1344-00-M Canadian Union of Public Employees, Local 1521-02, Applicant v. Community Living Association, (Lanark County), Responding Party, v. Ontario Association for Community Living, Amicus Curiae.

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

APPEARANCES: Nancy Rosenberg; Mert McDonald, Glennis Harwig and Lisa McLeod for the applicant; Russel Zinn and Rick Tutt for the responding party, Rodney G. Walsh for the Amicus Curiae.

DECISION OF THE BOARD; June 19, 2001

1. This is a Ministerial reference pursuant to section 3(2) of the Hospital Labour Disputes Arbitration Act (the “Act”) the question which has been referred to the Board for its advice is the following:

Is Community Living Association (Lanark County) a “hospital” within the meaning of the Hospital Labour Disputes Arbitration Act.

2. Counsel for the Community Living Association (Lanark County) (“CLALC”) wrote the Board on May 23, 2001 asking the panel to defer its decision in light of the Government tabling Bill 57 “An Act to promote government efficiency and to improve services to the taxpayers by amending or repeating certain Acts”. Counsel also wrote the Minister of Labour on this issue. Mr. Reg Pearson, Director, of Management Services replied to counsel and in part replied “As you know, until a Bill is passed at third reading and subsequently is brought into force, the existing legislation continues in effect. Accordingly, we are of the view that in the present circumstance, it is preferable to allow the Board to proceed with this matter in its usual manner”. The Board in such circumstances, is not prepared to defer its decision in this matter.

3. The parties attempted throughout the proceeding to arrive at a solution to their bargaining problem. The primary issue related to wages and the parties belief that the cause of the problem related to a lack of finding. The Board throughout the process was impressed by both parties approach to each other in what both parties considered as a difficult situation.

4. Although a number of days were scheduled and used by the parties in their deliberations, on the evidence the Board only heard from one witness and for one day. Many days were scheduled to hear further evidence.

5. However, after discussions between the parties and given the financial restraints on the employer, the parties on the May 11, 2001 hearing agreed to a sensible protocol, with the assistance of the side members, to end the hearing and as to how the Board should proceed.

6. Mr. Zinn on behalf of the employer (“CLALC”) made the following statement to the Board at the hearing on May 11, 2001:

a) CLALC was not conceding or agreeing with the union position that it was a “Hospital” within the meaning of HLDAA, and was strongly opposed to such a position. To the extent that employees offer observation care and treatment it was CLALC’s view that such was ancillary to the real purpose of the CLALC which is to enable developmentally disabled persons to participate in the activities of the community;

b) the reality of this application is that the parties are before this Board because CLALC does not have the funds to meet the salary expectations of its employees;

c) if the hearing proceeds it would require a substantial number of days to complete at a substantial cost to the employer. CLALC wanted it to be know that the cost of these hearings had not been taken from those funds earmarked for direct services to the community, but came from a reserve fund established by the Board of Directors for capital projects, emergencies etc. The Board of Directors however had determined these funds could be better spent, than in a continued hearing.

Thus it was the instructions of the Board of Directors of CLALC to advise the Board that it was withdrawing from the process.

7. In discussions with the Union, counsel for the CLALC advised the Board that the parties had agreed on the following process to conclude the hearing. The parties agreed that the Board made its decision based:

(a) on the written submissions of the parties;

(b) on the documents filed with the Board;

(c) on the evidence heard to date; and

(d) on statements made by a representative of each party. The statements would not be subject to cross-examination and the parties agreed the Board could consider such statements in any fashion the Board found useful.

It was agreed that upon the conclusion of the statements, it would be the case for both parties and no further submissions would be made.

8. Counsel for the union agreed with such procedure. Counsel made it clear that the Union strongly believed that a designation as a “hospital” under HLDAA should be made for CLALC.

9. The Board then heard a statement from Mr. Tutt, the Executive Director, on behalf of CLALC and from Mr. McDonald, National Representative of the Union. These statements will be reproduced subsequently in the body of this decision. The hearing then concluded.

The Facts

10. Given the agreement of the parties, the Board having reviewed the submissions, documentations, and testimony will rely upon the following facts for the purpose of this decision.

11. CLALC is a charitable, not-for-profit organization, incorporated in 1969 pursuant to the Ontario Business Corporations Act and directed by a community-based volunteer Board of Directors, composed of persons with developmental disabilities, their families, friends and other interested community members. CLALC is funded primarily by the Government of Ontario through the Ministry of Community and Social Services ["MCSS"].

12. The Objects of the CLALC, as provided in its Supplementary Letters Patent are:

(a) to provide the mentally retarded adult with training which will enable him to function in a socially acceptable pattern of daily living;

(b) to help mentally retarded youth make the transition into adult living through occupational training;

(c) to provide, and cooperate with others in the provision of residential care, recreation facilities, guardianship, education, employment and other facilities within the community for mentally retarded youths and adults as an alternative to institutional care;

(d) to prepare those trainees who have the potential for placement in competitive employment;

(e) to educate the public toward acceptance of the retarded as citizens and as employees;

(f) to provide and operate housing accommodations with or without any public space, recreational facilities and commercial space of buildings thereto;

(g) for the above objects, to accept donations, gifts, and legacies;

(h) for the above objects, to purchase, lease and otherwise acquire and to hold, enjoy, manage, develop and improve lands and buildings and interest thereof; and

(i) for the above objects, to borrow money and issue securities and bonds.

13. The fundamental goal of CLALC is to support persons with developmental disabilities to live in a state of dignity, share in all elements of living and have the opportunity to participate effectively and integrate as much as possible into the community. CLALC seeks to fulfill this mandate through a service delivery model that strives towards a person-centered approach.

14. CLALC currently serves approximately 111 people with developmental disabilities and their families through a range of support services, which include Community Support Services, Supported Independent Living, Family Home Arrangements, and Group Homes. The majority of persons supported by CLALC participate in services from two or more programs.

15. The CLALC relies on the Ontario Ministry of Community and Social Services to provide funding of its operational budget. The bulk of the CLALC’s operational budget is used for the operation of its residential group homes.

16. A total of only 19 people of the 111 individuals supported by CLALC are supported in the Group Home environment. The total staff of CLALC is approximately 87 of which approximately 70 are employed at the group homes. Of these 70 employees approximately 39 are on call staff and only work as needed to fill in for existing staff.

17. Currently, 101 people (i.e. 91% of the individuals supported by CLALC) receive support through the Community Support Services (CSS) operated in Almonte, Carleton Place, Smiths Falls and Perth. Between one third and half of the individuals supported in this context receive support outside the physical location of the CSS. The support is individualized and varies greatly from individual to individual. Some individuals receive minimal support with, for example, only financial planning or budgeting consultation, while others attend daily at the CSS location to participate in social activities and life skill enhancement.

18. A total of 33 people (i.e. 30% of the individuals supported by CLALC) receive support to live independently throughout Lanark County. This support may range from assistance with cleaning to the provision of consultation in respect of financial planning. Support is provided in individual’s homes and is, on average, provided for each individual for a few hours per week.

19. A total of 13 people (i.e. 12% of the individuals supported by CLALC) who are supported by the CLALC live with families (other than their own) throughout Lanark County. This is a shared living arrangement wherein support is offered in a family environment, the individuals pay their own room and board and the families are compensated by CLALC

20. In regards to the Group Homes there are currently three such group homes. The Edward Street Group Home has five clients in residence, all female. The Thomas Street Group Home has six clients in residence four male and two female. The Elmsley Street Group Home residence has eight clients, two males and six female.

21. The staff at these homes consist of counsellors and residential aides. There are no nurses on staff.

22. The purpose of a residential aide according to the job description is as follows: “under the direction of the community services manager and in consultation with the residential counsellor, this position provides basic daily care to an assigned group of clients in a warm environment ensuring that people reach their full potential, through the implementation of established day programs, recreation programs and community involvement in a safe secure home setting”.

The major responsibilities are as follows:

1. SUPPORT FOR INDIVIDUALS

• Attends to the physical and personal care of individuals, encouraging participation and independence.

• Ensures personal and physical safety.

• Follows the household schedule and routines ensuring sensitivity to individual’s needs and choices.

• Is aware of health care needs and reports in accordance with C.L.A. Policy.

• Implements individual programs with support from counsellor.

• Applies first aid when needed.

• Administers mediations as directed.

2. COMMUNITY INTEGRATION

• Ensures client participation in community activities, special events, and exploring new interests in the area.

3. HOUSEHOLD DUTIES

• Maintains household to acceptable standards of cleanliness and décor both inside and outside.

• Participates in the grocery planning and shopping and the preparation of nutritious meals.

• Is sensitive to privacy of clients and neighbours.

• Ensures home safety programs.

4. STAFF RELATIONS

• Practices and promotes positive interpersonal relations with all term members.

• Follows guidance of consultants and medical practitioners.

• Assists with orientation of students.

A residential aide has knowledge of CPR and first aid as well as in-services such as health care, epilepsy and alzheimers.

23. The purpose of a residential counsellor according to the job description is as follows:

“under the direction of the Community Services Manager the position co-ordinates and implements the daily program for individuals using a variety of services and strategies, in a warm supportive home environment ensuring that people reach their full potential through daily activities, recreation programs and community services. These services are normally co-ordinated using a variety of supports from the community, family, neighbours, and friends, ensuring that both the client and the community reach a new understanding of the role of inclusive communities”.

The major responsibilities are as follows:

1. INDIVIDUAL CLIENT SUPPORT

• Provides for the physical and personal care of the individuals, encouraging participation and independence.

• Ensures the personal and physical safety of individuals at all times.

• As part of a team, establishes and follows program and household schedules and routines, ensuring sensitivity to individual’s needs, ongoing training and assistance, and choices.

• Is aware of health care needs and alerts supervisor of any changes.

• Applies first aid CPR when needed

• Administers medications as directed and facilitates medical care.

• Knows and implements individual programs with supporting documentation.

• Involves individuals in community activities, encouraging integration and linking with community friends.

• Facilitates and promotes family involvement and communication

• Maintains the respect dignity, and privacy of the individuals.

2. CASE MANAGEMENT

• Co-ordinates case conferences for assigned individuals – IPP.

• Prepares support details for the functional assessments.

• Designs implements, documents, and trains other staff in programs appropriate to meet the individual services plans and programs plan goals for individuals.

• Maintains assigned individual files including copies of all assessments, consultant’s reports, appointments and daily schedules.

• Promotes supportive peer relationships within the home.

3. HOUSEHOLD DUTIES

• Maintains household to acceptable standards of cleanliness both inside and outside.

• Prepares nutritious meals, ensuring any special dietary requirements are included.

• Attends to minor repairs and general décor of the home.

• Attends to lawn and snow maintenance.

• Is sensitive to privacy and needs of neighbours.

4. STAFF RELATIONS/TEAM MANAGEMENT

• Ensures compliance with organization policies and procedures.

• Practices and promotes positive interpersonal relations within the team.

• Ensures compliance with medial direction and professional programs.

• Assists with staff orientation.

• Maintains administration records, progress reports, behaviour charts and daily reports.

5. GENERAL SUPPORT SERVICE

• Participates as part of the staff team in IPP reviews, consultations, community meetings as assigned.

• Transports individuals by van or car, as required.

• Promotes an understanding in the community of persons with developmental handicaps and the concept of integration.

A residential counsellor is required to have had experience in working with persons with developmental disabilities, know first aid and CPR training, and have taken CPR and pharmacology courses.

24. Both positions require a minimum of grade 13 education with 2 years of Community College.

25. In relation to the group homes the difference between the parties is primarily related to their respective positions as to the purpose of group homes. The Union position is that the residents at these homes virtually require twenty-four hour supervision and that the residents are vulnerable and therefore depend on the staff for life support services. This position is supported by the statement of Mr. McDonald, which will be referred to subsequently. CLALC feels that the Union’s submissions have inaccurately reflected the degree of physical dependence of the residents supported by CLALC and the extent of the medical-oriented care provided to these residents. CLALC’s submission is that its focus is to support people with developmental disabilities “to live in a state of dignity, share in all elements of living and have the opportunity to participate effectively” and integrate as much as possible into the community. This position is emphasized my Mr. Tutt in his statement to the Board which will be referred to subsequently.

26. As previously indicated the Board heard from one witness, Ms. Glennis Harwig, a residential aide working at the Edward Street Residence.

27. Ms. Harwig gave specific testimony relating to all the residents currently at such residence. Without detailing in full such evidence, it is abundantly clear that such residents require twenty-four hour supervision and have severe developmental disability. Some of the residents are unable to speak, those that can speak, have only a very limited vocabulary. Most require assistance with bathing and eating – some require that their food be pureed. All residents must be watched constantly as they could harm themselves by eating disallowed foods, by eating food wrappings, by behavioural outbursts, or by wandering off. Some residences may be subject to seizures. Some residents require lifts to get into bath tubs, some require wheelchairs, some are self injurious and require protective clothing such as helmets. None of the residents respond simply to verbal prompts but need constant prompts and assistance. None of the residents would be capable of calling for assistance on their own and no resident would be capable of using a telephone. The staff is responsible for their care and to insure that the proper medication is given. At times when hospitalization is required, staff have to attend at the hospital as the hospital is short staffed and feeding becomes a problems. Records are kept by the staff on matters such as seizures, bowel movements, change in physical state, outbursts of self injurious behaviour and the like.

28. In Ms. Hartwig’s opinion in the event of a strike there would be no viable organization to which to send such residents. In the first place most organizations are overflowing but more importantly even if a place could be found, such staff would not be familiar with the residents and in Ms. Hartwig’s opinion such residents would then become distraught and could suffer major setbacks.

29. Besides supervising residents, staff at the group home are responsible for daily maintenance at the home and do tasks such as laundry, (including resident’s clothing), cooking, cleaning floors, and buying food etc. Staff also take the residents out for picnics, ice cream and other activities. To do this the home has a van which the staff operates.

30. At the hearing on May 11, 2001, Mr Tutt made the following statement, which he made clear was a statement approved by the Board of Directors.

INTRODUCTION

The intent of the following statements is to outline some major concerns of the Association regarding designation as a Hospital under HLDAA. Our original submission to the Board details a number of issues. We feel compelled to highlight the following.

We are not abandoning our opposition to this application and indeed we continue to urge the Board to find in our favour and against the Union's application.

These hearings are an extremely costly process and we are utilizing financial resources that we would prefer went to support and enhance the objectives of the Association, namely supporting people with intellectual disabilities to participate in their communities

MOTION OF THE BOARD OF DIRECTORS

At a special meeting of the Board of Directors held on May 10, 2001 the following motion was passed.

Moved that the Association advise the Labour Relations Board that it maintains its strong opposition to designation as a Hospital under HLDAA and that we stand on our written submissions previously presented and the following statements to be presented to the Board on May 11,2001 by Rick Tutt, Executive Director, on behalf of the Association.

This year marks the 35^th Anniversary of our Association.

Throughout our history we have endeavored to support people in a manner consistent with our goal "that all persons live in a state of dignity, share in all elements of living in the community and have the opportunity to participate effectively".

In doing so we have pioneered educational opportunities for children, found employment for adults, provided relief and support for families, created places for people to live and always attempted to help people connect to their communities.

RELATIONHIP [sic] WITH THE UNION

We have attempted to develop and maintain a positive working relationship with CUPE since our employees have been unionized. We have never had a strike or lockout. We feel that both the Association and the Union tries to work together to resolve various labour issues.

This is one issue that has not been possible to resolve.

EMPLOYEE COMPENSATION

Our employees are indeed our most valuable resource to support the people for whom the Association exists. We fully recognize there is a problem, in that our staff does not receive adequate compensation for their work. The Association has worked diligently, both independently and in collaboration with our provincial Association and other groups to address this problem.

The Association is under contract with the government to provide services and supports to people in Lanark County who have an intellectual disability. We receive funding from the Ministry of Community and Social Services and are restricted to the budget approved by the Ministry.

It is our intention, at all levels of the community living movement to continue our fight for fair compensation.

LABOUR DISRUPTIONS

It seems that the major concern of HLDAA is the risk to vulnerable people in the case of a strike or lockout.

We feel that we have contingency plans that in the case of a labour disruption would protect the well being of the relatively few people we support who might be considered "vulnerable". There have been several labour disruptions in this sector over the past several years, some of them for extended periods of time. In all cases contingency plans have been enacted. We are not saying there would be no effect or disruption on the people we support, but we are confident of our ability to continue to support those few people that may be addressed by HLDAA.

EVOLUTION OF SERVICES AND SUPPORTS

Possibly the most detrimental and far reaching effect of designation as a Hospital under HLDAA is the stigma that will come with an association with the health model. The community living movement has fought tirelessly to move the responsibility of supports for people with intellectual disabilities out of a medical or health model, into what has become a community living model.

This is a move that has been supported by government. The responsibility of supports to this population has moved from the Ministry of Health to the Ministry of Community and Social Services with the advent of the Developmental Services Act in 1974. Such a move was crucial to facilitate the increase of community-based options and the eventual closure of all but three of Ontario's Institutions.

We feel strongly that designation, as a Hospital will seriously risk over 50 years of progress in this province on behalf of people with intellectual disabilities.

APPROPRIATENESS OF HLDAA

It is our understanding that HLDAA was created to address the well being of "vulnerable" people in the hospital system in the event of a labour disruption. In recent years it has been inappropriately used, we believe, as a method to seek higher wage settlement through the binding arbitration process.

It seems abundantly clear to the Association that we are not (to refer to HLDAA) a hospital, sanitarium, other institution or home for the aged. We are an organization that supports 111 people in highly individualized ways to be an integral part of their respective communities.

MAJOR RISKS ASSOCIATED WITH HLDAA

HLDAA provides for binding arbitration. If we are faced with an arbitrated settlement that we cannot afford, the fiscal integrity of the Association will be put in jeopardy-lf the Ministry refuses to support such a settlement, we will be faced to lay off-employees and reduce services and supports.

A major fear is that the language in HLDAA describing people as ill, infirm or injured and describing supports as observation, care and supervision — will encourage and support a practice of care giving and custody that threatens our very belief that all people are valued, participating and contributing members of their community. Language, and its potential negative impact on people is extremely powerful.

Designation as a hospital will raise the danger of again seeing the medical model as the predominant force.

There is real concern that binding arbitration (which will ultimately deal with issues other than compensation) will even further erode the current flexible language of collective agreements and force Associations to adopt rigid terms similar to the health/medical model.

We are moving in a direction where we support people to have more personal choice in their lives, including where and with whom they live (accommodation sharers and staff), how they receive support from staff, etc. Individual support along with individualized funding is very much the direction of the future. We are concerned that designation under HLDAA will create significant barriers for this Association to move forward in such a direction. As people receive money to purchase the service and supports they need, they will not seek out a hospital committed to the care and treatment of infirm people

CONCLUSION

We respectfully urge the Board to take into consideration the potentially devastating effect that designation of our Association as a Hospital will have on the work we carry out and on the people we support, both now and into the future.

31. Following this statement, Mr. McDonald made the following statement:

I am a National Representative with the Canadian Union of Public Employees. Currently I work from CUPE's Ottawa Area Office and have been there since 1989. Prior to working in Ottawa, I worked for CUPE as a National Representative on a temporary basis in CUPE's Kingston, Toronto, and Peterborough offices. Currently, I am assigned to work with 20 of our bargaining units. I assist them with all aspects of their relationship with their employers including grievance and arbitration as well as negotiations for collective agreements. I also organize new groups where appropriate and assist bargaining units with their internal structure. I hold one of eight such positions in our Ottawa office.

I have 20 bargaining units that I work with. All of the bargaining units are organized into locals. In the majority of circumstances each bargaining unit has its own local. Some locals however have two or more bargaining units. The common thread to my assignment is that all of the bargaining units (save for one) have employers which CUPE describes as "social services." Six of the bargaining units in my assignment have employers that provide services in the "developmental services sector". I have had this assignment since May 1995.

These six employers are Ottawa Carleton Association for Persons with Developmental Disabilities (OCAPDD); Ottawa Carleton Lifeskills (OCL); Total Communication Environment (TCE); Ottawa Valley Autistic Homes (0VAH); Therapeutic and Educational Living Centres Inc. (TELCI); and Lanark ACL. CUPE has one bargaining unit at each of these agencies except at OCL where we have two.

All six of these agencies provide and staff residential group homes for clients with developmental disabilities. Four of these agencies also provide day programs for their clients. All of these agencies are funded in much the same manner, as is LANARK ACL. They are all considered transfer payment agencies and all receive the large majority of their funding from the Ministry of Community and Social Services (MCSS). TELCI is an exception; its funding comes from a combination of transfer payments from MCSS and the Long Term Care Division of the Ministry of Health.

OCAPDD had been a member of OACL but currently is not a member The others belong to other employer organizations such as Ontario Agencies Supporting Individuals with Special Needs (OASIS).

All of these agencies are covered by the HLDAA legislation except Lanark ACL. (The union, of course, feels Lanark ACL should be.) I was the assigned National Representative when each of these groups came under HLDAA.

Chronologically the order was as follows:

OVAH: application made Feb 1997. OLRB decision May 1997. OCAPDD: application made Mar 1997. OLRB decision Mar 2000. TELCI: application made Dec 1999. OLRB decision Apr 2000. TCE: application made Apr 2000. OLRB decision Sept 2000. OCL: application made May 2000.OLRB decision July 2000.

Lanark ACL application made Aug 2000. No decision to date.

Up to and prior to August 2000, the only interest arbitration award affecting a developmental services sector agency of which I was aware was an award for OVAH that was issued In July 1998.

That award provided for a wage freeze in the first year of a two-year collective agreement and a two percent increase in the second year. Prior to the award, the position which most of our members occupied at OVAH was Behaviour Counsellor. That position had a job rate of $10.79 per hour. Certainly, based on this rather limited and disappointing result, interest arbitration was not seen by myself nor by my colleagues as a substitute to collective bargaining in order to achieve substantive wage increases.

However in October 2000 an interest arbitration award was made affecting OCL. This award provided for a wage increase of approximately $4.00 per hour for the predominant position of Residential Counsellor. In December 2000, an interest arbitration award was made affecting OCAPDDD. That award provided for a wage increase in excess of $3.00 per hour for the predominant position of Developmental Services Counsellor. These new wage rates placed these agencies close to wage parity with the Ontario Public Service for similar positions.

The OCL and OCAPDD awards as well as the 1998 OVAH award were all fully implemented by the respective employer. In each case the MCSS provided the necessary funding required by the award. At each agency there were not any layoffs as a result. At each agency there was not a reduction in services provided to the community.

The Ottawa Carleton Regional Residential Treatment Centre is an Ottawa based agency that provides services to children and youth with mental heath disabilities. It is also a transfer payment agency receiving the majority of its funding from MCSS. It is also under HLDAA. In 1999, it received an interest arbitration award providing for a wage increase of 18%. The award was implemented by the employer and funded by the MCSS. There was no reduction in services to the community. There were no layoffs.

Currently in Ontario, there are two significant issues which interact and which affect the ability of developmental service agencies to deliver services to the community.

The first is a highly publicized initiative by the Ontario government to close large institutions previously operated directly by the provincial government and which provide care to the developmentally disabled. The closest such institution to the Lanark ACL is the Rideau Regional Centre. Although not yet closed, this facility has been downsized and developmentally disabled persons previously receiving care at that location have turned to transfer payment agencies such as the Lanark ACL.

The second issue is what certain employer organizations have referred to as a crisis in staffing. Simply put, transfer payment agencies throughout the province cannot recruit sufficient trained staff to provide services and additionally cannot retain the staff that they currently have.

At Tab 1 in the Union's Documents — Book II, there is a copy of the February 2000 executive summary and findings from of a survey conducted by KPMG and which was commissioned by a number of employer organizations including OACL. The first paragraph at page one sets out the reason for the survey, "This action was motivated by the impression that these agencies are becoming less able to compete in attracting and retaining competent staff because of compensation variances." The primary finding which is stated at page one, paragraph three is that, "the staff of the sponsoring sector agencies are compensated at a significantly lower rate than others with similar credentials."

Page four, fourth paragraph of Tab 1 reads, "Unskilled, demoralized, poorly paid people cannot deliver the essential services mandated by the government." Page six, first paragraph reads, "Facilities are finding it more and more difficult to provide consistent stable care because of rapid turnover of staff has wreaked havoc with the ability to form strong relationships between staff and clients essential for effective treatment and care."

Tab 2 is an August 2000 summary of findings on recruitment and retention issues done by Global Trade Solutions for a group of Executive Directors of Developmental Services Agencies in the Ottawa Carleton Region. At page one, paragraph one it reads, "These employees and their organizations are facing a crisis which may have a severe impact on their ability to provide developmental services and programs to the people who benefit from them. Page 24 of tab 2 indicates the impact areas identified in this study. Last paragraph reads in part, "direct impact on the developmentally disabled individuals served is high at 25%."

Tab 3 contains a public response to the Ministry of Community and Social Services Consultation on the Developmental Services Sector by the OACL. At page one the OACL refers to "many gaps in supports and services and many situations where resources are not adequate to meet current and future demands." Again at page two there is a reference to "unmet community needs". At page four the following statements are made by OACL, "Unskilled, demoralized, poorly paid people cannot deliver the essential services mandated by government. The quality of services to high risk children and adults with intellectual disabilities is directly related to the quality and skill of the support providers." And, "It is generally recognized that the probability of harm to vulnerable people, deaths inadequate or abusive care, inquest, or public inquiries is greatly increased when well-trained, competent support workers are not in place^”. These are powerful statements by an organization representing employers. They are helpful in the instant case to answer what would happen to the clients of Lanark ACL in the event of a work stoppage.

At Tab 4, there's an Analysis provided by KPMG to the Provincial Network on Developmental Disabilities. As indicated at page one of Tab 3, OACL is a member of this Network. Its findings are consistent with the other reports in finding a "crisis" in staffing. At page two, second paragraph it cites a high rate of staff turnover and goes on to say in paragraph three, "From an employment view, a high turnover rate presents many problems when trying to maintain consistency of service. As such, the average turnover rate of 22% as determined by this survey indicates that there is a significant issue in consistency of services."

Tab 5 is collection of documents prepared by OACL to assist their member associations clearly communicate "three Key Messages" to the government. Note on the second page of Tab 5 in the second paragraph the reference to thousands of families being on a "waiting list". OACL's three key messages are summarized on the last three typed pages of Tab 5 and as well as echoing previous comments about the quality of services being directly related to the quality and skill of support staff, OACL draws attention to the problems of waiting lists in the sector.

Tab 6 is a December 2000 report titled Comparison of Compensation and Service Factors in Social Services prepared by the Alliance of Associations Serving Children and Youth. OACL is a member. The second paragraph at page three spells out the resulting consequences of the inability to attract skilled and experienced front line staff and cites death of a service recipient as one such consequence. At the bottom of page seven, physical or verbal abuse of the people being served are described as the results in agencies where skilled and capable staff are not available. At the top of page nine, this association of employer organizations states its view on the negative impact of work stoppages on children and adults with developmental disabilities.

Tab 7 is a February 2001 submission to the Government by the OASIS, another employer association in the developmental services sector. Page two offers a brief description of OASIS. The second bullet at page 6 sets out a requirement of staff working in this sector regarding the administration of client medications. Page seven echoes the OACL concerns about thousands of persons on waiting lists for services and that existing programs are serving beyond capacity. Pages 8 through 11 speak of the "staffing crisis" and state that agencies cannot deliver the mandated services. Page ten reiterates the OACL assertion that "quality services depend on commitment and skill of direct service workers." At page eleven client needs not being met is cited as an issue.

In October 1996, a lockout began at OVAH and lasted seven and one half months, Also in October, 1996 a lockout began at OCL and lasted four and one half months. I was relieved of many of my normal duties with other assigned bargaining units in order that I could spend more time.

The documents at Tab 8 are examples of newspaper classified ads used bt [sic] the employers to recruit replacement workers. Note the nature of the qualifications requested. Also note the dates of the ads.. These ads are identifiable as being for this purpose as "Waybet" is the company contracted by these employers to recruit replacement workers. The union also had a number of its member respond to these ads and report their findings.

During the two lockouts, we were in constant contact with the parents and families of clients to the extent they would communicate with us. Some families sided with the union in the labour dispute whereas others sided with the employer. Others tried to remain neutral. All wanted it to end. Local papers and radio talk shows ran a number of features regarding how the lockouts were affecting clients and families of clients. Most indicated that clients were unwilling pawns in a labour struggle.

From our vantage point on the picket line, we saw many things. We saw clients relocated from one group home to another at OCL despite any tenancy rights they had. We saw certain clients exhibit extreme changes in body weight. We saw behavior patterns in clients deteriorate. We witnessed aggressive behaviours in clients that previously had no history of aggression.

At both lockouts, our members were concerned about the effect of the lockouts on the clients. We established a procedure whereby incidents of abuse and/or lack of care would be logged and reported. We also talked to client parents to accumulate this information. We interviewed replacement workers where they agreed to talk to us about conditions in the homes.

We were able to arrange a meeting with the Minister's (MCSS) office to present our findings and to request intervention on behalf of the clients. The Ministry promised to investigate. Some weeks later we received official notice that the Ministry cannot become involved in a labour dispute where it is not a party. No results of any investigation were ever made known to us by the Ministry.

Solutions to the crisis in staffing in the developmental services sector is beyond the scope of the Ministerial reference in the instant case. However what is of significance to this question are the following points.

The staffing crisis in the sector would make it unlikely if not impossible for Lanark ACL to recruit replacement workers in a work stoppage.

The staffing crisis in the sector has caused service providers to become unable to meet the needs of existing clients and has contributed to the problem of huge waiting lists. In such a circumstance alternative services by other providers would be unavailable in the event of a work stoppage at Lanark ACL.

The loss of Lanark ACL's existing experienced and qualified staff complement as a result of a work stoppage would have adverse consequences on the clients of Lanark ACL and the services they receive.

32. Both parties made very full and detailed submissions based on the jurisprudence as to their respective positions. The Board does not find it necessary to detail such submissions, but compliments the parties on making their position known with precision and clarity.

33. The Union submitted that CLALC is a hospital within the meaning of HLDAA. In its view CLALC is an institution that provides observation, care and treatment of persons afflicted with or suffering from physical or mental illnesses, diseases and injuries.

34. CLALC on the other hand submits that the persons for whom CLALC provides services are not “afflicted with or suffering from any physical or mental illness, disease or injury, nor are they chronically ill” within the meaning of HLDAA. Further CLALC submits that the services provided by CLALC are not observation care or treatment within the meaning of HLDAA, are not directed towards the care of its clients but towards the care of the home. CLALC points out that it does not employ any care/medical professionals. Further CLALC submits that the designation of it as a hospital under HLDAA

(a) is contrary to government policy and industry focus on “deinstitutionalization”;

(b) will lead to the designation under HLDAA on many other service providers never intended for such a purpose including boarding schools, summer camps, day care centers; and

(c) will jeopardize the public acceptance of persons with developmental disabilities.

Decision

35. The Board was impressed by the statements of each of the representatives of the parties. Such statements put the issue before this panel in clear perspective and at the same time expressed the real concerns of both parties. The Board acknowledges that it is frustrating for the parties that it is funding and not the relationship between the parties that is in reality the issue that lead to this application. Mr. Tutt candidly acknowledged in his statement that “we fully recognize there is a problem, in that our staff does not receive adequate compensation for their work” and that “it is our intention, at all levels of the community living movement to continue our fight for fair compensation”.

36. The Board also recognizes the concern of CLALC, supported by the Amicus Curiae that both organizations believe a designation “as a hospital will raise the danger of again seeing the medical model as the predominant force”.

37. The Board has carefully considered the submissions of the parties in coming to its advice to the Minister. Further the Board has read prior Board decisions relevant to this issue – more particularly but not limited to George Jeffrey Children’s Treatment Centre [1994] OLRB Rep. Dec. 1656, Bellwoods Centre [1997] OLRB Rep. May/June 331, Surex Community Services [1994] OLRB Rep. Oct. 1430, Ottawa Carleton Assn. For Persons with Developmental Disabilities [2000] OLRD Rep. March/April 304, Therapeutic & Educational Living Centres [2000] OLRB Rep. March/April 400, North Yorkers for Disabled Persons [1995] OLRB Rep. July 2001, Dignicare Incorporated, a decision of the Ontario Court of Justice, Divisional Court, Court File No. 462/90 released February 12, 1991 and more recently Cheshire Home (Hastings - Prince Edward) Inc. a decision of this Board, File No. 0850-00-M dated February 9, 2001 and Elgin Association for Community Living Board File No. 3214-00-M dated March 30, 2001.

38. In the situation before this panel the majority of the budget is spent on group homes. Further the majority of the bargaining unit workers are employed in group homes. Most of the residents at these homes, cannot speak and have severe physical and developmental disabilities.

39. In considering similar facts in the Elgin Association for Community Living case (cited above), this chairman stated:

40. While the definition of “hospital” in HLDAA in many ways seems archaic, the decision of the courts and this Board have given life to such definition. The courts have held that an institution does not have to provide medical care or treatment to its residents or provide care, observation or treatment of a medical nature to its residents in order to be a “hospital” as defined by the Act (see Dignicare supra).

41. Clearly the Board decisions have upheld the principle that HLDAA is there to protect individuals who may not adequately be able to protect themselves if the services provided by an organization such as EACL were no longer available. These decisions have considered that the health and safety of such residents could be jeopardized by a strike or lockout.

42. There is no evidence before this panel that the services provided by EACL could be replaced in the event of a work stoppage. In fact the evidence is to the contrary that such a work stoppage would cause great disruption to the clients in the group homes. In any event such consideration would not be determinative of the matter.

43. Having considered the case law and Board decisions, and based on the evidence, the Board has no difficulty in concluding that the services provided by EACL involve the observation care or treatment of persons affected with, or suffering from any, physical or mental illness within the meaning of the definition of “hospital” in HLDAA.

44. Also relevant to this matter, is the recent decision of Cheshire Home (Hastings – Prince Edward) Inc. (cited above) There at paragraph 46 – 49 the Board stated:

45. Cheshire Home argues that its operations as a whole do not meet that statutory definition primarily because the outreach program represents the majority of the employer’s operation. In that program, clients receive less care than do residents in the supportive housing program and are less dependent on the care provided by the employer. While the Board has previously found that a number of operations involving a combination of supportive housing and outreach meet the definition of “hospital”, in all of those cases the agency’s supportive housing program represented the substantial portion of its operations. (See for example, Bellwoods Centre, cited above, and George Jeffrey Children’s Treatment Centre, [1994] OLRB Rep. December 1656, and Ottawa Carleton for Persons with Developmental Disabilities, [2000] OLRB Rep. March/April 304).

46. The Board agrees with the employer’s submission that the quantity of services provided by an institution is a relevant consideration in circumstances where an employer provides more than one service or function. As the Board noted in Maison Mere, cited above, at paragraph 29, a quantitative assessment is often very relevant to a qualitative assessment of an employer’s operations ie. how the operations as a whole should properly be characterized:

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.

As such, while the quantitative aspect is a relevant consideration in the Board’s overall assessment of how an employer’s operations as a whole should be properly characterized, it may not be determinative on its own.

48 .In the present case, when considering the amount of money expended in each program, and the number of clients served, it is apparent that the outreach program represents a greater proportion of the services provided by Cheshire Home. Approximately two-thirds (2/3) of the agency’s financial resources are directed to the outreach program as opposed to approximately one-third (1/3) to the supportive housing program. In addition, the number of full-time equivalent positions employed in the outreach program is a little less than twice as many as that employed in the supportive housing program.

49. However, as the Board noted in Ottawa Carleton Association for Persons with Disabilities, cited above, the Board’s overall assessment of an employer’s operations in a given case, must also consider the protective nature of the legislation. The Board in that case explained as follows, at paragraph 199 and 200:

50. 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 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.

51. That the legislature must have countenanced the possibility of such “over-inclusion” is apparent with reference to other provision 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, many of which may not entail the provision of observation, care and treatment 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 HLDAA is to designate institutions, rather than particular employees or services, as appropriate from the norm of collective bargaining.

The purpose of the statute involving the protection of vulnerable persons as well as the fact that the statutory scheme itself contemplates the possibility of over inclusion must also be considered.

41. The majority of the Board is in agreement with the above statements from both decisions.

42. Having thus considered the submissions, documents filed, evidence presented and statements of the representatives of the parties; and considering the jurisprudence of this Board, the majority of the Board is satisfied that the services provided by CLALC fall under the ambit of HLDAA.

DISPOSITION

43. It is therefore the Board’s advice to the Minister that the Community Living Association (Lanark County) is a “hospital” within the meaning of the Hospital Labour Disputes Arbitration Act.

“Timothy W. Sargeant”

for the Board

ADDENDUM OF BOARD MEMBER J. A. RUNDLE; June 19, 2001

1. I have always found it curious when sitting on a Ministerial reference pursuant to section 3(2) of the Hospital Labour Disputes Arbitration Act (the “Act”) to understand at what point in time the home in question crossed some line in the sand, and became a hospital as defined under section 3(2) of the Act. The parties in the present case have had a bargaining relationship for over twenty years. During that extensive period they have freely negotiated successive collective agreements. Never before in their relationship has the “hospital” issue been raised.

2. That said, the parties have been remarkably frank about the reason for the issue being raised now. The verbal submissions, reproduced in the decision voiced by Mr. Tutt on behalf of the employer and Mr. McDonald on behalf of the trade union, crystallized the real issue underlying the present application to the Board. The issue is funding. In fact I would go so far as to say that retrospectively, the majority of applications to the Board under section 3(2) of the Act have been filed because the trade union was unable to achieve their wage demands at the bargaining table.

3. In the present case the relationship, as the Vice-Chair notes in paragraph 34, is not the issue. One admires the dedication of the administration and staff in the service provided to the individuals who live at the home in question. Indeed it is a home to these individuals, and it is where they live. Due to their physical needs they require support to live at the home in question. The Board has found, consistent with its jurisprudence, the responding party is a “hospital” under the Act. I am not going to outline my reasons for disagreeing with the Board’s interpretation of the relevant statutory language. Needless to say, in my view the language has been improperly expanded to the point where the Board could well find, using its normal criteria, that a day care centre met the statutory definition of a hospital. Some of the children are incontinent, they must be fed and dressed, some will require medication to be administered during the course of the day, they required constant supervision, and have limited verbal and reasoning skills.

4. As Mr. Tutt the employer representative stated “we fully recognize there is a problem, in that our staff does not receive adequate compensation for their work” and that “it is our intention, at all levels of the community living movement to continue our fight for fair compensation.” Mr. McDonald’s submission on behalf of the trade union is replete with similar sentiments. All of the criteria the Board considers when deciding these issues specifically the “strike” issue are secondary to the funding issue. Section 3(2) applications are simply a means of getting before an interest arbitrator in the hope that the government will fund the awards given.

5. Until the Board becomes more “expert” in the methods of treatment available at different facilities and the reasons for the various approaches, it will continue to interpret section 3(2) of the Act with a broad bush applying it in my view inappropriately with the emphasis being placed on the withdrawal of services. We do the labour relations community we serve a disservice with this approach. Absent the Board taking the initiative I suppose the government could designate by regulation those facilities it deems to be hospitals thereby eliminating the Board’s involvement. As it is Bill 57 may deem the present application moot.

“J. A. Rundle”