will apply in the Developmental Services Sector if some of the
clients live in residences and are completely dependent on daily
In Ottawa Carleton Association for Persons
With Developmental Disabilities (Vice-Chair Chapman), an
Ontario Labour Relations Board decision dated March 28, 2000 the
Board has provided further clarification concerning the
application of the Hospital Labour Disputes Arbitration Act
to the developmental services sector.
The Ottawa-Carleton Association operates a
number of services for persons with developmental disabilities.
Several residences are operated for persons with a range of
disabilities. Some of the clients require extensive assistance
with the activities of daily living. Withdrawal of those services
would quickly jeopardize their conditions.
The Board notes that a number of cases have now
confirmed that developmental disability falls within the category
of illnesses, diseases and injuries covered by HLDAA.
The Board further finds that:
"the provision of observation, care and
treatment which is directed to the activities of daily living
and to behavioural modification and intervention may result in a
HLDAA designation. However, in order for non-medical
observation, care or treatment to bring the institution within
the definition of "hospital", it must be so
fundamental to the maintenance of the clients’ health, safety
and well-being that should they be deprived of the services of
their primary care-givers as a result of a strike or lock-out,
their condition would be jeopardized".
The Board briefly addressed whether the
programs in question needed to be residential. The Board left open
the possibility that a HLDAA definition could be provided
to an employer that did not run residences, but the Board makes it
quite clear that it would proceed very cautiously in this area.
The Board points out that it has already turned down at least one
case dealing with the care and treatment provided by homemakers in
the clients' own homes.
The Board touches on whether one bargaining
unit could include both HLDAA designated programs and non-HLDAA
employees. The Board indicates that there is a theoretical
possibility of designated portions of a bargaining unit as being
covered by HLDAA but further indicates that this is not
desirable from a labour relations point of view as "generally
HLDAA and non-HLDAA employees ought not to bargain
together". The Board makes it clear that there will be a
tendency to provide a HLDAA designation whenever there is
any significant number of vulnerable persons being serviced in
employer run residences.