Canadian Union of Public Employees, Local 1521-03 v. Therapeutic & Educational Living Centres Inc., 2000 CanLII 12157

ONTARIO LABOUR RELATIONS BOARD

2100-99-M Canadian Union of Public Employees, Local 1521-03, Applicant v.

Therapeutic & Educational Living Centres Inc., Responding Party.

BEFORE: Brian McLean, Vice-Chair, and Board Members J. A. Ronson and

H. Peacock.

DECISION OF VICE-CHAIR BRIAN McLEAN, AND BOARD MEMBER H. PEACOCK; April 18, 2000

1. This is a Ministerial Reference under section 3(2) of the Hospital Labour Disputes Arbitration Act ("HLDAA"). The issue referred is whether Therapeutic & Educational Living Centres Inc., (the "employer" or "TELCI") is a "hospital" within the meaning ofHLDAA.

2. The union has filed a detailed statement of facts and argument. The employer chose not to respond formally. By letter dated December 20, 1999 it advised that it disagreed that it was a "Hospital" under HLDAA, but was content to have the Board make its decision, without a hearing, based on the materials submitted by the umon.

The Facts

3. As the employer has not filed a statement of material facts, we rely on those provided by the union which are reproduced below verbatim from the union's submissions:

4. TELCI is a community agency that provides services, facilities and supports for persons with visual impairments and one or more additional handicaps. It has operated since

1981 in Ottawa, Ontario. The residential homes are located

at TELCI House at 1 Palsen Street and Reesor House at 25

Tower Road.

4. TELCI currently services 21 clients, 18 of whom live in two separate residential homes and 3 others who receive services in their own home through a Supported Independent Living (SIL) program. All clients are developmentally disabled and are all legally blind. TELCI services are available to any resident of Eastern Ontario

who is registered legally blind, who has one or more additional disabilities and who requires physical care and support services, including education and advocacy.

5. While the aim ofthe TELCI is to assist its clients to live independently in the community, the fact is that clients are not able to live independently and require care and assistance in daily living. There is round the clock support, guidance and instruction proved by the staff to the

residents.

6. In addition, TELCI established a respite care and accommodation service for visually impaired persons with multiple disabilities. SIL clients establish a Service Agreement with TELCI, which details the specific services and the number of support hours required.

7. There is a number of staff assigned to each home and each resident has a Primary Counsellor. There is also an Executive Director, Program Coordinator, Secretary, 2

Senior Counsellors, 2 Night Counsellors, 5 Residential

Counsellors, 6 Counsellor Aides, and 8 Relief Counsellors.

8. The Canadian Institute for the Blind was not able to meet the needs of their blind and multi-disabled clients particularly those who were mentally disabled. On the other hand, the local associations for the mentally retarded had difficulty in meeting the needs of persons with serious visual impairment. The Rideau Regional Centre (RRC) in Smith Falls established a separate ward for 18 blind persons who had other disabilities and who would benefit from a special program. Staff members from the RRC were selected and specially trained by the CNIB, the

environment modified to allow more effective use of tactile and auditory senses, and specialized programs were designed to meet the needs of the clients.

9. An estimated 12 of the current residents of the TELCI come from the special unit of the Rideau Regional Centre. A majority of the clients arrived from the Rideau Regional.

10. All of the clients are legally blind and have been dually diagnosed with a developmental disability. Many of the clients may also suffer from additional physical illness and disease. Two of the clients have been described as "Dual­ Diagnosis" meaning that they have both psychiatric and

developmental difficulties. Several have chronic

psychiatric disabilities including schizophrenia. The Union does not have a complete listing of the diagnosis for each client.

11. As a result of these various conditions, clients require a great deal of physical and medical care and observation. Many of the clients require round the clock care.

12. Some of the clients have many behavioral problems. Some of the clients can be quite physically aggressive, both to themselves and others. However, the clients are usually

self-abusive when in an agitated state. This abuse can escalate, usually with few warning signals from the client. As a result, counsellors have been taken by surprise when they have been physically threatened or harmed by the client.

13. Medications for clients may vary depending on the specific need of the individuals. Currently medications being distributed include Epival, Vasotec, Haloperidol, Apo­ Lorazepam Chorpromazine, Respiridone, Tegretol, Carbamazepine, Dexidrine, Phenobarbitol, Clobazam, Zocor, Ateno1, Cyclomen, Fluoxetine, Depakene.

14. There are an estimated 25 full time and part time employees. Homes are staffed 24 hours a day and 7 days a week. Senior Counsellor and Residential Counsellors are assigned to two or three clients at each home. They are called primary Counsellor. The Primary Counselor is responsible for designing and implementing individual program plans for each client, monitoring finances and medications, acting as resident's advocate. Staff meetings are held regularly with medical practitioners. A Case Worker provides similar services for SIL clients. Night Counsellors, Counsellor Aides and Relief Counsellors provide additional support in all areas and have specific responsibilities.

15. The qualifications for Residential and Senior Counsellors, and for Case Workers, include a relevant university or college degree and a minimum of one year' experience working with disabled adults in a residential setting. All other counselling positions require a combination of experience and post-secondary education in the social services field.

16. TELCI works with other vocational and academic providers including O.C.A.P.D.D. (Ottawa Carleton Association for Persons with Developmental Disabilities, O.C.L., the K.C. Maclure Centre and the Ottawa Board of Education. TELCI also participates in the Service Co­ ordination Program's placement service and co-ordinate staff and client training with the CNIB.

17. The clients ofTELCI are vulnerable and depend on support services provided by staff for critical life-support services" and "essential life skills needs". In the event of a strike or lock out, these clients would be without the critical care necessary to survive. The clients should be afforded the protection of having TELCI designated a hospital under HLDAA.

18. The clients ofTELCI cannot function without the care provided by staff. Clients need assistance in all aspects of personal care including medications and medical related services. Staff is responsible for providing this basic and fundamental care as well as for observing the conditions of clients and reporting and acting upon significant changes in condition. It is respectfully submitted that TELCI provides "observation, care or treatment" to clients of the nature contemplated by HLDAA.

19. It is further submitted that the TELCI clients suffer from significant and severe developmental handicaps which restrict their ability to function independently. They require the services ofthe TELCI in order to be able to

function and as such are brought within the class of persons covered by the HLDAA. The clients suffer from a disordered functioning of the mind and as such suffer from

a mental illness, which was also relied on by the Board in

Surex. Developmental disability or handicap is the result of a disease, illness or injury caused pre-natally or at birth and results in a loss of functioning that is within the definition

in s.1(1) ofHLDAA.

Decision

4. Section 1(1)(a) ofthe HLDAA defmes "hospital" as follows:

1.(1) In this Act,

"hospital" means any hospital, sanitarium, sanatorium, nursing home or other institution operated for the observation, care or treatment of persons afflicted with or suffering from any physical or mental illness, disease or injury or for the observation, care or treatment of convalescent or chronically ill persons, whether or not it is granted aid out of moneys appropriated by the

Legislature and whether or not it is operated for private gain, and includes a home for the aged; ("hopital")

5. The Act further provides that all hospital employees, fall under the HLDAA, and that those employees may not strike and their employer may not lock them out. Instead, a collective agreement will be settled by binding arbitration. The purpose

of the HLDAA was described in a Ministerial decision as follows:

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.

Re: Versa Care of Hanover (Decision of the Minister of Labour dated October 25, 1984)

6. The task before the Board is to determine whether or not TELCI falls within the definition of hospital set out in the HLDAA. The legislature has determined that in a certain category of institutions defined as "hospitals" work stoppages will not be permitted, and all employees employed in such an institution will fall within this alternative regime. It is critical to keep in mind the model adopted by the legislature in enacting the HLDAA in approaching the challenge presented by the characterization of

an agency like TELCI.

7. This definition has been applied to the providers of community-based services for the developmentally disabled such as group homes in a number of earlier cases, decided by the Minister of Labour or referred to the Board. Some ofthese cases will be reviewed in this decision, but I will list them here for ease of reference: CUPE, Local 2542 v. Dignicare Inc., [1991] O.J. No.180; George Jeffrey Children's Treatment Centre, [1994] OLRB Rep. Dec. 1656; Surex Community Services, [1994] OLRB Rep. Oct. 1430; North Yorkers for Disabled Persons Inc., [1995] OLRB Rep. July 1001; and,

Bellwoods Centre, [1997] OLRB Rep. May/June 331. In all ofthese decisions a determination was made that the agencies fell within the definition of a "hospital" contained in the HLDAA.

8. While not referred to by the Union in its application, it is also useful to consider cases in which the Board determined that the agencies in question were not "hospitals" within the meaning of the HLDAA definition. In Maison Mere des Soeurs de la Charite D 'Ottawa, [19951 OLRB Rep. Nov. 2532 the Board considered the provision

of nursing and other care to some aging residents of a "mother house" which was home to a group of nuns, and determined that the provision of care in these circumstances was

only a collateral purpose of the house, which was the residents' family home. In

Canadian Red Cross Society (Ontario Division), [1995] OLRB Rep. May 612 the Board decided that homemakers assigned to provide various services to ill or disabled persons in their homes were not primarily engaged in the provision of "observation, care of treatment" , having regard to the nature and extent of the services provided, and the location at which they were provided.

9. We must base our decision on the facts presented to us by the union, the employer having chosen not to participate in the proceedings. Based on these facts, we are satisfied that the employer is a "hospital" within the meaning of section 1(1) ofthe HLDAA.

10. There are three criteria for an organization to be a hospital and have its labour relations fall under HLDAA; the entity must serve persons who suffer from physical or mental illness, ongoing disease or be convalescent or chronically ill; the entity must be a hospital or "other institution", and the entity must be operated for the observation, care or treatment of such persons.

Physical or Mental Illness, Disease or Injury

11. For an institution to be a hospital under the HLDAA, its services must be provided to one of two categories of persons: "persons afflicted with or suffering from any physical or mental illness, disease or injury"; or, "convalescent or chronically ill persons". In this case it is clear that the residents of TELCI homes are persons so afflicted. All of the persons who are cared for by the employer are blind and suffer from

one or more developmental or psychiatric disabilities. Some of these persons require care

24 hours per day.

Other Institution

12. Is the employer a hospital or "other institution"? We find that the facilities operated by the employer, residential homes, are essentially the same as facilities which the Board has found in cases like Bellwood's Centre, [1977] OLRB Rep. May/June 331, to be a hospital. In that case the Board applied a list of factors to determine whether the employer operated an "other institution" under the Act. Those criteria were as follows:

(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.

13. The first three criteria all suggest that TELCI is an "other institution" and therefore falls under the Act. We are satisfied that the services provided by TELCI are at least partially medical in nature, including the distribution and monitoring of medicine. Based on the fact that some residents require care 24 hours per day and that residents may be self abusive, and require medicines, the residents depend upon the care prescribed by TELCI for their continual health and safety.

14. Almost all of the other criteria cited in Bellwoods Centre are also satisfied, although, as in many of the cases where the Board has found an employer to be a

hospital, TELCI is under no statutory obligation to provide care. It receives funding from government (85%), private donations and through somewhat nominal rent and other expenses paid by residents ($164/month). The employees of the TELCI are primarily employees of TELCI and the services are provided at homes owned and operated by TELCI. There are few facts which the Board can establish what alternatives, if any, exist as alternative care. What we do know however, is that the CNIB gave up care of the residents because it was beyond their capabilities.

15. In short, the vast majority of the criteria relied on in Bellwoods suggest that the TELCI is an "other" institution and we so find.

Observation, Care or· Treatment

16. The Divisional Court has clarified that the observation, care and/or treatment of residents in an institution does not have to be medical in nature in order to fall within the HLDAA definition. In CUPE, Loca/2592 v. Dignicare, supra, the Divisional Court in overturning a decision of two Ministers of Labour held as follows:

The Ministry of Labour erred in law when they determined that an institution must be providing "medical care or treatment 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 ofthe 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 ifthe 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, sanitorium, or nursing home.

17. Following the Dignicare decision, the Board has held that the provision of observation, care and treatment which is directed to the activities of daily living and to behavioural modification and intervention may result in a HLDAA designation.

However, in order for non-medical observation, care or treatment to bring the institution

within the definition of"hospital", it must be so fundamental to the maintenance of the clients' health, safety and well-being that should they be deprived of the services of their primary care-givers as a result of a strike or lockout, their condition would be jeopardized (Surex Community Services, supra, at p. 1444).

18. In the cases involving persons with developmental and physical disabilities, the ability of clients to direct their own care has often been emphasized by the employer. The Board has determined that such evidence of independence, while obviously important to residents, is not significant in determining whether or not the care being provided falls within the HLDAA definition, other than the extent to which the degree of independence demonstrated by clients impacts on the amount of care they require from others (North Yorkers for Disabled Persons Inc., supra at p. 1008).

19. In this case, it is not disputed that many ofTELCI's residents require around-the-clock care. TELCI's employees are responsible for providing medication and medical-related services. They are also responsible for observing residents and reporting and acting on significant changes in conditions.

20. It is also significant that the TELCI homes were established, in part, to allow for the care of persons who could not be adequately cared for by the CNffi.

21. Therefore, we are also satisfied that the services offered by the employer are services for the "observation, care or treatment" of the residents and therefore meet the last criteria under section 1(1) of the Act.

Disposition

22. Accordingly, for all of the foregoing reasons, it is the Board's advice to the Minister that Therapeutic & Educational Living Centres Inc. is a hospital within the meaning of the Hospital Labour Disputes Arbitration Act.

"Brian McLean" for the majority

DECISION OF BOARD MEMBER J. A. RONSON; April18, 2000

1. The employer did not file a response in this matter.

2. The material filed by the applicant union establishes, prima facie, that the employer may be a hospital within the meaning of the Hospital Labour Disputes Arbitration Act, and the Minister should be so advised. Relying only on the material filed by the union, our opinion can be no better than that of the Minister himself.

"J. A. Ronson"