0382-99-M Joseph Brant Memorial Hospital, Applicant v. Ontario Nurses’ Association, Responding Party.

BEFORE: Timothy W. Sargeant, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.

APPEARANCES: Peigi Ross for the applicant; Kim Bernhardt for the responding party.

DECISION OF THE BOARD; March 8, 2000

1. This is a reference by the Minister of Labour, Ontario Labour Relations Board, pursuant to subsection 3(2) of the Hospital Labour Disputes Arbitration Act (HLDAA).

2. The reference sets out the following facts:

3. On August 7, 1998, the Ontario Labour Relations Board (“Board”) certified the Union as the bargaining agent for,

“ all Registered and Graduate Nurses, Social Workers, Occupational Therapists employed as Case Managers and the Administrative Assistant employed by Joseph Brant Memorial Hospital in the Program of Assertive Community Treatment [“PACT”] in the Regional Municipality of Halton, save and except…”.

2. On March 12, 1999, the Union requested the appointment of a conciliation officer. On March 22, 1999, a conciliation officer was appointed to confer with the parties and endeavour to effect a first collective agreement.

3. The parties have been in the conciliation process but have been unsuccessful in resolving all of their issues.

4. The Union is of the opinion that the employees in the PACT bargaining unit described above fall within the jurisdiction of the Hospital Labour Disputes Arbitration Act (“HLDAA”). The Employer disputes this opinion.

5. The following question was referred to the Board for its advice:

Are the employees of the above-mentioned PACT bargaining unit “hospital employees” within the meaning of the Hospital Labour Disputes Arbitration Act?

4. Over the course of the hearing the Board heard from a number of witnesses. For the employer the Board heard from Ms. Coté (“Coté”) Director of Psychiatric and Mental Health Services at Joseph Brant Memorial Hospital (“Joseph Brant”); Ms. Darlene Kindiak PACT Manager for Halton; and Mr. Dave Tisiot Director of Human Resources Services at Joseph Brant. For the Union the Board heard from Ms. Jennifer Doerrsan, a Case Manager at PACT Halton; Ms. H. Young a Nurse at Joseph Brant and President of the bargaining unit at Joseph Brant; and Doctor Joan Bishop (from London).

5. Though the result that should flow from the facts of this case are very much in dispute the facts themselves are basically not in dispute. The Board is thus prepared to rely on the following findings to come to a determination in this matter.

6. There is no issue that Joseph Brant is a hospital within the meaning of HLDAA. The issue is whether employees of PACT Halton are subject to HLDAA. There is no issue that the employees of PACT Halton are employees of Joseph Brant Hospital. Again there is no issue that PACT Halton is not mandated by statute.

7. PACT Halton was an initiative of the Halton District Health Council (now the Halton Peel District Health Council). It is a community based case management service benefiting the mentally ill in the Halton region. Joseph Brant was appointed the lead agency for the establishment of this PACT program. The PACT program itself is funded through the Community Investment Fund, which is available through the Ministry of Health. PACT Halton funding is ex-global to Joseph Brant, and is not controlled by Joseph Brant. If the PACT Halton funding were revoked by the Ministry of Health, the program would cease to exist. Approximately 98% of the services of PACT Halton are provided to the client in the client’s own home. PACT Halton is a non-residential program. It does have a facility located in Milton where employees meet to discuss the clients and perform other administrative matters. Currently at PACT Halton there are approximately 30 clients.

8. The PACT model itself originated from the State of Wisconsin. The model was developed to assist individuals with severe mental disorders. The aim was to provide a co-ordination of services for the client, so that a client would not have to rely on a number of agencies for such services. In this sense PACT is a hands on program of assistance for the client. The three principal core functions of a PACT program are – treatment, rehabilitation and support.

9. One of the distinguishing features of a PACT program is to provide predictability and assistance for the client. Thus unlike other programs there is team approach to each client. Every case manager in a PACT program is continually updating each client, so if the principal contact is away service may still be provided by another case manager.

10. Examples of the types of services that a PACT program will assist a client with include, but certainly are not limited to, assisting the client in finding affordable housing, helping with decorating, helping furnishing an apartment or living area, personal hygiene education, educating a client in household services such as cleaning, cooking, shopping and laundry, assisting with money management, assisting with obtaining social assistance, assistance in finding employment, transportation to and from medical or dental appointments, offering family support and family education. In general terms a PACT program assists with services that are geared to the client’s needs.

11. One of the important services provided by a PACT program is in relation to medication. Thus dosettes (a container with the daily medicines required) will be prepared for the client and depending on the assessment of the client, delivered on daily or weekly bases. Further there is an ongoing monitoring of medication to assess if the client is taking the medication, as he/she should, and to see the effects of such mediation. Some medication is delivered by an injection that provides the client automatically with medication over a period of time.

12. Standards for Assertive Community Treatment Teams have been issued by the Ministry of Health. These standards were adapted from the PACT program in the United States and in the words of one witness “Ontariolized”. Without detailing such standards in full, they require that before admission to a PACT program, individuals must have “a severe and persistent mental illness that seriously impairs their functioning in community living. Priority is given to people with schizophrenic, other psychotic disorders (e.g. schizoaffective disorder), or bipolar disorder because these illnesses more often cause long-term psychiatric disability”. The individual must have had a high use of the mental health systems – the standard of the Ministry (though not in the Standard itself) is apparently eighty days hospitalization (or high use of emergency services) over a two year period. One of the aims of a PACT program is to reduce a client’s necessity for hospitalization. Although there are no statistics on this point, certainly the impression of several of the witnesses was that the PACT program is being effective in this area.

13. The overall aim of the PACT Halton program is to:

1. decrease hospitalization

2. improve the client functioning in the community

3. decrease symptom management, and

4. to overall improve the quality of life of the client.

This is accomplished through the core functions of treatment, rehabilitation and support. Examples of treatment being psychiatric assessment of the psychiatrist, working out a medication regime, monitoring medication, and observing the clients overall functioning. Examples of rehabilitation are focussed on vocational goals, i.e. learning food preparation, laundry, money management, hygiene etc. Examples of the support are working with people who are important in the client’s life i.e. family and developing a therapeutic relationship.

14. PACT Halton is, as one witnesses described, in reality a half PACT. According to the Standards, a PACT should be staffed with 10 case manages so it can operate on a twenty-four basis for seven days a week. This is not the case at the PACT Halton where the staffing currently has only five case managers. Thus PACT Halton operates Monday through Friday from nine to five, with on call covering the evenings and the weekends. Presently the complement at PACT Halton includes five full time case managers, one part time case manager, a psychiatrist, one part time peer/consumer support worker, one administrative assistant and one manager. The peer/consumer support worker is an experimental position. This position involves an individual who had mental illness and has agreed to work with the team (the other case managers). This person is not in the bargaining unit Currently all case managers and the administrative assistant are included in the bargaining unit.

15. There is obviously a limit as to the number of clients that may in the present circumstances be referred to the Halton PACT. Most clients are referred either by the outpatient services of Joseph Brant or other agencies dealing with mental illness. All the clients at the Halton PACT are on medication. Such clients are, once admitted, expected to use the services for virtually the rest of their lives. The turnover is very low as the discharge criteria are set at a very high standard. In essence to be discharged a client either has to move out of the geographic area or “demonstrate an ability to function in all major role areas (i.e. work, social, self-care) without requiring assistance from the program for at least two years”. The evidence of the witnesses was consistent that this later criteria virtually never happens.

16. At the current level of thirty clients the PACT Halton is virtually full (there may be room for one or two new clients). Once it reaches its capacity, given the discharge criteria, PACT Halton is unlikely to be accepting more clients without additional funding.

17. The intake to the program is thus taken very seriously, with consideration of the admission criteria previously discussed. The psychiatrist and the manager determine who is to be admitted. It is an extensive process relying on the assessment both of the psychiatrist and the manager. If accepted, realistic goals are discussed and a treatment plan is developed. For the treatment plan, matters, such as what would be an appropriate goal (i.e. having a goal to move from a group home to a private apartment for example), whether an attempt should be made to try and develop work opportunities etc. are considered. Based on the treatment plan and the assessment, such issues as the number of contacts required by staff on a weekly basis (daily, two a week, once on weekend); how medication will be delivered and monitored; and what assistance the client needs (i.e. for example, hygiene and money management) are discussed. The case manager in the visits to the client not only assists in the activity needed (for example hygiene) but also on his/her own assesses how the client is performing in accordance with the goals of the treatment plant. The aim of the case manager is to develop a therapeutic relationship with the client. Thus a client depending on his/her needs may be seen as often as twice a day or as little as once a week. The case manager explores all aspects of the client’s life – mental, food, housing shelter etc, to assist the client in daily living.

18. The team (the case managers) meets on a daily basis to give updates on all the clients. Every Tuesday and Thursday the team meets from 1:30 p.m. to 5:00 p.m. with the psychiatrist to discuss more fully the clients and the treatment plans. Each case manager will rotate through the on-call obligations. Most of the clients (all except two) are seen by the PACT Halton psychiatrist. The goal is to have each client under his care. Each client must however have his/her own family physician who is updated on a regular basis. Only the psychiatrist among those working at the PACT Halton may prescribe medication, though the case managers as stated above, are involved in the monitoring of the medication program of a client.

19. At the PACT Halton, the case manager title, in the words of the manager, encompass the disciplines of social work, nursing and occupational therapy. Each case worker is either a registered nurse or a social worker with recognition from the College of their discipline. The case manager is required to assess and develop treatment plans for the clients. The Standard defines a case manager as follows:

Case Manager is the Team member who coordinates and monitors the activities of the treatment team and has primary responsibility to write the treatment plan, to provide individual supportive therapy, to ensure immediate changes are made in the treatment plan as clients’ needs change and to advocate for client

rights and preferences.

Currently among the 6 case managers (one P/T) there is only one social worker, the rest being registered nurses.

20. A case manager at PACT Halton is presently assigned 8-10 clients in accordance with the Standard for rural areas. On average, including phone calls, a case manager may deal with 6-10 clients daily On average a case manager visits personally 5-6 clients a day (some of these visits may be very short, for example, dropping off a dossette). On average each visit lasts about 45 minutes. When on call, the pager is on from 4:00 p.m. to 8:00 a.m. and on weekends. On average, during the week, when on call there are 1 or 2 calls in the evening, and on the weekends 3 to 4 calls. Though not encouraged, a case worker on call will physically attend a client if in the case worker’s assessment such attendance is necessary.

21. Much of the evidence dealt with the issue of whether other agencies would be available to a client if PACT Halton was shut down due to work stoppage. Without dealing with that evidence at great length, the Board is satisfied that other agencies would be available to provide such services. On the issue of whether such a stoppage would affect the client, again there is no question that a client would obviously be affected. One of the aims of PACT Halton is to develop a therapeutic relationship with the client, to provide predictability and continuity of service to the client. Clearly though housing and shelter may not be affected, the services provided to a client with persistent mental illness would be impaired. It is however, impossible to gauge with any precision as to how severally such client would be affected. Dr. Bishop testified that in her expert opinion if services were withdrawn in a full PACT program, the client would start to deteriorate and may well revert back to his/her previous psychological histories. Dr. Bishop did point out that these types of patients are never cured. In her opinion the PACT type of program provided a better service for the money spent than any other type of solution (i.e. for example hospitalization).

22. There is no issue that the PACT Halton employees in the bargaining unit are employees of the Hospital. The evidence was clear that they are hired through the Joseph Brant Human Resources Department, go through an orientation at the Hospital, receive Hospital benefits, attend and are invited to Hospital seminars. In addition Joseph Brant as part of its Psychiatric and Mental Health Services in a pamphlet setting out such services, lists PACT Halton as one of those services. The pamphlet dealing with PACT Halton briefly describes what PACT Halton is, the admission criteria, and the services provided. PACT Halton and its budget are reviewed annually by the Joseph Brant Board of Governors. The Manager of PACT Halton reports to Ms. Coté Director of Psychiatric and Mental Health Services at Joseph Brant. The PACT Halton services are listed on the Joseph Brant organizational chart. The office location of PACT Halton has a sign on the building identifying it as part of the Joseph Brant Memorial Hospital.

23. There was evidence before the Board that other PACTs had been voluntarily recognized as falling under HLDAA. Equally there was evidence that many other PACTs operate with the right to strike. Further, it was the evidence that the other outreach programs operated by the Joseph Brant Hospital had been voluntarily recognized as falling under HLDAA.

24. Finally there was evidence that the nature of health care provisions have been reformed in the last few years. This has led to the closing of Hospital beds and a greater emphasis on having work previously performed at the Hospital being performed through outreach programs in the community itself.

ARGUMENT

25. Counsel for the employer submits that not all employees of a hospital necessarily are engaged in “the operation” of a hospital within the meaning of HLDAA. The caselaw points out that the purpose HLDAA is to protect individuals whose health and safety would be put to risk if services were withdrawn. The norm in Ontario in regards to labour relations is a free collective bargaining system. Thus one must consider the balance between the concepts of free collective bargaining on one hand and the public interest on the other.

26. Counsel for the employer does not assert that the services offered by PACT Halton are not important, but submits that in considering the tests found in the jurisprudence of the Board that in this instance alternative services would be available in the event PACT Halton services were withdrawn. Thus the right of employees to free collective bargaining should not be taken away, when considering the balance between free collective bargaining and the public interest.

27. Counsel for the employer submits that the question is not as simple as determining these employees are covered by HLDAA simply because there are employees of the Hospital. While conceding that this is the first time a hospital has asked that a HLDAA designation not apply to certain of its employees, counsel argues that it is important that the Board look at the functions of the employees involved.

28. In counsel’s submission in this instance PACT Halton is not mandated by Statute, has separate funding that may be cut-off at any time, does not provide residential or food services to its clients, and provides services at the client’s own residential area. In such circumstances, given that similar services are available to clients in the event PACT Halton services are withdrawn, it is counsel’s argument that these employees are not engaged in the operation of a Hospital within the meaning of HLDAA. There is nothing in the legislation to prevent the Board from making such finding. Counsel points out that PACT employees in other locations have been given the right to strike.

29. Thus in counsel’s view the PACT Halton program may be separated out from the normal hospital operation, and a finding made that employees of PACT Halton are not engaged in the operation of a hospital and therefore are not covered by HLDAA.

30. During the course of argument counsel for the employer referred to the following decisions: The Canadian Red Cross Society (Ontario Division) [1955] OLRB Rep. May 612; Extendicare Diagnostic Services [1982] OLRB Rep. March 371; Maison Mère des Soeurs de al Charité D’Ottawa [1955] OLRB Rep. July 978; and George Jeffry Children’s Treatment Centre [1994] OLRB Rep. December 1656.

31. In reference to the submission concerning the purpose of HLDAA counsel for the employer made reference to paragraph 12 The Canadian Red Cross Society decision cited above, which states:

32. We begin our analysis with a reference to the purpose of the HLDAA, and a review of the case law. In Extendicare Diagnostic Services Ltd., supra, the Board stated:

33. The Board has never before been faced with a dispute as to whether an individual is a “hospital employee” within the meaning of the Hospital Labour Disputes Arbitration Act. In order to make this determination we must look to the language of the definition read in the context of a statute whose overriding purpose is to prohibit work stoppages occasioned by labour disputes. The legislature has determined that the need of the public to uninterrupted hospital services takes precedence over the right of certain individuals to resort to economic sanctions in support of collective bargaining objectives. It is against this backdrop that effect must be given to the definition of who is a hospital employee. This is not to say, however, given the statutory encroachment upon individual freedoms, that the Board should not be circumspect in applying the definition.

The Board went on to note that the statutory definition of a “hospital” focuses “not on the identity of the employer, but on the function performed by those whose services are so important to society to abridge their right to free collective bargaining.” The Board continued:

14. …Because it is a person’s function which is determinative of whether that person is a “hospital employee” and because a number of different types of institutions are covered by the definition of “hospital” contained in the Hospital Labour Disputes Arbitration Act, we accept that when determining if a person is a “hospital employee” reference should be had to the type of institution within which or to which that person provides a service or performs a function and to the statute which specifies the services which that institution is required to provide. At the least, it is the uninterrupted delivery of these services which the Hospital Labour Disputes Arbitration Act is designed to ensure.

15. In reference to the submission concerning the tests to apply, reference was made to paragraphs 20 an 21 of the Canadian Red Cross Society, decision cited above, which states:

16. As this review of the case law reveals, in determining whether a particular institution qualifies as a “hospital”, the Board is required to weigh the private and institutional interests in favour of free collective bargaining against the public interest in the continued provision of a hospital services. Given that free collective bargaining, back-up by the right to strike or lock-out, is the norm in our collective bargaining system, and the imposition of terms and conditions of employment by a third party is the exception, a measure of care is required in applying the definition.

17. As the Society and Brant County correctly point out, given the balancing that must go on, it is not every provider of medical and related services to individuals “…afflicted with or suffering from any physical or mental illness, disease or injury ” that qualifies as a “hospital” or a “hospital employee”. This much seems clear from the Board’s decision in Extendicare, supra, and from at least certain of the examples cited by the Society and Brant County, to which no reference was made by the union. It is up to the Board, then, to attempt to give meaning to the relatively open-ended statutory language and to place it in purposive and practical context. The Board has attempted to fulfill this role by considering a variety of factors as relevant to the definition of “hospital” and “hospital employee”, including:

(i) the nature or kind of care provide by the institution in question;

(ii) the degree or extent of the care;

(iii) the extent to which the recipients depend upon the care for their continued health or safety;

(iv) whether the institution is under a statutory obligation to provide the care;

(v) whether the individuals providing the care are employees of the institution or a third party;

(vi) the location at which the care is provided;

(vii) the existence of alternatives to the provision of the care by the employees in question;

(viii) the historical practice of collective bargaining in the industry.

Also counsel referred to paragraph 29 of Maison Mère des Soeurs de la Charité D’Ottawa cited above, which states:

29. There is merit in this submission, and the basis of this decision is not a quantitative one. However, the Board is not persuaded that counsel’s point goes as far as argued. 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.

30. In relation to the submission on the test to apply in considering whether an employee is “employed in the operation of a hospital” within the meaning of HLDAA counsel referred to paragraph 13 and 14 of Extendicare Diagnostic Services cited above, which states:

31. We start by observing that the definition carefully avoids restricting the application of the statute to only those employed by a hospital. The definition extends to all persons “employed in the operation of a hospital.” Given the purpose of the statute and the multiplicity of business arrangements under which an organization such as a hospital can meet its objectives, it is not surprising that the definition focuses, not on the identity of the employer, but on the function performed by those whose services are so important to society as to abridge their right to free collective bargaining.

32. The term “hospital” as defined in the Hospital Labour Disputes Arbitration Act includes hospitals, sanitariums, sanatoriums, nursing homes and certain other types of institutions. Because it is a person’s function which is determinative of whether that person is a “hospital employee” and because a number of different types of institutions are covered by the definition of “hospital” contained in the Hospital Labour Disputes Arbitration Act, we accept that when determining if a person is a “hospital employee” reference should be had to the type of institution within which or to which that person provides a service or performs a function and to the statute which specifies the services which that institution is required to provide. At the least, it is the uninterrupted delivery of these services which the Hospital Labour Disputes Arbitration Act is designed to ensure.

33. Counsel for the union submitted that as there is no issue that the PACT Halton employees are employees of the Hospital and as PACT Halton provides services connected with the Hospital, that therefore it follows that such employees are engaged in the operation of a hospital within the meaning of HLDAA. In the alternative counsel argues that in any event when the Board’s jurisprudence is considered, such employees are definitely covered by HLDAA, even if PACT Halton was considered a separate entity.

34. In counsel’s submission PACT Halton provides a unique service to its clients which gives the client consistency and predictability of services. The withdrawal of such services would have a major impact on the clients. Counsel points out that the Hospital provides mental health and psychiatric care not only at the Hospital itself, but also in a variety of outreach programs. PACT Halton is one of the programs that the Hospital lists as part of its services. Moreover, the employees of PACT Halton are included in hospital activities such as staff meetings and orientation.

35. Counsel for the union points out that the services provided by PACT Halton do have a medical aspect as one of the corner stones of the program is treatment. There is no issue that the clients have been diagnosed with severe mental illness. Medication is monitored and ongoing assessments both mental and physical are performed by the case managers. Further one of the stated goals of PACT Halton is to reduce hospitalization. This is consistent with the evidence that in recent years hospitals are moving certain services out of the hospitals into the community.

36. Thus in counsel’s submission PACT Halton on its own should be considered as falling under HLDAA. In any event, in counsel’s submission no matter what test is considered, on the evidence, clearly the employees of PACT Halton are engaged in the operation of a hospital within the meaning of HLDAA.

37. During the course of argument counsel for the union referred to the following decisions: The Canadian Red Cross Society cited above; George Jeffrey Children’s Treatment Centre cited above; Surex Community Services [1994] OLRB Rep. October 1430; North Yorkers for Disabled Persons Int. [1999] OLRB Rep. July 1001; Meadowcroft Holdings Inc. [1997] OLRB Rep. January/February 74; and CUPE v. Dignicare Inc. a decision of the Ontario Court of Justice – General Division File No 462/90 February 12, 1991.

38. In the course of her submission, counsel for the union referred to the Board to paragraph 19 of the Surex Community Services (cited above) decision where the Board stated “The HLDAA regime is designed to ensure that services to vulnerable people are not disputed by a work stoppage”. Reference was also made to paragraph 39 of the George Jeffrey Children’s Treatment Centre (cited above) where the Board stated:

39. I must comment that the employer’s arguments on this point, and in other parts of counsel’s submissions, seem to arise from its abhorrence of the concept of “institutionalization”, which it seems to link with the terms “institution” and “hospital” as they appear in HLDAA. It is understandable that an agency like George Jeffrey, which is based on a commitment to “deinstitutionalization” and “independent living”, would attach a stigma to the term “institutionalization”. The use of those terms in the HLDAA, however, has nothing to do with arguments about the best way to deliver services to persons with special needs, in the community or elsewhere, but rather is focused entirely on a narrow labour relations purpose: to ensure the continuation of services to persons with special needs as defined in the HLDAA, wherever they are delivered, in the event of a breakdown in collective bargaining.

40. In relation to whether the institution could be considered on its own as covered by HLDAA counsel for the union specifically made comparisons with the institutions considered in the North Yorkers for Disabled Persons Inc. and Meadowcroft Holding Inc decisions, cited above.

41. In relation to the impact that a withdrawal of services might have, counsel for the union referred the Board to paragraph 55 of the George Jeffrey Children’s Treatment Centre (cited above), which stated:

42. Finally, George Jeffrey submitted that a purposive interpretation of the definition would not result in a HLDAA designation as there was no threat posed by a work stoppage to the clients of the programs at Lillie Street as they were not in residence. While I agree that the threat to non-residents is not as great as that posed to the clients of the residential care program, I do not accept that a work stoppage would have no impact. In fact, given the nature of the treatment being received, in most cases by children with special needs who would seem to be particularly vulnerable, I am satisfied that the withdrawal of their regular treatment might have seriously negative effects on their health and well-being.

DECISION

42. Section 1(1) of HLDAA definitions provides:

Definitions –s.1(1)

1.(1) In this Act,

“hospital” means any hospital, sanitarium, sanatorium, nursing home or other institution operated for the observation, care or treatment of persons afflicted with or suffering from any physical or mental illness, disease or injury or for the observation, care or treatment of convalescent or chronically ill persons, whether or not it is granted aid out of moneys appropriated by the Legislature and whether or not it is operated for private gain, and includes a home for the aged;

“hospital employee” means a person employed in the operation of a hospital;

“Minister” means the Minister of Labour:

“party” means the trade union that is the bargaining agent for a bargaining unit of hospital employees, on the one hand, or the employers of such employees, on the other hand, and “parties” means the two of them.

Idem –s. 1(2)

(2) Unless the contrary intention appears, expressions used in this Act have the same meaning as in the Labour Relations Act.

Laundry –s. 1(3)

(3) A Laundry that is operated exclusively for one or more than one hospital shall be deemed to be a hospital for the purposes of this Act.

Stationary power plant –s. 1(4)

(4) A stationary power plant as defined in the Operating Engineers Act that is operated principally for one or more than one hospital shall be deemed to be a hospital for the purposes of this Act.

R.S.O. 1980, c. 205,S.1.

43. The Board has carefully considered the submissions and arguments of counsel in this matter. In the circumstances of this matter the Board has concluded that employees of PACT Halton are employees of a hospital “engaged in the operation of a hospital”.

44. The jurisprudence of the Board basically has considered whether an institution is a “hospital” within the meaning of HLDAA. For example, though in the Surex Community Services decision (cited above) the question referred to by the Minister was, “Are employees of Surex Community Services ‘hospital employees’ within the meaning of the Hospital Labour Disputes Arbitration Act”, the Board first considered whether the institution itself was a “hospital” within the meaning of HLDAA. Having found that it is a hospital within the meaning of Hospital Labour Disputes Arbitration Act, the Board held “it follows that the Board is in a position to advise the Minister that employees of Surex are ‘hospital employees’ within the meaning of the Hospital Labour Disputes Arbitration Act”.

45. In this instance there is no disagreement that the PACT Halton employees are employees of a hospital, namely Joseph Brant. Thus the Board is not faced with the issue of whether the underlying institution is a hospital. If the issue was whether PACT Halton was a “hospital” within the meaning of HLDAA, then, those tests as set out in paragraphs 20 and 21 of the Canadian Red Cross Society would be relevant.

46. However, the only question before this Board is whether the PACT Halton employees are “engaged in the operation of a hospital”. The facts of this situation are readily distinguishable from those in Extendicare Diagnostic Services (cited above) where the underlying institution was not a Hospital within the meaning of HLDAA and the issue was whether employees of Extendicare Diagnostic Services who provided certain medical services on a full time basis in a nursing home should be considered as hospital employees within the meaning of HLDAA. In this instance, however, the underlying institution is considered to be a hospital. Whether PACT Halton, if it was a separate and distinct organization, would be considered as a hospital within the meaning of HLDAA is not a decision the Board is then required to make in this instance.

47. Are then the employees of PACT Halton, who are employees of a Hospital, engaged in the operation of the Hospital. Though it may be that not all employees of a Hospital would be considered as engaged in the operation of a hospital depending on the individual facts, in this instance, based on these facts the Board has no hesitation in concluding that the PACT Halton employees are engaged in the operation of a hospital. The Board is of the view that PACT Halton is clearly an extension of the hospital. The PACT Halton services are advertised as part of the services provided by the Joseph Brant Hospital. The service of PACT Halton include treatment, medication, monitoring and physical and mental assessment of the client. The client has by definition “severe and persistent mental illness that seriously impairs their functioning in community living”. Furthermore in an era where health care is going through radical reorganization it is an aim of hospitals to reduce hospitalization through outreach programs. This is one of the aims of the PACT Halton program, a program that reports to Joseph Brant management and is overseen by the Joseph Brant Board of Directors.

48. For all of the above reasons the Board’s advice to the Minister is that employees of the above mentioned PACT bargaining unit are “hospital employees” within the meaning of the Hospital Labour Disputes Arbitration Act.

“Timothy W. Sargeant”

for the Board