Service Employees International Union, Local 204 v. Sisters of St. Joseph for the Diocese of Toronto in Upper Canada at Morrow Park, 1999 CanLII 20195

[1999] OLRB REP. NOVEMBER/DECEMBER 1101

4569-97-M, Service Employees International Union, Local 204 ("Union"), Applicant v. Sisters of St. Joseph for the Diocese of Toronto in Upper Canada at Morrow Park ("Employer"), Responding Party v. individual Sisters, Intervenors

Hospital Labour disputes Arbitration - Act – Reference - Board adopting Maison Mere case and advising Minister that Motherhouse of order of nuns not a 'hospital' within meaning of Hospital Labour Disputes Arbitration Act

BEFORE: Sharon Laing Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.

APPEARANCES: Mary Cornish, Karen Walsh, Maretta Miranda, Tony Sergeant, Yvonne Miller for the applicant; Brian 0 'Byrne, Sister Mary Beth Montcalm, Christina Kilgour, Gerry Wood for the responding party; John Rosolak for the intervenor.

DECISION OF SHARON C. LAING, VICE-CHAIR AND BOARD MEMBER J. A. RONSON; December 21, 1999

1. This is the second time in the last five years that the Board has been asked for its opinion as to whether the Motherhouse of an order of nuns is a hospital within the meaning of The Hospital Labour Disputes Arbitration Act ("HLDAA").

2. The first case involved the Motherhouse of The Sisters of Charity of Ottawa and the Board found that the HLDAA did not apply to that facility. The decision of the Board was reported as Maison Mere des Soeurs de la Charite D'Ottawa [1995] OLRB Rep. July 978 ("Maison Mere").

3. Having considered the evidence before us, and the written and oral submissions of the parties, and having taken a view of the Motherhouse facility located on Bayview Avenue in Toronto, our advise to the Minister is that the HLDAA does not apply to the Motherhouse as it is not a hospital or home for the aged as defined in that statute, for the very same reasons as set out in the Maison Mere decision.

4. The evidence that we heard disclosed that the Sisters of St. Joseph for the Diocese of Toronto in Upper Canada ("the Sisters") is an order of Roman Catholic nuns; established in 1851 in Toronto. The Order consists of approximately 230 members and its Motherhouse is located at Morrow Park on Bayview Avenue south of Steeles Avenue in the City of Toronto. It is a large facility and has served as the Motherhouse of the Order for about 40 years.

5. The Sisters live communally under religious vows of poverty, chastity and obedience. All property and salaries earned by a member of the Order is held in common with all the other members. This commonality or living in community is a fundamental part of the religious life of the Sisters, and the refusal to abide by the requirement is grounds for dismissal from the Order.

6. The Motherhouse at Morrow Park serves as the family home for approximately 130 members of the Order. At their home the Order provides for them throughout their lives. The sick and the elderly are maintained as an integral part of the life of the community. Article 57 of the Constitutions of the Sisters (headed "Community Life") reads as follows:

"Our sick and elderly sisters have a special claim on our loving attention. We look to the example of their lives and we rely on their prayers. We are solicitous for their spiritual, physical and social needs, and we ensue opportunities for them to participate in the celebration of the sacrament of the anointing"

7. There is an infirmary of about 57 beds on the second floor of the Motherhouse where the sick and infirm sisters receive rehabilitation, convalescence, palliative care and chronic care. It occupies about 31,000 square feet of the total 241,000 square feet found in the Motherhouse. As in Maison Mere, "the range of autonomy is from bedridden to those who move about only with help. Administration of a wide variety of medication is supervised by the nursing staff. Some seriously ill patients have been transferred to hospital."

8. A portion of the infirmary's beds are granted government funding out of moneys appropriated by the legislature. In total, if $2.2 million per annum is needed to operate the infirmary, the government provides approximately $1.2 million and the Sisters provide approximately $1.0 million. The daily cost to the government of a bed at the infirmary is approximately one quarter of its cost for a similar bed in a public care facility.

9. The remaining sisters live on the third and fourth floors of the Motherhouse and enjoy all the amenities of a home. A number of them engage in a surprisingly wide variety of activities both within and outside the Motherhouse. The most notable example is a sister, in her nineties, who works a half day Monday to Friday in the business office of the Order.

10. The "head-office" functions located at the Motherhouse make it the nerve centre of the Order. These activities are unrelated to the services provided by the infirmary. The Order's central administration plus clerical staff is housed at the Motherhouse, as is the business office and other offices of the Order. The Sisters currently sponsor St. Michael's Hospital, St. Joseph's Health Centre and Providence Centre in Toronto.

11. As the centre of the communal life, all key activities of the Order take place at the Motherhouse. Funerals, anniversary celebrations and regular meetings pertaining to the community are held there. The six federated orders of St. Joseph in English Canada (the Federation of Sisters of St. Joseph of Canada) often use the Motherhouse as their meeting site because of its central location.

12. A variety of ministries of the Sisters are conducted out of or within the Motherhouse at Morrow Park. The most significant is a facility forming part of the Motherhouse known as St. Joseph's Centre. Within this Centre are 30 bedrooms, a large auditorium, a dining area and numerous offices and conference facilities. Retreat programs and spiritual renewal workshops take place at the Centre under the auspices of full-time staff, the majority of whom are sisters residing at the Motherhouse. The Motherhouse contains a large chapel with 500 seats. Visitors are welcome at the religious services of the Order. A large central kitchen services a dining room where most of the sisters take their meals, where guests are welcomed, and where larger groups attending St. Joseph's Centre take their meals.

13. As set out in Maison Mere:

14. The Board's task is to look for the intention of the Legislature in passing the HLDAA as amended, to determine if the facts before us fall within the scope of what the Act was trying to achieve. It is clear that the central focus of the Act is the prevention of disruption of care to people dependent on certain institutions. What is not clear from the statutory definition is the extent of the legislature's reach - exactly how far the legislature meant to go in drafting the somewhat open-ended definition of "hospital in the Act. Thus the debate before the Board in this case. What is not controversial is that the physical care given the sisters in the infirmary at the Maison Mere is not different in any significant way from the care given in many facilities which have properly been found to be subject to the I{LDAA ... It is the nature of the Masson Mere as an institution which is at the centre of the dispute between the parties, rather than any difference over the type of care given. Although it has an undeniably institutional aspect, and the type of care given in the infirmaries is within the scope of the definition, it is not obvious that the Masson Mere is the type of institution which the legislature intended to regulate.

15. The case before us closely mirrors the situation outlined in the Maison Mere case and it is also not obvious to us that the Motherhouse at Morrow Park is the type of institution which the legislature intended to regulate. The stated purpose of the Motherhouse is to provide for it members. The purpose is not to provide a home for the aged. And the evidence does not establish that the Motherhouse is operated for the purpose of providing a home for the aged. It is operated to house its members and be the home base for their work. Given the number of activities that take place at the Motherhouse we are also persuaded that the use of the Motherhouse by some sisters as a retirement home is insufficient to render it a home for the aged.

16. We approach the application of the HLDAAA and its scheme of compulsory arbitration with caution. The legislature has made it plain that collective bargaining with the right to strike or lockout is the norm in Ontario. There is no doubt that there is an institutional aspect to activities carried on at the Motherhouse. The infirmary does receive funding. But, as stated in Maison Mere, it is irrelevant to our determination whether it is public funds or private ones that pay for the care of the Sisters. And the fact that members of the Order consider the Motherhouse their family home is a very important one relevant to its purpose and the question of how it should be characterized under the HLDAA.

17. We agree with the reasoning and findings found in paragraph 34 of Maison Mere. Although the Motherhouse provides care in its infirmary which gives some credence to the union's request to the Minister, we are not of the view that the Motherhouse is the type of institution the legislature intended to regulate. We are persuaded by the evidence and argument that the Motherhouse is not operated for the provision of that care and is not a home for the aged. The relationship between the Motherhouse and the patients in the infirmary does not exist because of the infirmary services. In all the decided cases, where an institution was found to be a hospital, the reason for the relationship between the client and the institution was the provision of the services of care, treatment, observation, or a home for the aged. In this case, the relationship between the residents and the institution has to do with the mutual commitments made long before the infirmities of age, which are focused in the work of the Order as a whole, not ton the services of the infirmary.

18. For all the above reasons, we are of the view that the Motherhouse is not covered by the provisions of the HLDAA.

DECISION OF BOARD MEMBER, R. MONTAGUE; December 21, 1999

1. I dissent: At the outset I disagree with the decision reported as Maison Mere des Soeurs de la Charite D 'Ottawa [1995] OLRB Rep. July 978 (Maison Mere) and the majority places a lot of weight of that decision to justify their reasons for the conclusions that they have reached in this case.

2. At the beginning of this case the panel of the Board was given a view of the Motherhouse and taking into consideration all the evidence; the viva voce evidence all exhibits and documents and the authorities Hospital Labour Disputes Arbitration Act, Private Hospitals Act and Regulation, Pay EquityAct, Part I (ss. 1-9), ss. 10-13, Schedule, Social ContractAct; Health Insurance Act, s. 1, 11.2 & Regulation ss. 6, 9, 34, 35 & Schedule, Dictionary Definitions, Dignicare Inc., unreported, February 12, 1991, Ont. Ct. of Justice (Callaghan), Maison Mere de la Charite D'Ottawa,[1995] OLRB Rep. July 978 (O'Neil), George Jeffrey Children's Treatment Centre, [1994] OLRB Rep. December 1656 (Chapman); The Canadian Red Cross Society, [1995] OLRB Rep. May 612 (Goodfellow), Branch 133 Legion Village Inc., [1994] OLRB Rep. August 970 (O'Neil), Goderich Place Retirement Residence, [1995] OLRB Rep. April 416 (Liang),Meadowcroft Holdings Inc., [1997] OLRB Rep. January/February 74 (Albertyn), Central Park Lodges Ltd. - Victoria Place, unreported, September 24, 1996 (Goodfellow), North Yorkers for Disabled Persons Inc. [1995] OLRB rep. July 1001 (Chapman), Extendicare Diagnostic Services, [1982] OLRB Rep. March 371 (Burkett), Donway Place Retirement Residence,unreported. September 17, 1997 (Whitaker), Forest Hill Place Retirement Residence, unreported, September 24, 1997 (Whitaker), Surex Community Services, [1994] OLRB Rep. October 1430 (Misra), Bellwoods Centre, [1997] OLRB Rep. May/June 331 (Liang), Select Living (1991) Ltd., [1994] OLRB Rep. August 1082 (O'Neil), Ottawa Valley Autistic Homes, unreported, May 9, 1997 (Chapman).

3. I conclude that the Motherhouse or the facility known as the St. Joseph's Infirmary within the motherhouse is clearly a "hospital" within the meaning of "The Hospital Labour Disputes Act"(HLDAA). Without a doubt the St. Joseph's Infirmary clearly falls under the definition under 1.1 of HLDAA.

Definitions

1. -(1) In this Act,

"hospital" means any hospital, sanitarium, sanatorium, nursing home or other institution operated for the observation, care or treatment of persons affucted 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; ("h6spital")

"hospital employee" means a person employed in the operation of a hospital; ("employ~ d'h6pital")

4. There is an infirmary of about 57 beds were the sick and infirm sisters receive care or treatment of persons afflicted with or suffering from a physical or mental illness, disease or injury or for observation care or treatment of convalescent or chronically ill persons (without question uncontradicted in the evidence).

5. Further, the sisters of St. Joseph are granted government public funding under the Private Hospital Act (re letter dated March 28, 1994 from the Ministry of Health to St. Joseph's Infirmary and the license for Private Hospital License #531 under the Private Hospital Act) to the tune of 1.2 million dollars per year.

6. The final report of the M.T.D.H.C. (Hospital Restructuring Committee) St. Joseph's Infirmary at exhibit 13. lA is listed as a "hospital" of chronic care beds and continuing care patients and had 35 chronic care beds in 1993/94 and 35 chronic care beds in May 1995.

7. The evidence shows that the motherhouse portrays itself within the community as a "hospital" when it has a license as a Private Hospital, receives funding from the public purse as a Private Hospital.

8. Recognized by Hospital Restructuring committees final report as being a hospital, took advantage of the social contract benefits under the Health Sector Act, Pay Equity Act, Health Insurance Act.

9. We have all heard the aphorism: "If it looks like a duck, walks like a duck, quacks like a duck, it is a duck," and the same holds here: St. Joseph's Infirmary looks like a hospital, receives government funding as a Private Hospital. Hospital Restructuring Committee lists St. Joseph's Infirmary as a hospital. Social contract and Pay Equity was applied under Health Care Sector, then it must be a hospital.

10. The evidence clearly shows that although legally when it suits their needs the Sisters of St. Joseph's pursue all statutes and various Acts and in turn vigorously oppose this application which is for labour relations purposes, only as it may have an adverse effect should they be deemed to be found to be a "Hospital" under HLDAA.

11. Further to this end the Sisters were quick to jump on the social contract bandwagon under the Health Sector and abided by it in order to protect their funding as a hospital. Albeit legal but morally wrong I suggest.

12. How the sisters can morally portray themselves in the community (by acquiescencing to the various statutes and Acts) on one hand as a hospital, receive funding from the public purse of over 1 million dollars a year, take advantage of the social contract as it related to the Health Sector and in turn they vigorously oppose an application that may benefit the employees that are employed at the Motherhouse is beyond my comprehension after one reads their "Constitution" in detail, including the Code of Cannon Law, Encyclical letter of His Holiness Pope John XXIII Peace on Earth and the Encyclical letter on Human Work, as these employees have been without a C.L.A. since December 31, 1997.

13. I would further suggest that just because the order proclaims: "our commitment by the profession of public vows of chastity, poverty my emphasis and obedience...." does not mean that the employees who work at the motherhouse have to live in poverty but if one was to practice what they preach, the Sisters would endeavour to negotiate a C.L.A. with their employees which could be held out as a model for others to follow and not one where the employees are attempting to catch-up with employees who work with other employers doing the same work.

14. The purpose of HLDAA was well articulated by Montgomery J. referencing 2 cases in C. U.P.E. Local 2542 v. Dignicare Inc. Judicial Review as follows:

Reliance is placed by the Applicant upon the decision of the then Minister, dated December 19, 1986, in Re Bruce Retirement Villa and Service Employees Union, Local 210:

"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. Elderly residents who require some form of support assistance with the activities of daily living, are exactly the type of persons which the Act seeks to protect."

Further reliance was placed on the decision of the then Minister on October 25, 1984 in Re Versa -Care of Hanover:

"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."

In our view, in light of the purposes of the Act the observational care provided by an institution to its residents need not be of a medical nature to bring the institution within the definition of "hospital" and within the scope of the Act. We would therefore allow the application.

The order is quashed and the issue remitted to the minister to make the appropriate factual determination.

15. As a result of the majority decision in this case the employees have but one avenue available to them to achieve social justice (as depicted by the Sisters own teachings), the withdrawal of their labour after exhausting all other avenues, in the form of a legal strike. I only "shudder" to think how the St. Joseph's Infirmary would continue to operate without jeopardizing the health and safety of the elderly and sick, with their daily living i.e. meals and support assistance, etc. which dogmas would apply to those of the "state" or to those of the "Church".