4279-96-U Ottawa Carleton Association for Persons with Developmental Disabilities, Applicant v. Canadian Union of Public Employees, Local 1521, Responding Party.

BEFORE: Pamela Chapman, Vice-Chair.

DECISION OF THE BOARD; March 28, 2000

1. This is a ministerial reference pursuant to section 3(2) of the Hospital Labour Disputes Arbitration Act (“HLDAA”), which was referred to the Board by the Minister on March 20, 1997. This reference followed a request by the Canadian Union of Public Employees, Local 1521 (“the union” or “CUPE”) for a determination by the Minister that the Ottawa-Carleton Association for Persons with Developmental Disabilities (“the employer”, “the agency” or “OCAPDD”) falls within the jurisdiction of the HLDAA. The question which has been referred to the Board for its advice is the following:

Is the Ottawa-Carleton Association for Persons with Developmental Disabilities a “hospital” within the meaning of the Hospital Labour Disputes Arbitration Act?

THE APPLICATION

2. This application has a lengthy history, some of which should be reviewed before proceeding to consider the evidence and submissions of the parties. The union’s request to the Minister was made after the expiry of the most recent collective agreement between the parties, and during the course of Board proceedings brought by the union under section 96 of the Ontario Labour Relations Act, 1995 (“the Act”), alleging, among other things, that the employer’s plans to utilize replacement workers in the event of a strike or lockout were a violation of the Act. Those proceedings were adjourned pending a determination of the status of OCAPDD under the HLDAA.

3. The proceedings under section 96 were brought together with applications against two other Ottawa agencies which provide services to the developmentally disabled: Ottawa Valley Autistic Homes (“OVAH”) and Ottawa-Carleton Lifeskills (“OCL”). The union settled the case against OCL, and the application against OVAH was similarly adjourned when the union made a request to the Minister for a HLDAA determination with respect to that agency. That case was heard before this one, and resulted in a finding that OVAH was a hospital within the meaning of the HLDAA.

4. The hearings in this matter consumed more than ten days spread over several months, and involved the filing of numerous and lengthy documents, the calling of eleven witnesses, and the submission of lengthy written briefs by the parties. While these proceedings were underway, the collective agreement remained in limbo and the parties in a legal strike or lockout position. After the hearings were completed, the union wrote to the Board to advise that the parties were engaging in further bargaining and hoped to resolve their differences, and that it would be helpful if the Board refrained from responding to the question referred by the Minister while those efforts were underway. Despite the assistance of a Board officer, the parties were unable to resolve their differences and/or to reach a collective agreement, as the Board was subsequently advised by the employer.

5. The central issue in this case is one that has not really been considered in earlier Board decisions on the definition of hospital in the HLDAA. OCAPDD provides a variety of different kinds of services and supports to persons with developmental disabilities in the Ottawa-Carleton region, and the population they serve is far from homogeneous in terms of its needs. As a result, some of the services provided by the agency, and in particular its residential group homes, are more focused on the provision of care, observation and/or treatment as those terms have been defined by the Board in other cases involving agencies serving the developmentally disabled. Other types of services, including those involving support to persons living independently in the community, do not involve these elements of care as obviously. The remaining services provided by the agency, including a large number of day programs and supported work environments, seem to fall somewhere on the spectrum between those two extremes.

6. The union argued that all of the programs offered by OCAPDD feature the provision of care, observation and/or treatment so as to fall within the HLDAA definition, but in the alternative they take the position that, should the Board conclude that some of the programs do meet the test while others do not, the Board must answer the question from the Minister in the affirmative. The employer takes the opposite position, urging the Board to conclude that, despite the care admittedly provided in at least some of the programs offered by OCAPDD, the primary goal of the agency is not to provide care, observation and/or treatment, but to encourage persons with developmental disabilities to live as independently as possible in the community. In these circumstances, the employer submits that the Board should conclude that the agency is not a hospital within the meaning of the HLDAA.

7. Given the diversity of the services offered by OCAPDD, the employer wrote to the Minister on June 9, 1997, after the proceedings in this matter had begun, asking that additional questions be referred to the Board which might permit it to consider whether some parts of the agency fell within the definition of a hospital in the HLDAA while others did not. On June 25, 1997 the Minister’s delegate wrote back, indicating that the Minister had determined that “the additional questions you have suggested would not be of assistance for the purpose of exercising Ministerial power under section 3(1)” and therefore declining to add additional questions to the reference.

8. It is in this context, then, that I must consider the evidence called by the parties and reach a conclusion on the question before the Board.

THE FACTS

Background Information

9. OCAPDD began in 1953 as the Ottawa Carleton Association for Retarded Children, and was incorporated in 1960 as a not-for-profit corporation. Supplementary Letters Patent dated December 2, 1977 define the first goal of the corporation as follows:

To promote, support and protect the status and interests

of the mentally retarded in and about The Regional Municipality

of Ottawa-Carleton and the general well-being and welfare

of such persons;

The development of the organization over its history is summarized in the following terms in the Strategic Plan 1995-2000:

... over time, the Association emerged as a major provider of specialized supports, funded largely, and increasingly inadequately, under contracts with the provincial government. Provision of specialized supports is the major operational strategy in the Association's effort to assist PDD and their families.

10. The OCAPDD By-Laws, which were amended in June 1977, describe the objects of the organization as follows:

The role of the Association is to serve the needs of persons with developmental disabilities in the Ottawa-Carleton region...by advocating for a continuum of services appropriate to their needs and where possible to provide these services, whether in integrated or specialized settings.

11. At present, OCAPDD provides services to persons with developmental disabilities through a variety of programs: residential group homes; respite care; day programs with varying lifeskills and vocational elements; and, support to persons with developmental disabilities living and/or working in the community. Approximately 650 individual clients, both adults and children, utilize the services of OCAPDD in one or more of these programs annually.

12. OCAPDD's "Guiding Principles" expressly recognize that "care and support" must be provided in a wide range of services and settings:

Nature imposes a very wide range of developmental disabilities and, it follows, a wide continuum of sustainable, cost-effective care and support options is required in order to meet individual and aggregate needs of developmentally disabled people, in all service areas and recognizing changing needs as PDD age and develop.

Recognizing individual preferences, needs and abilities, care and support should be provided across a broad continuum, in integrated or specialized settings within the community.

Admission Criteria

13. The OCAPDD admission guidelines provide that priority for admission to residential programs is to be given to "those considered to be most critically in need of service".

Deinstitutionalization

14. Government policy to reduce the number of persons with developmental disabilities in institutions such as the Rideau Regional Centre has had a profound impact on OCAPDD. Persons with high needs who were formerly institutionalized now require care and support in group homes and in the other community-based programs offered by the agency. As more and more lower functioning persons are released into the community, existing clients have been displaced into programs where less intensive care and support is provided. This trend will likely continue as the government moves ahead with plans to close institutions such as Rideau Regional altogether.

15. Virtually all the witnesses, many of whom have had long years of experience with OCAPDD, testified that the clients in various programs today have higher needs and function at a lower level than in the past. The 1996-97 OCAPDD Annual Report noted:

As programs continue to respond to the increased needs of individuals with complex needs we have redirected internal resources to the creation of a Registered Nursing Consultant position within the agency. The purpose of this position is to provide support through the assessment of individual health issues, the implementation of procedures, the training of staff in medical treatment skills, the provision of direct individual care where necessary and liaising with community partners in the health care system.

Client Needs Survey

16. The OCAPDD Nursing Consultant recently carried out a Client Needs Survey. It revealed an aging client population and concluded that existing medical problems can be expected to escalate and problems associated with aging will become more prevalent.

Funding

17. At the same time that deinstitutionalization has resulted in more persons with developmental disabilities to support, government funding has been cut back. The 1995-96 and 1996-97 OCAPDD annual reports speak eloquently to the challenges of meeting a high demand for care and support with a lowered supply of government funding.

18. This funding squeeze has had and will continue to have significant ramifications. The impact on day programs was described in a letter dated October 22, 1996, from OCAPDD's Executive Director to the Ministry of Community and Social Services:

It is important to note that repeated funding cuts have changed the nature of supports and services from skill development to a care-­taking model. We have always endeavored to provide a level of care and development higher than the care-taking model.

19. Another major impact of funding cuts has been to make vocational programs highly vulnerable. Vocational programs which are not financially self-sustaining cannot be subsidized. Within the past two years, one vocational program, Silverspring Farms, was discontinued for this reason. More recently, the paper recycling vocational program at Public Archives was considered for closure because of falling paper prices. The program received a reprieve only when a private sector firm became involved.

20. Faced with funding cutbacks, the Finance Committee of the OCAPDD Board described its approach as follows:

The primary objective of this exercise was to try to maintain, to the extent possible, essential supports and services to our clients.

21. OCAPDD is funded by the Ministry of Community and Social Services pursuant to the Developmental Services Act. The Act authorizes the Minister of Community and Social Services "by agreement or otherwise (to] purchase from any person, services and assistance for or on behalf of persons with a developmental handicap or believed to have a developmental handicap..." [s. 2(2)]. The term "developmental handicap" is defined in the Act as follows:

"developmental handicap" means a condition of mental impairment present or occurring during a person's formative years, that is associated with limitations in adaptive behaviour;

The financial statements for OCAPDD for the fiscal year ending March 31, 1996 reveal a budget of more than $10 million, with almost $8 million of its revenues, or 77.2% of the total, coming from the Ministry of Community and Social Services.

Staffing and Labour Relations

22. In addition to management staff, OCAPDD has a total of 242 staff, approximately 135 of whom are full time employees . All non-managerial employees have been included in a single bargaining unit since the bargaining agent was certified in 1972. At the present time, the collective agreement between the parties has expired.

23. In 1996 OCAPDD formulated a detailed plan to hire replacement workers in an effort to continue operation of some programs, in the event of a strike or lockout. The contingency plan notes that:

To place the welfare of the clients in a tenuous position would be unconscionable. The only alternative available in the case of a potential work stoppage is to take the necessary preparatory steps to allow for a planned legal lock-out of staff, provisions for replacement workers and suspension of operations in programs which cannot be sustained. This approach provides the Association with sufficient lead time to communicate with all persons and families that will be affected by the suspension of operations. This will allow the maximum time possible for them to make alternate arrangements for the care of their family member if a lock out is likely.

RESIDENTIAL GROUP HOMES

24. The residential services program operates 12 group homes. The mandate and activities of the program are summarized in an OCAPDD brochure prepared in March 1997:

Residential services, under the guidance of the Director of Residential Services, provides care and support in activities of daily living and accommodation to developmentally disabled individuals of all ages.

25. OCAPDD recently drew up a "Tenancy Agreement" setting out the basic terms and conditions under which clients reside in group homes, although it is not clear how many agreements have actually been signed by clients or on their behalf. The Tenancy Agreement expressly provides that clients will receive "care services" as stipulated in a "provision of care services agreement" attached as Schedule 1. The provision of care services agreement provides:

In keeping with the mission statement and goals outlined in the individual's planning document, OCAPDD agrees to provide assistance with the activities of daily living, and other supports and services subject to the Homes for Retarded Persons Act or the Developmental Services Act and to the extent to which funding is provided, while he/she lives at the residence specified in the attached lease, including personal hygiene, medical/dental supervision, daily living assistance, counselling, housekeeping, budgeting, leisure and advocacy services.

26. The agency coordinates the provision of nursing services to various of its clients, and in particular to those who reside in the group homes, through an employee in the position of Nursing Consultant, whose office is in the Oakdean residence. Before this position was created in 1996 the supervisor at the Oakdean residence was required to have nursing credentials. The nursing consultant trains staff to deal with the medical needs of the various clients, consults with the medical professionals who work with the clients, does client assessments to determine nursing needs, supports staff in their provision of care to clients with medical needs, and performs certain procedures on clients that cannot be done by staff who are not registered nurses.

Oakdean Residence

27. Six clients between the ages of 21 and 29 live at Oakdean, a home in the east end of Ottawa which has been extensively renovated for wheelchair and disabled access. All the residents are severely developmentally disabled. All are confined to wheelchairs. Several residents require tube feeding. All residents have high medical needs and are dependent on staff in all areas of daily functioning.

28. There are 10 permanent staff positions at Oakdean in addition to a supervisor and a roster of 10 relief workers. There is a staff member awake and on duty throughout the night. During peak periods, from 4:00 to 8:00 p.m., there are three staff on duty for six residents.

29. None of the Oakdean residents are able to communicate verbally. Shari Greenhorn, the registered nursing consultant, testified that the rapport between staff and clients is extremely important because of the high medical needs of the clients. Greenhorn testified that because of the residents' communications difficulties, staff require a lengthy familiarization period before they can begin to determine what the clients need in a particular situation.

30. Four of the Oakdean residents attend the Quinlan Day Program and one Oakdean resident attends the Rosenthal Centre day program. All of the Oakdean residents travel to their day programs with an instructor from the day program.

Ratan Residence

31. The Ratan Residence serves three clients on a permanent basis and eight other clients on a time­share basis. The three permanent clients are all young adults. The time-sharing residents are all children, the youngest of whom is eight years of age. All the residents at Ratan are severely developmentally disabled. All are mobility-impaired and the home is completely wheelchair accessible. One of the permanent clients is fed via tube and requires daily chest physiotherapy. Another permanent client has uncontrolled seizure disorder with frequent changes to neurological functioning. In addition to problems with skin integrity, this client also requires oxygen therapy. The third permanent client at Ratan also has uncontrolled seizure disorder. The time-sharing clients at Ratan all have seizure disorders and two are uncontrolled. All clients at Ratan except one individual require wheelchairs. Two are able to walk short distances if totally supported. One client requires frequent lifting. Of the permanent clients at Ratan, two are completely non-verbal and one has speech that is extremely difficult to understand. One of the time-share clients is verbal and the remainder are non-verbal. None of the permanent or time-share clients at Ratan are able to look after their own daily needs and all require total support with toileting, hygiene, feeding, mobility, and communications.

32. Of the three permanent clients at Ratan, one attends the Quinlan Centre day program, one attends Rosenthal and one attends a segregated school program not associated with OCAPDD. The timeshare clients all attend school.

33. Shari Greenhorn testified that if the Oakdean and Ratan residences were to cease operation, the families of the residents would not be capable of caring for them. In Greenhorn's words, there would be "nowhere for them to go" other than the possibility of trying to find a suitable chronic care facility to care for them.

34. Staff coverage at Ratan is provided on the same basis as at Oakdean. During peak periods, there are three staff members for five clients. Staff are on duty 24 hours a day, including overnight awake coverage.

Nestow Residence

35. Nestow serves four male clients between the ages of 18 and 25, all of whom have severe developmental disabilities and minimal self-help skills. The clients all display difficult behavioural problems. All of the clients require constant close supervision for their own safety.

36. One client lost an eye as a result of self-injurious behaviour; clients are aggressive to others; two residents will eat inappropriate objects if unsupervised. One client is deaf and another client has serious visual difficulties. Communication skills are minimal. One client has two or three signs; the others have a few words. Clients are not able to make their own meals and require assistance eating. They require assistance with toileting and almost total support in areas of hygiene such as washing, toothbrushing and bathing.

37. There are two staff present at all times and an overnight awake. During the day, one client remains at home. This client was attending the Rosenthal day program but was unable to function in the program. Two other clients attend the Quinlan day program and the fourth client attends a special school unconnected with OCAPDD.

Byron Residence

38. The Byron residence is a two-storey home, the first level of which has been renovated to make it wheelchair-accessible. The residence serves six clients between the ages of 27 and 42, four of whom are men and two of whom are women. Two clients are in wheelchairs.

39. All clients have problems with communication. One is non-verbal with no signs. Another is non-verbal with a handful of idiosyncratic signs. Another client is limited largely to "yes" and "no" for expressive language. One client is extremely withdrawn and her anxiety interferes with effective communication. Two clients are verbal and are able to respond but have difficulty focusing on what is said to them.

40. All of the clients display difficult behaviours including tantrums, striking, biting and outbursts. Staff prepare all meals and clients are under staff supervision at meal times. Staff may be required to feed one of the residents and to exert control over the eating of another resident.

41. With respect to toileting, one client is incontinent for urine and wears diapers day and night. Several residents require prompting and assistance with hygiene.

42. Residents require varying degrees of assistance with toothbrushing ranging from having staff do the brushing to verbal and physical prompting. One resident is totally dependent on staff for dressing; other residents need assistance with fasteners, selecting appropriate clothing and ensuring shoes are on the right feet.

43. Residents cannot access the community on their own or use public transit on their own because they have no awareness of traffic risks. All medications are administered by staff.

44. Three of the residents attend the Rosenthal Centre, two attend Quinlan and one resident attends the Loeb Centre during the summer months and a special school during the remainder of the year.

45. Staff consists of four full time counsellors, two part time counsellor aides and two overnight asleeps. Normal staff coverage is two staff for six residents.

Ahearne Residence

46. Nine clients live at the Ahearne Residence. As with Byron, residents require constant supervision at all times and require the same degree of assistance with basic care. Two residents are confined to wheelchairs and require extensive physical assistance. Three residents have "dual diagnosis", i.e. a diagnosis of mental illness together with developmental disability. These residents are prone to aggressive behaviour and require careful staff supervision to protect themselves and others. Three residents have Down's syndrome, which is associated with tantrums and irrational stubbornness, weight gain, heart problems, speech difficulties and Alzheimer's disease. The residents require complete supervision in the community and receive assistance with all areas of daily hygiene. All meals are prepared by staff.

47. The staff complement consists of four counsellors, two overnight asleeps and a supervisor.

48. Four of the residents of Ahearne attend Rosenthal, two attend Quinlan, one attends ARC, one attends at the Loeb Centre and one attends at Ottawa-Carleton Lifeskills, a day program not associated with OCAPDD.

Fairlawn Residence

49. Fairlawn Residence serves four clients ranging in age from 26 to 46 years. The residents have a wide range of behavioural, psychiatric and physical problems and require a high degree of supervision in all areas of daily living.

50. The highest-functioning resident has limited communication skills restricted to responding affirmatively or negatively. He is able to dress independently for the most part but requires verbal prompting and reminders with both dressing and toileting. This individual has an obsession with coffee and much of his verbal output consists of repeating the word "coffee". When gripped by this obsession, he is unaware of risks. He requires frequent redirection away from his obsession. He accepts redirection only from staff with whom he is familiar.

51. Another individual has Down's syndrome. He masturbates inappropriately. He must be monitored and redirected. He has poor short and long term memory and requires supervision with washing, cleaning teeth, shaving and bathing.

52. A third resident is ambulatory but has an unstable gait and requires assistance. This individual has no awareness of traffic safety. Staff attempted to train him to use the bus but he is easily distracted and was hit by a car.

53. The fourth resident is autistic and has extreme obsessive-compulsive behaviour. This individual is extremely difficult to redirect and only staff who are familiar with her can effectively intervene to redirect her compulsive behaviour. She cannot go out into the community without supervision and requires almost constant supervision within the residence including supervision and prompting for dressing, toothbrushing, hygiene and eating. All medications are dispensed by staff.

54. The staff complement at Fairlawn consists of two full time counsellors, one part-time counsellor aide and two overnight asleeps.

55. One of the residents attends the Loeb Centre day program, two attend ARC Industries, and one attends the Rosenthal Centre.

695 Richmond Road and Satellite Apartments

56. The 695 Richmond Road residence has four residents. One resident has severe behaviour and emotional problems. He is prone to highly interruptive behaviours such as blocking toilets and constant flicking of light switches. Another resident has restricted mobility and a brace on one leg as a result of cerebral palsy. A third resident suffers from depression and emotional problems which require a great deal of support. She indulges in attention-seeking inappropriate behaviour. All of the residents at the 695 Richmond Road site require night supervision.

57. The staff at 695 Richmond Road consist of four counsellors, two overnight asleeps and one supervisor. None of the residents at 695 Richmond could prepare a simple meal. All of the clients at 695 Richmond have very limited social skills and extensive problems in dealing with other individuals, including supervisors and family members. The highest-functioning resident is able to read but with limited comprehension.

58. The satellite apartments are located 3 kilometres from the 695 Richmond Road residence. Martin Hollinger, the supervisor of 695 Richmond Road and the Maryland residence, testified that clients in the satellite apartments function at a slightly higher level. However, they require assistance with meal preparation, and support in problem solving, with emotional difficulties and with finances. Hollinger testified that one resident in the satellite apartments could prepare a simple meal. None would be able to maintain a balanced diet, prepare a shopping list or budget for food. All these tasks are accomplished with staff assistance and support.

59. Three clients at 695 Richmond Road work at ARC Industries as do the residents in the satellite apartments, except for two residents who have no day program.

Moffat House

60. The Moffat, Campbell and Charette residences are all located at a single site. The Moffat Residence is an older home and the adjacent Campbell and Charette residences were constructed in the 1970's. There are nine residents in each group home.

61. Moffat houses a higher number of people with dual diagnoses and therefore has a higher staff ratio. In addition to developmental disability, three clients at Moffat have schizophrenia, one has autism and three have behaviour management difficulties. All the clients at Moffat have problems with communication. One client is aphasic, one client is monosyllabic, two residents have echolalia and the remainder are capable only of very basic expressive and receptive communication.

62. A number of the residents have problem behaviours. One client was described as having behaviour "like a hyperactive three year old" and requiring constant supervision. Another client has paranoia and if not closely supervised can become explosively dangerous. When this individual is at the residence, there are always two staff present. The autistic client who lives at Moffat has trouble handling change and can be aggressive and self-abusive. Other clients have cyclical depression and require a lot of emotional support. One resident can display sexually deviant behaviour that requires careful supervision.

63. Most of the clients are on medication which is kept locked up and is administered by staff, except for one individual who has a dosette that is filled by staff and checked regularly. Staff at Moffat do the bulk of cooking and food preparation. Joanne Harvey, the supervisor of the Moffat, Campbell and Charette homes, testified that no clients could handle meal preparation without supervision. A number of clients require assistance with toileting including direct assistance and prompts concerning hygiene.

64. The staff complement at Moffat consists of four full time counsellors, two part time aides and two overnight asleeps. Harvey testified that for many of the residents, staff are the "significant other" in their lives. She testified that clients form a deep bond with the staff and that a large part of the job is to provide nurture and comfort to the residents on a daily basis. Some of the clients at Moffat have no family while approximately half of the clients have very limited family involvement.

65. One of the residents at Moffat attends the Rosenthal day program, three attend the Loeb Centre, two attend ARC Industries, one participates in the supported work program, one attends Ottawa-­Carleton Lifeskills and one resident is without a day program.

Charette Residence

66. Nine residents between the ages of 30 and 73 reside at Charette Residence. Residents function at a similar level those at Moffat except that there are fewer cases of dual diagnosis. Joanne Harvey testified that the level of functioning of clients at Charette had steadily declined since the 1970's, when clients were more capable and more able to respond to cues and motivation from staff. Today, the staff are much more involved in providing basic care for residents. Harvey testified that while clients are involved in day-to-day activities, the involvement in most cases was "pseudo-independence" designed to give clients the feeling that it was their home. In all functional areas, staff involvement at Charette is similar to Moffat.

67. The staff complement at Charette consists of three counsellors and two overnight asleeps. The higher staff to resident ratio means that clients at Charette are more housebound and staff are required to focus more intensively on meeting the basic needs of the residents.

68. One of the residents at Charette attends Rosenthal, five attend ARC Industries, one attends the Loeb Centre, one is half time in supported work and half time at the Public Archives, and one attends St. Vincent's Hospital for physiotherapy following a stroke.

Campbell House

69. Campbell House serves nine clients aged 30 to 75. This residence has a higher concentration of clients with medical needs and clients who are older. One resident with Down's syndrome is 60 years of age but she is feeble and requires a high level of physical care. Another client is severely autistic and requires a great deal of one-on-one care. Staff administer all medications with the exception of one client who has a dosette which is filled by staff and checked three times per day by staff. Joanne Harvey, the supervisor, testified that none of the residents could function on their own.

70. The staff complement consists of three full time counsellors, one part time aide, and two overnight asleeps.

71. During the day, four clients attend ARC Industries, one is in the supported work program, two are at the Loeb Centre, one is at Rosenthal, and one attends a day program operated by another agency.

Maryland Residence

72. The Maryland Residence Program was originally designed for two individuals with Praeter-Willi syndrome who were scheduled for release from Rideau Regional Centre. Praeter-Willi syndrome is a genetic disorder characterized by constant craving for food and abnormally slow metabolism. The syndrome cannot be controlled with medication, and if left untreated sufferers overeat to the point of death in a short period.

73. The original two Praeter-Willi individuals were unable to cope with living in the community and were ultimately readmitted to hospital.

At the present time, there are five developmentally disabled individuals residing at Maryland, two with Praeter-Willi syndrome and three others with serious eating problems. In addition, one individual lives in an apartment a few blocks from. the Maryland Residence and is supervised by staff from the residence.

74. Extensive and elaborate measures are taken to control the diet of all residents and to control their whereabouts and access to food. The fridge and all cupboards are kept locked. The client who lives in the nearby apartment has all his food kept at the Maryland Residence and receives one day's food supply at a time. He also eats some of his meals at the residence.

75. Residents are supervised at all times except between the hours of 8:00 a.m. and 2:30 p.m., when they are in day programs.

76. The staff complement at the Maryland Residence consists of three full time counsellors, one part time aide, two overnight asleeps and one supervisor.

77. The clients have very limited involvement in meal preparation. In the words of Martin Hollinger, it would be unfair to involve the clients in meal preparation given their intense cravings for food. Residents require close supervision at meal time. Some clients receive extensive assistance in bathing and cleaning themselves, particularly when they were grossly obese and before they lost weight. Some of the clients at Maryland have lost more than 100 pounds since coming to the residence. In addition to assisting residents with normal, every day living tasks, Hollinger testified that a large part of the staff's role was to provide encouragement, reinforcement, and motivation to residents. Hollinger claimed that without the Maryland program, these clients would quickly have serious problems and their weight would skyrocket.

RESPITE CARE

78. OCAPDD operates both an English and a French respite program. Margo Lamarche, a counsellor in the English program, testified that the purpose of respite care was to provide a break for care-givers either on a regular or an emergency basis, to help prevent bum out and to assist care-givers or parents to maintain quality of care. The English and Francophone programs combined serve approximately 180 developmentally disabled individuals. In the English program, approximately 75 % of the 130 clients served are adults, with the balance being developmentally disabled children.

79. The English facility on Lavonne Court accommodates five adults or four children. The Lavonne Court facility is wheelchair accessible, accommodates portable lifting facilities and has closed-circuit television monitoring. The program accommodates developmentally disabled individuals across the complete range of functioning, although Lamarche testified that Lavonne Court clients are at average to low functioning. She considered a "middle functioning" client as a person needing some assistance with food, some standby assistance with hygiene, and assistance with dressing. The Lavonne Court facility has clients with a complete range of ability problems and medical problems including seizure disorders and heart problems. Staff administer oxygen overnight and perform oral suctioning and chest physiotherapy for some clients.

80. All meals are prepared by staff. Staff assistance with hygiene and bathing ranges from checking to total assistance with a portable lift. Most clients also receive some assistance with dressing. All clients are double-checked for a minimum of hygiene, shaving, and grooming in general.

81. Staff dispense all medications. Staff also deal with various types of behavioural problems including aggressions and bulimia. Staff are trained in CPI techniques.

82. The staff complement at the Lavonne Court facility consists of five full time counsellors, one part time aide, two overnight awakes, one supervisor and a relief complement.

DAY PROGRAMS

83. The Day Programs department of OCAPDD operates a number of supervised daytime activities for clients, which focus on providing clients with lifeskills training and guidance, work skills and readiness in a sheltered work environment, or support to clients in their own work environment. The various day programs reviewed below provide services to 433 individual clients, some of whom reside in the group homes or are otherwise supported by OCAPDD in their homes, but the majority of whom do not have other involvement with the agency.

Quinlan Centre

84. The Quinlan Centre is located in a former school which has been renovated to provide three wheelchair-accessible bathrooms together with associated equipment for the physically disabled. The focus in this day program is on the acquisition of social and recreational lifeskills, including cooking, nutrition, personal hygiene, communication, leisure and recreation.

85. Approximately 40 clients attend the Quinlan Centre. In addition to 11 clients who live in the Oakdean, Ratan, Nestow and Byron residences, clients attending at Quinlan also come from "TCE", an agency serving hearing impaired persons with a developmental disability, and Christian Horizons, another agency for developmentally disabled individuals. Some clients who attend Quinlan reside in nursing homes.

86. Staff consists of eight instructors and one supervisor, who is also extensively involved in providing direct care.

87. Although the Quinlan Centre is described as teaching various lifeskills such as cooking, physical fitness, and personal hygiene, Shari Greenhorn testified that actual activities of staff and clients at Quinlan bear little relationship to the description of the program on paper. She described the program as "maintenance and trying to provide as positive an environment as possible to make clients' lives more enjoyable".

88. Most clients require staff assistance with eating. Two clients are fed via tubes continuously, and one client with a "button tube" is fed while at Quinlan. These clients all have to be watched extremely carefully because of the risk that other clients with behavioural problems will pull the feeding tubes out. Many of the clients are incontinent and wear diapers. Many require full physical assistance for toileting. Others have toileting programs for behavioural reasons. Instructors are responsible for administration of all medications which are kept in a locked medication room.

89. A recent job posting for a position as an instructor/aide at Quinlan describes the duties of the position as follows:

To facilitate the implementation of an enriched day activity program for a person with severe/profound developmental disabilities within a day program facility.

A major emphasis will be placed on the physical and medical care of the person, as well as the enhancement of the individual's overall development through planned daily routines, activities and individual program planning.

90. The OCAPDD brochure describing the Quinlan Centre describes "the Quinlan client" as:

... an individual who is at least 21 years old, developmentally handicapped requiring extensive support in basic social development and practical self-help skills.

Rosenthal Adult Development Centre

91. The Rosenthal day program is operated from a facility similar to Quinlan, and its focus is also on the acquisition of lifeskills such as personal care, fitness, communication, recreation, food preparation, community outings and work.

92. Approximately 40 clients attend the Rosenthal program, of whom 17 live in OCAPDD group homes. They are supervised and cared for by a staff of eight.

93. While Rosenthal does attempt to obtain contract work such as envelope stuffing or box assembly, even these tasks are too complex for many clients to master.

94. Several clients display behavioural problems including tantrums. aggression and obsessive­compulsive behaviours, and as a result Rosenthal has a time out room.

95. At lunch time, staff assist in getting lunch out and ready for clients, and some clients require assistance to eat. Some clients are totally dependent on staff for toileting, requiring physical transfer; other clients are in diapers. Incontinence is frequent and most clients require verbal cues to go to the toilet.

96. Some clients require full physical assistance with getting dressed. Even those clients who can normally dress themselves sometimes require assistance or need reminders and help with their clothing.

97. The OCAPDD brochure describing Rosenthal lists the supports provided to clients as “personal need/hygiene/care, therapies, medical/psychological and communications”.

Loeb Centre for Vocational Training

98. The Loeb Centre day program is located adjacent to the Quinlan day program. The program provides both lifeskills training, which includes physical fitness and leisure activities, computer and literacy training, and safety skills, and also job skills training. While an effort is made to obtain contract work such as stuffing envelopes, shredding paper or recycling pop cans, this type of work is sporadic. Tanya Leclair testified that normally one staff member sits at each work table to ensure a high level of monitoring for errors. She testified that while a "handful" of clients could perform the work, the tasks were too complex for the majority of clients and had to be broken down into simple repetitive one-step components.

99. Approximately 70 clients participate in the Loeb Centre program. There are nine staff/instructors and a supervisor. Approximately 24 of the clients in the program reside in OCAPDD group homes and another two receive community support services; other clients live with parents or other care-givers; some live on their own; and some live in group homes operated by other agencies such as OVAH and OCL.

100. Clients in the Loeb Centre day programs have a variety of physical disabilities: four clients are in wheelchairs; two use walkers; several have unsteady gait and require support; one client has continuous oxygen administration; two clients are blind; another client is legally blind but has some vision, some clients have specific visual problems such as tunnel vision, a few clients have serious "drop seizures". Because of these seizures, one client wears a helmet and another is encouraged to wear a helmet.

101. At least six clients require physical assistance with toileting. One client with behavioural problems must be monitored closely to ensure he does not stuff the toilet with paper. Other clients require assistance with hygiene after toileting and also require prompting.

102. Clients either bring lunches prepared for them or eat food obtained with the assistance of staff from vending machines. Clients are monitored during lunch because of problems with food stealing. Other clients must be monitored to ensure they do not eat too fast and choke.

103. Communications skills vary widely from clients whose expressive speech is limited to a single word to clients who use complete sentences.

104. In wintertime, most clients require assistance from staff with coats, boots and hats.

105. Clients must be closely monitored by staff for aggressive behaviours. One autistic individual is capable of and has threatened to throw wheelchairs (with occupants) and must be carefully and constantly monitored. Another client has a sexual compulsion and must be carefully monitored for this behaviour. Other clients are prone to wandering and self-injurious behaviours.

106. Leclair testified that the level of functioning of clients at the Loeb Centre had declined noticeably since 1990, when approximately half the clients were able to do contract work on their own with minimal supervision while other clients were capable of answering the phone in the office. By contrast, she testified that there are now only five or six clients who could be counted on to perform contract work correctly and that more staff effort was going into monitoring, supervising and looking after the basic needs of clients. Clients receive one dollar per day.

Roger Lovett Centre/ ARC Industries

107. The Roger Lovett Centre (“ARC”) is a sheltered work environment designed to assist clients in the development and improvement of job readiness skills. The work done by clients at ARC is obtained by OCAPDD on contract to outside agencies, and an attempt is made to run the centre as a competitive business. Approximately 100 clients attend the day program at the Roger Lovett Centre and are paid a training allowance for their work. Clients are divided into six groups, one of which works in a woodworking shop and the remaining five of which are involved in mailing, light assembly and packaging activities.

108. Staff consists of six instructors, one supervisor, and a half time secretary.

109. Approximately 41 people who attend the program live in other OCAPDD group homes or are in the CSS program. Seventeen clients who attend ARC live in group homes operated by other agencies. Thirty-nine clients attending ARC live at home with parents or other care-givers. Three clients reside on their own without any other support.

110. Clients participating in the ARC Industries day programs have a wide range of problems. An analysis prepared by John Lonergan, the woodworking instructor, indicated that 15 clients require assistance with mobility; three clients have eating disorders; 16 clients are prone to engage in sexual activity if unsupervised; three clients are very withdrawn; three clients have psychiatric difficulties; 15 clients have behavioural problems although not on specific behavioural programs; five clients have vision difficulties; 15 clients have communication difficulties and eight clients have epilepsy.

111. These problems require intervention, monitoring and supervision by staff. Mr. Lonergan testified that he administers psychiatric medication to one client in the woodworking group and accompanies the client to psychiatric appointments.

112. Staff are not involved on a regular basis with toileting and hygiene care although the clients attending the program are prone to having accidents and one individual soils his clothing as a means of obtaining attention. At meal times, staff are required to supervise and become involved to ensure that clients do not steal food or steal money.

113. Lonergan testified that he supervises 15 clients in the woodworking group. Five of the 15 clients are able to use some types of power equipment, although there are certain types of equipment that none of the clients are allowed to operate for safety reasons. Clients who are unable to use the equipment help move the materials around and help with clean-up.

114. Each instructor is responsible for doing a general service plan on an annual basis for individuals in his or her group who are not residents at an OCAPDD group home. Preparation of the GSP culminates in a meeting with clients' family. Mr. Lonergan testified that instructors are in communication on a weekly and even daily basis with group home counsellors to ensure that there is proper liaison and communication concerning any medical or behavioural problems.

Centre de transition communautaire (“CTC”)

115. The CTC provides a supported work environment for francophone clients at community work sites across the region. CTC currently provides services to 41 clients, 2 of whom reside in an OCAPDD group home and 1 of whom receives services from the community support services program.

National Archives

116. Forty-eight clients currently participate in a paper-shredding and recycling program operated on contract to the federal government at a government building located in Tunney's Pasture. The majority of the clients have previously participated in either the Loeb Centre or ARC Industries day programs. Some live at home with their families; two live in nursing homes; five people live in OCAPDD group homes and five receive community support services from the agency; others live in group homes operated by other agencies such as Christian Horizons.

117. Half of the clients sort paper while the other half put sorted paper through shredding machines before it is baled. Gayle Murdie testified that clients are under constant staff supervision and are never left alone because of the risk of seizures and aggressive behaviour. Murdie testified that a number of clients participating in the program are prone to aggessive behaviour including fighting and throwing boxes of paper. One client has Tourette's syndrome and requires a great deal of one-on-one supervision to keep him on task. Another client has Praeter-Willi syndrome and must be monitored continuously to ensure that he does not steal food or bring additional food with his lunch. Some clients must also be monitored for problems with money and food stealing.

118. Murdie testified that four clients receive medication administered by staff. Although the majority of clients have reasonably good communication skills, some clients have considerable difficulty with expressive and receptive communication and one client is completely non-verbal.

119. Murdie testified that staff in the program were in frequent contact with residential counsellors concerning clients' behaviour, hygiene and lunch programs to ensure that clients are being handled consistently in the group home and in the day program. Murdie also indicated that staff routinely monitor clients’ personal hygiene, and check to ensure that clients are bringing appropriate food for lunch.

120. Staff also are involved in completing the annual general service plans (“GSP”). For clients in OCAPDD group homes, day program staff complete only the vocational portion of the GSP. If the client is not in an OCAPDD group home, staff complete all of the GSP.

121. At the present time, staff at the Public Archives program consists of two full time instructors, one term full time instructor and one supervisor.

Plant Maintenance

122. A total of 23 clients participate in the plant maintenance program. Eight clients work from a downtown location together with two staff instructors. Fifteen clients work from a location at Tunney's Pasture under the supervision of one instructor and a supervisor. Clients are involved in maintaining tropical plants in federal government buildings under a contract entered into by OCAPDD. At the Tunney's Pasture location, six of the clients are involved in collecting waste paper from government offices for eventual recycling. Clients are paid $ 1.10 per hour.

123. Of the clients presently participating in the program, 15 live at home with parents or other care­givers, two live in residences operated by agencies other than OCAPDD, four are participants in the CSS program, and one lives in a supported independent living program operated by another agency. Gayle Murdie, an instructor in the program, testified that the functioning level of clients involved in the program has declined significantly from the late 1970's when it was a prerequisite that all participants be able to read and write. Today, a majority of clients in the program have very limited reading skills and some cannot recognize numbers. Clients in the program are all "buddied" and an effort is made to match clients with good "watering skills" with clients who have good reading skills.

124. Murdie testified that clients in the program today require regular monitoring for inappropriate behaviours, although the clients do spend about half of their time doing their rounds in the various buildings outside of the direct view of an instructor. Whereas problem behaviours were rare 15 years ago, today staff are required to carefully monitor and observe clients for a variety of socially inappropriate behaviours: noisy talking and horse play, sexual behaviour in washrooms and stairwells, poor personal hygiene, stealing, and intrusive behaviour with women. Ms. Murdie testified that with these individuals she spends half her time monitoring their work and half her time monitoring their behaviours.

125. For clients in OCAPDD's CSS program, Ms. Murdie testified that there was regular contact with counsellors on issues such as hygiene. Day program staff are also involved in lunch monitoring programs for clients who are on eating or weight control programs.

126. An effort is made in both the National Archives and Plant Maintenance programs to treat the clients as if they are independently employed. In addition to being paid, the clients are allocated sick and vacation days, their attendance is monitored and they may be disciplined if they engage in serious misconduct.

Supported Work Program

127. Approximately 80 clients are currently participating in the supported work program. OCAPDD staff consists of eight instructors and one supervisor and a half time secretary. Of the clients currently participating in the program, approximately 43 live at home with parents or other care­givers, 15 live alone, 15 participate in the CSS program and five live in OCAPDD group homes. Two others are supported by TLSE, an agency serving visually impaired developmentally disabled persons, and three clients are involved with other agencies.

128. The program seeks to support clients in appropriate private sector employment offered by various community business partners. There is an extensive assessment process which can last several months and includes the TIPS program ("training in inter-personal skills"). This includes coaching in areas of dress, hygiene, and working with others. The assessment process also includes a personal overview phase, a skills review, reading assessment, and observation of clients in a job setting. If a client is determined to be suitable for participation in the program, staff commence looking for an appropriate job.

129. Prospective employers are given the assurance that OCAPDD staff will be responsible for all job training and will continue to provide indefinite support to clients. The majority of jobs are part time and are in cleaning, dishwashing, simple maintenance, alphabetic and numeric filing, and looking after grocery carts at Loblaws. In most cases, the employer does not pay the client directly but is billed by OCAPDD, which in turn pays clients after deducting an 18% fee. They are paid less than minimum wage.

130. Steve Sanderson, supervisor of the program, testified that clients in the program require ongoing support around emotional problems, psychiatric difficulties and various behavioural Problems. Sanderson explained that something that would be a small change for most individuals is often a major change for clients in the program and in these circumstances clients may require extensive counselling and follow up to avoid collapse and job failure.

131. Staff spend a great deal of time on "secondary issues" such as interpersonal problems, hygiene and proper eating. Where necessary, staff make psychiatric appointments and attend the appointments along with clients. There is regular communication with counsellors for those clients in group homes. Staff may also assist clients in finding residential facilities when it becomes apparent they are not receiving proper care in their family home.

132. Sanderson also explained that the staff have a role in protecting clients against being exploited by employers.

SUPPORT SERVICES

Community Support Services

133. OCAPDD commenced operating a Semi-Independent Living Program in the 1980's for persons with developmental difficulties who could function at a sufficiently high level to live alone or with a room-mate outside the traditional group home. In 1986, an Enriched SIL program was started to give additional support to people who needed it. In 1990, the SIL and ESIL programs were amalgamated and the name was changed to Community Support Services. As a result of the 1995 strategic plan, the number of clients in the CSS program was doubled to approximately 80 clients who are in the program at present.

134. Staff working in the program consist of 12 full time counsellors and one supervisor.

135. Most clients in the program live in apartments either on their own or with room-mates. Some clients live in boarding homes, shelters, or even on the streets.

136. Tanya Leclair testified that an increasing number of clients had dual diagnoses including bipolar disorder, depression, paranoia, sociopathy, pedophilia, and Tourette's syndrome. Leclair estimated that at least 40% of the clients have significant behavioural problems. Clients also have a wide range of communication skills. Some have limited verbal skills, other clients are able to read, although on average, their reading skills would be at about Grade I level.

137. For clients entering the program, the initial step consists of a formal assessment of support needs carried out by staff in conjunction with the client. The assessment covers various daily living skills, health issues and community involvement. The assessment attempts to define specific areas on which staff support will be provided. Marion Kennedy, supervisor of CSS, testified that while staff do not force clients to accept support in areas where it is not agreed to, staff will encourage clients to agree to support in areas where it is observed that support is required.

138. Leclair testified that while a few CSS clients could independently prepare all their own meals, the majority of clients require assistance in selecting proper food and in using the stove and other kitchen equipment. The majority of CSS clients also require assistance with meal planning and grocery lists. In some cases, counsellors assist clients in carrying out grocery shopping. As a result of inadequate meal planning, CSS clients are sometimes required to use the food bank. This is typically arranged by staff, who check to ensure that clients have sufficient and adequate food on hand.

139. The majority of CSS clients require reminders concerning bathing and personal hygiene. On occasion, CSS counsellors will become aware of hygiene issues from day program instructors. For some CSS clients, counsellors carry out shampoos and baths for clients. Counsellors also typically ensure that clients receive haircuts and, in some cases, take clients to the hairdresser.

140. In the area of housekeeping, counsellors are involved either in actually carrying out or helping to carry out housework or in providing appropriate prompts to clients. Counsellors also ensure that laundry is done and that clients change their clothing on a regular basis.

141. Most CSS clients take their own medications; however, counsellors frequently assist clients in obtaining doctors' appointments and in ensuring prescriptions are filled at the pharmacy. Counsellors monitor to ensure that medications are properly taken and monitor side effects.

142. Leclair testified that counsellors frequently accompany clients on doctor's appointments, to ensure that clients attend. Some clients have difficulty communicating with physicians or have difficulty understanding physicians' orders or advice. By way of example, Leclair recalled a situation where she observed a scab on a client's leg and was instrumental in obtaining treatment over a lengthy period of time for what turned out to be a very deep and potentially serious ulcer. Because the client could not read, Leclair monitored the taking of all medications and made a chart to assist the client in taking the medications at the proper time.

143. Counsellors are also involved with clients' psychiatrists or psychologists. Leclair testified that counsellors are often able to provide additional information to the physician or correct information provided by the client. Some clients' psychiatric problems such as pedophilia require careful monitoring by counsellors.

144. Most CSS clients require assistance with weekly budgeting. Counsellors typically ensure that cheques or money orders are available to pay clients' rent and food. Most clients require complete assistance with all dealings with the bank. No more than 30% to 40% of CSS clients are capable of even simple arithmetic.

145. For each client in CSS, a support agreement is entered into. Marion Kennedy testified that the support provided by staff pursuant to the agreement involves "task-­oriented support" and "emotional support". Ms. Kennedy testified that “often it is the emotional support that keeps the client happy and stable” and that “staff can see small changes in clients that other persons would not pick up on”.

146. Staff are required to maintain a log containing their observations of clients on each visit. Leclair testified that while the frequency of visits varied over time, she normally saw clients every other day for from one to three hours. In addition, she had telephone contact with clients. An instructor is available throughout the week-end for telephone contact by clients.

147. Kennedy testified that a fundamental goal of the CSS program was to monitor and reduce risks to clients. To this end, the CSS program has prepared a "risk-reduction manual" which lists "all the types of risks that the people in the CSS are up against". Kennedy testified that the role of staff was to monitor and be aware of the risks to clients and to keep those risks within manageable limits by careful and knowledgeable observation of clients.

Transportation Program

148. The transportation program has two components. Three attendants are provided on certain segregated ParaTranspo runs from OCAPDD group homes to day programs. In addition, OCAPDD also coordinates independent drivers to take clients to and from day programs where clients are unable to use either the segregated ParaTranspo service or the regular bus service. Approximately 50 clients use segregated ParaTranspo service with the use of attendants. Fifty to 60 clients are transported by independent drivers coordinated by OCAPDD.

In-Home Support

149. This program consists of in-home relief provided to families caring for persons with developmental disabilities.

150. Staff consists of two part time employees who, on average, provide four hours in-home support every two weeks to approximately 22 families.

Family Home Program

151. Under the Family Home Program, persons with developmental disabilities live in an arrangement analogous to foster care. They are provided with guidance, support and room and board by families or individuals in the community. As well as being paid for room and board from a client's Family Benefits, providers are paid a per diem for "care and supervision". As Renee Ladouceur-Beauchamp testified, the amounts paid for "care and supervision" to home providers mean that the provider must be available to the client and the provider the client's needs and watch over the general well-being of the individual.

152. Home providers are not employees of OCAPDD. OCAPDD staff involvement in the program consists of a supervisor and two social workers who match clients with home providers and provide support to the home providers as requested.

THE DECISION

The Definition

153. Section l(l)(a) of the HLDAA defines "hospital" as follows:

"hospital" means any hospital, sanatorium, sanitorium, 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 monies appropriated by the legislature and whether or not it is operated for private gain and includes a home for the aged.

154. The Act further provides that all hospital employees, who are defined as those employed by a hospital, fall under the HLDAA, and that in the event collective bargaining fails in a hospital setting 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

155. The task before me, then, is essentially a definitional one - I am required to determine whether or not OCAPDD falls within the definition of hospital set out in the HLDAA. The question put by the Minister does not invite me to consider whether or not particular services provided by the agency are “essential” in that they should be continued in the event of a strike or lockout, or to what extent employees would be required to continue those services. That model for dealing with the potential interruption of essential services has been adopted in other legislative schemes, such as the Crown Employees Collective Bargaining Act, which preserves the right to strike but permits the designation of certain services, and a requisite number of employees required to operate them, as “essential”, thus limiting the impact of work stoppages but maintaining to the degree possible a normal collective bargaining environment. Through the HLDAA, however, 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 OCAPDD.

156. This definition has been applied to the providers of community-based services for the developmentally disabled such as group homes in a series of earlier cases, decided by the Minister of Labour or referred to the Board. A number of these 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 of these decisions a determination was made that the agencies fell within the definition of a “hospital” contained in the HLDAA.

157. The parties also referred to two decisions in which the Board determined that the agencies in question were not “hospitals” within the meaning of the HLDAA definition: Maison Mere des Soeurs de la Charite D’Ottawa, [1995] OLRB Rep. Nov. 2532; and, Canadian Red Cross Society (Ontario Division), [1995] OLRB Rep. May 612. In the former case, 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, 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.

Physical or Mental Illness, Disease or Injury

158. 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”. It has been held in previous cases that developmental disability falls within these categories. In Surex Community Services, supra at p.1444 the Board said that:

…a development handicap may be the result of a disease, illness or injury experienced pre-natally or during birth. Surex residents have sustained some hurt or loss offunctioning, and the normal functioning of their persons has been chronically disturbed. In any event, I see no reason to distinguish between conditions brought about by disease, illness or injury, and the disease, illness or injury itself ... In addition to being persons with developmental handicaps, most of the residents of Surex do also suffer from other physical and mental illnesses which require special observation, treatment and the administrationof medication.

159. The Board considered this question again in George Jeffrey, supra at paragraphs 41 to 43, and quoted the above passage from Surex Community Services before concluding at paragraph 43 that:

...each of the residents have either a physical or developmental disability which was caused by some underlying medical condition or injury. In most cases, in fact, residents have both physical and developmental disabilities, and may have other related impairments, such as difficulties with speech. In any case, I am satisfied based on the evidence about the residents which is detailed above, that they can all be said to suffer from “physical or mental illness, disease or injury”, or indeed are “chronically ill” as those terms appear in the HLDAA.

Observation, Care or Treatment

160. Perhaps the most critical part of the definition is the requirement that the institution in question be operated for the observation, care or treatment of persons who fall within one of the categories considered above. The arguments of the parties in previous cases have focused on the nature of the care, and on the question of whether or not the agency in question is operated for the purpose of providing such care, or primarily for some other purpose. Several important principles have emerged from the cases.

161. First, 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, Local 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 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, sanitorium, or nursing home.

162. Following the Dignicare decision, the Board has concluded in the cases listed above 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).

163. 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).

164. In Canadian Red Cross Society, the Board considered the provision of a variety of services by homemakers, and concluded that the homemaker program did not fall with the HLDAA definition. One of the facts considered by the Board was that a substantial number of the services provided by the program were not directed towards the care of its clients but towards the care of the clients’ homes (for example, child care, cleaning and laundry) (at p.626).

165. In Maison Mere one of the central issues was whether or not the purpose of the motherhouse was to provide observation, care or treatment or to provide a home for the aged. The Board noted that (at paragraph 15):

In the statutory definition it is an “institution OPERATED FOR the observation, care or treatment of persons afflicted” and a “home FOR the aged” that are included. The Legislature could have easily said that a hospital is an institution in which certain care is provided, or a home where elderly people live, but it did not, and that choice must be given meaning.

166. The Board carefully considered the purpose of the operation of the motherhouse, and concluded that the reason the sisters lived together, including those in the infirmary, was not their age or their state of health, but their religious vows (at paragraph 37). In these circumstances, the Board determined that Maison Mere was “not operated FOR the provision of that care and is not a home FOR the aged” and was therefore not a hospital within the meaning of the HLDAA (at paragraphs 39-40).

Other Institution

167. It has been argued in previous cases that programs which are not residential in nature should not be considered to be “other institutions” within the meaning of the HLDAA definition. In George Jeffrey, the Board assessed an agency which operated several group homes, but also operated non-residential treatment programs on an out-patient basis. The Board concluded that the HLDAA definition does not require a residential component in order to bring an agency within the definition of “hospital” (at p.1667).

168. That is not to say, however, that the location at which an agency offers it services will be irrelevant to the determination of whether or not it falls within the HLDAA definition. In Canadian Red Cross Society the Board placed significant emphasis on the fact that the care and treatment provided by homemakers was provided in the clients’ own homes rather than in a residence belonging to the institutional care-giver (at p.626).

169. Conversely, the fact that clients in group homes often understand the residence to be their “home” does not prevent a finding that it is an institution that should be defined as a ‘hospital” under the HLDAA (see George Jeffrey at p.1663). In Maison Mere, however, the Board noted that the motherhouse was in fact the private home of both the nuns forced by their age or illness to reside in the staffed infirmary which was the subject of the HLDAA application, but also, importantly, the other nuns in the sisterhood. In these circumstances, the Board concluded that the services provided in the infirmary were more like the provision of care in a person’s private residence, albeit a large collective home (at paragraph 35).

OCAPDD: Residential Programs

170. Applying these principles to the facts reviewed in detail above, it is clear that the residential programs operated by OCAPDD are operated for the observation, care or treatment of persons afflicted with a physical or mental illness, disease or injury. Indeed, in final argument counsel for the employer conceded that the group homes would fall within the definition of “hospital” in HLDAA as that definition has been interpreted by the Board, were they the only programs operated by OCAPDD.

171. A significant number of the group homes serve an extremely medically fragile clientele, or clients with severe psychological and/or behavioural conditions. The care provided to these clients is in many cases medical, as evidenced by the services offered by the agency through the Nurse Consultant position, and also includes behavioural intervention and modification, and assistance with virtually all of the activities of daily living. Only a minority of the clients served by OCAPDD in the group homes have sufficient functional independence to require only prompting or organizational assistance. Having regard to the conditions suffered by the various residents of the homes, and the nature and degree of care that they therefore require, I am satisfied that the services provided to them by OCAPDD are “so fundamental to the maintenance of the residents’ 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 lock-out, their condition would be jeopardized” (quote from Surex Community Services at paragraph 67).

172. The only possible exception to this conclusion are the group homes operated to provide respite care for clients who otherwise reside at home. While the observation, care and treatment offered at these locations is entirely analogous to that provided at the other residential group homes, it is provided on an irregular basis to persons with developmental disabilities who are not permanent residents, and who are regularly cared for at home. This unique quality which is the essence of respite care suggests that these clients are less dependent on OCAPDD for care, and that the withdrawal of that care would therefore be less likely to jeopardize their health. For reasons which are discussed in some detail below, however, it is not necessary to reach any firm conclusion about the appropriate characterization of the respite care program, given the conclusions I have drawn about the remainder of the residential programs.

OCAPDD: Day Programs and Support Services

173. In its original submission to the Board, the employer argued that while care might be provided to clients who reside in the group homes, the purpose of OCAPDD is to encourage independent living and the integration of developmentally disabled persons into the community, rather than to offer such care. This argument around the purpose of the institution was particularly emphasized with respect to the non-residential services offered by the agency, including the various day programs and the collection of programs organized under ‘support services’.

174. Counsel submitted that the purpose of the day programs was essentially to provide work for clients of OCAPDD, as well as to train clients in life and work skills, but not to provide observation, care or treatment. There is no question that work opportunities and training are important goals of these programs, but I cannot ignore the facts relating to the actual operation of the various day programs, which were put before me essentially undisputed.

175. The clients who attend the Quinlan, Rosenthal and Loeb centres, including a significant number of the more medically fragile residents of the group homes, require a high degree of care from the counselors in the programs, including some medical support, assistance with virtually all the activities of daily living, and behavioural intervention and support. These clients are not actually working, and indeed receive little in the way of training, as they have only a limited ability to acquire even basic lifeskills. They are certainly encouraged towards greater independence, and experience some community integration, if only through their attendance at a program outside of their “home”. I am satisfied, however, that the high needs of these clients require the involvement of day staff in much the same kind of observation, care and treatment as is provided in the residential program.

176. ARC Industries at the Roger Lovett Centre serves clients who are less high-need than those at the Quinlan, Rosenthal and Loeb centres, but a significant amount of care, particularly around personal needs like food and hygiene, and to deal with behavioural problems, is still provided by counsellors. The participation of clients in work such as envelope-stuffing and even woodworking clearly provides important opportunities for the developmentally disabled persons in the program, to learn job skills and to experience greater independence, but it cannot be said that the primary activity at the Centre is actually “work” as that term is generally understood, and certainly not remunerative work given the token nature of the monies paid to participants.

177. Only two of the day programs offered by OCAPDD seem primarily directed at the provision of work opportunities to clients: National Archives and Plant Maintenance. In both cases the participants have greater independence than the clients in the other programs, and require less assistance with the activities of daily living.

178. The various support services which form part of OCAPDD are difficult to categorize generally given the wide range of programs offered under this umbrella. The two largest programs are Community Support Services, which supports persons with developmental disabilities in their homes, and the Supported Work program, which does the same for persons working in the community. While there is no doubt that counsellors in these programs are actively involved in their clients’ lives in a number of important ways, it is not clear that the nature of their involvement constitutes observation, care and treatment within the meaning of HLDAA. As well, the support is provided in clients’ private homes (and in workplaces operated by employers other than OCAPDD), which is not determinative but certainly relevant as discussed in Canadian Red Cross. As all of the clients in these programs are higher-functioning than those in the residential program, and many of those enrolled in the day programs (although a number of the clients in CSS attend one of the day programs operated by OCAPDD) the involvement of the staff in providing assistance with the activities of daily living is more in the nature of providing organization and structure, and prompting where necessary. There is little involvement in any form of direct personal care, or care of a medical nature, other than assistance with medical appointments and reminders about medication. Unlike the programs offered by the homemakers in Canadian Red Cross, though, the services provided by OCAPDD even in these programs focus very much on the clients themselves, rather than on their homes.

179. Neither party focused to any great degree on the Family Home, In-Home Support or Transportation programs, probably because these services make up a small portion of the agency’s budget and allocation of staff. The Family Home program has a small staff which is basically involved in organization of the program and the provision of support to families who themselves provide care to persons with developmental disabilities. The In-Home Support program is essentially a home-based version of the respite care program, involving two part-time employees who provide a few hours of support biweekly to families caring for the developmentally disabled. In both of those programs it is clear that the care provided to clients is largely delivered by family members or “foster” families, rather than by employees of OCAPDD.

180. As noted above, the employer argues that the purpose of the day programs and support services operated by OCAPDD is not to provide observation, care and treatment to clients but to encourage independent living and integration into the community. A significant problem with this argument is the extent to which the various programs offered by OCAPDD to persons with developmental disabilities must be seen as having integrated goals. Certainly all of the services offered by the agency, including those most closely related to observation, care and treatment of the type clearly intended to be captured by the HLDAA definition, are infused with the overarching goal of encouraging independence and community integration, which of course includes providing work opportunities where possible. But the population which OCAPDD exclusively serves has been identified as persons with developmental disabilities, and that clientele requires varying but still significant amounts of support on the path towards independence and integration, which often takes the form of observation, care or treatment.

181. As well, a number of OCAPDD staff, all with many years of experience and service with this particular agency, spoke eloquently of the pressures which the government’s policy of deinstitutionalization has placed on community-based agencies like OCAPDD, and in particular of the increase in the proportion of higher-need clients requiring significant support.

182. In this context, it is clear that the goals of the agency which do not appear to relate directly to the provision of care may nonetheless be difficult to separate clearly from client needs which mandate the provision of significant levels of care.

183. The nature of the clientele exclusively served by OCAPDD also means that this is not a case like Maison Mere, where the Board concluded that the provision of care to the aged was not the purpose of the agency, despite the fact that it ran an infirmary in which resided several elderly and infirm nuns. In its decision in that case the Board placed significant emphasis on the fact that the relationship between the residents of the infirmary and the motherhouse was not formed because of the care available in the infirmary, but because of a decision to enter a religious order, made long before the onset of the infirmities which led to the need for care (at paragraphs 21 and 39). This unusual situation was distinguished from the facts considered in various earlier decisions of the Board, including Surex Community Services, where, the Board noted, “the relationship between the residents and the facility existed because of special needs and the care the facility could provide to meet them” (at paragraph 21). As in Surex, the clients of OCAPDD make use of the various programs it offers because they have special needs which the agency is specifically charged with meeting, an important distinction between the present case and the decision in Maison Mere.

184. For these reasons, I cannot conclude, having regard to the evidence concerning the day programs and support services, that as a category they do not fall within the HLDAA definition as they are not operated for the observation, care and treatment of persons with developmental disabilities. Rather, the facts compel me to conclude that some of the day programs, and in particular the Loeb, Quinlan and Rosenthal programs, and likely the Roger Lovett Centre as well, can indeed be considered to exist for such a purpose.

The Question Referred to the Board

185. The Minister's power to refer questions to the Board is contained in s. 3(2) of HLDAA:

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.

186. In the present case, the question which has been referred to the Board is whether or not OCAPDD is a hospital. As reviewed above, the employer asked the Minister to refer further questions which would ask the Board to identify which particular aspects of the agency fell within the definition of “hospital” in the HLDAA. This the Minister declined to do. In the circumstances the union takes the position that I must decide whether or not all of OCAPDD is a hospital, and cannot answer the question in part, or answer in a way which seeks to distinguish between different programs. The employer, on the other hand, urged me to respond to the Minister in a way which would define the parts of OCAPDD which are operated for the observation, care and treatment of persons afflicted with a physical or mental illness, disease or injury as narrowly as possible having regard to the facts.

187. The scope of the Board's jurisdiction on a reference from the Minister pursuant to section 3(2) of the HLDAA was considered in Bellwoods Centre, George Jeffrey and Surex Community Services. In each case the Board confirmed its limited mandate on a ministerial reference, which was described as follows in Bellwoods Centre at paragraph 12:

The Minister may, but does not have to, refer to the Board any question which in his or her opinion related 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.

188. The question which has been referred to the Board in the present case differs significantly from the question which was considered by the Board in George Jeffrey, which was as follows:

Is the George Jeffrey Children’s Treatment Centre Residential Care Program a “hospital” within the meaning of the Hospital Labour Disputes Arbitration Act?

If so, should this ruling apply to the whole of the George Jeffrey Children’s Treatment Centre?

189. In that case, as in the present case, the agency offered a variety of services to its clientele, some of whom resided in group homes, but others who were served only by the non-residential programs housed at the employer’s main premises. The union represented employees in three separate bargaining units: one including workers at the group homes; and both a full-time and part-time unit made up of staff in the non-residential therapy programs. The Board concluded that the group homes clearly fell within the HLDAA definition, and then went on to consider the non-residential programs as required by the second question framed by the Minister. Its final conclusion was that the institution as a whole met the definition of “hospital” in the HLDAA.

190. One of the issues considered in George Jeffrey was whether or not employees working in a HLDAA-designated program could or should be included in the same bargaining unit with non-HLDAA employees. In that case there were at the time of the reference three separate bargaining units, but the employer had applied for a Board order combining the units. The Board considered a number of practical problems which might arise from such a situation, especially those relating to bargaining and work stoppages (at paragraphs 60 through 67) although it was not forced to decide the issue given its determination that both parts of the agency could properly be defined as a “hospital” under the HLDAA. At that time the Board had yet to rule on the question of whether or not it would grant a combination of HLDAA and non-HLDAA bargaining units, and it was never called upon to do so prior to the repeal of the combination provisions in 1995. Some guidance as to that question might be found, however, in Bill 136, which specifically prohibits the Board from making an order which would result in a bargaining unit including both HLDAA and non-HLDAA designated employees, except where a unit previously included both and the Board determines it appropriate to continue that arrangement (sections 22(5) and (6)).

191. In the present case, I am satisfied that the Board is limited to answering the single question before it, which is whether or not OCAPDD as a whole should be determined to be a “hospital” within the meaning of the HLDAA. In reaching this conclusion I have considered the Minister’s decision to frame the reference with a single question, unlike, for example, the approach taken in George Jeffrey, and even more importantly, the refusal to amend the question or refer any further questions despite the request of the employer. While we have no information as to the basis for the Minister’s determination, it may be significant that in the present case the employees of both the residential and non-residential programs have long been included in a single bargaining unit, as Bill 136 can perhaps be taken as a statement of the government’s view that generally HLDAA and non-HLDAA employees ought not to bargain together. But whatever the reason, the question referred to the Board requires us to assess the agency as a whole and adopt a single characterization of its operations.

Characterization of the Institution as a Whole

192. The parties reviewed a number of criteria which might be considered in assessing the program in its entirety: the number of programs; the number of clients served by each program; the number of staff working in each program; the amount of money expended for the various programs. Generally speaking, consideration of each of these criteria support the union’s position, as they demonstrate that a large proportion of the agency’s resources are directed at the portions of the program that are clearly operated for the observation, care and treatment of developmentally disabled persons.

193. Certainly a large number of the programs involve the delivery of such care, as reviewed in more detail above. Staff allocation is heavily weighted towards the programs which deliver a higher degree of care, with the result that approximately 78% of staff work in the residential programs or the day programs excluding National Archives and Plant Maintenance. Even if the three day programs with the next highest level of vocational involvement (Roger Lovett, CTC and Loeb) were also excluded, approximately 65% of the staff would still be working in programs delivering a high level of care to clients.

194. A large portion of the agency’s budget goes to the operation of the residential and day programs, with the single largest item being the group homes. The number of clients served is a more difficult number to assess clearly, as persons involved in the different programs receive quite different “volumes” of service. Approximately eighty clients reside full-time in group homes operated by OCAPDD, as opposed to the approximately 400 which are enrolled in the day programs, but the group home residents are being provided with care around the clock, while the day programs are limited to weekdays. As well, more than a hundred of the clients in the day programs either reside in one of the group homes or are enrolled in CSS.

195. This contrast is even more evident with the other forms of support provided. For example, the respite care program serves a large number of clients (approximately 180) but each of those clients is in the care of the agency for only one or two weeks a year. To compare the capacity of that program to the other group homes it would be more appropriate to consider that the two respite homes can accommodate less than 10 clients at a time. Similarly, Community Support Services provides services to more than 80 clients, but on an irregular part-time basis, with most clients being seen for a few hours perhaps a few times weekly.

196. In Maison Mere the Board considered the extent to which such “quantitative” factors should be taken into account in assessing the purpose of an institution (at paragraph 29):

The process of determination of how to categorize an institution with more than one function inevitably includes looking at what it does to see how closely it fits the definition. And this will usually have a quantitative as well as a qualitative aspect to it. We are not of the view that looking at the quantitative aspect of the facts amounts to importing criteria into the statutory definition that are not there. The quantitative aspect of activities is often very relevant to a more qualitative question. It may not be determinative, but it is at least a factor to be considered.

197. In addition to these kinds of quantitative assessments, it is important in approaching the question put by the Minister to consider the purpose of the legislation, which has been characterized as “protective” in nature. In Dignicare, the Divisional Court made reference to a number of earlier Ministerial decisions in which the purpose of the Act had been identified, including the following quote from Re Bruce Retirement Villa and Service Employees Union, Local 210 (December 19, 1986):

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.

198. Similarly, the following statement appears in Re Versa Care of Hanover (October 25, 1984):

The Act is intended to protect those who may not adequately be able to protect themselves if services provided by the Lodge were unavailable.

199. Given that the goal of the legislation is to protect vulnerable persons from the adverse affects of work stoppages, it is difficult to countenance a solution to a challenge like the one presented by the facts in this case which would exclude from the protection of the statute persons who, in the words of the then-Minister quoted above, are exactly the type of persons which the HLDAA seeks to protect. To put it simply, if the choices are either to include or exclude all the developmentally disabled persons served by OCAPDD, regardless of the level of care they require, the protective nature of the statute suggests that inclusion is the only choice.

200. That the legislature must have countenanced the possibility of such “over-inclusion” is apparent with reference to other provisions of the HLDAA, including the specific inclusion of laundries and stationary power plants serving hospitals, and of course the use of the term “hospital” itself. Large public hospitals operate a large number and variety of programs, many of which may not entail the provision of observation, care and treatment to patients, or to patients who would necessarily be considered to require protection, yet they are swept into a scheme of compulsory binding arbitration by definition. And as discussed at the start of this decision, the scheme of the HLDAA is to designate institutions, rather than particular employees or services, as appropriate for removal from the norm of free collective bargaining.

201. Having regard to this context for the present decision, and in all the circumstances of this case, I must conclude that OCAPDD is an institution operated for the observation, care and treatment of persons with developmental disabilities, whom I have concluded are persons afflicted or suffering from any physical or mental illness, disease or injury.

DISPOSITION

202. It is the Board’s advice to the Minister that the Ottawa-Carleton Association for Persons with Developmental Disabilities is a “hospital” within the meaning of the Hospital Labour Disputes Arbitration Act.

“Pamela Chapman”

for the Board