4213-96-M; 0574-97-U; Canadian Union of Public Employees, Local 2862, Applicant v.Ottawa Valley Autistic Homes, Responding Party.

BEFORE: Pamela A. Chapman, Vice-Chair.

APPEARANCES: Dougald Brown, Sean McGee and Mert McDonald for the applicant; George Rontiris and Dave Ferguson for the responding party.

DECISION OF THE BOARD; June 5, 2001

1Board file 4213-96-M is a ministerial reference pursuant to section 3(2) of the Hospital Labour Disputes Arbitration Act (“HLDAA”), which was referred to the Board by the Minister on March 17, 1997. This reference followed a request by the Canadian Union of Public Employees, Local 1521 (“the union” or “CUPE”) for a determination by the Minister that Ottawa Valley Autistic Homes (“the employer”, “the agency” or “OVAH”) falls within the jurisdiction of the HLDAA. The question which was referred to the Board for its advice is the following:

Is the Ottawa Valley Autistic Homes a “hospital” within the meaning of the Hospital Labour Disputes Arbitration Act?

2Board file 0574-97-U is an application for a declaration of an illegal lock-out under section 101 of the Act, which followed the Board’s decision issued May 9, 1997 on Board file 4213-96-U.

The Applications

3These applications have a lengthy history, some of which should be reviewed before proceeding to consider the evidence and submissions of the parties. The union’s request to the Minister was made after the expiry of the most recent collective agreement between the parties and after the commencement of a lock-out of the employees by the employer on October 28, 1996. It was also made during the course of Board proceedings brought by the union under section 96 of the Ontario Labour Relations Act, 1995 (“the Act”), alleging, among other things, that the employer’s use of replacement workers during the lockout was a violation of the Act. Those proceedings were adjourned pending a determination of the status of OVAH under the HLDAA.

4The proceedings under section 96 were brought together with applications against two other Ottawa agencies which provide services to the developmentally disabled: Ottawa-Carleton Association for Persons with Developmental Disabilities (“OCAPDD”) and Ottawa-Carleton Lifeskills (“OCL”). The union settled the case against OCL, and the application against OCAPDD was similarly adjourned when the union made a request to the Minister for a HLDAA determination with respect to that agency. That case was heard after this one, and resulted in a finding that OCAPDD was a hospital within the meaning of the HLDAA ( Ottawa-Carleton Association for Persons with Developmental Disabilities, [2000] OLRB Rep. March/April 23).

5Hearings in the present matter were held on April 24 and May 1, 1997. On May 9, 1997, the Board issued a decision on the HLDAA application, providing five pages of reasons and reaching the following conclusion:

18. I conclude, therefore, that OVAH is an institution which is operated for the observation, care or treatment of persons afflicted with or suffering from physical or mental illness, disease or injury, and is thus a hospital within the meaning of the HLDAA.

6The Board went on, however, to indicate that “a summary of the evidence adduced before me and further detailed reasons will follow this decision” (at paragraph 19).

7Following the issuance of that decision, directions were received from the Ministry of Labour and the lock-out was brought to an end. For reasons which will be explored below, however, there was some delay in returning employees to work and the union filed a further application to the Board, on May 15, 1997, seeking a declaration under section 101 of the Act in relation to an unlawful lock-out.

8That application was originally scheduled to be heard on May 23, 1997, but was rescheduled to June 23 and 24, 1997. By that time, the lock-out had ended and the employees had been returned to work. As will be discussed below, however, the union continued to seek certain remedies relating to their claim that the lock-out was illegal prior to the return to work.

9In this decision I will dispose of this request for a declaration, and provide further detailed reasons relating to the Board’s advice to the Minister dated May 9, 1997, that OVAH is a hospital within the meaning of the HLDAA.

The Facts

10OVAH provides services to approximately twenty-six individuals primarily diagnosed as autistic in six residences located in the City of Ottawa (the Regional Municipality of Ottawa-Carleton at the time of the application), and operates a vocational program attended by fourteen of the residents.

11Autism is a severe, life-long pervasive developmental disorder. While the precise cause is unknown, it is a physical dysfunction of the brain, and is recognized as a mental disorder with specific diagnostic criteria in the Diagnostic and Statistical Manual of Mental Disorders, which is the standard reference for psychiatric and mental disorders. Autistic individuals, including OVAH residents, are impaired in their ability to process and assimilate sensory input, resulting in severe problems in communicating, learning and behaving properly in a social context. These problems may include unusual ritualistic behaviours, aggression to self and/or others, and other behaviour problems such as echolalia (repetitive verbalizing) or pica (the eating of inedibles). Communication abilities are always impaired to some extent, with the majority unable to communicate verbally.

12Three of the residences operated by OVAH are adult homes housing four to five autistic individuals in each home. Two are designated as children’s homes, housing a total of nine autistic individuals ranging in age from 13 to 25, many of whom began their residency when younger. The sixth residence is considered a “low support” environment made up of one three bedroom and two one bedroom apartments, occupied by a total of four residents.

13Many of the residents suffer from medical conditions in addition to their primary diagnosis of autism, including at least nine who are epileptics and require ongoing treatment for seizures. There is a resident who suffers from cerebral palsy, one who has a heart condition, and another who has an intestinal disorder requiring adherence to a strict diet. Psychiatric conditions are also present, including an individual who suffers from agitated depression and is medicated. Other milder conditions include asthma, seasonal allergies, incontinence and severe constipation. A variety of medications are taken to deal with these conditions, or the aggressive behaviours discussed below, and are almost always administered by staff.

14A large number of the residents engage in aggressive behaviours to themselves or to others, and as a result treatment plans involving behaviour management are developed and implemented by staff. By my count, 18 of the residents are prone to aggression, sometimes severe, towards others, and thirteen engage in self-injurious behaviour. These residents are placed on various protocols for the management of these aggressive behaviours, which may include two person restraints, especially while in the community, and commonly include seclusionary time-outs and of course observation by staff.

15All of the residents but for those in the low support residences require some type of facilitation for communication, which may include informal sign language, gestures, or unusual verbal signals recognized by familiar staff.

16Similarly, almost all of the residents, but for two of the low-support adults, require total supervision for a wide range of activities of daily living, including personal hygiene such as bathing and toileting, meal planning and preparation, care of the homes, and travel into the community, including attendance at appointments. The other two residents require monitoring in these same activities.

17While the homes are essentially residential dwellings, they have been modified to make them suitable for the agency’s programs. All of the residences have locked, padded “time out” rooms fitted with two-way glass and steel doors. All homes also have locked medicine cabinets and locked cupboards for cleaning and other household supplies. In three of the homes, residents’ personal belongings are kept in locked closets. In one of the homes, appliances and kitchen furniture are secured to the floor, as are refrigerators in some of the homes.

18Thirteen of the OVAH residents attend a vocational program operated by the agency at its head offices, where they carry out paper-shredding. They are supervised by staff and transported to and from the program by staff. Some of the younger residents attend school, where they have attendants provided by the school boards.

19The applicant was certified as bargaining agent for all employees of OVAH save and except Executive Director, Program Director and Administrative Assistant in 1984. At the time of this application there were 35 bargaining unit staff employed mostly part-time as Behaviour Counsellors, together with 12 Primary Therapists and four Team Leaders. In addition to the management positions mentioned in the unit description, there is an Assistant Program Director, and the agency retains the services of a consulting psychologist.

20The various job descriptions were referred to in evidence. These are replete with references to the “care and management” of clients, and of the “Program and Treatment Team” implementing “treatment programs” which are designed “to develop the communication skills, behaviour and socialization skills, [and] gross and fine motor skills” of the residents. The staff are also expected to respond to clients’ “physical, emotional and hygienic needs” or “daily needs”, including the administration of medication as required.

21As noted above, the instant application under the HLDAA was made after the expiry of the most recent collective agreement and during the course of a lock-out.

22The collective agreement in question was to expire on March 31, 1996. On January 29, 1996 the applicant gave notice to bargain to the employer. On July 3, 1996 the employer requested the appointment of a conciliation officer, and the appointment was made on July 19, 1996. The employees of the agency were locked out by the employer on October 28, 1996.

23On or about February 24, 1997 the union requested that the Ministry of Labour make a declaration that the respondent employer is a hospital pursuant to the HLDAA, resulting in the referral to the Board which commenced the first application referenced above.

24On May 9, the Board issued its decision concluding that the employer was indeed a hospital within the HLDAA definition. The same day, following receipt of the Board’s decision, the union demanded that the respondent employer immediately end the lockout. A letter confirming that demand was sent on May 12, 1997.

25On May 13, 1997 counsel for OVAH sent a letter responding to that demand, which states:

We believe it would be most prudent to await the decision of the Minister of Labour prior to acting on the decision of the Ontario Labour Relations Board. As such, the Agency cannot, at this time, implement your demand.

26On May 16, 1997 the Minister of Labour’s designate sent a letter to both parties advising them that the no-board report issued October 11, 1996 was being replaced by a letter advising the parties that pursuant to section 3(1) of the HLDAA the conciliation officer was unable to effect a collective agreement, having regard to the Board’s decision dated May 9, 1997. The said letter was issued May 20, 1997.

27The lock-out was ended by the employer and employees returned to work by May 21, 1997.

Decision

The Legal Framework

28Since the decision in this matter dated May 9, 1997, the Board has issued a lengthy decision in a related application referred to above ( Ottawa-Carleton Association for Persons with Developmental Disabilities, [2000] OLRB Rep. March/April 304). As much of the analysis contained in that decision is germane to the reasons for the instant decision, I will reproduce a lengthy excerpt from that decision:

153. Section l(l)(a) of the HLDAA defines "hospital" as follows:

"hospital" means any hospital, sanatorium, sanitorium, 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 monies appropriated by the legislature and whether or not it is operated for private gain and includes a home for the aged.

154. The Act further provides that all hospital employees, who are defined as those employed by a hospital, fall under the HLDAA, and that in the event collective bargaining fails in a hospital setting those employees may not strike and their employer may not lock them out. Instead, a collective agreement will be settled by binding arbitration. The purpose of the HLDAA was described in a Ministerial decision as follows:

The Act is intended to protect those who may not adequately be able to protect themselves if services provided by the Lodge were unavailable. If the health and safety of residents is dependent on services offered by the Lodge, their health and safety could be jeopardized by a strike or lockout. In these circumstances, the HLDAA provides that employees cannot strike or be locked out. Instead, the parties must resolve their disputes by means of binding arbitration.

Re: Versa Care of Hanover (Decision of the Minister of Labour dated October 25, 1984

155. The task before me, then, is essentially a definitional one - I am required to determine whether or not OCAPDD falls within the definition of hospital set out in the HLDAA. The question put by the Minister does not invite me to consider whether or not particular services provided by the agency are “essential” in that they should be continued in the event of a strike or lockout, or to what extent employees would be required to continue those services. That model for dealing with the potential interruption of essential services has been adopted in other legislative schemes, such as the Crown Employees Collective Bargaining Act, which preserves the right to strike but permits the designation of certain services, and a requisite number of employees required to operate them, as “essential”, thus limiting the impact of work stoppages but maintaining to the degree possible a normal collective bargaining environment. Through the HLDAA, however, the legislature has determined that in a certain category of institutions defined as “hospitals” work stoppages will not be permitted, and all employees employed in such an institution will fall within this alternative regime. It is critical to keep in mind the model adopted by the legislature in enacting the HLDAA in approaching the challenge presented by the characterization of an agency like OCAPDD.

156. This definition has been applied to the providers of community-based services for the developmentally disabled such as group homes in a series of earlier cases, decided by the Minister of Labour or referred to the Board. A number of these cases will be reviewed in this decision, but I will list them here for ease of reference: CUPE, Local 2542 v. Dignicare Inc., [1991] O.J. No.180; George Jeffrey Children’s Treatment Centre, [1994] OLRB Rep. Dec. 1656; Surex Community Services, [1994] OLRB Rep. Oct. 1430; North Yorkers for Disabled Persons Inc., [1995] OLRB Rep. July 1001; and, Bellwoods Centre, [1997] OLRB Rep. May/June 331. In all of these decisions a determination was made that the agencies fell within the definition of a “hospital” contained in the HLDAA.

157. The parties also referred to two decisions in which the Board determined that the agencies in question were not “hospitals” within the meaning of the HLDAA definition: Maison Mere des Soeurs de la Charite D’Ottawa, [1995] OLRB Rep. Nov. 2532; and, Canadian Red Cross Society (Ontario Division), [1995] OLRB Rep. May 612. In the former case, the Board considered the provision of nursing and other care to some aging residents of a “mother house” which was home to a group of nuns, and determined that the provision of care in these circumstances was only a collateral purpose of the house, which was the residents’ family home. In Canadian Red Cross, the Board decided that homemakers assigned to provide various services to ill or disabled persons in their homes were not primarily engaged in the provision of “observation, care of treatment” , having regard to the nature and extent of the services provided, and the location at which they were provided.

Physical or Mental Illness, Disease or Injury

158. For an institution to be a hospital under the HLDAA, its services must be provided to one of two categories of persons: “persons afflicted with or suffering from any physical or mental illness, disease or injury”; or, “convalescent or chronically ill persons”. It has been held in previous cases that developmental disability falls within these categories. In Surex Community Services, supra at p.1444 the Board said that:

…a development 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 ... 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.

159. The Board considered this question again in George Jeffrey, supra at paragraphs 41 to 43, and quoted the above passage from Surex Community Services before concluding at paragraph 43 that:

...each of the residents have either a physical or developmental disability which was caused by some underlying medical condition or injury. In most cases, in fact, residents have both physical and developmental disabilities, and may have other related impairments, such as difficulties with speech. In any case, I am satisfied based on the evidence about the residents which is detailed above, that they can all be said to suffer from “physical or mental illness, disease or injury”, or indeed are “chronically ill” as those terms appear in the HLDAA.

Observation, Care or Treatment

160. Perhaps the most critical part of the definition is the requirement that the institution in question be operated for the observation, care or treatment of persons who fall within one of the categories considered above. The arguments of the parties in previous cases have focused on the nature of the care, and on the question of whether or not the agency in question is operated for the purpose of providing such care, or primarily for some other purpose. Several important principles have emerged from the cases.

161. First, the Divisional Court has clarified that the observation, care and/or treatment of residents in an institution does not have to be medical in nature in order to fall within the HLDAA definition. In CUPE, Local 2592 v. Dignicare, supra, the Divisional Court in overturning a decision of two Ministers of Labour held as follows:

The Ministry of Labour erred in law when they determined that an institution must be providing "medical care or treatment to its residents" (July 21st decision), or "care observation or treatment of a medical nature" to its residents (December 8th decision) in order for the institution to be a "hospital" as defined by the Act.

In light of the use of the words "observation, care or treatment" in the statute, the Ministers erred in determining that an institution would fall within the definition of "hospital" in the Act only if the care, observation or treatment provided by the institution was of a medical nature and only if the institution was similar in nature to a hospital, sanatorium, sanitorium, or nursing home.

162. Following the Dignicare decision, the Board has concluded in the cases listed above that the provision of observation, care and treatment which is directed to the activities of daily living and to behavioural modification and intervention may result in a HLDAA designation. However, in order for non-medical observation, care or treatment to bring the institution within the definition of "hospital", it must be so fundamental to the maintenance of the clients' 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 lock­out, their condition would be jeopardized (Surex Community Services, supra, at p. 1444).

163. In the cases involving persons with developmental and physical disabilities, the ability of clients to direct their own care has often been emphasized by the employer. The Board has determined that such evidence of independence, while obviously important to residents, is not significant in determining whether or not the care being provided falls within the HLDAA definition, other than the extent to which the degree of independence demonstrated by clients impacts on the amount of care they require from others (North Yorkers for Disabled Persons Inc., supra at p. 1008).

164. In Canadian Red Cross Society, the Board considered the provision of a variety of services by homemakers, and concluded that the homemaker program did not fall with the HLDAA definition. One of the facts considered by the Board was that a substantial number of the services provided by the program were not directed towards the care of its clients but towards the care of the clients’ homes (for example, child care, cleaning and laundry) (at p.626).

165. In Maison Mere one of the central issues was whether or not the purpose of the motherhouse was to provide observation, care or treatment or to provide a home for the aged. The Board noted that (at paragraph 15):

In the statutory definition it is an “institution OPERATED FOR the observation, care or treatment of persons afflicted” and a “home FOR the aged” that are included. The Legislature could have easily said that a hospital is an institution in which certain care is provided, or a home where elderly people live, but it did not, and that choice must be given meaning.

166. The Board carefully considered the purpose of the operation of the motherhouse, and concluded that the reason the sisters lived together, including those in the infirmary, was not their age or their state of health, but their religious vows (at paragraph 37). In these circumstances, the Board determined that Maison Mere was “not operated FOR the provision of that care and is not a home FOR the aged” and was therefore not a hospital within the meaning of the HLDAA (at paragraphs 39-40).

Other Institution

167. It has been argued in previous cases that programs which are not residential in nature should not be considered to be “other institutions” within the meaning of the HLDAA definition. In George Jeffrey, the Board assessed an agency which operated several group homes, but also operated non-residential treatment programs on an out-patient basis. The Board concluded that the HLDAA definition does not require a residential component in order to bring an agency within the definition of “hospital” (at p.1667).

l68. That is not to say, however, that the location at which an agency offers it services will be irrelevant to the determination of whether or not it falls within the HLDAA definition. In Canadian Red Cross Society the Board placed significant emphasis on the fact that the care and treatment provided by homemakers was provided in the clients’ own homes rather than in a residence belonging to the institutional care-giver (at p.626).

169. Conversely, the fact that clients in group homes often understand the residence to be their “home” does not prevent a finding that it is an institution that should be defined as a ‘hospital” under the HLDAA (see George Jeffrey at p.1663). In Maison Mere, however, the Board noted that the motherhouse was in fact the private home of both the nuns forced by their age or illness to reside in the staffed infirmary which was the subject of the HLDAA application, but also, importantly, the other nuns in the sisterhood. In these circumstances, the Board concluded that the services provided in the infirmary were more like the provision of care in a person’s private residence, albeit a large collective home (at paragraph 35).

Application to OVAH Programs

29Applying these principles to the facts reviewed in detail above, it is clear that the residential programs operated by OVAH are operated for the observation, care or treatment of persons afflicted with a physical or mental illness, disease or injury.

30First, there is no question that autism is a physical or mental illness, disease or injury, given its nature and effects. This conclusion is entirely in accordance with the numerous decisions of the Board determining that persons suffering from developmental delays are afflicted with a physical or mental illness or injury. In addition, many of the group homes serve clients with other medical conditions which would fall within this definition.

31Despite a valiant argument by the employer that the services provided by OVAH are “teaching”, I am satisfied that the programs run by the staff constitute “observation, care or treatment” within the meaning of the HLDAA. Again, this conclusion is consistent with the analysis of the forms of non-medical care provided in many of the group home cases reviewed above, which commonly include the kinds of behavioural intervention and modification, and assistance with virtually all of the activities of daily living, which are offered at the residences run by OVAH. As in the OCAPDD case, only a small minority of the clients served by OCAPDD in the group homes have sufficient functional independence to require only prompting or organizational assistance with these tasks. And as in many of the group home cases, some of the care provided is indeed medical in nature, including the administration of medication, and much of it is intensely personal, particularly as it relates to toileting and hygiene.

32One of the employer’s main arguments in this case was that the purpose of OVAH is to encourage independent living and to enhance learning opportunities for autistic persons, rather than to provide care. While this goal is certainly evident in the agency’s policies, I must have regard to what services the agency is actually providing in determining whether it is operated “for” the observation, care or treatment or vulnerable persons within the meaning of the HLDAA. This point was made in the OCAPDD decision, supra:

180. As noted above, the employer argues that the purpose of the day programs and support services operated by OCAPDD is not to provide observation, care and treatment to clients but to encourage independent living and integration into the community. A significant problem with this argument is the extent to which the various programs offered by OCAPDD to persons with developmental disabilities must be seen as having integrated goals. Certainly all of the services offered by the agency, including those most closely related to observation, care and treatment of the type clearly intended to be captured by the HLDAA definition, are infused with the overarching goal of encouraging independence and community integration, which of course includes providing work opportunities where possible. But the population which OCAPDD exclusively serves has been identified as persons with developmental disabilities, and that clientele requires varying but still significant amounts of support on the path towards independence and integration, which often takes the form of observation, care or treatment.

181. As well, a number of OCAPDD staff, all with many years of experience and service with this particular agency, spoke eloquently of the pressures which the government’s policy of deinstitutionalization has placed on community-based agencies like OCAPDD, and in particular of the increase in the proportion of higher-need clients requiring significant support.

182. In this context, it is clear that the goals of the agency which do not appear to relate directly to the provision of care may nonetheless be difficult to separate clearly from client needs which mandate the provision of significant levels of care.

183. The nature of the clientele exclusively served by OCAPDD also means that this is not a case like Maison Mere, where the Board concluded that the provision of care to the aged was not the purpose of the agency, despite the fact that it ran an infirmary in which resided several elderly and infirm nuns. In its decision in that case the Board placed significant emphasis on the fact that the relationship between the residents of the infirmary and the motherhouse was not formed because of the care available in the infirmary, but because of a decision to enter a religious order, made long before the onset of the infirmities which led to the need for care (at paragraphs 21 and 39). This unusual situation was distinguished from the facts considered in various earlier decisions of the Board, including Surex Community Services, where, the Board noted, “the relationship between the residents and the facility existed because of special needs and the care the facility could provide to meet them” (at paragraph 21). As in Surex, the clients of OCAPDD make use of the various programs it offers because they have special needs which the agency is specifically charged with meeting, an important distinction between the present case and the decision in Maison Mere.

33For these reasons, I made the following conclusions concerning the elements of the definition having been established on the evidence before me in the decision dated May 9, 1997:

10. I find the evidence concerning the elements of the definition of "hospital" contained in the HLDAA, which I heard over the two days of hearing, to be entirely decisive on the question before me. It was not disputed that the clients of OVAH, who are all diagnosed as autistic, suffer from a "physical or mental illness, disease or injury". The employer also appeared to concede that OVAH is an "institution" within the meaning of the HLDAA. Having carefully considered all of the evidence, I have no difficulty in concluding that OVAH is operated for the "operation, care or treatment" of its residents, which is the last, and perhaps most critical, element of the definition.

11. The employer argued that the functions carried out by staff at OVAH should be characterized exclusively as "teaching", and were not either care, observation or treatment. while teaching is a critical part of the individualized programs that are developed for each resident, there are aspects to the programs that cannot be fairly described as teaching, such as the behaviour management programs that are required for many of the residents. while behaviour management has as one of its goals the enhancement of opportunities for teaching, it also h&s intrinsic value that cannot be ignored: surely it is important for these individuals that aggression and in particular self-injurious behaviours be reduced or eliminated, even if no learning, of other more appropriate coping mechanisms, or of anything else, results from increased restraint. Behaviour management, and the programming provided generally to the residents, is referred to generally in the documents produced by OVAH as "treatment", and this seems an accurate statement of its character.

12. It is also obvious that care is provided by staff to the residents on a continuous daily basis. While the goal of staff whenever a task is performed is to teach the resident in order that he or she may ultimately be able to perform it independently, the fact remains that, so long as residents are unable to perform numerous life and personal care skills alone, the staff at OVAH must provide that care. This includes assistance with toileting, bathing and other personal care, preparing meals and performing other household tasks, taking medication, and attending medical and dental appointments. The range of care provided varies widely depending on the abilities of the particular resident, but all of the residents require some assistance with some personal care and/or life skills, and many require a great deal.

13. Finally, the evidence heard discloses that observation is a critical part of the functions of the staff. The programs established for each resident are monitored on a daily basis, and the observations of staff are recorded in a variety of types of records. As well, the residents' medical conditions and behavioural problems, including the epilepsy which several have, require close observation in order that problem behaviours and/or seizures may be avoided or at least quickly resolved. Again, it is clear that the goal of this observation is at least in part to ensure that the residents are learning valuable skills, and to create an environment conducive to teaching, but that does not change the nature of the function being performed from "observation" to "teaching".

The Relevance of Evidence Relating to Care Provided by Replacement Workers

34In that decision, I also ruled that there was no need for the Board to hear further evidence concerning the quality of care provided to clients of the facilities operated by OVAH by replacement workers since the commencement of the lock-out in October 1996. The employer had argued that the Board should hear extensive evidence about the care provided and its impact on the condition of the residents, in order to establish that the purpose of the HLDAA would not be served by a hospital designation. I made the following comments on that issue in the earlier decision:

14. As I have found that the elements of the definition of hospital have been clearly established, should I, and can I, consider, as the employer urges, whether or not finding that OVAH is a hospital would serve the purposes of the HLDAA?

15. In numerous earlier decisions, the Board, Ministers of Labour, and the Divisional Court, have adopted what is described as a "purposive" approach to the interpretation of the definition of hospital in the HLDAA. In that context, there has generally been consensus on the central purpose of this legislation: as noted in DIGNICARE, [1991] O.J. No. 180, "(t)he Act is intended to protect those who may not adequately be able to protect themselves if services provided by the Lodge were unavailable. If the health and safety of residents is dependent on services offered by the Lodge, their health and safety could be jeopardized by a strike or lockout."

16. References to the purpose of the legislation have, in a number of decisions, assisted the Board and the other decision-makers who have played a role in designations under the HLDAA, in the interpretation of the definition of "hospital". For example, the question of whether or not the performance of any particular task by employees at an institution constituted care, treatment or observation might be influenced by whether or not the withdrawal of these services in a labour dispute would have a negative impact on the well-being of the residents. It has not been the case, however, that in making determinations pursuant to references under section 3(2) of the HLDAA the Board has entered into a general inquiry as to whether or not a work stoppage would harm the clients of the institution in question. Quite simply, this is not the question that is set by the legislation we are asked to interpret, in contrast, for example, to the approach taken in the essential services provisions which appear in other legislation, such as the CROWN EMPLOYEES COLLECTIVE BARGAINING ACT. This point is made by the Board in MEADOWCROFT HOLDINGS INC. (unreported decision of the OLRB dated January 8, 1997, Board file 3885-95-U), and I adopt the reasoning of that panel concerning the nature of the question put to the Board. I also note that the Board has no discretion to grant or not grant a remedy when a question under the HLDAA is referred to us, but must simply provide an answer to the Minister.

17. Accepting therefore that any consideration of whether the purpose of the Act would be served by making a finding that OVAH is a hospital could have only a limited effect on the Board's ultimate decision, I have considered whether or not the facts which the employer seeks to adduce concerning the quality of care provided to the residents in the period following the lockout would have any material impact on my finding that the staff of OVAH engage in care observation and treatment of the residents. Having carefully reviewed the submissions of the employer and their outline of the evidence they would call, and for detailed reasons to follow, I am satisfied that this evidence would not cause me to modify my conclusions as outlined above concerning the nature of the tasks performed at OVAH. There is, therefore, no purpose to be served by hearing that further evidence and causing additional expense to the parties, and delay in these proceedings.

35As noted in these comments, the Board in Meadowcroft Holdings Inc., [1997] OLRB Rep. Jan./Feb. 74 considered and rejected a similar argument made by the operator of a “retirement living centre” that the services it provided would not be significantly disrupted by a strike. I will reproduce the discussion of that issue at some length:

31. Both parties focused in their arguments upon the impact which a strike by the union might have upon the employer's operations. The employer argued that the services provided to residents would not be significantly disturbed by a union strike because members of management and part-time employees, who are not in the bargaining unit, could maintain the service more than adequately. The union argued the opposite.

32. We are satisfied on the facts, the employer's submissions are more persuasive than are the union's on the question of the impact of a strike upon the services provided to the residents. In all likelihood the service to the residents would not be significantly disrupted were the employees in the union's bargaining unit to have engaged in a strike. But what is the relevance of that conclusion?

33. The employer argues that that conclusion is decisive. It submits that if the employer would be capable of maintaining its service to the residents during the course of a strike by the bargaining unit employees, then the purpose for which the HLDAA was legislated would be achieved without the necessity of a reference to arbitration. In the employer's argument, reference to arbitration arises only if the delivery of the service to residents would be disrupted by a strike or lock-out. In other words, HLDAA operates to ensure an essential service; if the essential service can be maintained without reference to interest or contract arbitration, then no such reference should be made by the Board.

34. The employer's argument appears sound from a labour relations perspective. Collective bargaining is a feature of a democratic society. The empowerment of parties to conclude their own agreements and to regulate their relationship without the interference of an agency of the state, like the Board, is a hallmark of a democratic society. Compulsory arbitration entails the interference of the state in free collective bargaining and that interference is customarily accepted as being legitimate only if a greater interest is to be served than the entitlement to free collective bargaining. Where the protection of life and health is put in jeopardy by the free exercise of collective bargaining and of the parties' respective rights to strike and lock-out, then the law conventionally interferes by requiring the parties to make use of compulsory arbitration as the means of concluding their collective agreement. The rights to life and health trump the entitlement to untrammeled collective bargaining.

35. Were the employer's argument correct, then HLDAA would have taken the form of the CROWN EMPLOYEES COLLECTIVE BARGAINING ACT for dealing with this matter. In that statute, the Board can declare essential services so as to ensure that there is no danger to life, health or safety. The Board would consider, when exercising that discretion, what the effect would be of a strike or lock-out on the provision of the particular service under consideration.

36. But that is not the approach adopted in HLDAA. The legislature adopted an "institutional" rather then a "labour relations" approach to the issue. It said, in effect, that whether or not the effect of a strike or lock-out would, in fact, be a danger to the life, health or safety of the residents of an institution, if that institution has the characteristics of a hospital, then it is a hospital and impasse in collective bargaining will not result in industrial action, but in mandatory arbitration instead.

37. The "institutional" approach has some considerable advantages. It avoids the necessity of speculating upon what the effect of a strike by the bargaining unit employees or a lock-out would be upon the services provided by the institution. It avoids considerable litigation over that speculation.

38. There is a further consideration. If we were to endorse a purely "labour relations" approach then certain anomalies would necessarily arise. The definition of a "hospital" would come to depend upon the relative bargaining powers of the parties. So, for example, if the bargaining unit were large such that the health service provided might be disrupted in the event of dispute, then the employer would be a hospital, otherwise not. What if there were two bargaining units, which singly could not cause a threat to the health service, but together could disrupt it? Would the employer be a hospital in these circumstances? If we were to adopt the employer's argument and focus singly upon each bargaining unit, then in the example, the employer would be deemed not to be a hospital. But if there were to be a strike simultaneously, by the unions representing the two bargaining units, then the employer's service would cease. In that circumstance, we would reasonably be called upon to declare the employer a hospital. So, on the same set of facts, the employer would not be a hospital in some circumstance, but it would be in others. That anomaly helps to explain why a purely "labour relations" approach to the issue can lead to absurd results, and why the "institutional" approach is to be preferred.

39. Accordingly the capacity of bargaining unit employees, such as those represented by the union, to disrupt the service of the employer to the residents of its establishment although relevant, is not the sole consideration.

40. It is necessary to determine the nature of the institution: who it serves, what it does and how it does it. We now consider those matters

36As suggested by the Board’s comments in this decision, the model for hospital designation established by the provisions of the HLDAA is simply not amenable to the kind of essential services analysis urged by the employer in the present case. This point was considered as well in the OCAPDD decision at paragraph 155 reproduced above. It may well be that many of the institutions which fall within the sector defined by the HLDAA as appropriate for compulsory binding arbitration could in fact find ways to operate, with replacement workers or otherwise, if work stoppages were permitted; or that certain aspects of their services might simply be discontinued during a strike without risk to a vulnerable clientele (see the point about the “over-inclusive” aspect of the HLDAA approach made at paragraph 200 of the OCAPDD decision, supra). But as emphasized in numerous earlier decisions the HLDAA adopts a definitional approach which requires the categorization of institutions rather than particular tasks or particular persons performing those tasks.

37In previous Board decisions interpreting the HLDAA definition, panels have emphasized the notion of risk to vulnerable persons in taking a “purposive” approach to the words of the statute, and in particular to the concept of “care”. This is evident, for example, in this much quoted statement from Surex Community Services at paragraph 67:

I am satisfied on the basis of the facts outlined above that while the nature of the “observation, care and treatment” of the residents of Surex is not necessarily of a medical nature, it is so fundamental to the maintenance of the residents’ health, safety, and well-being that should they be deprived of the services of their primary care-givers as a result of a strike or lock-out, their condition would be jeopardized.

38Does this approach mean, though, that such a conclusion by the Board becomes essentially a rebuttable presumption which the employer may challenge by trying to prove that in fact the condition of residents would not be jeopardized because of an employer’s strike contingency plans? Or as in the present case because of a plan already in place?

39I cannot accept that this kind of approach was what was intended by the legislature in adopting the definitional approach incorporated into the HLDAA, rather than the essential services model found in other pieces of legislation. Having found that OVAH is an institution operated for the care, observation or treatment of persons who fall within the definition, it is then by definition a hospital, and the legislation makes it subject to a system of compulsory arbitration, whether or not comparable levels of care, observation or treatment might be provided by other persons in the event of a work stoppage.

40For these reasons I declined to hear further evidence relating to the services provided by replacement workers during the period of the lock-out, given my conclusion on the evidence relating to the institution that it met the components of the definition reviewed in some detail above.

41In all the circumstances of this case, then, I concluded on May 9, 1997 that OVAH was an institution operated for the observation, care and treatment of persons with autism, whom I have found to be persons afflicted or suffering from a physical or mental illness, disease or injury. Thus, OVAH is a “hospital” within the meaning of the HLDAA.

Application for a Declaration of an Illegal Lock-out

42When the parties appeared again before the Board in June 1997, it was to explore the issue of when, given the Board’s ruling that OVAH was a hospital within the meaning of the HLDAA, the lock-out commenced on October 28, 1996 became illegal.

43Section 11(1) of the HLDAA makes strikes and lock-outs illegal for hospital employees:

11. (1) Despite anything in the Labour Relations Act, 1995, no hospital employees to whom this Act applies shall strike and no employer of such employees shall lock them out.

44The lock-out commenced in October 1996 was viewed by the employer as timely and therefore legal because of the wording of section 79 (2) (b) of the Act:

79. (2) Where no collective agreement is in operation, no employee shall strike and no employer shall lock out an employee until the Minister has appointed a conciliation officer or a mediator under this Act and,

(b) 14 days have elapsed after the day the Minister has released or is deemed pursuant to subsection 122(2) to have released to the parties a notice that he or she does not consider it advisable to appoint a conciliation board.

45On October 11, 1996 the parties received a letter from the Ministry of Labour advising that a Board of Conciliation would not be appointed (a “no-board report”). Thus, a strike or lock-out would have been legal as of October 25, 1996. Indeed, no application for a declaration that the lock-out was illegal was made by the union prior to the present application filed on May 15, 1997, after the Board issued its decision dated May 9, 1997.

46The union argues that the entire lock-out is essentially made retroactively illegal by the Board’s finding that the agency is a hospital within the meaning of HLDAA, especially as the evidence heard by the Board upon which that conclusion was reached was directed to the status of the agency just prior to the lock-out, when it was staffed by bargaining unit members. In the alternative, it asserts that the lock-out became illegal pursuant to the HLDAA once the union had made its request to the Minister that the agency be found to be a hospital, on February 24, 1997. At that point, it argues, the employer was on notice of the union’s position that the parties fell within the jurisdiction of the HLDAA, and therefore bore the risk that continuing the lock-out would be an illegal act.

47The employer, on the other hand, submits that the lock-out cannot retroactively be found to have been illegal, given that it was clearly legal at its commencement, and remained so until the no-board report was revoked by the Minister on May 20, 1997. That letter is essential to an understanding of the employer’s position, and so will be reproduced here in its entirety:

May 16, 1997

RE: Ottawa Valley Autistic Homes; Canadian Union of Public Employees, Local 2862

Based on the parties’ understanding last October that they were not under the Hospital Labour Disputes Arbitration Act (“HLDAA”), you received a letter from me dated October 11, 1996, which advised that a Board of Conciliation would not be appointed in the above-referenced matter. At the time, no objection was received from either party with respect to this letter.

Subsequently, in a Ministerial reference initiated on March 17, 1997, the Ontario Labour Relations Board held in its decision (File No. 4213-96-U) dated May 9, 1997, that the Employer is a “hospital” as defined in HLDAA. Accordingly, due to the unique circumstances of this case, effective Tuesday, May 20, 1997, the above-noted letter dated October 11, 1996, will be replaced by a letter informing the parties that pursuant to section 3(1) of HLDAA the conciliation officer was unable to effect a collective agreement.

Director Labour Management Services Ministry of Labour

48The employer justifies its delay in acceding to the union’s request that it end the lock-out immediately after the issuance of the Board’s decision on its understanding of the operation of the HLDAA and the jurisdiction of the Board in determining the status of institutions claimed to be “hospitals” within the meaning of section 1(1).

49The union’s request to the Minister in February 1997 was made pursuant to sections 3 and 4 of the HLDAA, which set out the steps which must occur for the system of compulsory binding arbitration established for hospitals to be applied in any particular workplace:

3. (1) If a conciliation officer appointed under section 18 of the Labour Relations Act, 1995 is unable to effect a collective agreement within the time allowed under section 20 of that Act, the Minister shall forthwith by notice in writing inform each of the parties that the conciliation officer has been unable to effect a collective agreement, and sections 19 and 21 of that Act shall not apply.

(2) The Minister may refer to the Ontario Labour Relations Board any question which in his or her opinion relates to the exercise of his or her power under subsection (1) and the Board shall report its decision on the question.

4. Where the Minister has informed the parties that the conciliation officer has been unable to effect a collective agreement, the matters in dispute between the parties shall be decided by arbitration in accordance with this Act.

50In the present case, the Minister did refer the question of whether or not OVAH was a hospital to the Board, as described at the outset of this decision. The Board’s jurisdiction on such a reference has been discussed in numerous cases, and most recently in the OCAPDD decision, supra:

187. The scope of the Board’s jurisdiction on a reference from the Minister pursuant to section 3(2) of the HLDAA was considered in Bellwoods Centre, George Jeffrey and Surex Community Services. In each case the Board confirmed its limited mandate on a ministerial reference, which was described as follows in Bellwoods Centre at paragraph 12:

The Minister may, but does not have to, refer to the Board any question which in his or her opinion related to the exercise of his or her power to make that determination. The Minister has a discretion as to the scope of any question referred to the Board. Once a question has been referred, the Board has a duty to provide an answer.

51As section 3(2) provides, the Board reports its decision on the question put to it by the Minister, but does not take any steps pursuant to section 3(1) which might be considered to flow from a conclusion that an employer is a “hospital” within the meaning of the Act. That power is reserved exclusively to the Minister or his designate, and subject to whatever judicial remedies might be available should the Minister refuse to exercise that power in accordance with the Act, it would appear that the Minister has some discretion as to whether, and certainly when, it provides the notice referenced in the section.

52The employer suggested that the Minister could choose, for example, to disregard the advice provided by the Board and reach an opposite conclusion on the question of whether an institution was a “hospital” within the meaning of the HLDAA. While there is no example of a Minister actually having done so, the HLDAA is not entirely clear as to what follows upon the Board reporting “its decision on the question”. Given my view of the significance of section 3(1), however, it is not necessary for me to resolve the question of whether the Board’s advice is binding upon the Minister, and I will not speculate further about that possibility.

53Section 3(1) is essentially a parallel section to section 21(b) of the Act, requiring the Minister to provide a no-board notice where conciliation has been unsuccessful. The difference between the two sections, of course, lies in what they trigger: under the Act, a no-board report creates the 14-day countdown to a legal strike or lock-out established by section 79(2)(b); while under the HLDAA the report leads to section 4 and binding arbitration of the matters remaining in dispute.

54In the present case, the Minister’s letter in my view correctly summarizes the parties’ legal positions during the period in question. On October 11, 1996, the Minister issued a no-board report pursuant to the Act, “based on the parties’ understanding ...that they were not under the Hospital Labour Disputes Arbitration Act”. And as the letter also notes, “no objection was received from either party with respect to this letter”.

55Following receipt of this letter, and in accordance with section 79(2)(b) of the Act, the employer legally locked out the employees of OVAH. As noted above, no application to declare that lock-out illegal was ever made by the union, until after the Board decision on the HLDAA reference was issued.

56When the Board advised the Minister of its decision that OVAH was indeed a hospital within the meaning of the HLDAA, the Minister issued a letter to the parties dated May 16, 1997, advising them of the Minister’s intention to replace the October no-board report with a no-board pursuant to section 3(1) of the HLDAA, effective May 20, 1997 (emphasis added).

57Having careful regard to this correspondence, I must conclude that it was the Minister’s intention that the earlier no-board report remain in place until May 20, 1997, at which time it was deliberately replaced by a report under the HLDAA facilitating a referral to binding arbitration. Indeed, the Minister saw fit to give the parties notice of her intent to issue the HLDAA no-board report, and I can only interpret that gesture as a desire to avoid the very dispute which has been brought before me.

58Should the Minister’s intentions govern my ruling on whether or not the lock-out became illegal at any point prior to May 20, 1997? Perhaps not directly, but it is critical in this particular context to recognize that in the first instance it is the actions of the Minister of Labour pursuant to the sections I have reviewed above which define whether a strike or lock-out is timely and therefore illegal. Having carefully reviewed the two statutes and examined the unusual series of events in this matter, I must concur with what appears to have been the Minister’s view that the earlier no-board report remained in effect, and therefore authorized the employer’s lock-out, until it was replaced on May 20, 1997 by the notice under section 3(1) of the HLDAA. There was therefore no illegal lock-out, and no basis upon which the Board might issue a declaration to that effect.

DISPOSITION

59As indicated in the decision dated May 9, 1997 in Board file 4213-96-U, it was the Board’s advice to the Minister that Ottawa Valley Autistic Homes is a “hospital” within the meaning of the Hospital Labour Disputes Arbitration Act. The application in Board file 0574-97-U is hereby dismissed.

“Pamela A. Chapman”

for the Board