PAY EQUITY HEARINGS TRIBUNAL

626-96 Helen Henderson Care Centre, Applicant v. Service Employees’ International Union, Local 183, Respondent

631-97 Chelsey Park Retirement Community, Applicant v. London and District Service Workers’ Union, Local 220, Respondent

632-97 Caressant Care Nursing Home of Canada Limited, Applicant v. London and District Service Workers’ Union, Local 220, Respondent

633-97 Kensington Village, Applicant v. London and District Service Workers’ Union, Local 220, Respondent

655-97 Canadian Union of Public Employees, Local 3009, Applicant v. New Village Retirement Home/Pine Villa Nursing Home Inc., Respondent

Before: Mary Anne McKellar, Vice-Chair, and Members Margaret Kvetan and Pauline R. Seville

Appearances: Michael Allen and Malcolm Winter for the Applicants Chelsey Park, Helen Henderson and Kensington Village; Daina Groskaufmanis for the Applicant Caressant Care; Cathy Lace for the Applicant Canadian Union of Public Employees, Local 3009; Michelle Sherwood and Sharon Ffolkes Abrahams for the Respondents Service Employees’ International Union, Local 183 and London and District Service Workers’ Union, Local 220; Mark J. Zega for the Respondent New Village Retirement Home/Pine Villa Nursing Home Inc.

Cite as: Helen Henderson (No. 4) (December 17, 2001) 0626-96, 0631-97, 0632-97, 0633-97, 0655-97 (P.E.H.T.)

DECISION OF THE TRIBUNAL, DECEMBER 17, 2001

I. INTRODUCTION

1. In four of these five Applications (0626-97; 0631-97; 0632-97; and 0633-97), the Applicant owns or operates a retirement home and a nursing home in adjacent facilities. Although the owner/operator(s) of the adjoining nursing home and retirement home facilities are the responding parties to the fifth Application (0655-97), because they take the same position in this litigation as the other owner/operators, for the sake of convenience in this decision, all of the owner/operators will be referred to as Applicants.

2. In this decision, the term “Retirement Community” will refer to the whole of the adjoining facilities, while “Nursing Home” and “Retirement Home” will be used to refer to those specific portions of the facilities.

3. The Respondent in each Application (with the exception of 0655-97 where it is the Applicant) is the trade union that is the bargaining agent for the non-professional, non-managerial employees in each Retirement Community. They will be referred to throughout this decision as the “Union(s)”.

4. The Applicants object to Orders made by Review Officers declaring them to be “seeking employers” under Part III.2 of the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“the Act”) in respect of all the employees represented by the Unions in each Retirement Community. The Applicants contend that they are only properly declared to be seeking employers in respect of the employees working in their Nursing Homes.

5. The style of cause in this proceeding reflects the Applicants’ names as they appeared on the Applications. During the course of evidence, it became clear that these are in fact their operating names and not necessarily their legal names. In the case of Tribunal File 631-97 we heard evidence indicating that there were two corporations implicated in the operations of the Retirement Community. In the case of Tribunal File 632-97, we heard evidence indicating that a corporation implicated in the operations of the Retirement Community had come into existence subsequent to the date of application. And, finally, the parties in Tribunal File No. 633-97 were involved in another Application before the Tribunal, (File No. 686-99) in which the Tribunal was advised that the Canadian Automobile Workers (CAW) had succeeded the Union. We were not so advised in respect of File No. 633-97. Consequently, instead of amending the style of cause to reflect all of the above, we have included the pertinent information in this decision in Section VII, “Facts Specific to Each Retirement Community”.

II. ISSUE

6. The issue is whether the proxy provisions contained in Part III.2 of the Act apply with respect to the employees working in the Retirement Home portion of the Applicants’ operations, such that the Applicants were properly declared to be seeking employers in respect of them.

III. DECISION AND ORDER

7. The Tribunal finds that the Applicants were properly declared to be seeking employers in respect of the employees working in their Retirement Homes. The Review Officers’ Orders are hereby confirmed. The Tribunal’s reasons for the decision follow.

IV. HOW THIS DECISION IS ORGANIZED

8. The hearing into these matters occupied 35 days over a period of two-and-a-half years. A great deal of evidence, both oral and documentary, was introduced through 29 witnesses. Most of it pertained to a comparison of the nature of work performed in the Retirement Home versus the Nursing Home in each Retirement Community, as well as an examination of who performed that work. On the basis of this evidence, we have made extensive factual findings particular to each Retirement Community. In an effort to improve its readability, however, those findings have been placed at the end of the decision in Section VII, “Facts Specific to Each Retirement Community”. Immediately below, in Section V, “Common Facts”, we set out our observations with respect to the evidence generally applicable to all of the Retirement Communities, noting exceptions where appropriate and directing the reader to the specific facts section for more particular information. Between the “Common Facts” and the “Facts Specific to Each Retirement Community”, we set out: the legislative history of the proxy provisions, the Review Officers’ Orders, the parties’ positions and our legal analysis.

V. COMMON FACTS

(a) Brent Binions

9. Brent Binions testified as a “knowledgeable witness” on behalf of four of the Retirement Communities. At the time of his testimony, he was the owner/operator of three nursing homes and two retirement homes. He had had considerable experience in the industry since 1983. He had been a member of the board of directors of the Ontario Nursing Home Association for 11 of the previous 14 years, during which time he held the positions of President and Chair of the Financial Liaison Committee. In the latter capacity, he had negotiated the funding system for nursing homes with the provincial government on behalf of the nursing homes. He has also been a member of the board of directors of the Ontario Residential Care Association (“ORCA”), which represents retirement homes. During his six-year tenure on ORCA, he served as Chair of the Government Liaison Committee that dealt with the provincial government on issues that might impact retirement homes, most of it relating to the Landlord and Tenant Act (now called the Tenant Protection Act, 1997, S.O. 1997, c. 24, as amended). He provided background evidence on the industry in general, and licensing, funding and regulation in particular.

10. Mr. Binions testified that there are approximately 500 retirement homes in Ontario. At the time of his testimony there were also 300 nursing homes which were members of the Ontario Nursing Homes Association. There were 70 retirement communities comprising adjoining nursing and retirement homes.

(b) Licensing and Regulation

11. Anyone who wants to may build and operate a retirement home. Retirement homes are not regulated by the Ministry of Health (the “MOH”), but are subject only to laws of general application, including applicable building and fire codes, the Tenant Protection Act, supra, public health standards and municipal zoning by-laws. There are no provincial legislated standards for their operation. Approximately one-half of the retirement homes in Ontario are members of ORCA, a voluntary, self-regulating organization. According to its mission statement, “each member pledges to meet – or exceed – the Association’s Code of Ethics, Commitment to Residents and the criteria set out in [its] Standards Evaluation Program”. All members are required to participate in the latter program. Each member retirement home undergoes a highly structured survey to assess its compliance with ORCA’s standards, and is awarded a 1-year, 2-year or 3-year certificate of membership. A 3-year certificate denotes at least complete compliance. Two-year and 1-year certificates are awarded to members that need to address deficiencies in order to fully comply. A member that does not meet standards loses its membership. As membership in ORCA provides the only standards by which retirement homes are measured, its members use it as a marketing tool for prospective residents.

12. In contrast to retirement homes, nursing homes are long-term care facilities that are highly regulated and are governed by a statute, the Nursing Homes Act, R.S.O. 1990, c. N. 7, as amended (the “NHA”), and its detailed Regulation. They are operated pursuant to a licence issued by the MOH under the NHA which entitles each operator to provide a certain number of beds. Licences contain limitations on the size and location of the facility. An operator wishing to expand its nursing home operation with additional beds must obtain an additional licence from the MOH, or may purchase the licence of another operator. Each nursing home is also required to sign a service agreement with the MOH, setting out their mutual obligations.

13. The application of the NHA and its Regulation are outlined in the Long-Term Care Facility Manual (“the “LTC”) produced jointly by the MOH and the Ministry of Community and Social Services (“COMSOC”). In its introduction, the LTC states its purpose as setting out the “Government’s expectations for facility services.” It includes mandatory service standards and criteria on all aspects of long-term care, including: funding formulas; admission of residents; levels of staffing required; basic and optional services to residents; standards of care; programs to be provided; minimum resident per diem calculations for nursing, food and accommodation; and government monitoring and reporting. Each nursing home is subject to annual inspection by a MOH Compliance Advisor who reviews all areas of operation to determine whether they meet the standards in the LTC, and provides the operator with a written report of any non-compliance. The operator is required to remedy any such areas, or risk sanctions up to and including losing its licence. Annual inspections may last several days. Where the nursing home is part of a combined facility with an adjoining retirement home, any inspections only take place in the nursing home. Retirement homes are not subject to any inspections.

14. Just as retirement homes may become members of the voluntary organization ORCA, nursing homes may become accredited by the Canadian Council on Health Services Accreditation (the “CCHSA”), a national non-profit organization. In the CCHSA documents filed, this organization describes its accreditation program as voluntary and independent of government agencies, providing “an effective means whereby health care and service organizations can assess their level of performance against a set of nationally applied standards.” Highly structured surveys are carried out by peers from across Canada with long-term care experience. There are four levels of accreditation, the highest being 3 years. Nursing homes accredited by the CCHSA are eligible to receive a premium from the Ministry of Health (see Section V (c) below.)

(c) Funding, Revenue and Financial Operations

15. The operator of a retirement home may charge residents whatever accommodation fee the market will bear, subject to any restrictions in the Tenant Protection Act, supra. Normally, this fee will encompass lodging (rent), services, activities and food. There is no legislated minimum standard in respect of any of these costs. Residents of a retirement home are financially responsible for paying the cost of their accommodation/care package in the retirement home, but a resident may be eligible for financial assistance from County Social Services, Veteran Affairs, or their private insurance plans.

16. Some of the retirement homes were described as “high end” operations offering luxurious lodgings and gourmet meals. Others were pitched at the middle or lower end of the market. Regardless of the accommodation fees charged, they are borne by the retirement home residents or their families. If the retirement homes do not experience full occupancy, the owners’ revenues are reduced. For example, if 97% of the units are occupied on an annual basis, then the revenue will be 97% of the potential maximum.

17. The amount of money that a nursing home receives is provided by the MOH in three notional “envelopes” representing nursing, programs and accommodation. The “nursing envelope” funds salaries and benefits for the director of care, registered nurses, registered practical nurses, health care aides, and nursing equipment and supplies. The “program envelope” funds salaries and benefits for all activation employees and other professional employees such as occupational therapists, as well as equipment and supplies for activation. The “accommodation envelope” funds all other aspects of nursing home operations. This includes dietary, housekeeping, laundry and maintenance employees, as well as administration costs such as taxes, utilities, insurance and mortgage payments. The MOH requires specific detailed record-keeping of the public money. Nursing homes are required to submit an audited annual report of revenues and expenditures to the MOH.

18. At the date of Mr. Binions’ testimony on October 1, 1998, the funding provided in each of the envelopes was based on the following formulas:

(a) Nursing Envelope - $47.65 less $0.05 for Social Contract/resident/day for a Case Mix Index (CMI) of 100

(b) Program Envelope - $4.86 less $0.13 for Social Contract/resident/day

(c) Accommodation Envelope - $41 less $0.13 for Social Contract/resident/day

19. The CMI is a numerical standard which compares the level of care required by the residents of all the nursing homes in Ontario. If a particular nursing home has residents requiring a high degree of care, its CMI will be high. When such a CMI is multiplied by the average cost of personal care for a resident in the province, that nursing home will receive more funding. So long as a nursing home’s occupancy rate equals at least 97%, it will be funded as if it had 100% occupancy.

20. With respect to accommodation in nursing homes, there are three sources of revenue. First, the basic amount per resident per day is funded by the MOH, and paid directly to the Nursing Home in the accommodation envelope. Second, the resident must make a co-payment per day, which may be paid out of the resident’s own funds or may be subsidized by the government. Resident eligibility for such a subsidy is based on means-testing. Third, a differential rate for “preferred” accommodation, that is, semi-private and private, must be paid by residents according to tariffs set by the government. Half of the differential amounts collected are clawed back by the government, and half are retained by the operator.

21. A nursing home is only permitted to make a profit from its accommodation revenues, including the retention of any unexpended funds provided in the accommodation envelope. Unexpended funds from the nursing and program envelopes must be returned to the government. In addition to the above funding, nursing homes are eligible to receive a number of premiums from the MOH. The Government pays 90% of the lesser of the current or past year’s business and realty taxes. Nursing homes pay both realty and business tax and are assessed as commercial properties. As noted in paragraph 14, those that are accredited by the CCHSA receive a premium of $0.33/resident/day. Nursing homes that are in compliance with the Ministry’s Long-Term Care Facility Design Manual (“the Design Manual”) (see section V (e) on “Physical Facilities”) are eligible for premiums ranging from $1 to $5/resident/day. Prior to the envelope system of funding, all nursing homes received a flat fixed rate. The envelope system was designed around average expenditures in the province. As a result, some nursing homes had fewer profits with which to pay their mortgages. A temporary Debt Service Fund was created to assist them after the restructuring of the funding system. The Fund is to expire in 2003.

22. Cost allocation practices varied among the Retirement Communities. In all of them, however, there was, at the very least, a rudimentary means of attributing to the Retirement Home or to the Nursing Home expenses incurred in connection with their respective residents.

(d) Services

23. All of the Retirement Communities submitted a number of exhibits which included brochures describing their services. Three of the Retirement Communities explicitly state that they offer a continuum of care. At Helen Henderson, the “Gibson family … offer a continuum of care … from residential to extended levels of care “ Kensington Village offers “a complete continuum of care community for seniors. … whereby the senior may move to the different care levels found under one roof as part of the Village.” In the third case, “together New Village Retirement Home and Pine Villa Nursing Home offer a continuum of care to seniors.” In the remaining two cases, a continuum of care is implied. A Caressant Care brochure does not differentiate between the services of the Retirement Home and the Nursing Home. A Nursing Home brochure at Chelsey Park states that “Chelsey Park Retirement Community … [is] a vital community offering comfortable residential accommodations and apartments, as well as a licensed nursing home, all within a full range of social activities and services”.

(e) Physical Facilities

24. Since April 1, 1998, all nursing home operators have been required by the MOH to comply with the requirements of its Design Manual which applies to “the construction and/or renovation of all long-term care facilities” governed by the NHA, supra. Its Purpose section describes the Design Manual as including “minimum mandatory design features that must be achieved for all long-term care facility projects” as well as “guidelines on ‘best practices’ in the design of a long-term care facility to promote quality resident care outcomes”. The Design Manual lists very detailed design standards such as the dimensions of bedrooms, the height of a window from the floor, the width of an entrance to a bathroom, the numbers and dimensions of resident lounges and program activity areas, etc.

25. Extensive photographic evidence was submitted by three of the five Retirement Communities in this case. It established that the Nursing Homes in each of these Communities are finished and furnished in a way that distinguishes them from the adjacent Retirement Homes. Generally speaking, in the Nursing Homes, the floors and upholstery tend to be stain-resistant linoleum and vinyl, as opposed to the carpeting and fabric covers found in the Retirement Homes. As well, the rooms of the Nursing Home residents contain primarily standard issue furniture, linens and draperies, including hospital beds. The rooms look institutional. By contrast, Retirement Home residents may furnish their rooms with their own personal belongings, such as furniture, artwork, linens and draperies from their Homes. Often, the only indication that the resident is living in an institutional setting is the call bell in the living area or the grab bars in the bathroom.

(f) Residents

26. Prior to 1993, retirement home operators premised their marketing endeavours on the reality that seniors and their families would choose a retirement home as much on the basis of the attractiveness and convenience of the adjacent nursing home as anything else. This factor was significant for a senior whose health might later require a move to the nursing home or, in the case of spouses, requiring different levels of care. This was an effective sales strategy as long as seniors were free to choose the nursing home in which they wished to reside.

27. In 1993, nursing home admissions were taken over by the Placement Coordination Service, and, in or around 1996, by Community Care Access Centres (“CCACs”) which maintain waiting lists and place seniors according to MOH eligibility criteria. Although a senior, or her/his family, is required to submit a priorities list for a choice of facility, s/he may not immediately gain admission to her/his first choice and, in particular, may not gain admission to the nursing home adjacent to the retirement home where the senior currently resides. At the time the system was implemented, the right of a senior resident in a particular retirement home to gain admission to the attached nursing home crystallized. Only new retirement home residents became subject to the eligibility criteria.

28. Both the Retirement Homes and the Nursing Homes offer residential care primarily for seniors. Generally speaking, the Nursing Home residents require more assistance than do the Retirement Home residents with their activities of daily living, including washing, dressing, feeding, toileting and mobilizing themselves.

29. Most, if not all, of the Nursing Home residents require regular assistance with the above activities. Some require a great deal of assistance while others may require very little. In addition, significant numbers of them may suffer from senile dementia, including Alzheimer’s disease, or other cognitive impairments such that they have a tendency to become disoriented and “wander”. These particular Nursing Home residents require constant close supervision and must be housed in a secure unit. Once a resident is admitted to one of the Nursing Homes, s/he is provided with all the personal care s/he requires.

30. By contrast, most of the Retirement Home residents are largely independent and able to regularly perform most activities of daily living with some assistance, except during temporary periods of illness or injury. The Retirement Homes do not have secure units appropriate for housing those who “wander”. Retirement Home residents who require more then minimal assistance with the activities of daily living must arrange to obtain that assistance from the Retirement Home, the CCAC, a private outside agency on a fee-for-service basis, or a family member or friend. If those required services cannot be obtained on any of these bases, or the condition of the resident deteriorates and s/he needs more than minimal care, s/he is usually placed on a waiting list for a nursing home bed. Because the health of seniors may decline rapidly and they may suffer significant functional impairment during periods of illness, there may be occasions when a Retirement Home resident requires a level of personal care equivalent to that required by a Nursing Home resident, but this is not the norm.

(g) Employees

31. The Retirement Homes are free to hire any type of employees they wish. On the other hand, the NHA,supra, Regulation requires that Nursing Homes have a certain number of employees with specific qualifications.

32. The Nursing Home Administrator must possess an appropriate certificate or courses and experience that demonstrate that s/he has the education and skills to operate a long-term care facility. Alternatively, s/he may qualify through the certification process of the Ontario Nursing Home Association which has been approved by the MOH as a certifying agency. The Nursing Home food services supervisor must be certified as such through the Canadian Food Service Supervisors’ Association. The activity director must have either college courses or an activity directors’ course approved by the MOH. The dietician must be a registered member of the Ontario Dieticians’ Association. The director of nursing must be a registered nurse.

33. With few exceptions, the generic title applied to the non-professional, non-managerial employees is “aide” or “attendant”. Modifiers attached to these titles indicate the specific areas in which the aides work, including kitchen aides, laundry aides, activation aides, residential care aides and health care aides. In the case of the health care aide, this title is also the name of a certificate obtained upon successful completion of a particular community college program. There is no legal requirement that the various aides possess such certifications.

34. A variety of managerial and professional employees is employed in each of the Retirement Communities. In these Applications, the Tribunal is solely concerned with the work performed by the non-professional, non-managerial employees represented by the Unions.

35. In each of the Retirement Communities, the personal care employees who assisted the residents with the activities of daily living worked primarily with either the Nursing Home residents or the Retirement Home residents with little or no overlap. To varying degrees, however, the food preparation for all residents was carried out by the same Kitchen Aides and the institutional laundry for the entire Retirement Community was done by the same Laundry Aides. Although the laundry employees may have laundered personal clothing for Nursing Home residents and Retirement Home residents, the latter would be charged a fee if they availed themselves of that service, and it was not available in all the Retirement Communities. The maintenance employees in each Retirement Community also performed duties for the entire premises. Activation Aides offered a variety of programs in each Retirement Community, some of which were specific to the Nursing Home or Retirement Home residents, and some of which were offered to or attended by residents of the whole Retirement Community.

36. Registered Nurses (“RNs”) and Registered Practical Nurses (“RPNs”) who performed duties primarily in the Nursing Home also “covered” the Retirement Home during the night shift and on weekends. Practically speaking, this meant that the employee in question performed her regular duties in the Nursing Home, but could be called on by Retirement Home employees to provide assistance or an assessment in the event of an emergency in the Retirement Home, for example, if a resident fell out of bed or fell ill, or if a determination had to be made to call an ambulance. Similarly, persons occupying managerial positions sometimes exercised responsibility over the whole of the Retirement Community and, sometimes, over only personnel or residents in either the Nursing Home or the Retirement Home.

37. The non-professional, non-managerial employees represented by the Respondents were all employed pursuant to Collective Agreements. In some cases, all full-time employees of the Retirement Community were covered by a single Collective Agreement, and all part-time employees were covered by another. In other cases, there were separate Collective Agreements covering work either in the Retirement Home or in the Nursing Home, but the terms and conditions of each (other than rates of pay) were almost identical. In the case of the Kitchen Aides and Laundry Aides, their work might fall within the bargaining unit covered by one Collective Agreement, but they might be paid pursuant to the other Collective Agreement. Where there were two Collective Agreements, their terms were negotiated by many of the same individuals and often at the same time. If a negotiating impasse occurred, the terms and conditions of the Collective Agreement were determined by interest arbitration pursuant to the Hospital Labour Disputes Arbitration Act, R.S.O. 1990, c. H. 14, as amended, (“HLDAA”). HLDAA prohibits strikes by workers and lockouts by employers who are subject to it.

(h) Application of Pay Equity

38. The vast majority of persons working in the Retirement Communities are female. In these circumstances, no pay equity adjustments are required for female job classes under the job-to-job comparison methodology set out in the Act for the simple reason that there are insufficient male job classes to which the female job classes might be compared. That methodology could not be used. Similarly, the proportional value method of comparison could also not be used. The proxy method of comparison could be used in these circumstances, and it was not disputed before us that the Applicants were required to use it in respect of persons employed in the Nursing Homes. A fuller description of these methodologies is set out below in Section VI on “Legislative History of Proxy Provisions”.

39. An industry-wide Pay Equity Plan was negotiated between a number of nursing homes and the Service Employees’ International Union (“SEIU”) and its various locals. The documents submitted in evidence by Caressant Care identified 111 nursing homes as parties to the Plan. The documents submitted by Helen Henderson identified 82 nursing homes as parties to the Plan. By comparing the names on the two documents, we ascertain that there were 125 different nursing homes bound by the Plan including, apparently, all the Applicants (with the exception of the one in Tribunal File No. 0655-97). As the Tribunal understands it, this Plan required proxy pay equity adjustments of $1.50 per hour to be paid over a number of years, with an initial wage adjustment of $0.35/hour to be paid as of January 1, 1994. This initial adjustment was for all employees covered by the Collective Agreements between the Respondents and the Applicants who performed services in the Nursing Homes. In practice, this included all employees who performed services for both the Retirement Home and Nursing Home residents, regardless of which Collective Agreement provided for that job classification in its bargaining unit, what its pre-pay equity job rate was and, also, regardless of whether or not that job class was female. On the last point, the Tribunal notes that the male job class for maintenance work received a pay equity adjustment.

40. The Plan did not provide for pay equity adjustments for employees who performed services exclusively for the Retirement Home residents of the Retirement Community, although we understand that some Retirement Communities in the province provided such adjustments to all their employees. These Applicants did not do so.

41. It does not appear that New Village/Pine Villa was party to the industry-wide Plan or had indeed taken any steps to implement proxy pay equity in respect of any of its employees.

VI. LEGISLATIVE HISTORY OF PROXY PROVISIONS

(a) The Pay Equity Process In General

42. In order to understand fully the circumstances in which these Applications were made, a brief synopsis of the legislative history of the Act and its provisions may be useful. The following paragraphs contain a much simplified account of how pay equity is to be achieved, focusing on the contrasting job comparison methodologies provided for under the legislation.

43. The effective date of the Act is January 1, 1988. All employers in the province (with the exception of private sector employers with fewer than ten employees on that date) were required to examine the compensation practices in their establishments to determine if pay equity existed. Generally speaking, the process of determining whether pay equity existed required the employer to make the following determinations:

• which jobs formed part of the same job classes, having regard to the statutory definition;

• the gender predominance of the job classes so determined;

• the value of the work performed by each job class, having regard to the skill, effort and responsibility required to perform it as well as the working conditions under which it was performed.

Having made the above determinations, the employer was then required to compare the remuneration paid to the female and the male job classes in the establishment. Until mid-1993 the only method of comparison mandated by the Act was the job-to-job method.

(b) Job-to-Job Comparisons

44. The job-to-job method of comparison requires an employer to compare the remuneration paid to female job classes with that paid to equal or comparably valued male job classes. The application of this methodology in all-female or predominantly-female workplaces was problematic. In the all-female workplace there were no male job classes to which the female job classes might be compared. In the predominantly-female workplace, there might be some male job classes, but not a sufficient number of them that each female job class could be compared to a male job class performing work of equal value. As a consequence of these problems, two new job comparison methodologies were introduced in an amendment to the Act effective July 1, 1993.

(c) Proportional Value

45. Part III.1 of the Act sets out the “proportional value” method of job comparison. The following is an example of how the proportional value method of job comparison might be used in a workplace where the job-to-job method did not permit all female job classes to be compared to equally-valued male comparator job classes. Essentially, Part III.1 requires the employer to: determine the relationship between the value of work and the remuneration paid for male job classes: so the same for the female job classes; and ensure that the ratio of pay to value is at least as great for the latter as for the former. In practice, the employer might apply this methodology by plotting the female and male job classes on a graph where the horizontal coefficient is the value of work, and the vertical coefficient is the remuneration paid. When all the job classes have been plotted in this way, a male wage line may be determined by drawing a line through all the male job classes on the graph, and a female wage line may be similarly generated. Assuming that the male wage line is higher, the Act then requires that compensation practices be adopted that will raise the female wage line. This methodology cannot be applied in a workplace where there are insufficient or no male job classes. For those workplaces, the “proxy” method of comparison may be in order.

(d) Proxy

46. Part III.2 of the Act sets out the proxy method of job comparison. Under this Part, an employer must notify the Pay Equity Office if there are female job classes in its establishment that could not be compared using either the job-to-job method or the proportional value method of comparison. If a Review Officer determines that this is indeed the case and that the employer is in the public sector, s/he will issue an order declaring the employer to be a “seeking employer”. The proxy methodology requires a seeking employer to identify a “key female job class” in its establishment and to determine the relationship between the value of work performed by it and remuneration paid to it. This pay/value ratio is then compared to the pay/value ratio of a female job class performing similar duties in the establishment of a “proxy employer”. If the wage/value ratio in the proxy establishment is higher, then the remuneration paid to all female job classes in the seeking employer’s establishment must be adjusted until they at least match that ratio. “Seeking employers” and “proxy employers” are matched pursuant to Regulation 396/93 of the Act.

47. Part III.2, as noted above, was effective July 1, 1993. It required the proxy methodology to be employed and the results set out in a pay equity plan. It further required that the first pay equity adjustments pursuant to a proxy pay equity plan be made on January 1, 1994. Part III.2 of the Act was repealed effective January 1, 1997 (Savings and Restructuring Act, S.O. 1996, c. 1, Sched. J, s.4). An application was made to the (then) Ontario Court (General Division) to have the repealing legislation declared unconstitutional as contrary to the equality rights guarantees in sections 15 and 28 of the Canadian Charter of Rights and Freedoms. This application was successful, with the result that the repealing legislation was declared of no force and effect. (See Service Employees International Union, Local 204 v. Ontario (Attorney-General) (1997), 1997 CanLII 12286 (ON CTGD), 35 O.R. (3d) 508.) The Tribunal notes, however, that the decision did not require the Legislature to re-enact the provisions of Part III.2. Consequently, current printings of the Act do not contain these provisions, notwithstanding the fact that they are in full force and effect.

REVIEW OFFICER ORDERS

(a) Seeking Employer Declarations

48. The Applicants apparently all notified the Pay Equity Office that not all the female job classes they employed could be compared to male job classes using the job-to-job and proportional value methodologies. Not all of the Applicants filed these notifications with the Tribunal, so we do not know if the Applicants purported to file them in respect of the Nursing Homes only. We do know that the Applicant in Tribunal File No. 0631-97 did so. In any event, a series of Orders was made declaring the Applicants to be “seeking employers”. In Tribunal File No. 0655-97, the seeking employer Order was dated September 19, 1994. Its title identified only “Pine Villa Nursing Home Inc.” as “the Employer”. The preamble to the Order stated that:

. . . one or more of the female job classes within the Employer’s establishment cannot be compared to a male job class within the establishment under either the job-to-job or the proportional value methods of comparison. I have also found this Employer to be a public sector employer.

The Order portion itself declared: “Pine Villa Nursing Home Inc. is a seeking employer.”

(b) Orders Respecting “Establishment”

49. The province-wide nursing home pay equity plan was executed by the Applicants (with the exception of Tribunal File No. 0655-97) in mid-1995 following the issuance of the “seeking employer” declarations. It did not provide for pay equity increases for employees of the Retirement Homes. A subsequent series of Orders was issued finding that the Retirement Homes and Nursing Homes were part of the same establishment (“the Establishment Orders”). The following portion of the Order issued December 23, 1996 and now at issue in Tribunal File No. 0655-97 is typical of the reasoning contained in all these Orders:

An establishment is defined in subsection 1(1) of the Act as:

all of the employees of an employer employed in a geographic division or in such geographic divisions as are agreed upon under section 14 or decided upon under section 15.

Pine Villa Nursing Home and New Village Retirement Home are owned and

operated by the Employer and located in the same establishment.

50. As a consequence of the above observations, each Order directed the Applicant to negotiate with the applicable Union “a pay equity plan using the proxy method of comparison. . . for all female job classes represented by [that Union] in the establishment”.

51. The sequence of events in the other files with respect to the issuance of Review Officer Orders was similar to that described above, with the exception that not all of the “seeking employer” declarations specifically identified the relevant Nursing Home as the “Employer”. All of the Establishment Orders, however, found that the Applicants were the Employer of an establishment comprising all the employees in their Retirement Communities, and required them to use the proxy methodology in respect of all those employees.

52. At one point, the issue in this proceeding was what, if anything, the Establishment Orders obliged the Applicants to do, having regard to the repeal of Part III.2. Prior to the issuing of the Tribunal’s decision on that issue, however, the repealing legislation was declared unconstitutional and of no force and effect, and consequently the Tribunal directed that these matters proceed to hearing (See Helen Henderson (1997), 8 P.E.R. 140).

THE PARTIES’ POSITIONS

(a) Who Made Submissions

53. The five Applicants were represented by three different counsel. The Unions were represented by two different counsel. Each of these counsel presented final argument. For the purposes of this section of the decision, however, we are not differentiating among the various arguments presented on behalf of the Applicants, or the two arguments presented on behalf of the Unions.

(b) The Applicants

54. The Applicants all object to the conclusion in the Establishment Orders that each Retirement Community constitutes a single establishment, and that the proxy methodology must be used in respect of all of the employees represented by the Unions in the Retirement Communities. They seek to have the Establishment Orders revoked.

55. The Applicants urged that the following points favour the revocation of the Officer’s Order:

• the proxy provisions apply only to the public sector;

• the Nursing Homes are conceded to be part of the public sector and as such obliged to use the proxy methodology;

• the Retirement Homes do not constitute part of the public sector because they are not listed in the Schedule;

• a stand-alone Retirement Home (i.e., one that does not form part of a Retirement Community along with a Nursing Home) would be part of the private sector;

• because the Retirement Homes do not receive public funding, the cost of any pay equity adjustments for the employees who work there must be met out of increased residential accommodation costs;

• industrial equity favours treating all Retirement Homes the same way, regardless of whether they are part of a Retirement Community;

• the Retirement Homes are part of the private sector regardless of whether they and their adjoining Nursing Homes constitute a single employer;

• alternatively, the Tribunal should interpret “employer” liberally to ensure the aims of Part III.2 are met (i.e. proxy applies to the public sector only);

• if each Retirement Community is found to constitute a single employer subject to Part III.2, the Tribunal will effectively be “extending proxy to the private sector”, contrary to the legislative intention;

• if the Retirement Homes and the Nursing Homes are each found to constitute separate employers, the legislative intention that proxy apply only to the public sector will be preserved;

• the degree of legislative regulation pursuant to which the Nursing Homes operate, and the absence of operational regulation over the Retirement Home favour a finding that each is, individually, an employer;

• Retirement Homes and Nursing Homes are treated differently for the purposes of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), as amended;

• the schedule to the Social Contract Act, 1993, S.O. 1993, c.5 is similar in language to that of the Schedule to the Act, and only the Nursing Homes and not the Retirement Homes posted plans pursuant to that legislation; and

• the definitional sections of other Canadian pay equity legislation that is only applicable to the public sector clearly do not include Retirement Homes in the ambit of that legislation.

(c) The Unions

56. The Unions all seek to have the Establishment Orders confirmed. In support of their position, the Unions made the following points:

• the Act requires both public sector and private sector employers to implement pay equity;

• in each of these cases, there is only one legal entity and one Applicant;

• in its caselaw the Tribunal has rejected the notion that separate divisions of a single corporation can constitute individual employers;

• the single corporation in each of these cases is clearly public sector because it operates a Nursing Home;

• the language of the Act and Schedule should be given their plain meaning;

• disentitling provisions of a statute should be interpreted narrowly;

• Part III.2 of the Act does not contain its own definition of “employer”;

• the application of the Tribunal’s jurisprudence respecting “who is the employer” favours the finding that there is a single employer of all the employees in each Retirement Community;

• all of the employees of the Retirement Community form part of the same “establishment” under the Act;

• the purposes of the Act favour the Unions’ interpretation;

• the Legislature in ss.1.1(1) of the Act proved itself clearly capable of drawing distinctions between “employers” and bargaining units, and distinctions based on the size of employer, so distinctions not made express in the legislation should not be read into it;

• the Nursing Homes and the Retirement Homes are designated as “hospitals” under HLDAA, supra;

• inability to pay is not a defence; and

• the operations of the Retirement Communities as a whole benefit from public funding of the Nursing Homes.

THE ANALYSIS

(a) Statutory Interpretation In General

57. The starting point for our analysis is the Act. In our view, the Act must be read as a whole, and the Tribunal must attempt to give effect to all of its provisions. Those provisions should be interpreted in accordance with the plain meaning of the language used, unless that leads to an absurd result. Only in the case of some ambiguity in the language should the Tribunal resort to extraneous aids to interpretation such as legislative debates or statutes in other jurisdictions dealing with similar matters to ascertain the legislative intent.

(b) The Act And Its Distinctions Between The Public And The Private Sector

58. We start with an examination of the provisions of Part III.2.

59. Each of these Applications involves an objection to a Review Officer’s Order declaring the Applicants to be “seeking employers” in respect of all employees working in the Retirement Community. “Seeking employer” is defined in ss. 21.11(1) of the Act:

21.11(1) "seeking employer" means an employer in respect of whom a review officer has issued an order under subsection 21.12 (2)

60. The Review Officer’s ability to make “seeking employer” declarations is conferred in ss. 21.12(2) of the Act:

21.12 (2) A review officer may make an order declaring an employer to be a seeking employer if the employer has given notice to the Pay Equity Office under subsection 21.2 (5) and if the review officer finds,

(a) that the employer is a public sector employer; and

(b) that there is any female job class within the employer's

establishment that cannot be compared to a male job class within the establishment under either the job-to-job method of comparison or the proportional value method of comparison.

61. Subsection 21.2(5) simply refers to the requirement that the Pay Equity Office be notified if a female job class cannot be compared under the job-to-job or proportional value method of comparison. For our purposes, the critical part of the above section is the stipulation that a “seeking employer” be “a public sector employer”.

62. It is useful at this point to look at how the rest of the Act deals with the distinction between the public and the private sector. First of all, the Tribunal notes that an employer’s character as public or private sector determines the scope of the obligations imposed on that employer by the Act:

• all public sector employers must comply with the Act, but the legislation does not apply to private sector employers with fewer than ten employees ss.3(1));

• all public sector employers must implement pay equity through the vehicle of pay equity plans, but only large private sector employers must prepare such plans (s. 11 and s. 13);

• public sector employers must commence paying pay equity adjustments under those plans sooner than private sector employers ss.12(2));

• the Act imposes a deadline by which all public sector employers must achieve pay equity, whereas private sector employers may take longer to achieve pay equity as long as they annually devote the statutorily-specified minimum amount of payroll to this goal ss. 12(7)); and

• only public sector employers are required to use the proxy method of evaluation set out in Part III.2 of the Act.

63. Subsection 1(1) of the Act defines private and public sector as follows:

"private sector" means all of the employers who are not in the public sector

“public sector" means all of the employers who are referred to in the Schedule

64. By defining the terms in this way, and by distinguishing so clearly between the obligations imposed on “public sector” employers as compared to “private sector” employers, the Act does two things. First, it sets up a binary: the scheme of the legislation presupposes that an employer will fall neatly within one or the other of these sectors. It does not contemplate the existence of “hybrid” employers. Second, it establishes a hierarchy of inquiries that must be made in determining whether an entity falls within the private or the public sector. Because “private sector” is defined negatively, this definitional exercise requires one to see if an employer falls within a category listed in the Schedule. If so, the employer is public sector. If not, it is private sector.

65. The Applicants’ suggestion that the question the Tribunal must answer in resolving these Applications is whether proxy can be extended to the private sector is thus fundamentally at odds with the hierarchy of inquiries that the Act dictates. It is also not very helpful in the absence of any other authoritative definitional source of what constitutes the public sector versus the private sector, particularly where that term is not a term of art, and other judicial decisions grappling with the distinction have firmly grounded their analyses in the language of the statutes in question rather than on some overriding popular understanding of these terms. The two cases summarized in the following paragraphs illustrate this latter point.

66. Reibin v Canada (Treasury Board), [1996] F.C.J. No. 794 (F.C.T.D.), dealt with whether the operations, and hence the employees, of the Whitehorse General Hospital had been “privatized” within the meaning of the federal Treasury Board’s Workforce Adjustment Directive, or whether they had instead “devolved” to another public sector employer. The functions in question had been transferred to the Yukon General Hospital. Here the adjudicator whose decision was under review was held by the court to have acted reasonably in examining the terms of the Directive; looking to the plain meaning of private sector; considering the statutory regulation of the Yukon General Hospital; and finally concluding that it was part of the public sector despite an express statutory provisions stating that it was “not an institution of the Government of the Yukon”.

67. The second case standing for the proposition that issues of “private” and “public” sector are dependent on the language of the statute in question is British Columbia Assn. of Private Care v British Columbia (Attorney General), [1996] B.C.J. No. 497 (B.C.S.C.). This case arose out of the 1993 enactment of The Public Sector Employers Act, S.B.C. 1993, c. 65, which authorized the making of regulations designating employers for the purposes of the definition of “Public Sector Employer”. The crux of the case before the Court is set out in paragraphs 3 and 4 of the decision:

By Regulation made under the statute, certain private care facilities and agencies were declared to be members of an organization known as the Health Employers Association of British Columbia (HEABC) and were placed in the same category as government-funded entities. I was told that approximately 115 private health care facilities and agencies who would obtain a large portion of their revenues from the provision of health care services to the government on a contract basis were by this Regulation placed in the HEABC. The petitioners here take issue with that Regulation claiming that it was inappropriate to lump them in with “public sector” entities.

The Court noted the significant degree to which the private health care facilities were dependent on contracts to provide services to the government in dismissing the petition to strike down the Regulation as ultra vires legislation aimed at the public sector. For the purposes of other statutes in British Columbia, however, these facilities may well have been treated as part of the private sector.

68. The Applicants relied on the case of Miles Estate v. Canada, [1999] T.C.J. No. 535, where nursing homes and retirement homes were held to be distinct kinds of operations for the purposes of the Income Tax Act, supra, with the consequence that only fees payable to the former constituted deductible medical expenses. The Applicants also relied on the similarities between the Act and its Schedule and the Social Contract Act, 1993, supra, and the Schedule thereto. The Tribunal acknowledges that the language of the two legislative regimes is identical with respect to the provisions identifying the operators of nursing homes as part of the public sector. The fact that the Applicants negotiated plans to achieve savings under the Social Contract Act, 1993, supra, in respect of their Nursing Homes alone, however, is not, in the absence of a judicial decision, dispositive of whether they properly excluded the Retirement Homes. Finally, the Applicants relied on the statutory ambit of pay equity legislation in other Canadian jurisdictions, which extends only to the public sector, and submitted that Retirement Homes were not captured by that legislation.

69. The Unions relied on the fact that both the Retirement Homes and the Nursing Homes have been declared to be “hospitals” for the purposes of HLDAA, supra.

70. The Tribunal does not find that the treatment of nursing homes and retirement homes under these other statutory regimes offers it much assistance in interpreting the Act. The Tribunal sees its task as determining what constitutes the public sector for the purposes of the Act, and particularly the issue of whether Retirement Homes that are part of Retirement Communities are in the public sector. Because we are focussing on the Act and its provisions, the fact that other statutes may either distinguish between Retirement Homes and Nursing Homes or may treat them similarly does not really assist our analysis. We also note that the accepted principles of statutory interpretation only provide for resort to extraneous statutes in pari materia as aids to construction. For the second statute to be considered in pari materia, it must deal with the same subject matter as the first. This prerequisite is, in our view, satisfied only by HLDAA, supra, which is, like the Act, a statute of application to both the public and private sector and aimed at regulating labour relations.

(c) The Schedule to the Act

71. Although ss.21.12(2) speaks to the requirement that a Review Officer “find” that an employer is public sector before issuing a “seeking employer” declaration, there is in fact very little scope under the Act for making any “findings”. The definition of public sector takes the form of a catalogue of entities, rather than a functional examination of the activities in which they engage. In other words, it is the identity of the employer itself, rather than the nature of the employer’s operations, which determines its identification as “public” or “private”.

72. Notwithstanding our observations in the preceding paragraph, we turn to examine briefly whether the Schedule could provide the Tribunal with any guidance in developing a functional definition of “public sector”, were this approach open to the Tribunal. Even a cursory review of the catalogue that constitutes the Appendix reveals that it would be exceedingly difficult to come up with a functional definition that would encompass all of the actors listed there, and would enable one to predict with any certainty what constitute “like actors”, and consequently fall within the purview of the public sector. Some are non-profit (a native friendship centre), and some are run on a for-profit basis (hospital laundry services). The operations of some appear to be highly regulated by statute (agencies and residential facilities under the Child and Family Services Act), while the operations of others appear subject to the barest statutory constraints (the Metro Toronto Convention Centre and the Royal Botanical Gardens). Some are created by statute (Metro Toronto Convention Centre) and some are not (sexual assault centres). Some are funded in whole by the government, and some only in part (adult community mental health service funded in whole or in part by the Ministry of Health). It is possible, indeed it is perhaps probable, that all of the entities listed in the Schedule obtain at least some of their operating funds from the provincial government, but this cannot be ascertained with certainty from the Schedule itself, or any other part of the Act. Nor is it possible to ascertain if the entities are in receipt of direct core funding or discretionary grants, or if their clients are subsidized rather than the agency being funded directly.

73. We therefore reject the possibility of developing for “public sector” the kind of jurisprudential functional definition that the Tribunal’s caselaw sets out for “employer”, even if it were appropriate to do so in the face of what purports to be an exhaustive statutory definition.

74. Turning then to the Act’s enumeration of the entities constituting the public sector, we find the following relevant provisions:

SCHEDULE

1.The public sector in Ontario consists of,

(i) any authority, board, commission, corporation, office, person or organization of persons, or any class of authorities, boards, commissions, corporations, offices, persons or organizations of persons, set out in the Appendix to this Schedule or added to the Appendix by the regulations made under this Act.

APPENDIX

MINISTRY OF HEALTH

1. Any corporation or organization of persons, other than one that has no employees other than employees who directly or indirectly control it, that operates or provides,…..

(b) a nursing home, under the authority of a licence issued under the Nursing Homes Act (R.S.O. 1990, c. N.7);

75. In our view, the above language is clear and unambiguous, and does not require resort to other statutes for its interpretation. It is a matter of common fact that each of the Nursing Homes operates pursuant to a licence issued under the Nursing Homes Act. The question in each of these cases thus becomes, does the corporation or organization that operates or provides the Nursing Home also operate or provide the Retirement Home? In other words, is there one employer? If so, that employer is part of the “public sector”, and susceptible under the statute of being declared a seeking employer compelled to use the proxy method of job evaluation.

(d) Who is the Employer?

76. The Act contains no definition of “employer”. The Tribunal has, however, on many occasions been called upon to determine “who is the employer”. It has developed extensive jurisprudence addressing this question, which the Ontario Court of Appeal has recognized as falling within the Tribunal’s specialized expertise. See Haldimand-Norfolk (No.3) (1989), 1 P.E.R. 17; Haldimand-Norfolk (Regional Municipality) Commissioners of Police v. O.N.A., [1989] O.J. No. 1995 (Div. Ct.); and [1990] O.J. No. 1745 (C.A.); Middlesex and London (1989), 1 P.E.R. 89; Metropolitan Toronto Library Board (1989), 1 P.E.R. 112; Barrie Public Library Board (1991), 2 P.E.R. 93; Porcupine Health Unit (No.2) (1991), 2 P.E.R. 198; Kingston and Frontenac Children’s Aid Society (No.2) (1992), 3 P.E.R. 117; Thomson Newspapers (1993), 4 P.E.R. 21; Hilton Works (No.3) (1994), 5 P.E.R. 34; Welland Public Library (1994), 5 P.E.R. 60; Michipicoten (No.2) (1995), 6 P.E.R. 51; Teachers’ Pension Plan Board (1995), 6 P.E.R. 188; Salvation Army (Group of Employers) (No.4) (1997), 8 P.E.R. 154 .

77. Of the above decisions, the most pertinent to these applications are Thomson Newspapers and Hilton Works (No.3). In the former, the Tribunal was called upon to decide whether Thomson Newspapers or the Oshawa Times was the employer of persons working at the Oshawa Times. The Tribunal analyzed the evidence and concluded at paragraph 96 that:

...the degree of financial control by Thomson Newspapers over the Oshawa Times, one of its divisions, together with its authority over the newspaper’s compensation practices, through the publisher, its manager at the Oshawa Times, can only lead to the conclusion that Thomson Newspapers is the employer of the Guild’s members at the Oshawa Times.

78. At paragraph 89, the Tribunal noted that, as Thomson Newspapers was the only legal entity, it was the effective employer on the collective agreement, notwithstanding that the title of the agreement was between the Oshawa Times and the bargaining agent. Although the Tribunal was clearly influenced in this decision by the fact that only one of the potential “employers” was a legal entity, it fell short of saying that a non-legal entity such as a corporate division could never be an employer for the purposes of the Act. By contrast, the Tribunal in Hilton Works, when faced with a similar fact situation, said:

79. The Tribunal’s case law on employer is not of much assistance in this situation. In other cases, the Tribunal has been presented with at least two separate identifiable entities, which each exert control or influence on different aspects of the organization and employees in issue. Some of the evidence points to one entity as employer, other evidence points to the other entity. The Tribunal has developed criteria to help it determine which aspects of control have greater importance. But the Tribunal’s cases to date have involved at least two discernible entities.

80. In this case, there is only one entity: Stelco Inc. Ultimately, it controls every aspect of the workplace. All the evidence points in that direction because Hilton Works, Frost Works, Parkdale Works and General Office are in no way separate from Stelco Inc. We conclude that for the purposes of the Act, Stelco Inc. is the employer.

81. As we noted earlier, Stelco Inc. is the only legal entity among the Employers. Theoretically, a non-legal entity may on the application of the Tribunal’s criteria to the evidence, be an “employer”. Consequently, in a proceeding where one potential employer is a legal entity and the other is not, the fact that one of the entities being considered is not a legal entity does not, by default make the legal entity the employer, particularly if there is no relationship between the two entities. However, where there is a relationship, the existence of only one legal entity may be a significant indicator that the non-legal entity does not enjoy sufficient independence and autonomy to be capable of being a separate employer.

82. In three of the Retirement Communities before us, there has only ever been one legal entity owning and/or operating both the Nursing Home and the Retirement Home. In the Caressant Care case, there are now two legal entities, but there was only one up until August 1998. In the Pine Villa/New Village case, there were two legal entities, but they were collapsed into one corporation in October 1993. None of the Applicants relied heavily on the significance of their corporate structures in presenting their case. Nor did the Applicants or the Unions raise any issue with respect to the point in time at which the Tribunal should determine the identity of the employer. In other cases before the Tribunal, however, this has been an issue. While decisions on this point have generally held that the inquiry respecting the identity of the employer should be commenced as of the effective date of the Act, January 1, 1988, they have also recognized that subsequent organizational changes may result in a change in the identity of the employer, and that the necessity to fashion effective remedies requires that some account of these changes be taken. See Hilton Works (No.2) (1993), 4 P.E.R. 17 and Teachers’ Pension Plan Board (1995), 6 P.E.R. 188. In the latter case, one organization succeeded another on January 1, 1990, and that was consequently the date at which the Tribunal determined who the employer was.

83. In the case of these Applications, the scheme of the Act and its evolution suggest several possible dates at which the “employer” determination could be made: the effective date of the Act (January 1, 1988); the effective date of the proxy provisions (July 1, 1993); or, the date these applications were made to the Tribunal (all of them sometime in 1997). To complicate matters further, almost all of the evidence that the Tribunal heard respecting the regulation and operation of the Nursing Homes pertained to the regulatory regime in place post-1995, after both the envelope system and the control of Nursing Home admissions through CCACs had been introduced. In the peculiar circumstances of these cases, therefore, it appears that the dates of application to the Tribunal should fix the time for the employer inquiry.

84. For each Retirement Community at the time of the Applications herein, there was only one single entity in existence. For the reasons set out at Paragraph 46 of Hilton Works (No.3), supra, we find that the whole of the Retirement Community rather than its separate Nursing Home and Retirement Home divisions, constitutes the Employer. Because that Employer holds a nursing home licence, it is pursuant to the Schedule and Appendix to the Act, a public sector employer.

85. Even if a non-legal entity could be found to be an employer for the purposes of the Act, on the basis of the Common Facts and the Facts Specific to each Retirement Community, we would have found each Applicant to be the employer of all the employees in its Retirement Community. Such determinations would be consistent with the Tribunal’s jurisprudence on this issue, for the reasons set out briefly below.

86. In answering the question, “who is the employer”, in all but one of the cases referred to above (Welland Public Library), the Tribunal analyzed the evidence having express regard to the following questions: who has overall financial responsibility; who has responsibility for compensation practices; what is the nature of the business, service or enterprise; and what is most consistent with achieving the purpose of the Act. While these questions did not provide the framework for the written reasons in Welland Public Library, the evidence adduced and summarized in the latter case pertained to the same issues canvassed in the others. Those matters were also thoroughly canvassed before us in respect of these applications, and are set out at considerable length in the Facts Specific to Each Retirement Community. A consideration of that evidence leads inevitably to the conclusion that there is a single employer in each of the Retirement Communities.

87. The Tribunal notes that all of the “employer” cases preceding this one involved situations where one legal entity (A) operated in a geographically distinct location from another legal entity (B), and those entities were in some kind of contractual or regulatory relationship. The Tribunal examined the indicia enumerated earlier to determine whether A exercised de facto control over the employment of persons in B’s workplace. There was little or no evidence in those cases that A exercised or even had the opportunity to exercise direct control over decisions respecting what work was performed in B’s workplace, who performed it, or the terms and conditions under which it was performed. Nor was there necessarily any similarity between the terms and conditions attaching to the persons employed in A’s workplace and those employed in B’s workplace.

88. By contrast, in these Applications we note the following:

• There is only one legal entity in each Retirement Community.
• The Nursing Home and Retirement Home in each Application form part of the same Retirement Community, and the workplaces are physically adjoining.
• There is some sharing of physical facilities.
• In each Retirement Community, the terms and conditions of employment (with the exception of rates of pay) are largely the same for all of the persons represented by the Unions.
• In each Retirement Community, the terms and conditions of employment prevailing in both the Nursing Home and the Retirement Home are determined by many of the same negotiators, and often at the same time.
• In one case there is only bargaining unit and one collective agreement for all full-time employees represented by the Union in the whole of the Retirement Community.
• Persons employed in the Nursing Homes regularly perform services in the adjoining Retirement Homes.
• Persons paid pursuant to a collective agreement covering a Nursing Home bargaining unit may, in fact, perform services in the Retirement Home, or vice versa.

86. In these Applications, the employment practices of the Nursing Home and the Retirement Home in each Retirement Community are so intertwined on a regular basis that they are inconsistent with the notion of separate employer status. An examination of the employer indicia looked at by the Tribunal in other cases becomes less important in these circumstances. The Tribunal does not need to determine whether it can infer de facto control over employment practices from evidence of control in other areas. Here, there is evidence of actual control over employment practices.

87. With respect to the enumerated indicia, however, we do note that the Applicants bear the risk of financial loss and reap the rewards of any profits in both the Retirement Homes and the Nursing Homes. With respect to the nature of the business or enterprise, we comment below.

(e) What is the Establishment?

88. A great deal of evidence was led respecting the nature of the work performed in each of the Retirement Homes and the Nursing Homes. The differences identified by the Applicants, as noted earlier in these reasons, stemmed almost entirely from the increased care requirements associated with the Nursing Home residents. This evidence is pertinent to, but not determinative of the inquiry into the nature of the business, enterprise or activity. The significance to be afforded to the results of this inquiry, however, is diminished by the fact that each Application relates to a single legal entity, by the evidence of actual control over employment practices, and by the Act’s definition of establishment. In any event, the Tribunal would characterize the industry in which the Applicants operate as the provision of residential care for the elderly, as indeed do the Applicants themselves when they hold themselves out as “integrated care centres” or as offering a “continuum of care”. Such a description of the business or industry encompasses both the Nursing Homes and the Retirement Homes.

89. One of the Applicants suggested that a decision finding that the whole of the Retirement Community fell within the public sector would be absurd, having regard to the differences in their activities and degree of regulation. Even if the nature of the work performed in the Nursing Homes was as distinct from that performed in the Retirement Home as the Applicants claim, the dissimilarities in activities have nothing to do with the identity of the employer, or the scope of its establishment. Under the Act, pay equity must be achieved for the employer’s “establishment”, which the Act defines to include all of its employees:

"establishment" means all of the employees of an employer employed in a geographic division or in such geographic divisions as are agreed upon under section 14 or decided upon under section 15;

90. Consequently, if a single legal entity operates a gas station, a retirement home, and a pizza parlour within the same municipality, the workers of all three comprise the employer’s establishment. Once again, as we noted earlier, it is the characterization of the employer itself and not the nature of its activities that determines the extent of its obligations under the Act. A finding respecting the identity of the employer and/or the scope of its establishment is thus not dependent on finding a community of interest among all its employees. An inquiry into the nature of work and community of interest is significant to the Ontario Labour Relations Board in determining whether a group of employees should be included in a single bargaining unit. To the extent that those community of interest concerns might impact on the appropriateness of an employer’s measures to implement pay equity, they are taken account of in the Act’s requirement that separate pay equity plans (where required) be prepared for each bargaining unit, and by the fact that the job-to-job methodology is first applied to look for a comparably valued male job class within the same bargaining unit as that of the female job class.

(f) Other Considerations

91. The parties made some “equitable” arguments. Given our view that the statutory language is clear and unambiguous, we have given these considerations no weight in our decision and will only comment on them briefly.

92. The Applicants argued that industrial equity favoured treating the Retirement Homes as part of the private sector, so that they could continue to compete in the marketplace with stand-alone retirement homes that were not required to employ the proxy methodology and have thus remained free to pay wage rates that are not increased by an amount in respect of a pay equity adjustment. Essentially, the Applicants were making an argument that their ability to pay should influence our determination as to the extent of their obligations under the Act. We note that the Tribunal, in Kensington Village, (2000),11 P.E.R.1, held that inability to pay does not oust statutory obligations.

93. The Unions argued that internal equity and considerations of good labour relations require the maintenance (and not the increase) of any relative differential between Retirement Home and Nursing Home wage rates. We note that there was evidence that in some adjoining retirement and nursing home facilities in the province the decision was made to extend proxy pay equity adjustments to the employees working in the retirement home. We heard no other evidence with respect to the labour relations impact of a failure to do so.

94. As noted earlier, the Applicants’ central argument was that a decision finding that the whole of each Retirement Community must employ the proxy methodology amounted to “extending proxy to the private sector”. Their argument was that this was unfair because the Retirement Homes are not eligible to receive government funding, including funding for pay equity. The Tribunal heard no evidence and has no knowledge of how the government has made its pay equity funding available to either government proper (i.e., the Ministerial and Legislative staff), or to the agencies enumerated in the Schedule. It appears to us, however, if the commitment has been made to fund pay equity or any portion of it for the “public sector”, then the finding that the Retirement Homes are part of the public sector may make them eligible for a share of such funding.

95. The Applicants also suggested strongly and repeatedly that the Legislature never intended to make proxy applicable to the Retirement Homes. The flaw in this argument, of course, is that the Tribunal must interpret the language actually employed in the Act, and to give effect to the Applicants’ position would require us to read language into the Schedule so that a corporation is part of the public sector if it operates a nursing home pursuant to licence “but only to the extent of its nursing home operations”. In any event, the Legislature has the ability to amend the Act. We note that it did so after some early Tribunal decisions identified the Crown as the employer of persons working in agencies listed in the Schedule.

(g) Summary and Conclusion

96. In conclusion, the following are the key elements of the Tribunal’s analysis.

• The Act applies to virtually all employers in the province, with only the extent and the timing of their obligations predicated on their characterization as public or private sector.
• Only the “public sector” is defined in any meaningful way, and it is defined not functionally, but by means of a catalogue of entities set out in the Schedule.
• It is not possible to ascertain from the Schedule what characteristics make an entity “public sector”.
• It is clear, however, that a corporation holding a nursing home licence is part of the public sector.
• All of the Applicants hold nursing home licences.
• All of the Applicants also operate the Retirement Homes.
• There is only one legal entity operating each Retirement Community.
• A non-legal entity has never been found by the Tribunal to be an employer, and it has expressed its reluctance to do so.
• In any event, the evidence, and particularly that relating to the terms and conditions of employment, points to a single employer.
• As there is a single employer in each Retirement Community, the establishment is comprised of all of its employees, regardless of their community of interest or the diversity of their tasks.

97. The Review Officers’ Orders are hereby confirmed.

VII. FACTS SPECIFIC TO EACH RETIREMENT COMMUNITY

(a) Caressant Care

(i) Corporate Structure and Management

98. The parties in this Application are Caressant Care Nursing Home of Canada Ltd. (“Caressant Care”) and London and District Service Workers’ Union, Local 220, (the “Union”). The parties filed an Agreed Statement of Facts and sworn affidavits from nine witnesses who also provided viva voce testimony.

99. Caressant Care, with its Head Office in Woodstock, Ontario, is a privately controlled company that was founded by three partners. The Tribunal heard evidence about the role of Mr. James Lavelle, one of the founding partners, who is the President and responsible for the day-to-day operations of all Caressant Care Homes.

100. Caressant Care owns and manages eleven Nursing and Retirement Homes in Ontario. In St. Thomas, Caressant Care owns and operates both a Nursing Home that can accommodate 116 residents and a Retirement Home that can accommodate 76 residents. Both are located in the same building. Internal doors join the two Homes and are alarmed, but cannot be locked. The doors are accessible by key code posted on the door.

101. Wayne Hulme, Human Resources Manager for Carressant Care, works at the Head Office and reports to Mr. Lavelle. He testified about the corporate and labour relations structure of Caressant Care. It was his evidence that both Homes were run under the Caressant Care Nursing Homes of Canada Ltd. corporation up to August 7, 1998 when a new corporation came into existence called “Caressant Care Nursing and Retirement Home Ltd”.

102. Ronald R. Doney, the Controller of Caressant Care, worked out of its Head Office. He testified that, while there was one corporate entity, the financial operations and records of the Nursing Home are kept separate from those of the Retirement Home. Money for both Homes is deposited in one bank account, with all revenue recorded separately. Shared expenses are attributed to each Home with a “charge back” to the other, or otherwise allocated between the two. For example, a new roof for the one building would be apportioned between the two Homes. There is also an asset account (building, furniture, appliances) and the depreciation of assets is recorded separately. Each Home has a separate payroll. Audited financial statements are provided annually to the MOH.

103. The former on-site Administrator, Marlene Powner, had overall responsibility for both Homes in the Retirement Community and reported on operational matters to the Assistant Manager, Operations, Carol Heptig, who is located at Head Office. For human resources matters she consulted, but does not report to Mr. Hulme. At the date this evidence was given, October 6, 1998, the Administrator position was vacant.

104. The Assistant Manager, Operations, Carol Heptig, reports to the Manager, Operations, Joan McLinden, who is also located at Head Office. Ms Heptig regularly visits Caressant Care facilities and provides a report on both Homes to Ms McLinden. A Food Services Consultant and a Nursing Consultant, both of whom are Head Office employees, report to Ms McLinden and visit Caressant Care facilities on a regular basis.

105. Barbara Payne, an RPN, is the on-site Retirement Home Manager, while Vicki Martinez, the Director of Nursing and an RN, is responsible for the Nursing Home. Both report to the on-site Administrator, Marlene Powner. The Food Services Supervisor, Tracy Gillingham, the Activities employees, Housekeeping and Maintenance also report to Ms Powner. The Dietary employees report to the Food Services Supervisor.

(ii) Collective Bargaining/Human Resources

106. Some employees and managers paid by the Nursing Home perform services for the Retirement Home and vice versa. The non-professional, non-managerial staff working in both Homes are represented by the same Union. The parties agree that there are two separate Collective Agreements, with almost identical terms.

107. Employees working in the Retirement Home are all employed on a part-time basis, with the exception of the Retirement Home Manager. She works full-time but is not a bargaining unit employee. The Collective Agreement for the Retirement Home covers the following classifications:

• Guest Attendant
• Housekeeping
• Dietary Attendant
• Activity Attendant

Ms Payne testified that the services of an RPN were added to the Retirement Home in June 1998 as a pilot project to run June 1, 1998 to May 31, 1999.

108. Both full-time and part-time employees are employed by the Nursing Home. The Collective Agreement for the Nursing Home covers the following classifications:

• RPN
• Nurses Aide
• Activities Co-coordinator
• Dietary/Housekeeping Aide
• Cook
• Nurse Clerk

109. Mr. Hulme testified that responsibility for labour relations matters for the eleven Caressant Care Homes was divided between him and the Labour Relations Specialist who is also located at Head Office. This responsibility was split geographically with some overlap in duties between the two positions. Mr. Hulme was responsible for five Homes and the Labour Relations Specialist for six. The Labour Relations Specialist reported to Mr. Hulme on the six Homes for which he was responsible. There was a significant amount of evidence about the relationship between Caressant Care and the Union at St. Thomas. Labour relations for all Retirement Home and Nursing Home employees are managed by Caressant Care.

110. The Nursing Home and the Retirement Home bargain separately, but take turns beginning negotiations first. The wording in the two Collective Agreements is almost identical. The term of duration for both Collective Agreements is the same. Head Office is involved in setting the terms and conditions for both Collective Agreements and Mr. Lavelle has the final authority to grant a wage increase. The Labour Relations Specialist signed both Collective Agreements on behalf of the employer. According to the Agreed Statement of Facts, both Homes proceed to arbitration before one arbitrator, but it is not clear whether this refers to interest or rights arbitration. Each Home maintains separate seniority lists, and it is not possible to transfer seniority from one Home to the other.

111. There are separate Union stewards for each Home, and grievances are handled separately. The first step of the grievance process is handled locally, with a Head Office Human Resources person acting in an advisory capacity. That person attends the grievance at the second step with members of local management. Mr. Lavelle has the final authority to settle a grievance prior to arbitration. At arbitration, either the Human Resources person may be present or, depending on the case, outside counsel may be involved. Both Homes are covered by the HLDAA.

112. Policies are mostly generated by Head Office, and while there are some human resources policies that apply to both Homes, there are others that do not. Hiring is done locally, but Head Office is involved in the hiring at the administrative level. Most disciplinary matters are handled locally, but Head Office has final approval of all firings (terminations). Each Home manager has sat in with the other manager at disciplinary meetings. Both managers have conducted interviews together for RPNs. There is one Health and Safety Committee for both Homes.

113. All employee benefits premiums for the Retirement Community are paid by Head Office. Dental and extended health care benefits for both are handled through Custom Benefits Administrators. Life insurance and accidental death and dismemberment premiums for both are handled by Aetna Canada. All Retirement Community employees belong to the same pension plan. However, in practice, Retirement Home employees receive no benefits because they only work part-time.

(iii) Pay Equity

114. Caressant Care was a party to the industry-wide Plan described earlier, providing for pay equity adjustments to employees performing services for Nursing Home residents. We heard no evidence respecting pay equity initiatives applicable to employees performing services for Retirement Home residents.

(iv) Operations

115. The Retirement Home and Nursing Home are located in the same building. The same telephone number is used for both Homes and employees on either side can answer. There is one office for the facility and a single paging system. Male and female washrooms located in the Nursing Home are for visitors of both Homes. Employees from both Homes use the employee washroom located in the Nursing Home.

116. The Nursing Home Food Services Supervisor orders all food and kitchen supplies on a single order for both Homes. Invoices are directed to Caressant Care. Both Homes share supplies ordered in bulk, e.g., diet powdered desserts, bread, milk and ice cream. There is a large walk-in freezer and a pantry in the Nursing Home which are used to store supplies for both Homes.

117. According to a sworn affidavit provided by Sandra Dawdy, the Cook at the Nursing Home, there was originally one kitchen for both Homes serviced by Versa, an outside contractor. In 1991 or 1992, Caressant Care decided to provide kitchen and housekeeping functions in-house. Approximately five to six years prior to the date of the affidavit of November 1998, a new kitchen was built exclusively for Retirement Home residents and employees.

118. The Caressant Care Food Services Consultant goes to St. Thomas to meet with the Food Services Supervisor to set up meal plans for the Retirement Community. These are substantially the same for both Homes. The kitchen facilities in the Retirement Home are minimal. Most of the food provided to its residents is of the “heat and serve” variety. There is minimal food preparation on-site. Retirement Home employees and residents, however, also use some of the kitchen equipment in the Nursing Home, such as juice machines and the convection oven, to prepare food that cannot be prepared in the Retirement Home, such as large roasts. The Retirement Home Dietary Attendants transfer food from the Nursing Home to the Retirement Home kitchen on a daily or as needed basis. The dining rooms for the two Homes are separated by three-and-a-half foot planters.

119. The Director of Nursing orders linens for both Homes and the linens are shared by both. Costs are pro-rated back to each. Medical and housekeeping supplies are ordered by the Nursing Home and those used by the Retirement Home are charged back. Both Homes share chemical supplies, medical cups, gloves, gauze, tape, savlon, cotton balls and alcohol.

120. Both Homes share laundry facilities. Retirement Home employees in the Guest Attendant classification do the laundry for both Homes. It was estimated that they do laundry 70-80% of the time. Some Retirement Home residents do their own personal laundry using a coin-operated machine.

121. There is one Maintenance worker who provides services to the Retirement Community. He is an independent contractor who is hired by the on-site Administrator and is paid by Caressant Care.

122. Caressant Care bills residents of the Nursing Home for goods and services not covered by the MOH. Similarly, Caressant Care bills residents of the Retirement Home for goods and services not covered in its residents’ agreement.

123. There is one pharmaceutical contract for both Homes and the same doctor is “on call” for both. However, residents of both facilities are free to chose their own physician. Lab work for residents of both is carried out every Thursday, and lab specimens are stored in a Nursing Home freezer.

124. Some activities, such as bingo and religious services, are attended by residents of both. The residents of each Home may also attend some activities in the other Home. The hairdresser for both Homes is located in the Retirement Home.

125. The RN employed by the Nursing Home is “in charge” of the entire facility at night. This includes being in charge of the Retirement Home in the absence of management or in the event of an emergency.

126. Regular management meetings are held on Monday morning and are attended by the department heads of both Homes. Meetings have dealt with vacancies, clients awaiting placement in the Nursing Home, programs, shopping trips (activities), in-service training, vacation and phone call coverage, interviews, sharing of supplies and laundry issues. With respect to the laundry, a machine being down affects how quickly clothing supplies reach the floor in both Homes.

127. Employee meetings are usually separate, but there may be one or two joint meetings a year. Employees of both Homes have their own staff rooms.

(b) Chelsey Park

(i) Corporate Structure and Management

128. The Nursing Home is located at 310 Oxford Street West in London, Ontario and is licensed for 247 beds. The Retirement Home is located at 312 Oxford Street West and has 152 units. The Apartment Complex is located at 314 Oxford Street West and comprises 167 units. These three facilities, together with the health club, are commonly referred to as the Chelsey Park Retirement Commmunity (“Chelsey Park”). They are located on one parcel of land and are assessed as one property by the Regional Assessment Office. Approximately one-third of the property (the Nursing Home) is classified as commercial taxable, and the remainder is classified as multi-residential. A number of different business and corporate names are in use.

129. Raymond M. Gelgoot registered the business name Diversicare VI Limited Partnership (“Diversicare VI”) with the Ontario Ministry of Consumer and Commercial Relations in June 1997. The brief description of the activity carried out under the business/identification name is “Acquisition and operation of Health- Care Facilities”.

130. Diversicare Canada Management Services Co., Inc. (“DMS”) filed Articles of Incorporation with the Ontario Ministry of Consumer and Commercial Relations with an effective date of May 2, 1994. The Articles bear the signature of Mr. Gelgoot whose name appears as the incorporator and as the first director of DMS. An addendum to the Articles of Incorporation shows the President of DMS to be Paul Richardson.

131. Chelsey Park (Oxford) Nursing Home is a registered business name of DMS. The name of the corporation is listed as “Diversicare Canada Management Services Co., Inc.” The registration is undated and was authorized by Mr. Richardson. The brief description of the activity carried out under the business/identification name is “Operation of a Nursing Home Business”.

132. The document titled Application for a Licence to Establish or Maintain and Operate a Nursing Home to the MOH dated March 6, 1998 shows that the existing licence has an expiry date of March 2, 1998. The application shows the name of the Nursing Home as “Chelsey Park Oxford Nursing Home”, indicates that the applicant is a partnership and lists three names as applicant/partners: D. Jeffry Hertz, Michael Stuart and Dr. C.W. Birkett. The company name listed on the application is “Diversicare VI Partnership” [sic]. The MOH issued the Nursing Home licence on June 1, 1998 to the licensee “Diversicare VI Limited Partnership”. The effective date of the licence is March 3, 1998 with an expiry date of March 2, 1999.

133. The Long-Term Care Facility Service Agreement dated December 30, 1997 was between the MOH and Chelsey Park (Oxford) Nursing Home, the “Program Provider”. Mr. Richardson signed the Agreement as the designated representative of the Program Provider, indicating that he had authority to bind the Program Provider.

134. The MOH issued a Facility Review Report covering its annual review of the Chelsey Park (Oxford) Nursing Home in February 1996. “Diversicare (VI) Limited Partnership” is shown as the governing body in that report.

135. The Tribunal heard evidence from Donald Jeffrey, Director of Employee and Client Relations for DMS, and Edward Leung, Facility Controller for DMS, on corporate structure and the nature of the relationship between Diversicare VI and DMS. Mr. Jeffrey testified that Diversicare VI hired DMS to manage the facility on a ten-year contract, and that DMS had replaced the previous management group. In response to a question on whether there was common ownership and control of DMS and Diversicare VI, he replied that the only link is the contract to provide management services and a loan involving a 3rd or 4th mortgage.

136. Mr. Jeffrey also testified that DMS is wholly owned by Advocat (U.S.). which operates 100 health care centres throughout nine states. DMS operates only in Canada, specifically in Ontario and British Columbia. The vast majority of its work is to operate nursing homes and retirement homes.

137. Mr. Leung referred to Chelsey Park (Oxford) Nursing Home as the “trade name” used to deal with the MOH. He also testified that Diversicare VI is the legal name used when applying for liquor licence renewal, when filing the remittance for the employer health tax with the Ministry of Finance, when registering with the Workplace Safety and Insurance Board (WSIB) and when paying WSIB premiums. He agreed that DMS used the Diversicare VI corporate name when entering into something with legal consequences for the corporation, and that the ownership, assets and liabilities reside with Diversicare VI.

138. Mr. Jeffrey testified that Diversicare VI owns the Chelsey Park Retirement Community, but that he did not know who the principals of Diversicare VI are. Mr. Leung testified that the relationship between Diversicare VI and DMS is arms-length. He was asked if there were any common partners between DMS and Diversicare VI and replied that in the past there had been only one, Dr. Birkett. He was unable to clarify why the name Raymond D. Gelgoot appeared on the business registration for Diversicare VI and the Articles of Incorporation for DMS.

139. Although we were not given a timeframe, we heard evidence that at one time there was a General Manager, Tony Orvidas, responsible for the entire Retirement Community. At that time, the Administrator of the Nursing Home and the Manager (now called the Administrator) of the Retirement Home reported to him. Subsequently, the reporting structure changed so that both Administrators report to Anne Walton, Vice-President of Operations for DMS. They also have access to and support from other DMS Head Office personnel including: the Facility Controller; the Director of Employee and Client Relations; the Food Service Consultant and, in the case of the Administrator of the Retirement Home, the Marketing Consultant.

140. At the time she began her evidence in October 1998, Jane Boudreau-Bailey had been the Administrator of the Nursing Home for three years. She testified that a number of positions report solely to her. Between the documentary evidence and the viva voce evidence, there was some discrepancy in the titles of these positions. Ms Boudreau-Bailey identified them as the following: the Manager of Nursing, the Manager of Recreation, the Manager of Housekeeping/Laundry, the Manager, Dietary, the Coordinator of Volunteers and the Clinical Nursing Specialist.

141. At the time she began her evidence in November 1998, Suzi McArthur had been the Administrator of the Retirement Home for approximately six years. She testified that the following positions report solely to her: the Marketing Coordinator, the Health Service Coordinator, the Housekeeping Supervisor, the Health Club Coordinator and the Store Manager.

142. The following positions have responsibilities in both Homes and, consequently, report to both Administrators: the Maintenance Manager, the Administrative Assistant, the Recreation Coordinator and the Food Service Manager.

143. DMS holds five to six regional meetings a year. Administrators from DMS-managed nursing homes and retirement homes meet on the same day in separate rooms for approximately three to four hours. The nursing home and retirement home Administrators then meet for approximately one hour on joint issues such as WSIB changes. In-service training is also provided at these regional meetings, and, occasionally, a guest speaker will address the Administrators.

144. Ms McArthur had been a member of regional DMS Committees in the past, and, at the time of her evidence, was a member of the Continuous Quality Improvement (CQI) Committee. This Committee tracks information monthly which is then compared for all DMS-managed homes. The Committee uses a standard DMS form to look at key indicators which are different for the nursing homes and retirement homes. Two of the key indicators tracked in nursing homes are the use of restraints and frequency of bed sores. These are not viewed to be issues in retirement homes. However, an issue affecting both types of homes, such as the turnover in residents, would be tracked in both.

145. Each Administrator develops an annual operating budget for DMS approval. Fixed amounts for the budgets are prepared by DMS, usually based on the budget of the previous year. In the case of nursing homes, DMS submits budget documents to the MOH for approval. Ms McArthur testified that she usually meets once with Mr. Leung and Ms Walton prior to submitting her budget for the Retirement Home. She also testified that prior to budget setting at the facility level, DMS-managed retirement home Administrators meet on a regional basis to discuss budgets and any legislative changes that could impact the budget-setting exercise.

146. Ms Boudreau-Bailey testified that both she and Ms McArthur meet with Ms Walton every two months, and that, although these meetings are conducted separately for each Administrator, they have on occasion met with Ms Walton together. Planning a management retreat was given as an example of an issue discussed at a joint meeting. Between meetings, both Administrators often speak with Ms Walton by phone. Ms Boudreau-Bailey also testified that the management team for the Retirement Community met to develop a single smoking policy for the Retirement Community. Both Administrators as well as the Director of Residential Care, the Recreation Manager, the Maintenance Manager, the Housekeeping/Laundry Supervisor and a Food Service Supervisor were involved in that meeting. We also heard evidence that, on occasion, joint memos are issued, e.g., regarding parking problems.

(ii) Collective Bargaining /Human Resources

147. There are three Collective Agreements between the Chelsey Park Retirement Community and London and District Service Workers’ Union, Local 220. Of these, two cover the Nursing Home: one for the full-time bargaining unit, and the other for the part-time bargaining unit. These two Agreements have an identical list of job classifications:

• Dietary/Laundry/Housekeeping
• Nurse Aide
• Maintenance
• Cook II
• Cook I
• RNA
• Recreational Worker

148. The third Collective Agreement bears the title “Chelsey Park Retirement Community (Apartment Complex)”. During the course of the hearing, it was agreed that this Agreement covers both the Retirement Home and the Apartment Complex. The main part of the Agreement covers full-time employees, with an addendum covering part-time employees. It covers the following job classifications:

• Apartment Attendant
• Recreational Worker
• Maintenance

149. Overall management responsibility for collective bargaining for the Retirement Community resides with Donald Jeffrey, Director of Employee and Client Relations for DMS. As the usual spokesperson in collective bargaining for the Retirement Community, his signature appears on all Collective Agreements and all letters of understanding therein. Mr. Jeffrey testified that DMS, as part of its management responsibilities, has the right to enter into contracts that bind the owner, Diversicare VI. He testified further that if DMS were to lose the contract to manage the Retirement Community, Diversicare VI would still be bound by the contracts DMS entered into on its behalf.

150. Mr. Jeffrey testified that Chelsey Park had historically participated in pattern bargaining in respect of the Nursing Home Collective Agreements in a group of 13 Nursing Homes, but that it had opted out of this process in its last round of bargaining. In this pattern bargaining, the parties bargain a pattern of adjustments, e.g., salary may be adjusted by 1% in the first year and again by 1% in the 2nd year. Homes with lower rates provide a further adjustment. In other words, the base wage rate is not considered; rather, it is the quantum/value of an overall adjustment that is negotiated. This group of homes had a wide range in wage rates, differing by as much as $2.00 to $3.00 an hour. By way of contrast, there is no system of master or group bargaining for retirement homes in Ontario, and Mr. Jeffrey’s evidence was that there is no common compensation package.

151. The Collective Agreement covering the Retirement Home and the Apartment Complex contains a letter of understanding, signed by the parties, and dated February 18, 1998. It states:

The parties have agreed to conduct joint bargaining between the Nursing Home and Retirement Home in the next round of bargaining.

The parties have agreed that bargaining can commence even if premature under the relevant provisions of the Collective Agreement.

152. As background for this letter, Mr. Jeffrey explained that he had considered the possibility of taking the Nursing Home out of the group bargaining process with the 13 other Nursing Homes because there had been a number of issues in the Nursing Home involving the benefits administration program. He proposed to the Union that the parties consider bargaining the Retirement Community Collective Agreements together. As a result, the Nursing Home was not involved in the “group of 13” bargaining process for the round of bargaining that was occurring while these Tribunal proceedings were underway.

153. The parties started the process of bargaining with the Nursing Home Collective Agreement first, with the objective of addressing the concerns about benefits. The attempt to bargain an Agreement failed and conciliation was scheduled to take place during the course of our hearing. We are not aware of the results of conciliation. Both the Nursing Home and the Retirement Home are covered by HLDAA, supra.

154. Prior to this round of bargaining, only Mr. Jeffrey or his predecessor had conducted the bargaining. In previous negotiations, the Administrators of both Homes had only been asked for their input prior to Mr. Jeffrey or his predecessor entering into negotiations. In the round of bargaining conducted after these proceedings commenced, both Administrators were involved in bargaining for the first time. Collective bargaining that affects shared employees, i.e., employees paid by the Retirement Home but covered by the Nursing Home Collective Agreements, is generally conducted by Mr. Jeffrey and Ms Boudreau-Bailey. Ms McArthur testified that she had participated in only the one round of bargaining and had not known what had occurred in previous rounds of bargaining because she had been on maternity leave, although if she had had any bargaining issues relevant to the Retirement Home, she would have forwarded them to Ms Boudreau-Bailey.

155. Ms Linda Albert, a Nurse’s Aide in the Nursing Home with 15 years seniority, testified about her participation in bargaining, grievances and the joint health and safety committee. She testified that she had dealt with Mr. Jeffrey over discipline, terminations, lay-offs and monetary issues. It was her evidence that there was always a representative from DMS involved in bargaining. When the parties were involved in interest arbitration, Mr. Jeffrey, or someone in that position, attended on behalf of DMS. Employee problems might be resolved locally with the Administrator, but if a problem was not resolved it went to Mr. Jeffrey. If a rights grievance went to arbitration, management was represented by the Director of Employee and Client Relations, i.e., Mr. Jeffrey or his predecessor.

156. There is an unusual arrangement in place respecting how the Collective Agreements operate at Chelsey Park. Employees in certain classifications (Dietary Aide; Housekeeping Aide; and Cook) listed in the Nursing Home Collective Agreements are paid from Retirement Home funds. These employees receive an adjustment in respect of pay equity. Employees in these three classifications all perform services for both the Nursing Home and the Retirement Home.

157. There are separate negotiating committees, separate union/management committees and separate Union stewards for each Home. There is one health and safety committee for the two Homes and the Apartment Complex. Health and safety policies apply across the whole Retirement Community.

158. DMS provides a series of manuals to the Homes it manages. While the Nursing Home and the Retirement Home have separate manuals, it was Mr. Jeffrey’s evidence that there was not a great deal of difference between them. Homes may tailor policies to their needs, but this is limited in its application and most policies are applied across the Retirement Community.

159. Mr. Jeffrey testified that he is not generally involved in hiring for the Retirement Community. If a new Nursing Home or Retirement Home Administrator were to be hired, it would be done by Ms Walton. Although she might consult with the President of DMS, she would be make the decision. The two Administrators have joint responsibility for hiring the Housekeeping Supervisors, although Ms Boudreau-Bailey had recently done so on her own.

160. Mr. Jeffrey is consulted with respect to discipline at the Retirement Community. An Administrator is expected to contact him before disciplinary action is taken; however, it is open to the Administrator to reject his advice. If a decision is made to discipline or terminate an Administrator, Mr. Jeffrey would be consulted beforehand by Ms.Walton, but she makes the final decision. However, on matters involving the termination of an employee, Mr. Jeffrey would always be involved in the decision.

161. An Administrator’s recommendation for an increase in compensation for a Department Head goes to Ms Walton and Mr. Jeffrey for approval. Mr. Jeffrey will bring any concerns about the proposed increase to Ms.Walton’s attention, but she has final approval.

162. In-service training tends to occur monthly and employees working in the Nursing Home, the Retirement Home and the Apartment Complex are required to attend. Several examples of in-service training were given: infection control; how to handle aggressive residents; investing your money; lifting; and, stress.

(iii) Pay Equity

163. All DMS-managed nursing homes are party to the Plan negotiated with the SEIU and its various locals in respect of employees providing services to nursing home residents. In the Chelsey Park Nursing Home, employees in the following classifications received pay equity adjustments: Dietary/Laundry/Housekeeping Aides, Nurse Aide, Cook I, Cook II, RNA, Recreational Worker, and Maintenance.

164. Initially, no Retirement Home employee received a pay equity adjustment, notwithstanding that some of them perform services for the Nursing Home. We heard evidence that, after the Union raised this issue informally, it then filed a grievance. Following several meetings between the Union and DMS about this issue, Mr. Jeffrey agreed that pay equity adjustments would be paid to employees in the following Retirement Home classifications: Dietary Aide, Housekeeping Aide and Cook. Retirement Home employees in the following classifications did not receive pay equity adjustments: Attendant, Recreational Worker and Maintenance.

165. The Manager of Recreation, who supervises recreation employees in both Homes, is paid 50% by the Nursing Home and 50% by the Retirement Home. We were told that she received “50% pay equity”. We understand this to mean that she received a pay equity adjustment on half of her wages.

166. Ms Boudreau-Bailey testified that she had not been consulted about pay equity which, she said, was a Head Office decision. Ms McArthur testified that, while pay equity had been discussed with her, she had not been involved in the decision about the application of pay equity to Retirement Home employees.

(iv) Operations

167. Until September 11, 1998, there was an Administrative Co-ordinator position whose salary was paid 85% by the Nursing Home and 15% by the Retirement Home. The position was eliminated in September 1998, and a new classification, Team Leader/Receptionist, was created. The employee in this new position is paid 100% by the Nursing Home.

168. One employee at Chelsey Park is responsible for Accounts Payable for both Homes. This employee is responsible for sending invoices to DMS Head Office for payment, after the appropriate Administrator(s) has/have signed them. We were not told whether this employee is in any of the bargaining units or in an excluded position. We do not know if the employee received a pay equity adjustment.

169. The payroll for all employees is prepared by DMS Head Office and paid by direct deposit. There is a single computer payroll system, with a computer located in the Nursing Home staff lounge connected to a computer located at the DMS Head Office. All employees of the Retirement Community have an identification card which they swipe in and out of the computer at the beginning and end of each shift. The name Chelsey Park Retirement Community appears on employee pay stubs. The name Diversicare VI appears as the employer on Revenue Canada T4 statements issued to employees.

170. There are separate reception areas for the Nursing Home and Retirement Home. There is some crossover between employees of both Homes in order to provide reception coverage. This crossover occurs on an occasional basis to cover a lunch break, a whole shift or, in an emergency situation in the middle of a shift, e.g, if an employee is sick.

171. While there are separate staff lounges and bulletin boards located in both Homes, Retirement Home employees who are covered by the Nursing Home Collective Agreement go to the Nursing Home staff lounge to access the relevant bulletin board. They need a key to use the Retirement Home lounge.

172. There is one kitchen where all food is prepared for all the Nursing Home and Retirement Home residents, and for those residents of the Apartment complex who purchase the meal service. There is one Food Service Manager, paid by the Nursing Home, who supervises three Food Service Supervisors, two of whom are paid by the Nursing Home and one who is paid by the Retirement Home. Ms Boudreau-Bailey testified that she believed that the two Nursing Home Food Service Supervisors received pay equity adjustments, but that the Retirement Home Food Service Supervisor did not.

173. Ms. Lisa Tucker, who identified herself as a Dietary Aide working in the Retirement Home, is covered by the Nursing Home Collective Agreement. When she was asked if she only took direction from the Retirement Home Food Service Supervisor, she replied that she takes direction from all of them. She also testified that on weekends there is only one Food Service Supervisor on duty in the Retirement Community.

174. There are three Cooks: two are paid by the Nursing Home and one is paid by the Retirement Home. All the Cooks work in the same kitchen using the same supplies, and, at times, the Cooks are working on common food items for both Homes. All Cooks are covered by the Nursing Home Collective Agreements and all receive pay equity adjustments.

175. All dietary employees, whether working in the Nursing Home or Retirement Home, are covered by the Nursing Home Collective Agreements and receive pay equity. There is one eight-hour shift position that works 50% of the time in each Home. Its salary is split between the two Homes.

176. There is a call-in list for part-time employees. It is used for both Homes. A part-time employee called in to work can be asked to work in either Home.

177. Menus for the Retirement Community are set at DMS Head Office. The main food supplier for the Retirement Community has some input into menu suggestions; however, the Food Service Manager reviews them for selection and cost control, and sends changes back to the supplier.

178. Residents in the Nursing Home take their meals in dining rooms located on each residential floor of the Nursing Home. Their food is put on a hot cart in the kitchen and taken up to the dining rooms. A Dietary Aide assigned to each floor plates and serves the food.

179. All Retirement Home residents and those Apartment residents who purchase the meal service have their meals in the Retirement Home Dining Room, which is located on the main floor. Their guests and, occasionally, Nursing Home residents also eat in the Retirement Home Dining Room. The food is served by Dietary Aides.

180. There is one dietary position, referred to as a “Runner”, who works a three-hour evening shift. She spends the first part of the shift serving food in the Retirement Home dining room. She also takes food items up to the Nursing Home floors, both for the 2nd seating and if they have run out of food items. The Runner receives direction from whoever is doing call-in that day. This could be either the Food Service Manager or a Cook.

181. The Food Service Manager orders food supplies for the whole Retirement Community at the same time. Mr. Leung testified that suppliers usually remit a single invoice, using the name Chelsey Park Retirement Community. He testified that DMS first allocates the total cost to the Nursing Home account. A calculation is then made, based on the funding level for raw food from the MOH, which was $4.38 per resident, per day at the time of the hearing. The $4.38 is multiplied by the number of residents and then by the number of days to arrive at the total cost to be allocated to the Nursing Home. The remainder of the invoice is allocated to the Retirement Home. Mr. Leung stated that their external Auditors were aware of this practice, because they have to certify to the MOH in an annual report that any Nursing Home expenses do not contain any expenses related to the Retirement Home.

182. There is one Housekeeping/Laundry Supervisor for both Homes, with an office located in the Nursing Home. The Nursing Home and Retirement Home each pay 50% of her salary. We do not know if she received a pay equity adjustment on any portion of her salary.

183. The Laundry is located on the main floor of the Nursing Home and operates 24 hours-a-day with three shifts. The Housekeeping/Laundry Supervisor supervises the Nursing Home Laundry Aides who are covered by the Nursing Home Collective Agreements. In addition to washing all the Nursing Home laundry, the Nursing Home Laundry Aides wash Retirement Home dining room tablecloths and napkins.

184. In the Retirement Home, a full-time Attendant is assigned responsibility for the personal laundry of Retirement Home residents. This Attendant also does the laundry for those Apartment tenants who choose to purchase this service. The night shift Attendant in the Retirement Home is responsible for laundering linens, bedding and towels for both Retirement Home and Apartment residents.

185. There are twelve employees employed in the Housekeeping Department: six full-time employees and some part-time employees providing weekend coverage to the Nursing Home. The three to four remaining employees work in the Retirement Home. All twelve employees, called Housekeeping Aides, are covered by the Nursing Home Collective Agreement and received pay equity. The wages and benefits of the Retirement Home Housekeeping Aides are funded by the Retirement Home.

186. The Housekeeping/Laundry Supervisor orders housekeeping supplies for the whole Retirement Community. When an order comes in, she divides and allocates the costs to each Home according to guidelines which were not provided to the Tribunal. Mr. Leung testified that housekeeping supplies are apportioned by actual use. Each Home appears to store its own housekeeping supplies.

187. There is one Recreation Manager for the Retirement Community who supervises employees working in both the Nursing Home and Retirement Home. Recreation and social activities for residents in the Retirement Community are conducted separately. The one minor exception to this is religious services, some of which are held separately and some together.

188. The Maintenance Manager is responsible for the whole Retirement Community. The Nursing Home has two maintenance employees, while the Retirement Home maintenance employees perform all the grounds maintenance for the whole Retirement Community.

189. There is an on-call roster for weekend maintenance to cover the Nursing Home, the Retirement Home and the Apartment complex. Maintenance employees under both the Retirement Home and Nursing Homes Collective Agreements take turns on this roster.

190. On rare occasions in an emergency situation, the Nursing Home will be contacted to assist with the emergency, if the Retirement Home RPN cannot be located.

191. Chelsey Park has a Health Club for seniors located in the Retirement Home. Residents from the Retirement Home and Apartment complex can join the Health Club. Nursing Home residents do not join the Health Club, but they are permitted to use the pool. The Nursing Home pays for the use of the pool from the program envelope.

(c) Helen Henderson

(i) Corporate Structure and Management

192. The parties in this Application are Gibson Holdings (Ontario) Ltd. (Helen Henderson Care Centre) (“Helen Henderson”) and the Service Employees Union, Local 183 (the “Union”).

193. Gibson Holdings (Ontario) Ltd, is a holding company owned by Larry and Tim Gibson. Gibson Holdings owns and operates the Helen Henderson Care Centre, which is comprised of a Nursing Home and Retirement Home, on the same geographic site. The two facilities are housed in a single building and are physically joined by a door which is unlocked, and the facilities have a single municipal address, 343 Amherst Drive, Amherstview, Ontario.

194. The Nursing Home section of Helen Henderson has 70 beds licensed by the MOH. The Retirement Home section also has 70 beds.

195. The Director of Nursing Care for the Nursing Home and the Lodge Manager for the Retirement Home report to the same Administrator, Larry Gibson, one of the owner-operators of Gibson Holdings. Mr.Gibson, also has direct line responsibility for Housekeeping, Laundry and Maintenance employees in the Retirement Community.

196. Tim Gibson, one of the owners, is the Accountant for both Homes. Invoices for the Retirement Home from outside suppliers are remitted by the Lodge Manager to Larry Gibson’s secretary and are then sent on to Tim Gibson for payment. There is a single bank account for both Homes.

197. There are separate payroll registers for full-time and part-time employees, regardless of whether they are employed in the Nursing Home or the Retirement Home. The name Helen Henderson Care Centre appears on cheques.

(ii) Collective Bargaining/Human Resources

198. Employees working in the Retirement Community are represented by the same Union. There is one bargaining unit and the single Collective Agreement covers both full- and part-time employees working in the Retirement Community. The Collective Agreement includes the following classifications:

• R.P.N. [Registered Practical Nurse]
• HCA [Health Care Aide]
• Activity Director
• Aides: Nurses, Activation
• Aides: House-keeping, Dietary
• Cook I
• Cook II
• Dishwashing,
• Dining-Room hostess
• Residential Aide
• Students/Dietary
• Students/Nursing
• Maintenance

199. Larry Gibson testified about the existence of the current and past classifications in the Retirement Home. The Residential Aide position was created for the Retirement Home in 1996 when the Employer transferred the Retirement Home Health Care Aides to staff the newly opened Nursing Home beds. The transferred employees were not given a choice about whether to transfer to the Nursing Home from the Retirement Home.

200. Collective bargaining is conducted for both the Retirement Home and the Nursing Home at the same time, and both are covered by the HLDAA. The Employer is represented in bargaining by Larry Gibson, Tim Gibson, the Labour Consultant, the Director of Care and the Lodge Manager. Labour Management meetings for both Homes are held together.

201. Terms and conditions of employment are the same for all employees, whether they are employed in the Retirement Home or Nursing Home, except for their rates of pay which we deal with below in Section VII (c) (iii) on “Pay Equity”.

202. In day-to-day operations, labour relations problems in the Retirement Home are referred first to the Lodge Manager, and then to Larry Gibson, as the Administrator. Similarly, labour relations problems in the Nursing Home are referred to any of the employee’s immediate supervisor, or the Head Nurse, the Director of Care or the Administrator, depending on who is available. In-service training is provided to employees of both Homes at the same time, often through videos, for example, a video from the Fire Marshall’s office.

(iii) Pay Equity

203. At the date of this evidence on December 2, 1999 , employees of the Nursing Home had received two adjustments: the first at 35 cents per hour, the second at 44.5 cents per hour. In the Nursing Home, the following classifications received these adjustments: RPN, HCA, Nurses Aide, activity employees, all dietary employees, laundry employees and the Activity Director. The maintenance man who works for the Retirement Community received pay equity adjustments on all hours worked. Retirement Home RPNs and Residential Aides did not receive these adjustments.

(iv) Operations

204. The Nursing Home and Retirement Home share the following physical elements, equipment, supplies and services, all of which are located in the Nursing Home: kitchen, laundry, maintenance room, chapel/sanctuary, tuck shop and beauty salon/hairdresser. The latter is leased to an outside person who also has personal clients who come into the facility. The Retirement Community has a single phone number.

205. Some employees and managers paid by the Nursing Home perform services for Retirement Home residents. The Food Service Supervisor orders food for both Homes, and both participate in a bulk buying service and use the same menu. Larry Gibson testified that food costs between the Homes are not tracked because there is no need to track as long as MOH regulations are met. There are no Dietary employees in the Retirement Home. Nursing Home Dietary employees prepare meals for the Retirement Home residents.

206. The Nursing Home RN on the evening and night shift is on call to provide emergency service to residents in the Retirement Home. It is a regular part of the Nursing Home RN’s responsibilities to find fill-in employees for the Retirement Home.

207. Linens for the Retirement Community are generally laundered by Nursing Home employees, except on the midnight shift when the Retirement Home Residential Aides launder incontinence pads and briefs which are items used Nursing Home residents.

208. The Activity Director plans the activities for the Retirement Community and announces activities over the public address system to all residents of the Retirement Community. All interested residents are directed to contact the Activity Director. Several examples of joint activities were noted: Diners Club; Robbie Burns night; religious service(s); bingo; Pub Night; and Tai Chi.

209. The Activity Director oversees the recruitment and participation of volunteers who assist in running many of the activities for residents of the Retirement Community. Retirement Community residents can participate in any of the activities offered. There is a single newsletter for the Retirement Community. Until the date of the hearing, February 15, 2000, activities for all residents of the Retirement Community were listed on one calendar.

210. Prior to 1998, there was one Residents’ Council. Since sometime in 1998, separate Residents’ Councils were established for each Home.

(d) Kensington Village

(i) Corporate Structure & Management

211. The parties involved in this Application are Sharon Farms & Enterprises Limited (“Sharon Farms”), and the London and District Service Workers’ Union, Local 220 (the “Union”). Sharon Farms is a corporate entity owned and operated by the Schlegel families. The Board of Directors of Sharon Farms is comprised of Ron Schlegel, President; Peter Schlegel, Treasurer; James Schlegel, Human Resources and Carol Drudge, Secretary. In London, Ontario, the Board operates Kensington Village, comprised of a Nursing Home and a Retirement Home on the same geographic site. The two facilities are physically joined.

212. The Kensington Village Nursing Home has 108 beds. It consists of an extended-health care floor and a special care unit for the care of residents with dementia and Alzheimer’s. The Kensington Village Retirement Home is a 115-bed unit. It provides residents with 24-hour supervision and assists residents who need help with bathing, medication, meals, laundry, housekeeping and social activities.

213. Carol Drudge, a member of the Board testified that she had served “several stints” as the Kensington Village Administrator, including four months in 1993 and almost a year in 1997. At the time of her testimony on March 3, 1999, Tony Orvidas was the on-site Administrator with responsibility for the day-to-day operations of both the Retirement Home and the Nursing Home. The Director of Nursing Care, who manages the Nursing Home, and the Director of Residential Services, who manages the Retirement Home, both report to him.

(ii) Collective Bargaining/Human Resources

214. Employees working in both the Nursing Home and Retirement Home are represented by the same Union. There are two bargaining units: a full-time unit and a part-time unit. Each bargaining unit includes classifications in both the Nursing Home and the Retirement Home. Classifications covered in the full-time Collective Agreement are:

• Activity Aide
• Health Care Aide
• Residential Aide
• Housekeeping/Dietary
• Laundry Aides
• Maintenance
• Cook

215. Both Homes negotiate together. Sharon Farms is represented in collective bargaining by the Administrator, legal counsel and James Schlegel. The Board determines the bargaining position for Sharon Farms and must approve wage increases. Both Homes are designated as hospitals within the meaning of HLDAA, supra. There is one seniority list covering all employees of the Retirement Community. If a part-time employee becomes a full-time employee, she is credited with all accrued seniority, based on a formula agreed to in the full-time Collective Agreement. Regular labour-management meetings can be initiated by the Union or Kensington Village. Union committee members are from the Nursing Home.

216. The Staff Handbook and Policy Manual for new employees covers both Homes which share many common policies and procedures. Full-time employees of the Retirement Community are covered by the same benefits package, while part-time employees are paid a differential in lieu of these benefits. In-service training is provided jointly for Retirement Community employees. There is one Joint Health and Safety Committee for the Retirement Community. General staff meetings, which are open to employees of the entire Retirement Community, are held every two months.

(iii) Pay Equity

217. All employees who performed any services for Nursing Home residents received proxy pay equity adjustments on all hours worked, regardless of whether the work was for the Retirement Home or the Nursing Home residents. These adjustments covered the following classifications: RPN, Health Care Aide, Housekeeping Aide, Activation Aide, Dietary Aide, Laundry Aide and Cook. The Maintenance man employed by the Nursing Home, but who provides services for the entire Retirement Community including the grounds, received a pay equity adjustment for all hours worked. RNs, Residential Aides, Housekeeping Aides and Activation Aides who work exclusively for the Retirement Home did not receive pay equity. Except for the Director of Residential Services, Anita Stenning, all Department Heads received pay equity under a separate pay equity plan for non-union employees.

(iv) Operations

218. Kensington Village has one business office with one receptionist. There is one telephone line with direct lines to the Retirement Home and the Nursing Home. All mechanical systems are common to the whole facility. Both Homes share equipment, such as Sitz lifts and commodes. There is one staff lounge where employee lockers are located and where employees punch their time cards.

219. The Manager of Dietary Services orders food for the whole facility and receives one invoice. The Food Services Supervisor has responsibility for the whole Retirement Community and supervises all Dietary employees and the Cooks. Food for the Retirement Home is prepared by the Cooks and Dietary Aides in the Nursing Home where the main kitchen is located.

220. There is a single laundry located in the Nursing Home. The Nursing Home Laundry Aides also launder some Retirement Home linens. Costs are allocated with 74% to the Nursing Home and 26% to the Retirement Home. Where there is a common supplier, housekeeping supplies are ordered together and are then allocated to each Home.

221. There is one Activation Coordinator for the Retirement Community. She also directs the Retirement Home Activation employees. Both Homes share the following facilities: chapel, solarium and courtyard, workshop and craft room and a beauty and barber shop. The shared Main Floor Lounge, Café/Tea Room and Store/Tuck Shop are only available to Nursing Home residents when they are accompanied by family, friends or a volunteer. There is also a library that is not usually used by Retirement Home residents unless a family member is visiting.

222. Nursing Home RNs provide emergency nursing services to Retirement Home residents when there are no registered employees on duty there.

(e) New Village Retirement Home and Pine Villa Nursing Home

(i) Corporate Structure and Management

223. The parties in this Application are The Thomas Health Care Corporation, (the “Thomas Corporation”) and the Canadian Union of Public Employees (CUPE), Local 3009, (the “Union”).

224. Pine Villa Nursing Home Inc. was a corporation controlled by Mr. A.C. Thomas that operated for approximately 27 years in Stoney Creek, Ontario. New Village Retirement Home Ltd. was a corporation, also controlled by Mr. Thomas, that operated for approximately 16 years. Effective October 13, 1993, Pine Villa Nursing Home Inc., and New Village Retirement Home Ltd., were amalgamated into one corporation, namely The Thomas Health Care Corporation. Mr. A.C. Thomas controls the Corporation which operates both Pine Villa Nursing Home and New Village Retirement Home as divisions of the Corporation. The manner in which services are provided by the Nursing Home and the Retirement Home were not changed by the corporate amalgamation.

225. The Nursing Home is licensed for 38 beds and the Retirement Home is built to accommodate 100 residents. Both Homes operate and provide services in a duplex building located in Stoney Creek. An internal door with a keypad separates them.

226. Both Homes are managed by a single management team for all management and labour relations matters. The team includes the Administrator, Mr. A.C. Thomas and the Director, Conrade Thomas. The Nursing Home employs 32 employees and the Retirement Home employs 26.

227. The parties filed an Agreed Statement of Facts and a Joint Documents Brief. Evidence was heard from three witnesses.

(ii) Collective Bargaining/Human Resources

228. Unionized employees working in the Retirement Community are all represented by the same Union, CUPE, Local 3009. There are two separate bargaining units, and each bargaining unit deducts and remits the dues separately to the Union. There is one Chief Steward who can represent employees of either the Retirement Home or Nursing Home.

229. In the past, the Employer and the Union have agreed to conduct collective bargaining simultaneously for both Homes. During the most recent negotiations, the Homes were represented by a bargaining team composed of Mr. R.E. Capstick, Employee Relations Consultant and Conrade Thomas, Director of Thomas Corporation. The Union has one negotiating Committee for both Homes and submits one set of proposals for bargaining. There has never been a common Collective Agreement for both Homes. Each of the two Collective Agreements is ratified separately by the members of the relevant bargaining unit. The parties have agreed to proceed to interest arbitration under HLDAA when they have been unable to reach agreement during bargaining for renewal agreements. On the agreement of the parties, a single board of arbitration has been authorized to settle all outstanding issues remaining in dispute under the respective Nursing Home or Retirement Home Collective Agreement. A group grievance regarding the failure of the employer to pay retroactivity pursuant to the interest arbitration award of 1994 was filed by employees of the Retirement and Nursing Homes. The grievance was referred to a single arbitrator, and a single award was issued.

230. There are two separate seniority lists. Seniority accrued pursuant to one Collective Agreement cannot be carried over when an employee transfers to the other bargaining unit.

231. The Retirement Home Collective Agreement covers the following classifications:

• Registered Practical Nurse (RPN)
• Nurses’ Aide
• Housekeeping/Kitchen
• Cook
• Activity Assistant
• Student

232. The Nursing Home Collective Agreement covers the following classifications:

• Registered Practical Nurse
• Nurses’ Aide
• Housekeeping/Kitchen
• Cook
• Activity Assistant
• Student

233. Hiring, firing, discipline, compensation, benefits, vacation scheduling, requests for time off etc. for the Retirement Community are all handled by the management team. Ms R. Carr, Director of Care, and Ms Carol Schaubel, Head Nurse for the Retirement Home, make recommendations to the management team with respect to operational and labour relations issues.

234. Job postings for each Home are separate. In-service training is sometimes done simultaneously for both Retirement Home and Nursing Home employees, e.g., training in giving flu shots and a training session on dialysis. There are separate employee work schedules, vacation schedules and time clocks for each Home.

235. There is one joint Health and Safety Committee with representation from Hallmark, the outside contractor that looks after housekeeping and laundry.

(iii) Pay Equity

236. As we note in paragraph 40, it does not appear that Pine Villa was party to the industry-wide Plan or had indeed taken any steps to implement proxy pay equity in respect of any of its employees.

(iv) Operations

237. The Homes in the Retirement Community share some physical elements and services. There is one general office for the Retirement Community, with one phone and one fax line. The Retirement Home and the Nursing Home each invoice separately for services rendered; however, all invoices are handled by the same Bookkeeper. There is one integrated payroll system, but the two Homes have separate source deduction accounts and bank accounts for their respective employee payroll requirements. Employee statements of earnings and deductions are all marked “The New Village Retirement Home/Pine Villa Nursing Home”. However, identification numbers on cheque stubs indicate whether wages are being paid to its employees by the Retirement Home of Nursing Home. In addition, there are separate Revenue Canada source deduction accounts for each Home.

238. Some employees and managers paid by the Nursing Home perform services for the Retirements Home residents. In addition, some Retirement Home employees perform services for the Nursing Home.

239. Meals for residents of both Homes are prepared in the common kitchen by employees of the Retirement Home. There is common storage of food and a shared freezer. The kitchen is supervised by a Food Service Supervisor who keeps track of meals for accounting purposes, with meals charged back to each Home. Housekeeping, laundry and maintenance for both Homes are contracted to the same service.

240. The Nursing Home employs an Activities Director whose responsibilities include supervising activities for residents of both Homes. An Activity Assistant in the Nursing Home also assists with activities in the Retirement Home. Activities include family social rooms, a chapel and a barber shop/hairdresser, all located in the Retirement Home.

241. During the evening and night shift, there is often one employee scheduled at the Retirement Home. Employees of the Nursing Home may be called upon in emergencies to assist that employee, e.g., to provide assistance to a resident who has fallen. On weekends and holidays, registered employees at the Nursing Home may be assigned to administer medications to Retirement Home residents, e.g., insulin injections. On the date this evidence was introduced, September 20, 1998, there were three Retirement Home residents receiving insulin injections. In the past there have been as many as five.

Dated at Toronto, Ontario, this 17th day of December, 2001.

Mary Anne McKellar, Vice-Chair

Margaret Kvetan, Member

Pauline R. Seville, Member