Ottawa-Carleton Regional Residential Treatment Centre v. Canadian Union of Public Employees, Local 2376, 1998 CanLII 18244

[1998] OLRB REP. JANUARY/FEBRUARY 92

2837-97-U Ottawa-Carleton Regional Residential Treatment Centre, Applicant v. Canadian Union of Public Employees, Local 2376, Responding Party

BEFORE: Timnothy W. Sargeant, Vice-Chair, and Board Members R. R. Montague and J. A. Rundle.

DECISION OF THE BOARD; February 4, 1998

1. By reference dated October 29, 1997, the following question was referred to the Board for its advice by the Ministry of Labour pursuant to section 3(2) of the Hospital Labour Disputes Arbitration Act ("HLDAA").

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

2. In a letter dated November 10, 1997, the parties were directed by the Registrar to file Statements of Representations on this issue.

3. By letter dated November 21, 1997, the Union filed its Statement of Representations.

4. By letter dated December 8, 1997, the Employer indicated:

Please be advised that the Employer does not wish to respond to the application before the Board.

We request that the Board render a decision without oral hearing on the matter.

5. By letter dated December 19, 1997, the Union made further submissions and agreed that "the Board may render a decision without an oral hearing".

6. Based on the material filed and the submissions of the parties the Board is prepared to render a decision without an oral hearing.

7. Based on such material, the Board finds that the Employer is an accredited, licensed Children's Mental Health Centre funded by the Ministry of Community and Social Services. The employer provides long term residential treatment to moderately to severally conduct disordered adolescents between 12 and 18. Additionally, the Centre provides some placements for Young Offenders serving open custody dispositions. All the programs within the Centre are co-educational and the 56 beds are split between eight residential units. Additionally, the Centre operates seven Section 27 classrooms in conjunction with two of the local boards of education. The Centre specializes in working with conduct disordered adolescents whose primary presenting problems include assault, sexual assault, running suicide attempts and fire setting. The Centre also operates two summer camps, a leased one at Hurds Lake and R.O.P.E. on a hundred acres of property outside Plantagenet. We have an Addiction Treatment Program for adolescents who are both severely conduct disordered and addicted.

8. The Centre is a not for profit corporation and is managed by a volunteer board of directors. It has been in existence since 1973. The Centre is sometimes referred to as The Roberts/Smart Centre in recognition of its two founders, Charles Robert, a psychiatrist and Russell Smart, a lawyer.

9. In addition, the Union submits the following Facts: The Facts

10. The Canadian Union of Public Employees was certified as bargaining agent for "all employees of Ottawa-Carleton Regional Residential Treatment Centre in the Regional Municipality of Ottawa-Carleton, save and except co-ordinators, persons above the rank of co-ordinator, social workers, psychometrists, psychologists, recreologists, creation specialists, office and clerical staff, mainte­nance personnel, persons regularly employed for not more than twenty-four hours per week, students employed during the school vacation period and persons employed in connection with an accredited course of studies, "since April 14, 1980.

11. On September 29, 1994 the parties entered into a Collective Agreement for the period April 1, 1994 to March 31, 1995. This Agreement was subsequently extended without amendment to March 31, 1997.

12. The Ottawa-Carleton Regional Residential Treatment Centre, hereinafter called the Respondent, specializes in the treatment of adolescents, ages 12 - 17.

13. The Respondent operates "... nine residences with a total possible full-time resident population of sixty-two..." through which it delivers four (4) residential treatment programs:

• Secure Treatment

• Young Offenders

• Crisis Intervention

• Mental Health

10. In addition, primarily through these residences, the Respondent operates several Non-Residen­tial programs:

• Aftercare

• Crisis Intervention

• Day Treatment

• School Programs

• Brighter Futures

• Therapeutic Camping*

• camping is residential in nature and residential clients attend

11. Article 1.01 of the Collective Agreement expiring March 31, 1997 states:

"It is the general purpose of this Agreement to promote the mutual interests of the Centre and its staff in the achievement of the proper care and treatment of the residents and non-resident youths; to promote the morale, and safeguard the well-being of all employees; to establish and maintain an orderly collective bargaining relationship between the Centre and its staff; to set forth all agreements concerning rates of pay, hours of work and working conditions to be observed by the parties hereto and to provide an amicable method of settling any differences that may arise in the interpretation, application, administration, or alleged violation of this Agreement." (emphasis added)

12. The Respondent has several promotional pamphlets. For the purposes of this application it is useful to see how the Respondent describes its functions. CUPE will be relying on these pamphlets to show that staff provide ongoing treatment obrieties and monitoring of the adolescents in treatment.

Pamphlet titled "Secured Treatment":

• "The Secure Treatment Program of the Roberts/Smarts Centre provides treatment for adolescents who have demonstrated that they are a danger to themselves or others and that they require services in a highly secure facility."

• "Admission Criteria (1) The court may decide that a child be committed to a secure treatment program only where it is satisfied that, (a) the child has a mental disorder."

Pamphlet titled "Mental Health Residential Program":

• "Purpose: The residential program of the Centre exists to provide care in both official languages for those adolescents who difficulties are of such a nature as to require treatment on a twenty-four basis."

• "Admission Criteria: A client admitted to the residential program shall: manifest a clinical picture assessed as moderate to severe in degree of disturbance."

• "Types of Clients: The Roberts/Smarts Centre specializes in treating adolescents with emotional and behavioural problems..."

• "Plans of Care/Treatment: Plans of Treatment are developed for each adolescent in residence an periodically updated over the course of treatment. The professional clinical staff, with collaborations of the adolescent, the parents or guardians, residential staff and other concerned professionals, are responsible for the development of each plan..."

Pamphlet titled "Adolescents Substance Abuse Program"

• "Purpose: The Adolescent Substance Abuse Program (A.S.A.P.) of the Roberts/Smarts Centre provides treatment in both official languages for those adolescents who suffer from substance abuse and mental health problems, primarily conduct disorder."

• "Type of Clients: This program is intended to respond to adolescents who have been diagnosed with mental health and substance abuses concerns."

• "Treatment: Treatment of the dually diagnosed adolescent is an attempt to engage the adolescent in a psychosocial therapeutic process involving mastery of pro-social skills and self-regulation which make possible a productive and satisfying life..."

Pamphlet titled "Treatment":

• "The Roberts/Smart Centre is a children's mental health centre. It is committed to providing professional treatment services for conduct-disordered adolescents."

13. The Respondent provides an orientation and training course to its new employees for which it provides a manual. The Respondent considers this manual as describing work­place standards and requires employees to sign off on each section it covers during their orientation.

"Introduction To The Roberts/Smarts Centre:

The Roberts/Smarts Centre is an accredited, licensed Children's Mental Health Centre and is funded by the Ministry of Community and Social Services to provide long term residential treatment to moderately to severely conduct disordered adolescents between 12 and 18."

"The Mission: The Roberts/Smarts Centre is dedicated to fostering in both official cultures, the well-being of selected adolescents and their families with exceptional psychosocial needs, through services in treatment, intervention, young offender and community support"

"What is Treatment at The Roberts/Smarts Centre? The attempt to engage an adolescent in a Psychosocial Therapeutic Process Involving the mastery of such positive social skills and self regulation as to make possible a productive and satisfying life."

14. There are two full-time and one part-time youth councillor classifications, and one night worker classification within the bargaining unit. There are no other classifications. The following is extracted from the Youth Councillor and Night Worker descriptions which the Union will be relying on to show that the adolescent in the treatment centres require twenty-four (24) hour care and treatment and is provided with such by all bargaining unit classifications.

Job Descriptions

(a) "Position Title: Youth Councillor I, Residential Program

Purpose of Position: To provide care and treatment to youths in residential treatment program..."

(b) "Position Title: Youth Councillor II, Residential Program

Purpose of Position To provide care and treatment to youths in a residential treatment program, and to assume additional responsibil­ities for the program under the direction of the Residence Coordinator..."

(c) "Position Title: Night Worker, Residential Program

Purpose of Position: To provide care and monitoring to youths in a residential treatment program.."

15. The Respondent's orientation manual states:

"Use of On-call System - Rationale: The residential nature of the Centre requires that there be a system in place to respond to crisis, special events and staff concerns on a 24 hour a day basis."

"Administration of Medications - Rationale: The administration of all medications to the adolescents in care at the Centre must be done under close supervision and only when prescribed by a physician. The adolescents safety must be ensured at all times."

Table describing resident make-up, "Percentage of dangerous clients in the Centre - 1991 - 80%; 1992- 87%; 1993- 82%; 1994- 73%,

16. Respondents pamphlet titled "Secure Treatment":

"The Secure Treatment Program of the Roberts/Smarts Centre provides treatment for adolescents who have demonstrated that they are a danger to themselves or others and that they require services in a highly secure facility."

10. In its submission the union argues that the employer is a hospital within the meaning of section 1(1)(a) of HLDAA. The submission refers to a number of authorities including Canadian Union of Public Employees, Local 2592 vs. Dignicare Incorporated an unreported decision of the Divisional Court dated February 12, 1991. In the decision, the Court held in part:

"The Ministry of Labour erred in law when they determined that an institution must be providing "medical care or treatment of a medical nature to its residents" (July 21st decision), or "care observation or treatment of a medical nature" to its residents (December 8th decision), in order for the institution to be a "hospital" as defined by the Act.

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, sanatorium, or nursing home."

11. The Board agrees with the submission of the union and finds on the material filed that the employer is an institution that offers observation, care and/or treatment for residents who suffer from physical or mental illness, disease or injuries on both a medical and personal level.

12. Therefore the advice to the Ministry of Labour is that the employer is a Hospital within the meaning of the Hospital Labour Disputes Arbitration Act.

CONCURRING OPINION OF BOARD MEMBER J. A. RUNDLE; February 4, 1998

I have never understood why trade unions that purport to believe in the right to strike, seek designation under the Hospital Labour Disputes Arbitration Act which deprives employees of the right to strike.