Ontario Labour Relations Board
0033-00-M Canadian Union of Public Employees Local 2605, Applicant v. Total Communications Environment Inc., Responding Party.
BEFORE: Patrick Kelly, Vice‑Chair.
DECISION OF THE BOARD; September 12, 2000
This is a reference from the Minister of Labour under section 3(2) of the Hospital Labour Disputes Arbitration Act, R.S.O., 1990, c.H. 14, as amended (“the Act” or “HLDAA”) to determine whether or not Total Communication Environment Inc. (“TCE”) is a “hospital” within the meaning of the Act, and therefore subject to the Act.
Pursuant to the Registrar’s direction of April 27, 2000, TCE and the Canadian Union of Public Employees and its Local 2605 (“CUPE” or “the union”) filed written submissions concerning the issue to be determined. TCE took the position that it is not a hospital within the meaning of the Act, while CUPE took a position in opposition to that of TCE.
In its written submissions, TCE advised that it would not be in attendance at the hearing of this matter, which was scheduled for June 7, 2000. It took issue with a number of CUPE’s submissions. First, it stated that the union’s characterization of TCE’s residents as suffering from a “communication disorder” was inaccurate because, in its view, “communication disorder” refers to autism, and TCE has only two residents who suffer from autism. Second, TCE took issue with CUPE’s geographic description of the six residential facilities operated by TCE. CUPE indicated the City of Ottawa as the location of all these facilities, whereas TCE stated that it operates in three municipalities: Ottawa-Carlton, Nepean and Gloucester. Third, TCE disputed CUPE’s assertion of TCE’s “recently established respite care and accommodation service”; TCE alleged that its respite service has been part of its operation since the inception of TCE in 1981. Fourth, TCE disagreed with the union’s assertion that an entity known as Rideau Regional Centre closed down in the 1980’s. TCE stated that Rideau Regional Centre continues to operate currently. Parenthetically, TCE did not dispute CUPE’s allegation that Rideau Regional Centre is a source of some of TCE’s current residents. Fifth, TCE pointed out that several of the medications CUPE alleged are taken by the residents of TCE are “over the counter remedies”. While that may be the case, TCE’s assertion in this regard is not really a dispute of fact as such. Finally, TCE expressed outrage at what it characterizes as the union’s alleged breach of confidentiality in terms of its recitations of the various alleged infirmities and disabilities suffered by a number of TCE residents. It is noteworthy that TCE does not dispute the existence of these infirmities and disabilities.
The objections and disputes set out in TCE’s submissions are immaterial to the determination of the central issue in this matter. Moreover, the Board is not of the view that the union’s submissions are in any way improper as regards issues of confidentiality. Given its declared intention not to participate in the scheduled hearing, the Board cancelled the hearing. The Board is satisfied that the issues in dispute can be dealt with on the basis of the materials filed. In that regard the material facts as alleged by CUPE were undisputed. They reveal the following:
Material Facts
TCE is a community agency that provides services, facilities and supports for persons (“residents”) who are developmentally disabled, and who may have one or more additional handicaps. It has operated since 1981. It now serves about forty men and women in six residential locations as well as providing limited parent-relief services.
At the Eisenhower Drive residence, there are eight individual residents. All of these people require 24 hour a day supervision and care. The majority have high medical needs. There are three full-time residential counsellors, two full-time overnight awake counsellors, one full-time overnight asleep counsellor and six part-time residential counsellors. Medications are administered by staff, and include Risperidone, Lorazepam, Carbamzepine, Domperidone Maleate, Topiramate, Lactulose Syrup, Levothyroxine, Tetracycline, Dentraline Sodium, Docusate Sodium, Bisacodyl, Nitro Firantoin, Phenytoin, and Diazepam.
At the Golden Avenue residence, there are seven individual residents. All of the residents require assistance with bathing and personal hygiene. All residents require medication daily. Staff are required to administer the medication. There are four full-time residential counsellors, two full-time overnight asleep counsellors and four part-time residential counsellors.
At the Eleanor Drive residence there are eight residents. All of the residents require 24-hour-a-day supervision and care. Medications are administered by staff and include Levothyroxine, Lactulose Syrup, Tryptophan, Mineral Oil, Clomipramine, Methotrimeprazine, Carbamazepine, Phenobarbital, Cogentin, Pimozide, Ranitidine, Clonidin, Ferrous Gluconate, Dia-Vite, Folic Acid, Haldol, Lorazepam, Trazodone, Sertraline, and Chlorpromazine. There are three full-time residential counsellors, two full-time overnight asleep counsellors, and four part-time residential counsellors.
At the Quinn Road residence there are six residents. All require 24-hour-a-day supervision and care. Staff administer medications including Ferrous Gluconate, Carbamazepine, Folic Acid, Thioridazine, Benztropine Mesylate, Zoloft, Chlorpromazine, Docusate Sodium, Epival, Lithium Carbonate, Sulfamothox/Trim, Levothyroxine, Gabapentin, Lorazepam, Valpoic Acid, Dilantin, Clonazepam, Trazadone, Risperidone, and Venlafaxine. There are four full-time residential counsellors, two full-time overnight asleep counsellors, and seven part-time residential counsellors.
At the Hillmount residence there are five residents. All require 24-hour-a-day supervision and care. All residents require medications which are administered by staff. There are two full-time residential counsellors, three part-time residential counsellors, and 1 full-time overnight asleep counsellor.
At the Kirkwood residence there are ten residents. Staff administer medication which include Haloperidol, Clonazepam, Lorazepam, Benztropine Mesylate, Docuste Sodium, Metamucil, Centrum, and Claritin. There are four full-time residential counsellors, two full-time overnight asleep counsellors, and six part-time residential counsellors.
TCE services are available to residents of Eastern Ontario who are developmentally handicapped, who may have additional disabilities, and who require physical care and support services, including education and advocacy.
While the aim of TCE is to assist its residents to live independently in the community, residents are not able to live independently and require care and assistance in daily living. There is round the clock support, guidance, care, observation, treatment, and instruction proved by the staff to the residents.
There are approximately one hundred full time and part time staff in classifications of full-time residential counsellor, overnight asleep residential counsellor, overnight awake residential counsellor, part-time residential counsellor, and call-in residential counsellor. Each resident has a primary counsellor who is responsible for the resident’s care plan and updating his or her medical file. All staff are responsible for recording the daily activities and progress of residents. All job descriptions require all staff to be able to provide personal care.
All of the residents have, and have been diagnosed with, a developmental disability. Many of the residents also suffer from other disabilities, mental illness and/or psychiatric disorders. The residents overall are multi-handicapped persons.
As a result of these various conditions, residents require a great deal of physical and medical care and observation. Many of the residents require round the clock care.
The criteria for admission for the TCE Respite Services are the following:
“Be multi-handicapped with a communication disorder such as deafness or aphasia and a developmental delay/disorder
Have a demonstrated need for a total communication environment in which a full spectrum of communication modes (sign language, fingerspelling, speech, speechreading, auditory training, Blissymbolics, reading, writing, mine and gesture) will be used for the optimum of each individuals
Benefit from the level of staffing support that the residence can offer”
Medications for residents may vary depending on the specific need of the individual. The employees chart the medications distributed on the record sheet as well as the medication book.
The residences are staffed 24 hours a day and 7 days a week unless all residents are out of the residence.
The qualifications for staff include a post secondary school diploma/degree in a related human service, health or mental health field.
All employees in addition to having a relevant education must also be able to sign a variety of communication systems including sign language and American Sign Language (ASL).
The staff provide for the special physical, emotional and communication needs of the residents.
TCE has a “Never Alone” policy. Head counts of residents are taken by staff and if a resident is not accounted for, “an emergency” is called.
TCE works with other vocational and academic providers including the Ottawa Carleton Association for Persons with Developmental Disabilities.
TCE’s annual operating budget is $2.5 million dollars; 80% of the funding comes from the Ministry of Community and Social Services and the remaining amount comes from residential fees, corporate sponsors and fundraising efforts.
DECISION
The Act’s definition of hospital
- Section 1(1) of the Act defines “hospital” as follows:
“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 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.”
One of the Act’s purposes has been to provide protection to individuals who are mentally and physically dependent upon the services of an institution such that the individuals would be at risk if the services were withdrawn.
There are three parts to the meaning of hospital under the Act. The entity must be an institution, operated for observation, care or treatment, and service persons who suffer from physical or mental illness, disease or injury, or who are convalescent or chronically ill.
(i) “Other Institution”
With respect to the issue of whether or not TCE is an institution within the meaning of the Act it is to be noted that the Courts and the Board have firmly established that to be an “other institution” within the meaning of section 1(1), it is not necessary for the entity to be “similar in nature to a hospital, sanatorium, sanitarium, or nursing home”: (CUPE Local 2542 v. Dignicare Inc., unreported decision of the Ontario Superior Court of Justice (Divisional Court), Div. Ct., [1991] O.J. No. 180).
In Surex Community Services, [1994] OLRB Rep. October 1430, the Board found that an entity which provided residential services for developmentally handicapped persons in some eight group homes residences and whose focus was assisting such persons to as much as possible normalize their lives, was an institution within the meaning of section 1(1). The Board reached this conclusion notwithstanding the existence of day programs for the institution’s clients and clients referred by other agencies.
The Board in George Jeffrey Children’s Treatment Centre [1994] OLRB Rep. December 1656, found that an entity which provided residential services in three group homes to young adults with physical and developmental handicaps to be an institution within the meaning of HLDAA. The Board reached this conclusion even though the entity operated a residential facility and a non-residential facility offering a variety of treatment and support programs.
In North Yorkers for Disabled Persons Inc. [1995] OLRB Rep. July 1001, the Board found an entity operating a group home for physically disabled adults was an institution despite the fact that the residents of that home had a certain degree of independence and did not necessarily require round the clock care.
In Bellwoods Centre [1997] OLRB Rep. May/June 331, the Board found the entity in question to be an institution. Bellwoods provided residential services to persons with physical disabilities in three settings - two where persons resided in individual apartments and one where persons resided in group apartments. The organization also offered “outreach services” providing various supports to non-residential clients in their own home.
The Board concludes that TCE is an institution within the meaning of the Act. By providing 24-hour care and residential services to multi-handicapped, highly dependent persons, TCE is clearly within the line of cases cited above in which the Board found the employer to be an institution within the meaning of section 1(1) of the Act.
(ii) “Observation, Care or Treatment”
The second aspect of the definition of hospital in the Act is that the entity must provide observation, care or treatment of persons.
The Board has held that “observational care provided by an institution to its residents need not be medical in nature to bring the institution within the definition of “hospital” and within the scope of the Act. In the Surex case, supra, at p. 1444, dealing with developmentally handicapped residents of group homes, the Board held that:
…while the nature of the ‘observation, care and treatment’ of the residents of Surex is not necessarily of a medical nature, it is 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. Many of the residents of Surex do receive medication which must be administered by staff, and some residents receive physiotherapy from the Surex staff. Behavior programs are in place to help train those residents who do exhibit aberrant behavior. At Surex, except for one resident, all of the residents require all services to facilitate them in tasks of daily living, with some residents showing some capability in a few areas.
- The Board reached the same conclusion that services provided to group home residents constituted “observation, care or treatment” within the meaning of the Act in each of George Jeffrey Children’s Treatment Centre, North Yorkers for Disabled Persons Inc and Bellwoods Centre, supra. In North Yorkers at pages 1008-9, the Board made the following comments:
…we are of the view that it is appropriate to consider the nature and the extent to which a withdrawal of that care would endanger the continued health or safety of those in receipt of the care. In the present case, the care provided by attendants is extremely personal and seems fundamental to the well being of the tenants. Furthermore, much of the care provided is closely related to the disabilities experienced by the tenants... [s]ome of the care provided, such as assistance with medication and various aids around toileting, is somewhat medical in nature... Finally, having regard to the information provided by the parties about the condition of the tenants and the care they normally require, it is reasonable to conclude that a withdrawal of services by their normal care giver would likely result in a deterioration of their condition. This is a particular concern where, as here, a majority of the tenants are non-verbal or speech-impaired, and would thus have difficulty communicating with an unfamiliar attendant.
- The clients of TCE cannot function without the care provided by staff. Clients need assistance in all aspects of personal care including medications and medical related services. The employees are responsible for providing this basic and fundamental care as well as for observing the conditions of clients and reporting and acting upon significant changes in condition. I conclude that TCE provides “observation, care or treatment” to persons as contemplated by the Act.
(iii) “Illness, Disease or Injury”:
Are the residents of TCE “afflicted with or suffering from any physical or mental illness, disease or injury” or “or chronically ill”? As indicated previously, the TCE’s residents are developmentally handicapped, and many suffer from further disabilities.
The Board in Surex, supra heard medical evidence asserting that persons with developmental handicaps can not be considered ill or diseased. The Board concluded that for the purposes of the Act, persons with developmental handicaps, particularly persons who also suffered from other physical and mental conditions, are “afflicted with or suffering from a physical or mental illness, disease or injury”. Relying in part on the dictionary definitions of the terms “illness, disease, injury and chronic”, the Board at pages 1443-1444 held as follows:
…it is clear that the residents of Surex suffer from some medical problem which has caused them to be developmentally handicapped. The residents suffer degrees of developmental handicap ranging from mild to profound. Those with more severe forms of developmental handicap need a great deal of care to manage the most basic tasks of daily living...
In addition to their developmental handicaps, the majority of Surex residents also suffer from some other medical condition. Epilepsy, Scoliosis, Schizophrenia, Manic-Depressive Disorder, Alzheimer’s Disease and various forms of mental illness are found among the resident population.
I am satisfied that on a purposive reading of the definition of “hospital” in the HLDAA and having regard to the dictionary definitions of “illness, disease or injury” the services provided by Surex fall within the “hospital” definition to the extent that Surex is an institution which is operated for the observation and care of persons who are afflicted or who suffer from physical and mental illnesses, diseases or injuries. This finding is not taken to suggest that a developmental handicap is a disease or mental illness, but it is to say that a developmental 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 of functioning, 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, especially where the level of care required to deal with the person’s condition may be greater than that provided by hospitals. In addition to being persons with developmental handicaps, most of the residents of Surex also suffer from other physical and mental illnesses which require special observation, treatment, and the administration of medication.
The reasoning above was adopted by the Board in George Jeffrey Children’s Treatment Centre in which the Board found that persons suffering from both physical and developmental disabilities to be suffering from physical or mental illnesses, disease or injury, and also to be chronically ill as those terms appear in the Act.
The clients of TCE are persons suffering from developmental and other disabilities. There is no relevant distinction between the clients of TCE and those described in the Surex, George Jeffrey, North Yorkers for Persons with Disabilities, or Bellwoods, cases, supra. They require the services of the TCE in order to be able to function, and as such, are brought within the class of persons covered by HLDAA.
Labour Relations Purposes:
The Board is not determining for the purposes of treatment or diagnosis whether developmental handicaps can be labelled an illness, disease or injury, but only if they should be so labelled for labour relations purposes in order to protect this class of persons from the hardships which would befall them in the event of a lockout or strike. The proper analysis is from a labour relations perspective as opposed to a medical one.
From a labour relations perspective there is simply no basis for excluding TCE, which provides observation, care and treatment to developmentally disabled persons, from the operation of the Act. Such persons are as much in need of the protection of the Act as are patients in hospitals and residents of nursing homes.
Recently, the Board in Ottawa Carleton Association for Persons with Developmental Disabilities (Board File No. 4279-96-U, decision dated March 28, 2000) case examined the purpose of HLDAA at paragraphs 199 and 200:
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 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.
That the legislature must have countenanced the possibility of such “over-inclusion” is apparent with reference to other provisions of 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, nay 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.”
Conclusion:
For all these reasons the Board finds that TCE is a hospital within the meaning of that term in section 1(1) of the Act. It is an institution, which provides observation care and treatment of persons afflicted with or suffering from physical or mental illnesses, diseases and injuries.
The Board hereby advises the Minister of Labour that it is has concluded that TCE is a hospital governed by the provisions of the Act.
“Patrick Kelly”
for the Board