0364-00-M Ottawa-Carleton Lifeskills Inc., Applicant v. Canadian Union of Public Employees and its Local 3826, Responding Party.
BEFORE: M. A. Nairn, Vice-Chair.
DECISION OF THE BOARD; July 17, 2000
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 Ottawa-Carlton Lifeskills Inc. (“OCL” or the “employer”) 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 need 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.
The parties have filed written submissions and have requested that the matter be determined based on those representations. The following facts outline the employer’s operations and the clients it serves:
OCL is a non-profit community agency that provides residential services, and lifeskills training for persons who are developmentally disabled, and who may have one or more additional handicaps. It operates in the Regional Municipality of Ottawa-Carleton, Ontario. OCL has an annual operating budget in excess of $3,000,000.00. OCL has indicated that 100% of its funding comes from the Ministry of Community and Social Services. It now serves about sixty (60) men and women in eight (8) residential group homes (Grenon, Killarney, Townsend, Vaan, Pulford, Alma, Wylie, and Otterson); and additionally about another fifteen (15) in its Home Share Program. There are approximately seventy-five (75) clients, which participate in OCL's Day Program. However, the majority of these clients are also clients of OCL's residential group homes or the Home Share program. As well, OCL operates a Supported Independent Living Program for approximately 15 clients.
There are approximately 170 employees at OCL. Approximately 142 are members of the Applicant's bargaining unit, CUPE Local 3826. Another approximately 9 employees are in Home Sharers bargaining unit, CUPE Local 3818. The remaining employees are non-union and/or managerial.
All clients are developmentally disabled and may have one or more additional physical or mental disabilities. OCL services are available to residents of Eastern Ontario who are developmentally handicapped, and who may have one or more additional disabilities, and who require physical care and support services, including education and advocacy.
While the aim of the OCL is to assist its clients to live independently in the community, the fact is that clients are not able to live independently and require care and assistance in daily living. There is round the clock support, guidance, care, observation, treatment, and instruction provided by the staff to the clients.
Some of the current clients of OCL have come from the Rideau Regional Centre, which reduced services beginning in the 1980's as services were decentralized.
As a result of these various conditions, clients require a great deal of physical and medical care and observation. Many of the clients require around the clock care. The OCL provides a high level of direct care staff.
At the Charing residence there were four clients. That facility has closed and the clients have been moved to the Otterson site where there are now 7 residents.
At the Grenon residence, there are 3 full-time evening staff; 2 full-time overnight awake staff; 7 part-time Residential Counsellors; and casual or relief staff. There are 8 individual residents, five females and three males. All of these people require 24 hour a day supervision and care. One of the clients requires 10-15 minute checks on his whereabouts. Seven of the clients have demonstrated aggressive behaviour towards others. Mat restraints have been approved for two of the clients. One client is a brittle diabetic who is insulin dependent. Staff are required to do injections and to test and record blood sugar levels. Six of the clients are dual diagnosed with psychiatric disorders. One client has a tendency to run away. All clients require assistance with meals. All require food to be pre-cut in small pieces to avoid choking. One is on a diabetic diet, another is on an anti-reflux diet and another has a controlled diet due to diverticulosis. Five clients have specific food allergies and require close supervision of diet. Four clients have bowel movements charted by staff. One client requires a complete body chart twice a day. Three clients require assistance with toileting. Three clients are incontinent. All clients require monitoring during bathing. Six clients require physical assistance with bathing and personal hygiene. Staff administer and chart medications including Thioridazine, Buspirone, Fluvoxamine, Centrum, Psyllium Mucilloid, Levothyroxine, Risperidone, Divalproex, Sodium, Lorazepam, Chorhexidine, Minestrin, Methotrimeprazine, Micronor, Medroxyprogesterone, Paroxetine, Fluphenazine, Olanzapine, Sennosides, Humulin-NPH, Chlorpromazine, Medroxyproget, Phenytoin, Synphasic Benztropine, Lactulose, and Dalcin. Additionally there are approximately 30 items that are administered and charted.
At the Killarney residence there are 8 clients. The facility is staffed at all time clients are on site. All clients require physical assistance with bathing, hygiene and toileting. All clients are incontinent and wear diapers. All are non-verbal and have extensive communication difficulties. All of the clients require daily medications which the staff administer and chart. One client has epilepsy, another client is blind and four clients have limited mobility and use wheelchairs.
At the Townsend residence there are five female clients. All clients require 24 hour a day observation and supervision. All clients require physical assistance with personal care and hygiene. One of the clients has self-injurious behaviour. All of the clients require medications which are administered and charted by staff. Medications include Psyllium Mucilloid, Loratadine, Levothyroxine, Calcium Carbonate, Benztropine Mesylate, Beclomethasone, Carbamazepine Budesonide Nbuamp, Acetaminophen, Resperione, Haloperidal, Olanzapine, Sodium Floride, Divalproex Sodium, Aivusol HC Sup, Chlorpromazine, Lorazepam, Dimenhydrinate, Clomipramine, Pyridexine hcl, Hydrocortisone, Desonide, Methotrmeprazine, Dimetapp, Detamethasone, and Primidone.
At the Vaan residence there are five clients. All clients require total assistance with bathing, hygiene, toileting, and feeding. All of the clients require daily medication which is administered and chartered by staff. Two of the clients are epileptic and have frequent seizures. All of the clients are incontinent and wear diapers. Three of the clients are non-ambulatory and require two person lifting techniques. All of the clients are non-verbal. One client is frequently hospitalized.
At the Pulford residence there are seven male clients. There are five full-time staff and eight part-time staff. One client has cerebral palsy. Four clients have seizures. Four clients are physically aggressive towards others and towards their environment. Two clients require assistance with toileting. A forensic psychiatrist sees three clients and a dual diagnosis psychiatrist sees another three clients. Client behavioral issues include sexuality, high hyperactivity, anxiety, obsessive compulsive, non compliance behavioral issues. One client requires one-on-one staffing. (Two clients have medical orders to be restrained with an apparatus referred to as a “papoose”). Medications are administered and charted by staff. Medications include Lorazepam, Lactulose Syrup, Zinc Sulphate, Phenytoin, Casodex, Thiroadizine, Fluvoxamin, Enalapril, Sodium Docusate, Divalproex Sodium, Clonazapam, Mupirocin, Clobazam, Trazadone, Acyclouir, Risperidone, Valporic Acid, Busperone, Chlorapromazine, Carbamzapine, Lamotragine, and Dimehydrate.
At the Alma residence there are ten clients, five males and five females. There are five full-time staff including one overnight awake position, and four part-time staff. Three clients have psychiatric disorders as well as developmental disabilities. All clients require 24 hour a day care and observation. One client has Down's Syndrome and a hearing disorder. Five clients exhibit self-injurious behaviors. Two clients have potential for physical aggression towards staff and other clients. Five clients have seizure disorders and require anti-seizure medications that are administered and chartered by staff . Five of these clients have seizures biweekly. Seven clients have a tendency to leave the premises if staff are not constantly vigilant. All clients have restricted diets. All clients require assistance with bathing and hygiene. All clients require medications which are administered and charted by staff. Medications include Divalproex Sodium, Clonazapam, Lactulose Syrup, Lorazepam, Chorpromazine, Flultcasone prop nasal, Metamucil, Fluoxetine hcl, Furosemide, Olanzepine, Docusate Sodium, Toperamate, Carbamazepine, Ferrous Gluconate, Clobazaim, Rantinidine, Benzetropine, Haloperidal, Propranolol, Ferrous Sulfate, Serentil, Clobrimonate, Phenobarbite, Folic Acid, and Phenytoin.
At the Wylie residence there are six male clients. There are staff assigned at all times clients are on site. Disabilities include Down's Syndrome, early stage Alzheimer's, Autism, Obsessive Compulsive Disorder, aggression risk, susceptibility to pneumonia, and food sensitivities. One client requires assistance with bathing and hygiene. One client requires food to be pureed. All clients receive medications which are administered and charted by staff. Medications include Elocom cream, Nizoral shampoo, Sal acid cream, Dimetapp, Salbutamol, Robitussin, Hydrocortisone, Thiordizone, Vicks, Acetominaphen, Erthromycin, Synthroid, Paraxetine, Sorfracort, Dwlsym, Novo Mucilax, Lorazepam, Hexavitamin, Dormal therapy, Sebour T shampoo, Cloyimazole cream, Clobetesol, Betamethasone cream, Fucidin, Hydra sense, Dimenhydrate, Risperidone, Biaxin, Tersa Tar, Gravol, Aprosolic ointment, Oxapam, and Teraseptic.
At the Otterson residence there are seven clients. All clients are non-verbal. All clients require physical assistance with bathing, hygiene and toileting. All require food to be pureed and assistance with feeding. All require daily medications, which the staff administer and chart. Three of the clients are epileptic. One client is blind and requires the use of a wheelchair. One client is hearing impaired. One client is self abusive requiring frequent staff intervention. These clients as well as being developmentally disabled are medically fragile to the extent that they are unable to regularly go off site to day programs such as OCL’s Lifeskills Day Program. Staff are required 24 hours a day to provide care and observation. All clients require medications which are administered and charted by staff.
The Lifeskills Day Program serves approximately 75 adults with developmental disabilities. The majority of the clients served in the Lifeskills program are from OCL's residential group homes and Home Share programs. Other clients are from the community as well as other agencies. The Lifeskills program has approximately 14 full-time staff. Staff are responsible for the administration and recording of medications for clients in attendance at the Lifeskills program. Clients are segregated at the program on the basis of behaviour or by personal choice.
The Supported Independent Living [hereinafter referred to as 'S.I.L.'] Program serves approximately 15 developmentally handicapped adults who are considered as high functioning and who do not present as dangerous to themselves or others. These clients live alone or with others in their own residences. Staff visit and meet with these clients from a few to several times a week, depending on need, to assist with budgeting, banking, household bill paying, menu planning, grocery shopping, household maintenance and housekeeping, employment counselling, and social skills. Staff also monitor and assess personal hygiene, personal safety and security. Staff assist clients with doctor's appointments and basic medical and dental needs. Staff also provide support though crisis intervention.
The Home Share program operates with approximately 12 to 14 clients. Each client is placed in the private home of a staff person who is referred to as a Home Sharer. There are approximately 12 full-time Home Sharers. There are no part-time Home Sharers. The arrangement is similar to that of a foster care arrangement. A Home Share may have either one or two clients assigned. The Home Share clients have characteristics and needs typical of the residential group home clients. The staff which are Home Sharers are represented by the Canadian Union of Public Employees but in a separate bargaining unit.
Within CUPE’s bargaining unit, Local 3826, there are four classifications. The classifications are Residential Counsellor; Lifeskills Instructor; Residential Counsellor Nursing Support; and Lifeskills Instructor Nursing Support. Each classification may be Full Time (FT) or Part Time (PT). The qualification for Residential Counsellor and for Lifeskills Instructor is a Developmental Services Worker diploma or equivalent. The qualification for Residential Counsellor Nursing Support and for Lifeskills Instructor Nursing Support is to be a Registered Nurse (R.N. or R.P.N.) licensed to practice in the Province of Ontario. Job descriptions for all classifications contain the following requirement, "Become knowledgeable concerning the medical conditions of clients and their individually prescribed medications so as to immediately bring to the attention of the Supervisor any illness, injury or change in condition." The job descriptions contain multiple references to the care, observation and treatment of clients. All job descriptions were attached to and formed part of the submissions reviewed by the Board.
Medications for clients may vary depending on the specific need of the individuals. The employee charts on the record sheet as well as the medication book, the medications distributed. The OCL has an extensive set of Policies and Procedures setting out protocols for staff in the administration of medications, the observation and assessment of clients (including procedures for recording seizures) and protocols for Changes in Medication And/Or Treatment Procedures. A copy of those Policies and Procedures was attached to and formed part of the submissions reviewed by the Board.
The Residences are staffed 24 hours a day and 7 days a week unless all clients are out of the residence.
OCL works with other vocational and academic providers including O.C.A.P.D.D. (Ottawa Carleton Association for Persons with Developmental Disabilities).
If an institution falls within the definition of a “hospital” within the meaning of the HLDAA, those receiving its services are ensured of continuing to receive those necessary services should the bargaining parties be unable to settle a collective agreement short of the point of a strike or lockout. In order to protect those who would otherwise be at risk if services were withdrawn, the HLDAA provides an alternate dispute resolution mechanism, interest arbitration.
The HLDAA recognizes that there may be institutions other than a hospital, sanatorium, or nursing home that still meet the statutory definition. Group home residences providing residential services have been recognized as falling within the scope of this definition of “institution”. See Surex Community Services [1994] O.L.R.B. Rep. Oct. 1430 and North Yorkers for Disabled Persons Inc. [1995] O.L.R.B. Rep. July 1001.
In this case the employer operates a number of residential group home settings, a day program, and other support programs. The nature of the clear majority of these facilities is readily consistent with those found to be institutions in the cases cited above. I find therefore that OCL is an institution within the meaning of section 1(1) of the HLDAA.
The second aspect of the definition requires that the entity operate for the observation, care or treatment of persons. In Surex, supra, the Board commented:
67…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.
- In North Yorkers for Disabled Persons Inc., supra, the Board commented:
23…We are of the view that it is appropriate to consider the nature and the extent of the care provided, 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… some 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 conditions. 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.
All clients at OCL are developmentally disabled and most have one or more additional physical or mental disabilities. Many are non-verbal and a number regularly exhibit aggressive behaviours. Medications are administered and charted for a variety of physical and/or psychiatric diagnoses, toileting and bathing assistance is provided, restraints are used in some cases to control behaviour and to ensure safety. Residents are under constant supervision if on site and in at least four of the residences twenty-four hour observation is required and provided. Only a small proportion of clients function at a level where they might not pose a danger to themselves or others should services be withdrawn. The staff are qualified to observe, care for, and treat within prescribed limits, the needs and conditions of the clients and the employer has procedures in place for that purpose. The services provided by the staff at OCL fall within the definition of “observation, care or treatment” within the meaning of the HLDAA.
The final element of the definition is that clients must be “afflicted with or suffering from any physical or mental illness, disease or injury” or be “convalescent or chronically ill”. This aspect goes hand in hand with a review of the observation, care or treatment provided by the staff. In Surex, supra, the Board took a purposive view of the definition and placed it in its limited labour relations context:
64…it is clear that all of 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 definitions 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 with or suffer from physical and mental illnesses, diseases or injuries. This finding is not to be 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 do also suffer from other physical and mental illnesses which require special observation, treatment, and the administration of medication.
That approach has also been adopted by the Board in George Jeffrey Children’s Treatment Centre [1994] O.L.R.B. Rep. Dec. 1656. In the case before me all residents experience developmental handicaps and the large majority suffer as well from other physical or mental disorders, including autism, Alzheimer’s, diabetes, epilepsy, blindness, and various psychiatric disorders. For purposes of the HLDAA, those conditions fall within the definition of physical or mental illness, disease or injury, and/or chronic illness. These facts are sufficiently similar to the facts in Therapeutic & Educational Living Centres Inc. [2000] O.L.R.B. Rep. Mar./Apr. 400 to warrant drawing the same conclusion.
Having regard to all of the above, it is the Board’s advice to the Minister that Ottawa-Carlton Lifeskills Inc. is a “hospital” within the meaning of the Hospital Labour Disputes Arbitration Act.
“M. Nairn”
for the Board