meaning of section 1(1 )(a) of the HLDAA, "operated for the observation, care or treatment of persons afflicted with or suffering from any physical or mental illness, disease or injury". The employer does not dispute that Bellwoods is operated for the observation, care or treatment of persons afflicted with or suffering from a physical illness, disease or injury, as that phrase has been applied by the Board. The employer does take issue with the characterization of Bellwoods as an "institution".

48, Counsel for the union submitted that as an operator of residential facilities whose purpose is the provision of services to the physically disabled, Bellwoods is an institution. The persons living at the housing projects have much more than a landlord-tenant relationship with Bellwoods. They are resident at these projects precisely because they require the services Bellwoods offers. Their living arrangements share many characteristics with private homes, but fundamentally, the purpose of the living arrangements is the provision of services,

49, With respect to the outreach program, counsel submitted that whether or not services are provided through a residential facility or in clients' own homes is a factor to consider in determining whether an employer is an institution covered by the HLDAA, but not the only factor. Furthermore, the Board has, in George Jeffrey Children's Treatment Centre, [1994] OLRB Rep. Dec. 1656, found that an employer which had a significant outreach component similar to that at Bellwoods, was nevertheless an institution covered by the HLDAA,

50. Counsel submitted that the decision in CUPE, Local 2542 v. Dignicare Inc. (February 12, 1991) unreported decision of the Ontario Divisional Court. establishes that an employer need not be similar in nature to a hospital, sanitarium, sanatorium or nursing home to be found an "other institution" within the meaning of the HLDAA. It is submitted that the Board's cases likewise reject the argument that the meaning of "other institution" must be governed by the list of specific institutions found in section 1(1)(a) of that Act: see Surex Community Services v. OPSEU, Local 5102. [1994] OLRB Rep. Oct. 1430, and George Jeffrey, supra.

51. Fundamentally, it was submitted, the Board in applying the HLDAA must be concerned to protect those whose health and safety would be jeopardized by a withdrawal of services in the event of a labour dispute, The Board must interpret its provisions in this light. An employer may be found to be a "hospital" for the purposes of HLDAA and for no other purpose. Further, to the extent that the employer makes an argument based on the stigma associated with the term "institution", the HLDAA is only a piece of labour legislation. There is no reason why a finding that Bellwoods is an institution which is a hospital for the purposes of the HLDAA should have any impact on the philosophy of independent living according to which it provides its services.

52. Counsel for the employer submitted that the issue which the Board must decide in determin­ing whether Bellwoods is covered by the HLDAA is whether the health and safety of its clients would be jeopardized by a withdrawal of services. This requires the Board to assess the relative dependency of those clients on Bellwoods. There is no question that there would be some detriment to those clients from a withdrawal of services; this, however, is not enough. The Board must find that the level of dependency is so great, and the alternatives in the event of a strike or lockout so unsatisfactory, that the health and safety of the clients would be put in jeopardy by a strike or lockout.

53. Counsel analyzed the facts of this case in the context of the eight factors enumerated in The Canadian Red Cross Society v. SEIU, Local 204, [1995] OLRB Rep. May 612. It was submitted that those eight factors lead to a finding that Bellwoods it not a "hospital" within the meaning of the HLDAA.

54. Further, counsel urged the Board not to follow North Yorkers for Disabled Persons Inc., [1995] OLRB Rep. July 1001, on the basis that it is distinguishable, and on the basis that the reasoning in that case has been placed in doubt by subsequent Board decisions. Counsel likewise distinguishes George Jeffrey Children's Treatment Centre and Surex Community Services, supra.

55. Counsel accepts that the reasons in Dignicare Inc., supra mean that the Board is not obliged to find that medical care is provided, in order to support a finding that an employer is a "hospital" within the meaning of the HLDAA. However, it is asserted, the Board is still obliged to consider the meaning of "other institution" in section l(l)(a) of that Act within the context of the enumerated facilities: hospitals, sanitaria, sanatoria, nursing homes. Whatever may be an "other institution", it must share essential characteristics with these enumerated facilities. Further, the Board is obliged to consider the meaning of "other institution" within the context of other statutes that relate to the same subject matter. The institutions regulated by hospital legislation share certain characteristics none of which relate to the functions performed by Bellwoods. Also, it is significant that the very legislation which does regulate the services provided by Bellwoods states that its purpose is to provide alternatives to institutional care [ie. the Long Term Care Act, 1994, supra].

56. Counsel submits that it is unrealistic to think that a finding that a facility is covered by the HLDAA will have no impact on the manner in which care is provided. This is an environment where the philosophy for the provision of services is paramount. It should be critical to the Board's determinations that the clients of Bellwoods are able to and are expected to direct their own care, This relates to the issue of dependency, one of the eight enumerated factors in Red Cross, supra. This alone distinguishes Bellwoods from the enumerated institutions in section 1(1)(a) of the HLDAA.

57. Other cases relied upon or referred to in argument were: CUPE, Local 3101 v. Maison Mere des Soeurs de la Charité d'Ottawa, [1995] OLRB Rep, July 978; Meadowcroft Holdings Inc. V. LDSW Local 220, [1997] OLRB Rep. Jan./Feb. 74.

58. In determining whether this employer is an "other institution" within the meaning of section 1(1)(a) of the HLDAA, and therefore a hospital within the meaning of that Act, the Board finds it useful to begin with the analysis of the Divisional Court in Dignicare Inc., supra. In that decision, the Court quoted from the decision of the Minister in Re Bruce Retirement Villa and Service Employees Union, Local 210, in which it was stated:

"The purpose of the Hospital Labour Disputes Arbitration Act is to ensure that persons who are afflicted with physical or mental disabilities are not left without care in the event of a strike or lockout."

The Court also referred to the decision of the Minister in Re Versa - Care of Hanover, in which it was stated:

"The Act is intended to protect those who may not adequately be able to protect themselves if services provided by the Lodge were unavailable. If the health and safety of residents is dependent on services offered by the Lodge. their health and safety could be jeopardized by a strike or lockout. In these circumstances, the HLDAA provides that employees cannot strike or be locked out. Instead, the parties must resolve their disputes by means of binding arbitration."

59. In the course of its reasons, the Court stated:

In light of the use of the words "observation, care or treatment" in the statute, the Ministers erred in determining that an institution would fall within the definition of "hospital" in the Act only if the care, observation or treatment provided by the institution was of a medical nature and only if the institution was similar in nature to a hospital, sanatorium, sanitarium, or nursing home.

[emphasis added]

60. The Board takes from the above the following: the purpose of the HLDAA is to protect persons who have special needs as a result of physical or mental conditions from a withdrawal of services associated with a strike or lockout. There is no reason to limit the types of services to which the HLDAA is directed to medical services; other types of "observation, care and treatment" may be so fundamental to the well-being of these persons that they ought to be maintained.

61. As is evident from the above, in making a determination under the HLDAA, the Board focuses on the nature of' the services provided by the employer: see Extendicare Diagnostic Services, [1982] OLRB Rep, Mar. 371, cited in Red Cross, supra. However, it is not sufficient that an employer provides services which can be termed as "observation, care and treatment" of those with a physical or mental condition (as was acknowledged by the employer here). The Act requires a finding that these services be provided by an "institution" and that the institution be "operated for" the provision of that care.

62. The Board finds it useful in deciding whether Bellwoods is an "other institution" within the meaning of the HLDAA to refer to the list of factors identified in Red Cross, supra. They are:

(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.

63. A consideration of the above factors to this case leads the Board to find that Bellwoods is an "other institution" and therefore a "hospital" within the meaning of section 1(1)(a) of the HLDAA,

64. Since they are inter-related, the Board will consider first the relevance of factors (i) to (iii) and (vii). The nature of the services provided by Bellwoods is similar in many ways to that provided at other facilities found by the Board to be covered by the HLDAA. Most of the services received by Bellwoods clients are in the nature of "personal support". They are not medical in nature but are directed at essential daily activities which their clients would not, because of physical disability, otherwise be able to accomplish. The services are essential in that they relate to matters of personal hygiene, nutrition, bodily functions and other activities necessary to the maintenance of personal health, well-being and (if left unprovided) safety. There is no question but that the health, well-being and safety of Bellwoods clients would be placed in jeopardy if these services were not provided. To this extent, the Board is satisfied that Bellwoods clients depend on these services for their continued health, well­being and safety.

65. The extent of the services provided, when measured in time devoted daily to their accom­plishment, may well be less than that provided to a medical patient during a short stay in a hospital. However, like hospitals and other like institutions, the staff of Bellwoods are available 24 hours per day if necessary. This is in contrast to the extent of the services provided by the Homemaker Services Program under consideration in Red Cross, supra. In that case, the clients of the homemaker program were provided homemaking services to a maximum of 20 hours per month, with no element of "on call".

66. It is notable that most of the clients of Bellwoods require its services on a daily basis. Along with the 24-hour staffing, this demonstrates the degree to which these services are not discretionary, in the sense that a person can "cope" with a lack of these services for a period of time. A Bellwoods client may only require an hour of assistance with a morning routine, some time at noon and another hour for a bedtime routine; the consequences of going without this assistance, however, are serious.

67. Counsel for the employer submits that the fact that clients are responsible for directing their own care is important to the notion of dependence. Certainly, an individual who is capable of directing his or her own care is more independent than one who is not. However, direction over the manner in which a service is provided does not diminish the necessity for that service at all. The reality is that the services provided by Bellwoods are necessary, and that they relate to functions which cannot, because of physical disability, be performed unassisted.

68. The existence of alternatives requires some consideration. Bellwoods offered evidence about the existence of private agencies which provide the same types of services, for a fee. It has apparently explored the possibility of such agencies replacing its entire workforce in the event of a labour withdrawal, and is satisfied that they have the capacity to do so. It does appear that the services provided by Bellwoods may also be obtained through private agencies. Whether or not this would be a satisf'actory alternative in the event of a strike or lockout is another issue. Even assuming that all of the services may be provided by agency staff, there is still an obvious detriment to the clients of Bellwoods in having to use replacement workers, Many of the clients of Bellwoods are long term residents, and likewise it appears that there are a number of employees who have been with Bellwoods for many years, and providing services to the same clients for many years. Some of these employees testified about the problems encountered when agency personnel are called in from time to time by Bellwoods. Without wishing to overstate these problems, it does appear that there are occasionally issues of adequate training, and certainly issues of' familiarity and comfort on the part of clients with the use of agency staff'. From the point of view of Bellwoods' clients, the wholesale replacement of their regular caregivers with agency staff would likely be seen as a significant disruption to their lives. Although these problems are not likely insurmountable over the longer term, it is reasonable to think that they would be obstacles to the smooth continuation of services in the event of a labour withdrawal.

69. In considering the factor of "existence of alternatives", the Board is also mindful of some of the observations in Meadowcroft Holdings Inc.. supra on this issue. The Board in that case expressed the view that the approach adopted by the HLDAA does not depend on the effect of a strike or lockout on the ability of a particular employer to continue to provide its services, using alternatives:

70. We are satisfied on the facts, the employer's submissions are more persuasive than are the union's on the question of the impact of a strike upon the services provided to the residents. In all likelihood the service to the residents would not be significantly disrupted were the employees in the union's bargaining unit to have engaged in a strike. But what is the relevance of that conclusion?

71. The employer argues that that conclusion is decisive. It submits that if the employer would be capable of maintaining its service to the residents during the course of a strike by the bargaining unit employees, then the purpose for which the HLDAA was legislated would be achieved without the necessity of a reference to arbitration. In the employer's argument, reference to arbitration arises only if the delivery of the service to residents should be disrupted by a strike or lock-out. In other words, HLDAA operates to ensure an essential service; if the essential service can be maintained without reference to interest or contract arbitration, then no such reference should be made by the Board.

72. The employer's argument appears sound from a labour relations perspective. Collective bar­gaining is a feature of a democratic society. The empowerment of parties to conclude their own agreements and to regulate their relationship without the interference of an agency of the state, like the Board, is a hallmark of a democratic society. Compulsory arbitration entails the interference of the state in free collective bargaining and that interference is customarily accepted as being legitimate only if a greater interest is to be served than the entitlement to free collective bargaining. Where the protection of life and health is put in jeopardy by the free exercise of collective bargaining and of the parties' respective rights to strike and lock-out, then the law conventionally interferes by requiring the parties to make use of compulsory arbitration as the means of concluding their collective agreement. The rights to life and health trump the entitlement to untrammeled collective bargaining.

73. Were the employer's argument correct, then HLDAA would have taken the form of the CROWN EMPLOYEES COLLECTIVE BARGAINING ACT for dealing with this matter. In that statute, the Board can declare essential services so as to ensure that there is no danger to life, health or safety. The Board would consider, when exercising that discretion, what the effect would be of a strike or lock-out on the provision of the particular service under consideration.

74. But that is not the approach adopted in HLDAA. The legislature adopted an "institutional" rather than a "labour relations" approach to the issue. It said, in effect, that whether or not the effect of a strike or lock-out would, in fact, he a danger to the life, health or safety of the residents of an institution, if that institution has the characteristics of a hospital, then it is a hospital and impasse in collective bargaining will not result in industrial action, but in mandatory arbitration instead.

75. The "institutional" approach has some considerable advantages. It avoids the necessity of speculating upon what the effect of a strike by the bargaining unit employees or a lock-out would be upon the services provided by the institution. It avoids considerable litigation over that speculation.

76. There is a further consideration. If we were to endorse a purely "labour relations" approach then certain anomalies would necessarily arise. The definition of a "hospital" would come to depend upon the relative bargaining powers of the parties. So, for example, if the bargaining unit were large such that the health service provided might be disrupted in the event of dispute, then the employer would be a hospital, otherwise not. What if there were two bargaining units, which singly could not cause a threat to the health service, but together could disrupt it? Would the employer be a hospital in these circumstances? If we were to adopt the employer's argument and focus singly upon each bargaining unit, then in the example, the employer would be deemed not to be a hospital. But if there were to be a strike simultaneously, by the unions representing the two bargaining units, then the employer's service would cease. In that circumstance, we would reasonably be called upon to declare the employer a hospital. So, on the same set of facts, the employer would not be a hospital in some circumstance, but it would be in others. That anomaly helps to explain why a purely "labour relations" approach to the issue can lead to absurd results, and why the "institutional" approach is to be preferred.

77. The Board concludes from the above that although the existence of alternatives to an employer's services is relevant to the issue of the degree to which its clients are dependent on those services, the Board must be circumspect in giving this factor a great deal of weight.

78. Turning to the statutory context for the provision of these services, we find limited guidance from this factor. There is no statutory obligation on Bellwoods to provide its services. To the extent that it is an "approved agency" within the meaning of the Long Termn Care Act, 1994, however, its continued funding and therefore existence is contingent on its fulfillment of the conditions for approval specified in that Act.

79. At first glance, a comparison of the various statutes to which the parties referred the Board does suggest a dichotomy between those regulated by the Public Hospitals Act, Private Hospitals Act and Mental Hospitals Act on the one hand, and those regulated by the Long Term Care Act, 1994 on the other, on at least the following basis. As the Board observed in Red Cross, supra, the words "hospital" and "institution" appear to have a residential component which does not include the patients' own home. This dichotomy is supported by the words of the Long Term Care Act, 1994 which state that a purpose of that Act is "to ensure that a wide range of community services is available to people in their own homes and in other community settings so that alternatives to institutional care exist".

80. Although it is useful to have reference to the provisions of the legislation governing the services offered by Bellwoods, there is no reason to assume that the above statement of purpose is intended to take a service provider which is regulated by the Long Term Care Act, 1994 out of the scope of the HLDAA. First, from the evidence, it appears that there are two organizations which belong to PASM, funded under the Long Term Care Act, 1994 and which have been found by a Minister to be covered by the provisions of HLDAA. Second, a review of the Board's cases reveals that the distinction between one’s "own home" and an "institution" is not always readily apparent; the dichotomy is sometimes fluid. Rather, there are a range of ways in which services are provided to those that require them because of a physical or mental disability or condition and the locations at which they are provided can contain characteristics of both private homes and institutions.

81. As the Board observed in Maison Mare des Soeurs de la Charité d'Ottawa, supra, a residence can be a private residence and yet have institutional aspects to it. The Maison Mere was such a residence. In arriving at its finding that the headquarters of an order of nuns (which included an infirmary for aging or ill nuns) was not covered by the provisions of the HLDAA, the Board found it relevant that the relationship between the patients in the infirmary and the Maison Mere did not exist because of the infirmary services. It contrasted this with those institutions which have been found to be hospitals for the purposes of the HLDAA, where the reason for the relationship between the client and the institution was the provision of the services of care, treatment or observation.

82. In suggesting that the dichotomy between one's own home and an institution is not always apparent, the Board accepts that there are residences which are undeniably private residences and those which are undeniably institutional in nature. In the case before us, the clients who receive services from Bellwoods' outreach program live in their own private residences. The three housing projects operated by Bellwoods, however, share elements of both. The residents would likely view their premises as being their homes and many are long term residents. The residents pay rent either to Bellwoods or, in the case of Mimico, to a third party. Rent is paid to Bellwoods on the basis of a landlord/tenant agreement at Shaw St. and a sub-lease at Church St., which are independent of the agreement for provision of services. The residents are unrestricted in their ability to come and go from their homes, Although Church St. comes closest to the character of a "group home", each resident has private space to which entry is restricted except with tacit or overt permission.

83. On the other hand, there is no doubt that Bellwoods does not offer residence to individuals unless those individuals need and wish to have its services. Likewise, individuals move into one of the Bellwoods residences because they wish to have the support services which Bellwoods provides. An individual who no longer needs the services provided by Bellwoods is expected to leave Bellwoods housing so that it can be offered to another. Further, there is a degree of organization to the residences which is not found in private residences. Bellwoods has an office at each housing location, at which staff are present 24 hours per day. Staff are available both for pre-booked services and as-needed services. Staff have access to, and use, keys to individual premises. There is a certain routine aspect to the manner in which services are provided.

84. To the extent, then, that outreach clients receive services in their own private residences, and other clients receive services in residences which have both private and institutional aspects, the "location at which care is provided" does not provide any firm answer on the issues before us.

85. Turning to the factor of who employs the caregivers, Bellwoods employs its own staff to provide its services, occasionally using the services of an agency for relief purposes. We do not find this to be a helpful factor in the context of the question before us, although it may be more significant in a case such as Extendicare Diagnostic Services Ltd., [1982] OLRB Rep. Mar. 371, where the issue was whether a person employed by a company providing services to a hospital was "a person employed in the operation of a hospital" (section 1(1) of the HLDAA).

86. The employer and the union both referred to the historical practice of collective bargaining in the industry. The Board heard evidence as to the practice of collective bargaining in the PASM group to which the Executive Director of Bellwoods belongs. It is not clear to what degree this group is reflective of the much larger number of organizations engaged in similar work. Assuming that the experience of the organizations in this group is typical, that experience is not very helpful to our determination. It appears that about 15 of these groups are unionized. Of these fifteen, three have undergone HLDAA applications to the Minister of Labour. Two were found to be covered by the HLDAA, and one was not. Presumably, the other organizations bargain under the provisions of the Labour Relations Act, 1995, defacto if not de jure. The only organizations which have undergone a strike or lockout are those which were the subject of HLDAA applications.

87. Further, there are several Board decisions which deal with roughly similar types of organiza­tions as Bellwoods: see Surex Community Services, George Jeffrey Children's Treatment Centre, and North Yorkers for Disabled Persons Inc., supra. There are of course dissimilarities in the facts amongst these organizations. Surex, for instance, dealt with an organization providing services to the develop­mentally disabled in what could be termed group homes. George Jeffrey involved an employer which operates a number of group homes housing young adults with physical and/or developmental handicaps, as well as a non-residential program. North Yorkers for Disabled Persons Inc. dealt with a facility housing ten physically disabled adults in a group home similar to the Church St. project. It is unnecessary to review these decisions in detail. In arriving at these decisions, the Board addressed many of the same issues presented to us in this case, while not specifically applying the factors elucidated in Red Cross. It is arguable that some are "stronger" cases than the one before us. However, the differences are matters of degree, relating to such matters as the amount of daily care provided, the ratio of caregivers to residents, and the type of disability present. In particular, it is difficult to distinguish in a substantial way the facts of this case and those in North Yorkers for Disabled Persons Inc.

88. In sum, many of the factors identified in Red Cross do not point firmly in one direction or another in this case. Ultimately, the Board is persuaded to its conclusion by the type of care provided, the degree of care provided, and perhaps most significantly, the extent to which the recipients depend on the care for their continued health and safety.

89. In this latter respect, the Board must address the arguments made by counsel for the employer relating to the philosophy of independent living which shape the manner in which the services of Bellwoods are provided. There is no question that the purpose of the care and the model in which it is provided is to maximize the independence of Bellwoods clients. There is also no question that without the care, the independence of the clients would be severely compromised. There is nothing contradictory about the notion that a person with a certain degree of independence may be reliant on the provision of certain services in order to maintain that degree of independence.

90. There need not be any stigma attached to the dependence on services, just as there need not be any stigma attached to a finding that an employer is an "other institution" and therefore a "hospital" within the meaning of the HLDAA. Just as "hospital" is a term of art within the context of that Act, so is the term "institution". A finding that a facility is a "hospital" within the meaning of the HLDAA does not mean that it is expected therefore to act like the conventional understanding of a hospital. A finding that a facility is an "institution" within the meaning of HLDAA likewise does not mean that it is expected to treat its clients differently or that its clients should view themselves or their service-provider differently. Essentially, all that it means is that these clients are assured of' a continuation of services in the event of a labour dispute. The HLDAA, as expressed by the courts, by Ministers of Labour and by the Board, is concerned with the protection of certain persons with special needs in the event of labour disputes. The materials filed by the employer describe the independent living movement as providing the physically disabled with the opportunity to become integrated into the community. One of the ways this opportunity has been provided is through community-based housing. We do not think it could have been intended that this opportunity would lead to less protection than if these persons had remained separate from the community.

91. The Board has also considered the reasons of the Minister in his March 28, 1988 finding that Bellwoods was not an employer covered by the HLDAA. The essential facts remain the same today. Although it is not clear to what extent this was determinative, the Minister did appear to place weight on the fact that the services provided by Bellwoods were not medical in nature. Since this decision was made before Dignicare Inc., supra, this is not surprising; for this reason, however, we do not find that decision very helpful in our deliberations.

92. Finally, it is not clear to the Board, and it is not necessary to determine, whether the outreach portion of Bellwoods' services would lead if considered alone to a finding that Bellwoods is an "other institution" and therefore a "hospital" within the meaning of the HLDAA. Both parties were agreed that all of the activities of this employer should be considered together in determining whether the HLDAA applied. The outreach program is a substantial portion of the work of Bellwoods, but not so substantial that the Board would be inclined to remove the protection of the HLDAA from all of Bellwoods' clients based on a view of the outreach program.

86, For the above reasons, the Board advises the Minister that Bellwoods is a "hospital" within the meaning of the HLDAA.

ADVICE OF BOARD MEMBER JAMES A. RONSON; June 25, 1997

In all of the circumstances of this case, I advise the Minister of Labour that labour relations generally, and those specifically involving the Union and Bellwoods would be best served by confirming the decisions of the Honourable Greg Sorbara and the Honourable Bob MacKenzie. Simple, basic fairness t'equires that Bellwoods should not be designated a hospital under the HLDAA by the Minister or considered such by this Board, In all the circumstances, everyone would be best served by having the Union take the issue to the Divisional Court so we might all understand the breadth of the Dignicare Inc, decision.