Ontario Labour Relations Board
File No.: 0690-00-M Date: August 10, 2000
Canadian Union of Public Employees and its Local. 4249, Applicant v. St. Mary’s Manor Limited, Responding Party.
BEFORE: Stephen Raymond, Vice-Chair.
DECISION OF THE BOARD
This is a referral from the Minister of Labour brought pursuant to sub-section 3(2) of the Hospital Labour Disputes Arbitration Act (“HLDAA”). The Minister seeks the advice of the Board as to whether or not St. Mary’s Manor (“St. Mary’s”) is a “hospital” within the meaning of section 1(1) of the HLDAA. That definition provides:
(1) In this Act,
"hospital” means any hospital, sanitarium, sanatorium, nursing home or other institution operated for the observation, care or treatment of persons afflicted with or suffering from any physical or mental illness, disease or injury or for the observation, care or treatment of convalescent or chronically ill persons, whether or not it is granted aid out of moneys appropriated by the Legislature and whether or not it is operated for private gain, and includes a home for the aged.
The statutory definition establishes three criteria that need be met; the entity needs to be (1) an “institution”, (2) operated for the observation, care or treatment of persons who are (3) afflicted with or suffering from any physical or mental illness, disease or injury, or be persons who are convalescent or chronically ill. In addition, the Act states that a “home for the aged” is a hospital by definition regardless of whether these three criteria are met.
Canadian Union of Public Employees and its Local 4249 (“CUPE”) has filed written submissions and the parties have consented to the matter being determined based on these submissions.
St. Mary’s has the capacity for 110 residents. All of its residents are elderly. It provides the following services: meals, bathing assistance, housekeeping, personal laundry, and 24-hour a day, 7-day a week, health care supervision. Medication is dispensed to the residents.
Many of the residents require around-the-clock care, including assistance in getting in and out of bed, dressing and bathing. Some of the residents are wheelchair- bound, blind or suffering from illnesses and disabilities, such as Alzheimer’s Disease.
The HLDAA is quite clear. If the institution is a home for the aged, it is by definition, a hospital. Earlier decisions of the Board have discussed this issue. For example, in Meadowcroft Place (Guelph), [1995] OLRB. Rep. Nov. 1375 at paragraph 8, the Board stated:
When the facts of this case are viewed in terms of that jurisprudence, we must conclude that the responding party is a "hospital" under HLDAA. The responding party is a long-term residential facility for people who require care of varying degrees. It is the sort of facility in which the residents would be placed at risk in the event of a strike or lock-out. As more than seventy-five percent of the residents are over seventy-five years of age and all are over fifty years, it can be characterized as a home for the aged under HLDAA. In Carefree Lodge v. Ontario Nurses Association et. al. (Ont. Div. Ct. unreported, November 2, 1976), the Court held "that the words "home for the aged" in the Hospital Labour Disputes Arbitration Act are to be given their plain and ordinary meaning". (See also Nel-Gor Castle Rest Home V. London District Service Workers' Union et. al. (Ont. Div. Ct. unreported, March 19, 1985). The Court has also held that an institution need not be providing "observation, care or treatment" of a medical nature in order to be found to be a hospital under the Act. In this case the residents are receiving "observation, care and treatment" of both a medical and non medical nature. The "institution" in this case is similar to others which the Board has advised the Minister were hospitals under HLDAA in the past few years. The facts in this case are particularly similar to those in Goderich Place Retirement Residence, [1995] OLRB Rep. April 416.
The facts are substantially similar in this matter and the Board finds that St. Mary’s is a “home for the aged” within the plain meaning of that phrase. I note here that all of St. Mary’s residents are elderly and require various degrees of attention and medical care. There can be no doubt that it is plain and obvious that St Mary’s is at the very least, a home for the aged.
Having regard to all of the above, the Board advises the Minister that St. Mary’s is a “hospital” within the meaning of the Hospital Labour Disputes Arbitration Act.
“Stephen Raymond”
for the Board