Citizens With Disabilities Ontario

Improving Attendant Care Service Quality through Collective Bargaining

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Written By: Audrey Wu

Introduction

The balancing of management and worker interests through collective bargaining has long been a cornerstone in the organization or work in Canada. However, this mechanism has consistently fallen short in protecting a group directly affected by it: persons with disabilities who are consumers of attendant services. This paper addresses the structural exclusion of consumer voices from collective bargaining, in which the terms of critical services are routinely negotiated without their input – resulting in the erosion of consumer rights at the bargaining table. 

Attendant services, also known as personal support services, are a type of non-medical community services typically provided by personal support workers (PSWs) that enables people with disabilities to live independently within their community1. Emerging from the Independent Living (IL) Movement in the 1960s, attendant services are the key vehicle for realizing the IL principle that persons with disabilities are entitled to the supports necessary for achieving independent living2.

The terms of how attendant services are delivered is governed by collective bargaining – a labour negotiation process involving only unions and employers. By excluding consumers from decisions that impact service delivery, this model creates uncertainty around the availability of supports and is in tension with the core principle of the Independent Living philosophy: that individuals with disabilities should have meaningful input regarding the supports essential to their independence. PSWs are no doubt entitled to fair compensation and employment protections for the vital services they provide, but this interest should not be vindicated at the expense of consumer autonomy.

In this paper, I propose a reform within the collective bargaining structure to address the glaring exclusion of consumers from decisions that directly affect their right to quality attendant services. Specifically, I suggest establishing locally based consumer advocacy committees to identify and resolve issues pertaining to service quality. The suggestions in this proposal stem from the belief that consumers should have a voice in policy development on matters that directly impact their rights, and drawn on Thomas Archibald’s idea of a localized advocacy structure in the context of nurse collective bargaining3.

To support my argument, the paper is structured as follows: First, I provide an overview of the Independent Living Movement, detailing its core principles and vision for attendant services. Next, I examine the current service regime in Ontario, focusing on how recent legislative amendments have eroded key safeguards for service quality and sidelined consumer interests by conflating attendant services with medical care. I then explore consumer perspectives on Ontario’s attendant service models to identify structural shortcomings in the current service framework. Following that, I provide a brief account of the purpose of collective bargaining in the attendant services context to argue that it is structurally incapable of accommodating consumers’ interests in its present form. Finally, I present my proposal for change.

The Independent Living Movement and Attendant Services 

Attendant services encompass a wide range of supports, such as meal preparation, transportation, homemaking, and assistance with routine personal care and hygiene. In Ontario, these services are delivered through individual agencies and providers. Unlike home care services provided under a medical model – where the rehabilitative focus positions the patient as a passive recipient of care – attendant services are meant to reflect the consumers’ directions, choices, and preferences. Since the reform proposed in this paper addresses the misalignment between the current service delivery framework and the IL philosophy, it is helpful to begin with an overview of the IL movement’s core commitments and vision of attendant services.

The IL movement emerged in the 1960s as a radical shift away from the mainstream practice of warehousing adults with disabilities in institutional settings. Sparked by the activism of Ed Roberts and other students with disabilities at the University of California, Berkeley, who sought alternatives to restrictive living arrangements on their campus, the IL movement led to the creation of the first Center for Independent Living (CIL) in 19724. The movement spread to Canada in the 1980s and has since been supported by Independent Living Canada. The IL philosophy challenges the authority of ‘caring’ professionals – physicians, nurses, social workers – to define what people’s needs are and how they should be supported5. A core principle of IL is that support must be tailored to each individual’s unique needs and life circumstances, with sensitivity to how these needs evolve over time as personal situations, interests, and health change6. 

IL has also been codified as a human right in Article 19 of the Convention on the Rights of Persons with Disabilities (CRPD). According to General Comment No. 5, drafted by the Committee on the Rights of Persons with Disabilities, IL is the right “to live independently and be included in the community, with the freedom to choose and control their lives”.7 A key aspect of this right is the shift away from service models that deprive persons with disabilities of autonomy through surveillance, rigid routines, block treatments, and other practices characteristic of institutional care. 8

It is crucial to understand that IL cannot be reduced to advocacy for a discrete of services. Advocacy that presupposes what consumers need is antithetical to the IL commitment to upholding the rights of persons with disabilities to determine the terms on which they are supported. Without a strong consumer-centered focus, services can undermine the ethos of Independent Living regardless of their design or intent. In 2019, researchers across eight European countries applied a ‘PA Checklist’ produced by the European Network on Independent Living (ENIL) to assess attendant services schemes in those countries.9 The results showed that, depending on how service schemes are designed or executed, they are capable of enhancing IL as much as creating barriers to it. Restrictive, provider-controlled services were moreover correlated with the deprivation of consumer independence.  

In summary, IL requires attendant services to be predicated on consumer autonomy. In practice, however, the extent to which consumers have input into their supports varies across attendant service delivery schemes. This is evident in Ontario, where attendant services are delivered through five models that differ not only in design, but also in the extent to which consumers are empowered to participate in decisions about their services.   

Overview of Attendant Service Models in Ontario 

In Ontario, attendant services are delivered through one of five models: (1) Support Service Living Units (SSLUs) or assisted living in supportive housing; (2) shared living units; (3) attendant outreach services; (4) Direct Funding; and (5) Ontario Health atHome.10 To access services, consumers enter into a service contract with an attendant service provider, which outlines the specific services provided and the terms for their continuation or termination. Those residing in SSLUs, or supportive housing, are required to sign a separate lease agreement with the landlord. Whereas shared living units offer a communal home environment for individuals with complex service needs or limited capacity for self-direction, attendant outreach services provide scheduled support in a consumer’s home, workplace, or educational institution. Under the Direct Funding model, consumers assume management responsibilities, such as hiring and managing their own attendants. Lastly, Ontario Health atHome, a provincial agency, coordinates attendant services alongside other health services, using its own process to determine eligibility and service delivery.

Direct Funding stands apart from other service models by allocating management responsibilities to the consumer. This means consumers manage their own budgets and handle the hiring and firing of attendants. Of the five service models, Direct Funding most closely aligns with the service model advocated in the IL literature. Administered though the Ontario Direct Funding Program, it requires eligible applicants to submit a detailed service plan and demonstrate the ability to manage their own services. The consumer is then allocated a budget upon approval. By giving consumers more control over their services, this model addresses concerns related to the lack of autonomy and flexibility in other service models.

While Direct Funding offers a highly desirable alternative to other models, it is not easily accessible to many consumers due to several barriers. One such barrier is the lengthy interview waitlist for eligibility assessment and review. Another challenge is the requirement for self-direction, which excludes individuals unable to manage their services independently, even if they have family members who can assist them. Lastly, Direct Funding is extremely difficult to access for individuals living in Supported Service Living Units (SSLUs), as applicants must secure alternative housing to qualify. SSLUs are accessible units in apartment buildings where one agency provides services to multiple tenants. For many consumer-tenants residing in SSLUs, the alternative housing requirement presents a major barrier to transitioning to Direct Funding. This is largely due to the financial and logistical infeasibility of transitioning out of an SSLU, given the lack of affordable housing and difficulty of arranging services in a less accessible housing environment. Individuals who might benefit most from the flexibility of Direct Funding are thus effectively excluded from the program, exacerbating disparities in access to quality attendant services.

Legislative Changes and the Erosion of Consumer Autonomy

Recent legislative changes have significantly altered the landscape of home and community care in Ontario, with profound implications for consumer autonomy. The shift from the Home Care Community Services Act (HCCSA)11 to the Connecting People to Home and Community Care Act (the Act) has not only altered the procedural framework for service delivery but also significantly eroded safeguards for service.12

In Canada, healthcare is primarily governed by provincial legislation. Before 2020, attendant services were governed by the HCCSA, a provincial statute that specifically regulated the provision of home and community services to persons with disabilities. The HCCSA contained several provisions aimed at ensuring service quality, including its stated purpose: to ensure that alternatives to institutional care exist, allowing people to live in their own homes and communities, and recognizing the consumer’s needs and preferences in all aspects of the management and delivery of those services13. Consumers also retain rights under the Bill of Rights under section 3(1), and service providers are required by section 3(2) to respect these rights in the course of delivering those services14. Section 3(2) of the HCCSA requires the statute to be applied in conformity with these rights. Section 5 establishes a requirement for the Minister to approve a service agency only if it complies with the Bill of Rights, thereby establishing a quality threshold for agency approval. Additionally, approved agencies must develop a plan for preventing abuse and implement a quality management system, as outlined in sections 26 and 27 respectively. These provisions collectively reflect the embedded legislative oversight of the quality of attendant services. However, as will be explored in the following section, the repeal of the HCCSA by the Act has significantly weakened these protections by mischaracterizing consumers as “patients” and by shifting legislative provisions that safeguarded service quality from statute to regulation, thereby undermining the protections these rights were intended to provide. 

In 2020, the HCCSA was repealed and replaced by the Act (formerly Bill 175), which aimed to modernize home and community care15. Two key changes introduced by the Act include shifting many HCCSA provisions from statute to regulation and altering the original statutory language. Notably, the Act removed the HCCSA’s emphasis on “promoting” access to support services and ensuring “alternatives to institutional care” – central goals of the original legislation. Advocacy groups, such as ARCH Disability Law Centre, have expressed concern that the new legislation and proposed regulations fail to adequately address the needs of persons with disabilities.16 Of particular concern is the removal of “services” from the title of the Act and the use of the term “patients” to refer to consumers, which conflates attendant services with institutional care and mischaracterizes consumers as passive recipients of care rather than autonomous decision-makers. 

As mentioned, one significant change introduced by the Act is the transfer of the Bill of Rights into a regulation. In Canada, regulations are enacted by delegated authority rather than the Legislature. They serve to fill in the details of a statute and take effect only after the passage of their enabling legislation, and can be passed, repealed, or changed at anytime by Cabinet without public input. By shifting key provisions of the HCCSA into regulations, the Act effectively removes them from the core of the statute, weakening legislative safeguards for service quality and oversight. Moreover, the new Bill of Rights under the Act no longer references community services, instead adopting the language of a “patient bill of rights,” “care,” and “health services”.17 Other provisions of the HCCSA that were shifted into regulation include those governing the scope of services, consumer complaint topics, service coordination functions, and procedures for addressing complaints18. These changes do more than merely reformat existing rights and protections; by conflating attendant services with “care,” The Act fundamentally mischaracterizes attendant services.

The Consumer Perspective – Issues with Attendant Services in Ontario

The legislative shortcomings discussed above have a profound impact on consumers’ daily lives. To further illustrate the structural gaps in Ontario’s attendant services framework, this paper draws on insights from current consumers. During an interview with three members of the Alliance for Quality Attendant Services, a committee affiliated with Citizens with Disabilities Ontario, key concerns emerged. These included services providers’ limited understanding of IL philosophy and the inconsistent quality of services, both within and across agencies, due to the absence of robust quality assurance mechanisms. 

Lack of IL Understanding Among Service Providers 

One of the most pressing issues in the delivery of attendant services is a widespread lack of understanding of IL principles. This knowledge gap is present both at the systemic agency level and among individual PSWs, many of whom are unfamiliar with IL philosophy. Two of the interviewed consumers highlighted how site managers who are responsible for enacting policies at the ground level often lack knowledge about IL, resulting in inconsistencies in how services are delivered. One consumer described an experiencing a unilaterally imposed service interruption during the holiday season: residents of a supportive living unit received a memo notifying them that housekeeping and laundry services would be suspended for ten days, without prior consultation or explanation. This decision reflected the site manager’s view that housekeeping and laundry were non-essential services, rather than necessities, and could be withdrawn without notice. Another consumer noted that the same service is often delivered differently across different agencies, highlighting a broader issue: without a clearly defined, unified understanding of IL principles, service providers apply them inconsistently. While variation in services certainly can and do stem from the fact that agencies have distinct policies and operational practices, they also reflect the absence of a unified understanding of IL. As a result, business models tend to prioritize efficiency and cost-effectiveness, leaving consumers vulnerable to operational decisions driven more by logistical and financial concerns than by their impact on consumer independence.

Another consequence of agencies’ lack of understanding of IL philosophy is the failure to recognize how the needs of people with disabilities change over time. While attendant service agreements are reviewed and renewed annually, service delivery protocols often lack the flexibility required to accommodate evolving needs. This issue arises from providers’ failure to fully understand the concept of ‘aging in place’ and the evolving needs that accompany such changes. From an IL perspective, it is evident that services must remain adaptable to ensure individuals can continue to fully participate in their community. A rigid model of service delivery, even with contractual reviews, imposes constraints on consumers’ lives in ways that are incompatible with IL philosophy.

To address these service quality issues, the interviewed consumers suggested better educating providers and particular PSWs at the ground level and aligning the PSW curriculum with IL philosophy. Given that frontline policies directly impact consumers’ daily experiences, training at the management level is crucial to uphold IL principles in practice. When management adopts a consistent understanding of IL philosophy, this can influence their decision-making and ultimately shape how PSWs are trained and how services are delivered at the ground level. 

Limited Avenues for Resolving Quality Complaints

In the event of disputes between the consumer and service providers, it is the consumer’s responsibility to raise the issue with management. Each provider has established complaints and appeals policies to guide resolution. However, this process does not apply in the case of Direct Funding, where the consumer acts as their own manager, where dispute resolution and termination decisions are part of management responsibilities. For other models of attendant services, if a complaint remains unresolved at the management level and pertains to service quantity – such as eligibility, exclusion of services from the are plan, service availability, or termination – the consumer can appeal the decision to the HSARB. Recall, however, that the HSARB does not hear appeals related to violations of the Bill of Rights or complaints about service quality. A 2022 survey of Ontario jurisprudence involving alleged breaches of the Bill of Rights found that, while it is possible to sue for breach of contract or negligence for violations of the Bill of Rights, no case has been successful to date.19 As a result, if a consumer remains dissatisfied with management’s resolution of a quality-related complaint or a violation of the Bill of Rights, there is little legal recourse available. A survey conducted by Arch Disability Law Centre in 2020 moreover found that almost half of the consumer respondents were not even aware of their right to launch a complaint process with their service provider. 20

In her paper on access to quality attendant services in Ontario, Sarah McLaughlin offers additional insights into the structural barriers that complicate consumers’ ability to voice concerns about service quality through an interview with two consumers.21 One interviewee, who has experience with both community-based and self-directed services, identified the shortage of available workers as a major concern. This issue echoes the concerns raised by a member of the Alliance for Quality Attendant Services interviewed for this paper, who emphasized that even the effectiveness of Direct Funding depends largely on the availability of qualified workers. Given the short supply of PSWs due to the lower wages in attendant services compared to hospital settings, this disparity attracts fewer workers to the field, limiting the pool of candidates capable of meeting consumers’ specific needs. This shortage of qualified workers, as a result, creates significant barriers for consumers requiring specialized services, who already experience challenges with finding workers with proper training and experience. The unpredictability of worker availability moreover undermines service stability, forcing consumers to either compromise on service quality or risk losing essential support. 

Another significant concern raised by the interviewees is the inadequacy of complaint mechanisms in addressing quality issues promptly and effectively. While legal frameworks like the Bill of Rights are in place for the purpose of protecting consumers, one interviewee described the Bill of Rights as “nice to have in principle” but ultimately ineffective in ensuring meaningful enforcement. The formal complaint process is often slow, bureaucratic, and unresponsive to the urgency of consumers’ needs. This delay is particularly problematic when a quality issue, such as a PSW failing to meet service standards, poses a high risk of injury to the consumer. In such cases, immediate intervention is necessary, yet the current complaint resolution process is incapable of providing timely solutions. Even when complaints are filed with the provider, there is little assurance that they will result in meaningful improvement, as the process is managed by the provider and lacks transparency. This absence of clear accountability mechanism allows service providers to operate with minimal quality oversight, leaving consumers in a vulnerable position. 

Fear of Retaliation As A Barrier to Advocacy

Beyond procedural delays, the fear of retaliation further discourages consumers from voicing concerns about service quality. One interview in McLaughlin’s study described a general reluctance to report issues out of concern that they could lose access to their services altogether. For many consumers, this risk outweighs the potential benefits of seeking redress, leading to a troubling dynamic in which substandard services persist without challenge. In some cases, consumers may feel forced to tolerate inadequate services rather than jeopardize their existing arrangements, particularly in regions where alternative service providers are limited or PSWs are scarce. This power imbalance reflects a deeper structural issue within Ontario’s attendant services system – one in which consumers have few effective avenues for advocating for their rights without potentially facing negative repercussions.

The Structural Exclusion of Consumers in Collective Bargaining

The erosion of legislative oversight for service quality, combined with the mischaracterization of attendant services due to a lack of familiarity with IL principles, has resulted in a service framework that does not adequately uphold consumer interests, rights, and entitlements. Central to these issues with frontline service delivery and gaps in the legislative scheme is the fact that service quality is also shaped by the collective bargaining process, which involves only two parties: unions representing workers and management or service agencies. A key problem is that consumers, who are directly affected by the outcomes of these negotiations, have no voice or representation at the bargaining table. Despite being the ultimate recipients of these services, consumers are structurally excluded from decisions about staffing levels, service continuity, and quality. As a result of this exclusion, service quality issues are framed primarily in terms of efficiency and cost-effectiveness – priorities of labour and management – rather than their fundamental purpose of being consumer-centered, as envisioned by IL philosophy

“Collective bargaining” is the process through which unions negotiate on behalf of workers and employers to establish the terms of employment. The outcome, known as a collective agreement, is a contract that applies to all unionized employees and sets uniform terms and conditions. In Ontario, PSWs negotiate with employer agencies through their unions to establish collective agreements on terms such as wages, benefits, and working conditions. This process is governed by the Ontario Labour Relations Act, which outlines the framework for collective bargaining and the rights and responsibilities of unions and employers.22

Given that collective bargaining emerged historically as a mechanism to enhance workers’ negotiating power vis-à-vis their employers, it is perhaps unsurprising that, despite the direct and significant impact collective agreements have on consumers, these third-party interests are typically excluded from the negotiation process. At its core, collective bargaining is a labour-focused mechanism designed to empower workers by allowing them to negotiate as a group, counterbalancing the power disparity between labour and management. It is normatively committed to promoting voluntarism (the freedom for workers to make decisions without external interference), industrial peace (minimizing the effect of labour disruptions on society by resolving conflicts through labour dispute mechanisms), and increasing worker’s bargaining power.23 Put differently, it functions as a stabilizing force that fosters cooperation between labour and capital despite their inherently opposing interests. 

As the discussion from the consumer perspective illustrates, the impact of collective bargaining in the attendant service context extends far beyond PSWs and management. Employment terms set out in the collective agreement, such as hours of work or staffing, can have a profound impact on consumers. For example, a union may negotiate reduced service availability to protect employees’ health. This reduction in service availability is likely to affect service quality; when a consumer is allocated fewer hours than they require, they are forced to make difficult choices about how to allocate those reduced hours. Insights from this paper and other investigations into consumer experiences highlight that a lack of understanding of IL is a persistent problem within agencies, despite their stated commitment to upholding IL standards. This knowledge gap means that agencies and unions – who negotiate the terms of attendant services – are not adequately attuned to how these negotiations impact consumers. What may seem like a fair bargain between labour and management fails to recognize that the service structure resulting from this negotiation no longer reflects the core principles of IL. The takeaway is this: when terms of work are negotiated without consumer participation, consumers lose the ability to determine how they are supported. Given that attendant services are essential to enabling consumers to live independently and integral to how they structure their lives, it is not just beneficial, but absolutely necessary for consumers to be involved in decisions about them. 

It is necessary to clarify, at this point, that this paper does not suggest that collective bargaining is failing or that any one service provider lacks an understanding of IL principles. Rather, the structural barriers to consumer autonomy arise precisely because collective bargaining empowers workers by limiting managerial prerogatives. Put differently, the problem is a structural one – the labour negotiation process inherently conflicts with IL philosophy’s core principle that consumers should be in control of their supports, effectively taking on the role of “management”. Our labour regime has endeavoured to strike a certain balance between labour and capital, but it does so through a mechanism that is structurally incapable of attending to the impact of this process on third parties like consumers. The issue, again, is not that unions and service providers are failing to represent consumer interests at the ground level. This may or may not actually be the case, but the real problem is the structural exclusion of consumers from the process, which is fundamentally at odds with IL philosophy. This is not to suggest that workers should not have strong protections – ensuring fair wages and working conditions for PSWs can improve service quality and support IL goals. However, these protections should not undermine consumers’ ability to receive services that align with IL principles.  

Interest Arbitration as a Potential Avenue?

To explore potential channels for representing consumer interests in the collective bargaining process, I examined whether a third party could advocate for consumers through the interest arbitration model by analyzing two cases: O.N.A. v Von Metropolitan Toronto Branch24 and Service Employees International Union Local 1 Canada v Paramed Home Health Care.25 I explored interest arbitration as a potential solution since it is already used in Ontario for hospital-sector labour disputes.26 If extended to attendant services, it could serve as a mechanism for incorporating consumer interests into the labor negotiation process. However, insights from the caselaw suggest that the Ontario Labour Relations Board (OLRB) is hesitant to apply the Hospital Labour Disputes Arbitration Act (HLDAA) interest arbitration model to services delivered in private homes, which would include attendant services. While the HLDAA-mandated interest arbitration has been successfully applied in the hospital and nursing home context, the OLRB’s reluctance to extend this framework to private-sector, home-based services limits is application to attendant services. 

In VON Metropolitan Toronto Branch, the OLRB interpreted the meaning of “hospital” within section 1 of the HLDAA to determine whether the act applied to Von Metropolitan Toronto, a non-profit organization that offers services almost exclusively in its clients’ private homes. The Board determined that Von Toronto did not quality as a hospital under the HLDAA, reasoning that, since its services were primarily provided in private homes, it lacked the institutional character required to be considered a “hospital.”27 The board also found that, while the vulnerability of affected patients is relevant to this determination, it is not determinative.28 In other words, the vulnerability of clients in the event of a labour disruption between an agency and PSWs does not factor into the analysis of whether the agency should be classified as a hospital under the HLDAA.

The VON analysis of whether an organization or agency qualifies as a “hospital” under the HLDAA and is thus subject to its application was most recently upheld in Paramed Home Health Care. The facts of Paramed are similar to VON; Paramed is an agency that delivers attendant services primarily through referrals from Ontario Health atHome (formerly known as Local Health Integration Networks). These services are mainly provided in clients’ private homes, and occasionally in supportive housing, with the majority of its clients being vulnerable seniors or persons with disabilities. The union argued that Paramed was a “hospital” under HLDAA and urged the board to depart from the VON analysis, noting that health care delivery in Ontario has evolved since the VON decision. Specifically, the union highlighted in its submission that patients are being discharged from traditional hospitals sooner, and that the demand for home care has increased since 2002. 

The Board again found that the HLDAA did not apply to Paramed and its employees because it was neither a “hospital” or “other institution” under the HLDAA, reasoning that clients/patients’ degree of dependence on home care was not enough to override the right to strike or lockout.29 While it is true that individuals are negatively impacted by service disruptions, their level of dependence did not equate to a need for “constant access to the care”.30 Further, while the health care delivery model in Ontario has indeed evolved since 2002, the board’s jurisdiction is limited to interpreting the HLDAA as it is currently drafted.31 This compelled the board to narrowly interpret the scope of the HLDAA’s application.

Taken together, VON and Paramed suggest that courts view attendant services

delivered in private homes, rather than institutional settings, as essentially private. This judicial mischaracterization reflects a broader failure to recognize attendant services as a distinct category of labour – a result that is perhaps unsurprising, given that the legislative language itself already conflates attendant services with institutional care. Operating on the flawed premise that attendant services fall within the same category as other “care” services, the court in VON and Paramed decided that these services do not attract the public interest rationale necessary to justify interest arbitration. In light of this conclusion, I shifted my focus from interest arbitration back to the collective bargaining channel as the appropriate point of intervention to address the issues discussed thus far in this paper. I propose modifying the collective bargaining framework in the context of attendant services to address the structural erosion of consumer autonomy and service quality.

Before delving into the proposal, it is important to address the claim that quality complaints are already addressed through management’s internal complaint processes. While service agencies are legislatively required to establish mechanisms for reviewing and resolving complaints about service quality, and while some level of quality assurance is built into service contracts, through, for example, the inclusion of the Bill of Rights as a contractual term, the core issue remains that these processes are internal and requires each consumer who encounters quality issues to navigate a lengthy grievance ladder. This setup treats service quality issues as individual rather than structural, when, as we have seen, many quality issues are not isolated incidents but problems that persist at the systemic level. Failing to recognize the problems as structural overlooks the need for a broader, systemic solution that addresses the root causes. Moreover, placing the onus on individual consumers to seek redress for systemic issues imposes an undue burden on them, especially when these problems are already having an immediate impact on their lives and interfering with their day-to-day activities. If a consumer is dissatisfied with how management handled the issue and seeks to appeal, they often find there are no other further options for resolution, making an already burdensome process even more difficult to navigate. 

Based on these considerations, this paper proposes a legal reform to Ontario’s attendant services collective bargaining framework, aimed at ensuring that service quality and consumer interests are prioritized. I suggest that employment terms directly impacting service quality should be removed from the current labour law models and instead be determined through a consumer advocacy committee model.

The Proposal

To improve the quality of attendant services in Ontario, I propose the following reforms to the provincial legal framework for attendant services collective bargaining. These recommendations are based on Thomas Archibald’s proposed reforms to the nurse collective bargaining framework in Ontario. The thrust of the recommendation is a framework to determine which issues should be transferred from collective bargaining to a policy process, where decisions must be made with the consensus of all three stakeholders – consumers, workers, and agencies – and disputes arising from the policy process would be addressed through an interest-arbitration-like process. The basic propositions of my proposal are as follows: 

  1. All attendant service employment issues related to service quality will be removed from the current attendant services collective bargaining structure.
  1. Quality issues will instead be decided by locally based consumer advocacy committees, which consists of union, management, and consumer representatives. 
  1. These consumer advocacy committees would function like traditional collective bargaining but incorporate participation by consumer representatives and emphasize the use of evidence, such as empirical studies and data from systemic reviews on how service design impacts service quality.
  1. The consensus of all three parties on the committee (union, agency, consumers) would be required before any negotiated term became legally enforceable.
  1. The composition and size of each committee should be localized to reflect consumers who have signed the same service contract with an agency.
  1. There will be no right to strike or lock out in any dispute that arises in a consumer advocacy committee. Disputes within the committee will be resolved by an adjudication process based on interest arbitration, with the following modifications:
  1. Disputes would be resolved by a tripartite panel of arbitrators, drawn from a roster of arbitrators appointed after consultations with unions, agencies, and consumer interest groups.
  1. Arbitrators would employ consumer-centered criteria in making decisions.

Which issues should be transferred from collective bargaining to a policy process?

Borrowing from Archibald’s suggestion, I propose a set of criteria to be transferred from the scope of collective bargaining to a policy process – that is, subject to the review of the consumer advocacy committee. To be appropriately removed from collective bargaining, the issue(s) in question must satisfy two criteria:

  1. The government must undertake meaningful consultations with consumer interest 

advocacy organizations.

The Ontario government should engage in meaningful consultations with organizations that have expertise in representing consumer interests, such as Citizens With Disabilities Ontario. In collective bargaining, the interests of workers and management are already represented, but consumers lack a clear and dedicated advocate to unequivocally put forward their interests.. To ensure that consumer interests are properly considered, these organizations must have a distinct and influential role in determining whether an issue should be removed from collective bargaining. The decision to reallocate an issue from collective bargaining to a policy process is an all-or-nothing determination and should not be influenced by concerns from either management or workers, even if legitimate. Advocacy groups dedicated solely to consumer rights are best positioned to make this assessment. These groups are uniquely qualified to identify whether an issue genuinely pertains to quality. For instance, a service quantity issue might appear quantitative but could actually involve a qualitative aspect impacting service quality, a distinction that only consumer-focused organizations are equipped to make.

From a practical standpoint, advocacy organizations have a finite amount of resources and must prioritize which consumer issues to bring to the forefront of their advocacy efforts. By empowering these groups to make decisions, we ensure that the issues raised are those whose resolution would most effectively benefit consumer interests as a whole.  These organizations are well-positioned to identify issues that, while originating from individual cases, reveal broader systemic problems, and addressing them can lead to meaningful improvements for consumers as a whole.

  1. The removal of the proposed issues would not significantly impair the affected union(s) to bargain collectively on issues that remain within the scope of bargaining.

In B.C. Health Services, the Supreme Court of Canada held that collective bargaining is protected under the 2(d) Charter right to association.32 To comply with this constitutional requirement, the second requirement for transferring an issue from collective bargaining to a policy process asks whether the union still has bargaining power over non-quality related issues after quality issues have been removed from its jurisdiction. This ensures that the union’s ability to negotiate is maintained. 

These two criteria ensure that only issues with a clear, systemic impact on quality are removed from collective bargaining. This approach preserves the integrity of the bargaining process while minimizing disruption, ensuring that consumer interests are fully and uncompromisingly represented.

Establishing consumer advocacy committees

Service quality issues will be addressed through a policy process involving consumer advocacy committees. These committees would operate similarly to collective bargaining, with participation from unions and employer agencies, but would also include consumer representatives and prioritize evidence-based negotiations. The inclusion of consumer representatives introduces a crucial perspective that was previously absent by integrating consumers’ lived experiences and IL principles into the process. Any resulting terms would require the consensus of all three parties before becoming legally enforceable.

Committees would operate locally to reflect the fact that the effects of service terms and policies are most often felt at the local level. The makeup of each committee should reflect all individuals covered under a specific service contract with an agency within a given locale. In some cases, a committee may be established for a particular supported living unit, ensuring representation of all individuals receiving services under that contract.

Given that the committee negotiates service quality issues through a policy process, there will be no lawful right to strike or lockout in the event of disputes between the negotiating parties. Disputes will instead be resolved by an adjudication process based on Ontario’s interest arbitration model:

  1. Disputes would be decided by a tripartite panel of arbitrators

Disputes would be decided by a tripartite panel of arbitrators, and if the parties cannot 

agree on a chair, the Minister of Labour will have an appointment power but be restricted to choose from a standing roster of adjudicators. Appointments to the proposed roster of arbitrators would be made by the Minister after consultation with unions, agencies, and other interested parties. 

  1. Consumer-centered criteria

Vague criteria (e.g. explication and reasonableness) are of little assistance to service 

quality disputes. Archibald proposes two reforms: first, the Ontario government should consult with PSWs, agencies, and consumer rights groups to formulate comprehensive, detailed criteria for interest arbitrators to use. Second, legislation should mandate that arbitrators follow these guidelines and make explicit reference to them in their reasons. 

Implementation and enforcement

The decisions made by the consumer advocacy committees, whether through agreement between management, unions, and consumer representatives, or via arbitration as outlined above, would be implemented as specific workplace rules or policies. To ensure enforceability, these rules or policies would be subject to a grievance and arbitration process, with arbitrators drawn from the same pool of adjudicators used in the interest arbitration process. By shifting service quality issues from the tactical and adversarial nature of collective bargaining into a policy-driven process, this approach fosters collaboration and ensures that service quality remains a central priority rather than a secondary concern in labour disputes.

Conclusion

The framework proposed in this paper seeks to address the significant gaps in the current legislative and service delivery structure for attendant services in Ontario. By shifting the focus of collective bargaining away from issues directly impacting service quality and placing them within a collaborative, consumer-centered policy framework, the proposal aims to ensure that the voices and needs of consumers are better represented. The creation of consumer advocacy committees and the integration of evidence-based arbitration offer promising solutions to improve service delivery, increase transparency, and uphold the rights of consumers. Ultimately, this approach will prioritize consumer rights and service quality, creating a more effective and responsive system for attendant services in Ontario.

End Notes

  1. While the term “attendant care” is often used interchangeably to describe these services, it misrepresents recipients of attendant services as passive recipients of care. For an overview of attendant services in Ontario, see ARHC Disability Law Centre, Attendant Services Fact Sheet, (Toronto: 2013). ↩︎
  2.  ARHC Disability Law Centre, Guide – Attendant Services in Ontario, (Toronto: 2022). ↩︎
  3.  Thomas Archibald, Improving Patient Safety through Nurse Collective Bargaining, (Ottawa: 2017). ↩︎
  4.  Independent Living Institute, The History of the Berkeley Center for Independent Living, (Berkeley: 1975).  ↩︎
  5.  Teodor Mladenov, Ines Bulic Cojocariu and Lilia Angelova-Mladenova et al. Special Issue Editorial. International Journal of Disability and Social Justice. 2023. 3(1), 10. ↩︎
  6.  Adolf D. Ratzka, Independent Living and Attendant Care in Sweden: A Consumer Perspective, World Rehabilitation Fund, New York, Monograph No. 34. 1986. ↩︎
  7.  Committee on the Rights of Persons with Disabilities, General comment No. 5 (2017) on living independently and being included in the community, 27 October 2017, CRPD/C/GC/5 at 2. ↩︎
  8.  Ibid, at 16(c). ↩︎
  9.  Teodor Mladenov, Yvo Pokern, and Bulic Cojocariu, PA Checklist – a tool for assessing personal assistance schemes (Brussels: 2019).  ↩︎
  10.  In 2021, the Ontario government issued a transfer order transferring the authority previously vested in the fourteen provincial Local Health Integration Networks (LHINs) into Ontario Health, a centralized provincial agency created under the Connecting Care Act, 2019. See Ontario, Ministry of Health, Transfer Order – Central Local Health Integration Network, (23 March 2023), online: https://www.ontario.ca/page/transfer-order-central-local-health-integration-network.  ↩︎
  11.  Home Care and Community Services Act, S.O. 1994, c.26 [HCCSA]. ↩︎
  12.  Connecting People to Home and Community Care Act, S.O. 2020, c13 [the Act]. ↩︎
  13.  Supra note 10, HCCSA s. 1(a)(d). ↩︎
  14.  The bill of rights is presently located under section 9 of the Connecting Care Act, S.O. 2019, c.5 s1., following the repeal of the HCCSA. ↩︎
  15.  Bill 175, Connecting People to Home and Community Care Act, 2020, 1st Sess, 42nd Leg, Ontario, 2020 (assented to 8 July 2020), SO 2020, c 13, online: https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-175. ↩︎
  16.  ARCH Disability Law Centre, Submissions of ARCH Disability Law Centre to the Ministry of Health on Proposed Regulations under the Connecting Care Act, (Toronto: 2020). ↩︎
  17.  O. Reg. 187/22, Connecting Care Act, supra note 13. ↩︎
  18.  For a comprehensive overview of key concerns with the changes introduced by the Act, see ARCH Disability Law Centre, Submissions on Bill 175 (June 2020), online: https://archdisabilitylaw.ca/resource/submissions-on-bill-175/#_ftn6. ↩︎
  19.  Sarah McLaughlin, Rights of Persons with Disabilities in Ontario to Quality Health Services within their Community. 2022, 18. ↩︎
  20.  ARCH Disability Law Centre, Connecting People to Home and Community Care: Survey Results, (Toronto: 2020). ↩︎
  21.  Sarah McLaughlin, Rights of Persons with Disabilities in Ontario to Quality Health Services within their Community. 2022, 18-23. ↩︎
  22.  Labour Relations Act, S.O. 1995, c.1. ↩︎
  23.  Improving Patient Safety through Nurse Collective Bargaining, supra note 3, 170. ↩︎
  24.  O.N.A. v Von Metropolitan Toronto Branch, 2002 CarswellOnt 3884 (WL Can) [Von Metropolitan]. ↩︎
  25.  Service Employees International Union Local 1 Canada v Paramed Home Health Care, 2021 CanLII 29681 [Paramed]. ↩︎
  26.  Hospital Labour Disputes Arbitration Act, R.S.O. 1990, c. H.14. ↩︎
  27.  Supra note 24 at 76. ↩︎
  28.  Ibid, at 78. The OLRB’s characterization of VON Toronto’s clients further underscores a systemic misunderstanding of what attendant services truly entail. VON Toronto operates under contracts with Community Care Access Centres (now Ontario Health atHome) markets its services as assisting individuals with “remaining in their own homes” and “delaying or preventing the need for institutional admission.” These objectives clearly indicate that some of VON Toronto’s clients are consumers, yet the Board’s classification of them as “patients” reflects a fundamental misapprehension of their status and needs [see paras 8-9]. ↩︎
  29.  Supra note 25 at 82. ↩︎
  30.  Ibid, at 85. ↩︎
  31.  Ibid, at 143. ↩︎
  32.  Health Services and Support – Facilities Subsector Bargaining Assn. British Columbia, 2007 SCC 27. ↩︎