Ontario Labour Relations Board
[1999] OLRB REP. JULY/AUGUST 655
0612-99-M; 4440-98-G United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46, Applicant v. Modern Mechanical Contracting Ltd., Modern Mechanical Inc., and Alex Silberstein & Associates c.o.b. as Niagara Mechanical Contractors, Responding Parties
BEFORE: Gail Misra, Vice-Chair, and Board Members G. Pickell and A. Haward.
APPEARANCES: Lawrence C. Arnold and Dan McBride for the applicant; Richard J. Charney, John D. Lewis, John R. McAninch and Robert Silberstein for the responding parties.
DECISION OF THE BOARD; August 13, 1999
The style of cause is amended to reflect the correct name of one of the responding parties: "Alex Silberstein & Associates c.o.b. as Niagara Mechanical Contractors".
Board File No. 4440-98-G is a referral of a construction industry grievance to arbitration under section 133 of the Labour Relations Act, 1995. Board File No. 061 2-99-M is an application for a sector determination. The parties agreed that the first issue the Board should determine is whether the work in dispute in the grievance falls within the industrial, commercial, and institutional ("ICI") sector of the construction industry, or whether it is residential construction. It was further agreed that if the Board finds the work to be residential, then it would fall under the high-rise residential collective agreement. Prior to the commencement of the hearing into this issue timely notice of the sector determination application was provided to all parties who may have an interest in participating in the hearing. However, except for the named parties, no one else appeared on the day of the hearing.
In order to comprehend the nature of the dispute it is necessary to sketch the general background to the construction project. The project in question is the Kingsway Retirement Residence ("Kingsway") which is presently under construction in Toronto at Dundas Street West and the Kingsway. The residence is being built for Central Park Lodges, and is slated to open at the end of September or in early October 1999. It is designed as a "retirement residence" for residents wanting independent living with many services provided as part of the rental fee charged.
Central Park Lodges ("CPL") retained L.D. Watson Architect Inc. as the architect for this project. Lesley Watson, the architect, is based in Ottawa and has extensive experience in designing retirement residences and nursing homes. Once the drawings were substantially prepared, the project was put out to tender, and the general contractor chosen was Zeidler-Walker, also an Ottawa-based company. Zeidler-Walker ("ZW") claims that it retained a non-union Ottawa mechanical contractor, L. Forrest Mechanical, for the project's mechanical work. However, it apparently also hired Modern Mechanical Contracting Ltd./Modern Mechanical Inc. ("Modern") to assist in lowering the overall mechanical costs of the project. Modem is bound to the province-wide ICI collective agreement with the applicant but is not bound to any residential agreement in the Toronto area (Board Area 8). Modern then apparently contracted with Alex Silberstein & Associates c.o.b. as Niagara Mechanical Contractors ("Niagara") to provide some limited supporting role with respect to the mechanical aspects of the Kingsway project. Niagara is a mechanical contractor based in Toronto which is bound to both the provincial ICI collective agreement, and to the high-rise residential collective agreement in Board Area 8, with the applicant.
The grievance filed by the applicant (the "union") against both Modern and Niagara alleges that these two companies have assigned, caused to be assigned, or transferred work on the Kingsway project to a non-union contractor, L. Forrest Mechanical, contrary to the provisions of "the collective agreement". It is unclear to the Board at this stage in the proceeding which collective agreement is being referred to.
The responding parties take the position that the Kingsway is a residential construction project, while the applicant claims it is an ICI project because it is institutional in nature. The Board held three days of hearing on this issue, heard from five witnesses, and received 10 exhibits. In reaching its decision the Board has considered all of the evidence before it, and the submissions made by the parties. The facts as we have found them follow.
Ms. Watson, the architect for this project, has worked for CPL on the new construction or renovation of other retirement residences. The Kingsway location was chosen because the residential area surrounding the site is under serviced for retirement facilities. CPL's experience is that most of the potential residents of a retirement residence will either come from the surrounding catchment area, or will move in because they have family members in the vicinity. Ms. Watson testified that in her mind the Kingsway is a "residence". She holds this view because it is a retirement residence and is governed by the Tenant Protection Act, which provides protection for tenants in rental accommodation. CPL is marketing the building as an "upscale lifestyle residential building with full services in the Kingsway area".
The building will house residents who will likely move in at the age of 80 or 82 years, will usually be ambulatory, and who will likely be able to live independently. People who choose this type of residence will likely be moving in from their own homes, and will be seeking an independent living environment which nonetheless allows them contact with others and has some services provided, like meals and emergency assistance if necessary. The accommodation available will include 130 studios or one bedroom suites ranging in size from 300 to 650 sq. ft. inclusive of the bathroom. There are 33 one bedroom units, 36 convertible units (two suites which can be joined into one unit), and the remainder are studios. All of the units are designed for singles or for couples. There are no "semi-private" suites or wards. The architect testified that the retirement residence is not designed as an apartment building, but as a form of independent but assisted living arrangement.
CPL and the architects consulted with the community around the building site before going to the Committee of Adjustments to get a minor variance on the use of the land. At that time the community indicated it wanted the building to have a "residential" feel to it, so that soft landscaping was introduced, along with the use of darker brick, stucco and stone for the building. The windows are wood framed on the inside and aluminum clad on the outside, as in residential housing or high-end condominiums. The roof lines are sloping (rather than flat) wherever possible to fit in with the sight lines of the surrounding community.
Pursuant to the Ontario Building Code, these retirement residences are classified in the "Group B, Division 3" occupancy rating, are considered as "care" occupancies, and are in the category of "residential care facilities". The definition of a "care occupancy" is "an occupancy in which persons receive special or supervisory care because of cognitive or physical limitations, but does not include a dwelling unit" (emphasis added). A dwelling unit is defined as "a suite operated as a housekeeping unit, used or intended to be used as a domicile by 1 or more persons and usually containing cooking, eating, living, sleeping and sanitary facilities". Care occupancy is a different category than "residential occupancy". The other types of facilities listed as possible Group B, Division 3 occupancies are children's custodial homes, convalescent homes, group homes for developmentally handicapped residents, and sanatoria without detention quarters. As a "care occupancy" building, the Kingsway is required to have sprinklers in each apartment and the building must be built with non-combustible construction materials. The Building Code requires that apartment buildings more than three stories high must be built using non-combustible materials, but sprinklers are optional. There is no such option for care facilities. In installing the sprinkler system plastic piping was used. The evidence before the Board on this choice of material is mixed: The architect suggested that this is more common in apartment buildings, but the union's business agent said it is also used in hotels.
An apartment building would require 1.8 parking spaces for each unit. The King sway was approved for a ratio of .25 parking space per unit because it is a retirement complex where it is expected that there will be very few residents who will keep their cars once they move in. According to the architect, there will be 27 parking spaces for the whole building. It is unclear to the Board how this number was arrived at since there are 130 units in the building (130 x .25 = 32.5 parking spaces) and the Board was advised that, in addition to the per unit allocation, there is a requirement that there be some spaces for proprietors of the building.
The ground floor of the six storey building is comprised of a large and luxurious reception area and two sitting areas. There is a library, ice-cream parlour, chapel, private dining room which can be booked for use by a resident, an arts and crafts room, a main dining room and commercial style kitchen. There is a nursing room on the main floor of the building which may be used by a visiting physician. A beauty salon open to the public will operate at the street level. There are also two one bedroom suites located on the ground floor, along with three offices, washrooms, a recycling area, and a loading dock. There are two elevators to the upper floors. There is no dispute that a regular apartment building would not have a commercial kitchen and a dining room utilized by all residents.
The second floor of the residence is a secure floor. It has been built so that persons can only get on or off the floor if they have the correct security code, which must be entered to use either the elevators and stairwells. The secure floor is designed for persons who may be more frail, or suffering from the early onset of Alzheimer's disease or from dementia. There will be a small medications and nursing office on the floor, which will have staff present at all times, and which is accessible from any point on the second floor. Registered Practical Nurses will work at the nursing station 24 hours a day, seven days a week. This area has a view of the elevators so that anyone arriving on or leaving the floor can be observed. There are 33 suites on this floor, but unlike all of the suites on other floors, only two of them will have kitchenettes. An assisted bathing room has been designed for the floor. The second floor will also have its own lounge and dining room for second floor residents. Unlike the rest of the building, there is a laundry room on the floor for use by the staff.
The third, fourth, and fifth floors have a combination of studio and one bedroom suites which run off central corridors. Some suites can have a door punched through the wall between them to make them into one larger unit if the residents so desire. Each suite has a bedroom, a sitting area which may be attached to the bedroom or is a separate area (as in the one bedroom units), a bathroom, and a kitchenette. The kitchenette is a six foot counter which could accommodate a micro-wave oven or a toaster oven, is equipped with cabinets above the counter, a bar sink, electrical outlets, and a space for a bar fridge under the counter. There are no stoves.
All the floors have carpeted hallways, and all doors are colonial-style doors. All hallways in the building are wider than is required in a normal apartment building as they must be wide enough to accommodate wheelchairs. All doorways are similarly wider than the conventional doorway. Each unit has its own lock on the suite door, and tenants will also have a key to the main entrance of the Kingsway. The suites are wired for cable and telephone, although these are amenities which the individual resident purchases on his or her own. New residents can choose their own paint colours. The suites are unfurnished, except for five model suites which may be rented as they are with all their furnishings. There is a nurse call button or pull in each room, including the bathroom; to identify the unit which may have used the nurse call button, there is a light outside each suite door which lights up if such a call has been made. If a resident utilizes the nurse call button, a light goes on at the reception desk during the day, and in the nurses' office on the second floor at night. A staff person then immediately goes to the unit in question.
The bathrooms have residential-style fixtures, with grab bars in the shower area and near the toilet to assist elderly persons. The bathrooms are exhausted to the outside individually, and unlike in hospitals and nursing homes, there is no central exhaust system. Light wall copper tubing, commonly used in residential construction, was used for the plumbing to achieve cost- savings. The toilets do not have high pressure flush valves as are commonly found in institutions. There is no hot water recirculating system as is usually found in institutions. As noted earlier, there is an assisted bathing facility on the second secure floor. There are also going to be some second floor units which will only have shower stalls, and not tubs. A number of the second floor toilets do not have lids on them, as is commonly found in hospitals. There are also riser seats, which are raised toilets used for washrooms for handicapped persons.
Each apartment unit at the Kingsway has an individual heating and cooling system, like a condominium. This is unlike office buildings, hospitals or nursing homes which usually have a central heating and cooling plant. The individual heating and cooling systems in the Kingsway were chosen as a cost saving mechanism during the building.
The sixth floor is a partial floor only, with the remainder being the roof of the building. It is the "Lookout Lounge" comprised of lounge space, a gas fire place, a bar, washrooms, a television area and an activity area.
The basement of the residence is serviced by one of the elevators. It has 27 underground parking spaces, a large area which will be used for residents' storage lockers, a change room and lockers for the staff, a laundry room with commercial and domestic size washers and dryers, storage for the residence, an electrical room and a generator room.
Residents, as part of their rent, receive the following services: three meals a day in the dining room, snacks are available in the ice cream parlour or at the Lookout Lounge, activities in the arts and crafts room, the nurse call button service, medication service, laundry service for all resident laundry (sheets, towels, personal items), daily housekeeping services, 24 hour security, and daily social and recreational programs. One washer and dryer will be located on the fourth floor for resident use should a resident wish to do some of his or her own laundry. All other laundry will be picked up and done by the housekeeping staff in the basement laundry facilities. The second floor staff also have access to a laundry facility on that floor.
If a resident's health declines, or the person needs more assistance, the Kingsway will keep the resident's family and physician apprised of the situation so that other arrangements can be made. It can also make arrangements to provide nursing care, home care assistance, etc. on a fee for service basis. In the alternative, the individual can make his or her own arrangements for such care. No residents will be evicted from the residence if incapable of looking after themselves; thus as long as a person can afford extra care services, she or he will be able to live at the Kingsway. If a resident cannot afford extra care services, if necessary, CPL will look after the person until a more suitable form of accommodation can be found.
All residents will sign leases, although a lease can be terminated on one month's notice. Rent will be paid monthly. If any suites are available, the Kingsway will offer short-term accommodation for respite care or trial stays. Pets are permitted so long as CPL approves of the pet as one which will not disturb other residents. Residents will have individual mailboxes as in an apartment building, on the ground floor.
The Kingsway intends to hire about 40 staff to run the retirement residence. There will be a Manager for the facility. A Lifestyle Co-ordinator will organize all of the daily arts, crafts and activities which will be offered for residents. The kitchen staff will include cooks and helpers. Wait staff will be hired for the dining room. The laundry will likely have one person working daily. The nursing staff will consist of a Registered Nurse, who will also be the Assistant Manager of the facility, and who will oversee three Registered Practical Nurses. Health care aides will be hired if necessary depending on the needs of the residents. The Kingsway will identify a local physician in the area who would be willing to make house-calls, and will reach an arrangement for that individual to be the "House Physician" who may get called if a resident needs a doctor and does not have one of his or her own. Housekeepers will be hired to do the daily cleaning of the suites and the common areas. The reception area will be staffed for between 14 and 16 hours a day. Grounds keeping will be contracted out.
It was conceded in the evidence that some of the features of the Kingsway are common to nursing homes and hospitals, but it was also clear that there were a number of dissimilarities. Call buttons, common dining rooms, a commercial kitchen, a central laundry, a nursing office, other administration offices, a chapel, a secure floor or area, a medications room, and an assisted bathing area are all features common to the above-noted facilities. Unlike nursing homes and hospitals, the Kingsway does not have a central heating or cooling system, a central exhaust system, any built-in facilities for medical gas, and it is not being built with concerns about biological containment in mind. The Kingsway is also different from apartment buildings in that it has no garbage chute for each floor to use (because housekeeping staff are expected to take garbage, and because there are no real cooking facilities in the units) although it has a linen chute, the suites do not have kitchens, and the building has many other features like the commercial kitchen, dining rooms, chapel, medications and nurses' room, call buttons, etc. which are not found in apartment buildings. Hotels and apartment buildings, like this retirement residence, can have individual heating and cooling systems. It is interesting to note that if the tenants of the Kingsway have someone stay with them, the Kingsway will, like a hotel, charge for any extra person who stays in a unit. When Mr. Sean Hourigan, the Director of Marketing for CPL, was asked about the difference between a Home for the Aged and the retirement residence, the only major difference he indicated was that the Homes for the Aged are municipally funded while facilities like the Kingsway are user pay facilities and are generally far more luxurious.
The Kingsway has no intention of providing residents with a "nursing home" at this facility. It has not applied for nor been approved for any subsidized nursing home beds, even for the second floor of the building. To the extent that a resident may need more home care than can be provided on the second floor, the resident will have to engage that help privately either through the CPL services, or through a local Community Care Access Centre. The Kingsway is not covered by any health-related statutes.
The Tenant Protection Act, 1997 applies to the tenants of a "care home" which is defined as "a residential complex that is occupied or intended to be occupied by persons for the purpose of receiving care services, whether or not receiving the services is the primary purpose of the occupancy" (section 1(1)). "Care services" include health care services and services that provide assistance with the activities of daily living.
DECISION
For the purposes of this application, the relevant sections of the Labour Relations Act, 1995 are the definition of "sector" in section 126 and section 166, and they state:
In this section and in sections 127 to 168,
"sector" means a division of the construction industry as determined by work characteristics and includes the industrial, commercial and institutional sector, the residential sector, the sewers and watermains sector, the roads sector, the heavy engineering sector, the pipeline sector and the electrical power systems sector;
The Board shall, upon the application of a trade union, council of trade unions, or an employer or employer's organization, determine any question that arises as to what sector of the construction industry work performed or to be performed by employees is in.
I making a sector determination the Board has adopted a number of principles to guide it in reaching its decision. In The Heavy Construction Association of Toronto [1973] OLRB Rep. May 245, the Board determined that the use that will ultimately be made of the construction will to a large extent determine the sector into which it falls. Thus, where an end-use analysis is determinative of the sector, the Board would not have to inquire any further. Where the end-use is not determinative, the Board must inquire into the work characteristics which may distinguish one sector from the others. The types of work characteristics which the Board may consider include the type of problems to be dealt with at the job site, the types of solutions resorted to, the materials used, the relative importance of various specifications, the variety of skills and trades, and certain characteristic relations with employees (see para. 14 of that decision). In cases in which the work in question may fall within the "grey area" between two sectors, the Board decides such cases on their specific facts.
In Steen Contractors Limited, [1989] OLRB Rep. Nov. 1173, the Board further developed the analysis it undertakes in sector determinations to include a consideration of established industry practice in those cases which may fall within the "grey area" between two sectors. Thus a widely accepted local practice or agreement may assist the Board in deciding how a construction project should be characterized. The Board in Steen went on to note that in the sector determination analysis, the Board does not give primacy to the ICI sector, which is but one of the enumerated sectors in the legislation.
The Board has had occasion to consider the Toronto area practice in its decision in Sword Contracting Limited, [1985] OLRB Rep. 743. In that case the question before the Board was whether the construction of the Harold and Grace Baker Centre, a combination of a nursing home and a retirement home, was construction in the ICI sector or in the residential sector. The Board accepted that in the Toronto area the construction of senior citizen apartments (comprised primarily of self-contained apartment units) came within the residential sector of the construction industry. Following an analysis of the facts in that case the Board found that the construction project in question was in the ICI sector. It based its decision that the Centre was an "institution" on the facts that the accommodation was not in self-contained units; residents had to conduct a major part of their activities of daily living, including eating and bathing, in shared areas which were not under their direct control; residents would have to conform to certain rules and norms regarding such matters as meal times; and the staff working in both the retirement and nursing homes did not come under the control of the residents, but rather under the control of the management of the centre.
In Four Seasons Drywall, [1990] OLRB Rep. May 525, after considering the end-use of the construction project, the Board found that construction of a "home for the aged" was construction in the ICI sector and not in the residential sector of the construction industry. That facility was operated pursuant to the Homes for the Aged and Rest Homes Act which defined the amount of care provided in such an institution.
The case which most closely approximates that presently before the Board is Future Care Limited, [1990] OLRB Rep. Aug. 844. In that case the Board considered whether a retirement home, the Great Northern Retirement Home ("Great Northern"), under construction in Sault Ste. Marie was within the ICI or residential sectors of the construction industry. The Board appears to have considered the end use of the facility being built and to have discounted the limited local area practice. The Great Northern was built under the residential portion of the Building Code, was privately funded, and was not subject to any legislation regarding nursing homes, homes for the aged or homes for special care. Unlike the Kingsway, it offered no ongoing medical care and had no medical personnel on staff. Like the Kingsway, it was privately funded and had no association with any other institution or hospital.
The building was a three storey, 120 suite facility with both private and semi-private suites available. The suites included about 60 private bedsitting rooms, some one bedroom units, and the remainder were semi-private suites for two persons. Fourteen units had kitchens. All had attached bathrooms. Residents could decorate their own suites and were encouraged to bring their own furnishings. All suites had their own thermostats, provision for an air-conditioning unit, and three emergency pull cords per unit. Laundry services and some washers and dryers were available. The basic rate for a unit included linen and housekeeping services, three meals a day and an open snack bar. The common facilities included a main dining room, private dining room, two activity rooms, two exercise rooms, a chapel, library, designated smoking rooms, a small shop, and a beauty salon open to the public. There were parking facilities for residents. Furnished guest suites were available for short-term stays.
Unlike the Kingsway, if a resident required medical or nursing care, he or she had to leave. The Great Northern provided no personal care assistance, no dispensing of medication, and had no medications room. A nurses' room and an examination room had been removed from the original plans.
All wiring was done under the residential building provisions of the Code and there was no requirement for a sprinkler system. Residents had locks for their doors. There was a receptionist present from 8 a.m. to 8 p.m. every day. Pets were allowed provided they did not cause any problems.
In Future Care Limited the Board found that the Great Northern was in the ICI sector, and was not residential. The Board reached this conclusion based on its view that the residents would not have the degree of direct control of their "homes" that they would enjoy in their single family homes. The services provided by the Great Northern were found to be more akin to a hotel than to an apartment building or condominium. Many units were shared units and were therefore not private, and, the administrator had the final say on the choice of a room-mate. Finally, the residents had no control over the common areas of the facility. There is no semi-private accommodation at the Kingsway and in that respect it is very different from all of the cases which the Board has decided to date. However, the Kingsway has everything else found at the Great Northern, and more in the way of services for residents.
For the reasons which follow the Board finds that the Kingsway is institutional in nature and is therefore within the ICI sector of the construction industry.
The Board begins its assessment of the facts of this case by looking at the end use of this project. Undoubtedly the Kingsway is a more luxurious facility than most, but that does not change its fundamental purpose. It is still a retirement residence, largely designed for old people 80 years or older, who either cannot or do not wish to keep up private homes, make all of their own meals, or do their own house cleaning and laundry; who may not remember to take their medications; who need to live in an environment where there is 24 hour access to help if it is needed; and who can purchase higher levels of medical care up to a point, when it is necessary. The Board notes as an aside that it has found no difference between a retirement "home" and a retirement "residence". There is no legal definition of either which would assist the Board in this case. The Gage Canadian Dictionary definition of a "residence" is "a place where a person lives; house; home; ...". "Home" is defined as "the place where a person or family lives; one's own house; ...". It appears to the Board that the use of the "residence" terminology is simply a marketing tool to make the facility sound more "up market" and less institutional.
In considering the end use of the Kingsway the Board has no trouble finding that this facility is neither an apartment building nor a nursing home. It does however fall somewhere on the spectrum between these two types of facilities. While the suites at the Kingsway are indeed ostensibly private, they are very small and have no cooking facilities. Both of these features of the suites mitigates in favour of residents spending most of their time in the common facilities of the dining room, where all meals are provided, and in the lounges and arts and crafts rooms where daily activities are arranged. These features of the Kingsway seem at best akin to an "all inclusive" resort or hotel, and certainly not like most condominiums or apartment buildings.
The provision of medical assistance of various types is what causes the Board to consider the Kingsway institutional in nature. Each suite has a nurse call system in every room. There is a medication service provided for all residents. Nursing staff are on duty 24 hours a day, seven days a week. The second floor of the facility is a secure floor for higher needs residents. That floor, in addition to the other medical services generally available, has controlled access, 24 hour monitoring, a medication and nurses room, its own lounge and dining room so that residents would not be leaving the floor much, many units without even the minimal kitchenettes, units with shower stalls rather than tubs, and an assisted bathing area. There is a laundry facility for staff use on that floor, unlike the other residential floors, which leads one to assume that there is an expectation that there will be more need for staff to launder soiled linens and clothing on this floor than on other floors.
Both the basic level of assistance with living and the possibility of the purchase of additional assistance for living at the Kingsway is quite high and goes well beyond what would be provided even in an apartment building for seniors. While such a building may have hand grips in the bathrooms, wheelchair accessible units, and some activities offered in the lobby or a games room, the Kingsway is providing far more to assist an elderly person in living outside of a nursing home. It appears to the Board that a residence like the Kingsway is designed as the last somewhat "independent living" arrangement before an elderly or infirm individual goes into a nursing home or hospital. While the locks on the doors of suites and the ability to come and go as one likes are features of the independence of the living arrangement, the provision of three set meals a day, cleaning services, laundry and linen services, and lack of kitchen and garbage facilities, suggests that people living at the Kingsway are not so free to do what they want, when and how they want to. Living at the Kingsway therefore appears far closer to the nursing home end of the spectrum than it is to living in a house, townhouse, or apartment.
The Board is bolstered in this view by a review of the requirements of the Ontario Building Code for the Kingsway. It is considered a "care occupancy" facility, not a residential occupancy. Other facilities in that category are sanatoria, group homes for developmentally handicapped persons, children's custodial homes, and convalescent homes. This category of building must have a sprinkler system throughout, and must be built with non-combustible construction materials. It is obvious that all of the "care occupancy" facilities are seen as housing vulnerable populations in need of extra protection.
Since the Board is satisfied that the end-use of the construction at the Kingsway suggests institutional use, and is therefore construction in the ICI Sector, there is no reason to consider the work characteristics of the construction. However, since the responding party drew the Board's attention to the use of materials in building the Kingsway which are more like those used in residential construction, we will address this subject. The Board finds immaterial to this application that CPL consulted with the surrounding residents in the Kingsway area and found that they wanted the building to blend in with their neighbourhood and to look like a "residence". It is hardly surprising that in an "upscale" neighbourhood as the Kingsway was described, that the residents would want a new building to look as good as possible and that they would make efforts to ensure that the new neighbour did not look institutional or such that it may bring down the surrounding property values. It was simply good public relations for CPL to take into account what the local residents wanted as that was the catchment area for its potential residents.
In keeping with its marketing pitch that this is a "high-end" retirement residence, it is also not surprising that the Kingsway will be well-appointed on the inside and will have such features as wood frame windows and colonial style doors. These features do not make it a residential construction project but a well-finished facility. The use of plastic piping for the sprinkler system was a cost-saving device, as were the decisions to install individual heating and cooling systems for each suite and to vent bathroom exhaust fans to the outside of each suite. While these may be aspects of residential construction, on their own they are simply insufficient to ground a finding that this is a residential construction project.
The Board is not persuaded by the argument that because the people who will live in the Kingsway will consider it their home that the building's construction is therefore residential. People who live in chronic care facilities, homes for the aged, and nursing homes also consider those facilities to be their homes, but that does not cause the Board to find that the actual construction is not in the ICI sector. It is the use of building which is of interest to the Board, not the subjective feeling of the future occupants of that building. It is laudable that CPL has undertaken to build a beautiful, home-like facility for elderly people who are in the market for a high-quality assisted living arrangement which they can afford and which will keep them from having to move into a less attractive nursing home or home for the aged. However, on the facts before the Board we find that the Kingsway is nonetheless a project in the ICI sector of the construction industry.
Should the parties find themselves unable to resolve the remainder of the outstanding issues in the grievance referral, they are to advise the Board within two weeks of the date of this decision whether they wish to have further hearing dates set. This panel of the Board is seized of these matters.