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Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-32

Name of organisation making submission: DR-32 Construction Labour Relations Association of Ontario

Responses to questions in submission form


Section A - The Public Interest in this Review

1. What do you understand by public interest?

Sec. 11 of the Ontario College of Trades Act sets out the objects of the College. Sec. 10 provides that the College has an overriding “duty to serve and protect the public interest in carrying out its objects and its functions…” In the context of the College’s objects, there are three dimensions to the public interest. These are: First: protecting public safety, worker safety and the environment, Second: supporting a growing, competitive and equitable economy, and Third: ensuring fairness and due process. A. Protecting Public Safety, Worker Safety and the Environment: In the construction industry, public safety, worker safety and environmental protection are addressed by statutes, codes and regulatory bodies with specialized mandates in these fields. Public safety is the primary concern of the regulatory systems established to administer (among others) the Electrical Safety Code, the Building Code, the Fire Code and the various statutes administered by the Technical Safety and Standards Authority. Workplace safety is addressed by the Occupational Health and Safety Act (OHSA) which establishes a system of standards, training requirements and inspections. Environmental protection is similarly addressed through the Environmental Protection Act. B. Supporting a Growing, Competitive and Equitable Economy: Supporting a growing, competitive and equitable economy means that the College should focus first and foremost on establishing and maintaining a system for promoting competence in the skilled trades and ensuring that Ontario has a sustainable and sufficient supply of qualified tradespersons. The College contributes to the goal of a growing, competitive and equitable economy when it establishes occupational and training standards that are aligned with the needs of the economy. Conversely, the College undermines that goal when its actions exacerbate skill shortages, limit economic opportunity, create regulatory confusion, or undermine labour relations stability. For the College, the public interest in protecting public and worker safety and the environment has two implications. The first, and by far the more important, is the College’s responsibility to determine what competencies should be incorporated into the relevant occupational standards in light of the other regulatory systems for protecting public and worker safety and the environment. The second and more limited issue for the College is to recommend under what circumstances the existing systems for protecting public and worker safety and the environment are insufficient unless the performance of some tasks is restricted to persons who are qualified journeypersons in a particular trade. C. Ensuring Fairness and Due Process: It is vital to guard against the risk that the College’s regulatory powers will be exercised at the expense of workers who are not members of the College or, more generally, at the expense of the Ontario economy. In the construction industry, there is a history of individual trades using whatever levers may be at hand to capture work for their trade and to exclude others from doing that work. The need for fairness and due process applies to all of the College’s functions, but particularly to establishing Scopes of Practice, determining whether a trade should be compulsory, and enforcing a compulsory Scope of Practice. Although the public has an obvious interest in buildings and structures that are constructed in accordance with applicable code requirements and an interest in workplace safety, these public interests are the primary subject of other legislation which is expressly enacted and intended to regulate those areas. They are not the primary purpose of OCOT.


2. Who should the College serve? Who is “the public” in the public interest and what groups make up the public?

As a statutory body, OCOT’s first and overriding duty is to the general public of Ontario. The Legislature conferred on OCOT the authority to establish occupational standards, restrict the use of occupational titles and, in some cases, restrict the right to perform certain occupational roles. These powers must be exercised in a manner that serves the general public. There must be strong safeguards and checks and balances against the risk that the College’s regulatory powers will be used to advance the interests of a particular trade at the expense of other workers (and their employers) or, more generally, at the expense of the Ontario economy.


3. How should the College make decisions in the public interest where different segments of the public may have opposing interests?

There are five areas in which the College makes decisions where there may be opposing interests among different segments of the public. Scopes of Practice (SoPs): The purpose of a Scope of Practice is to describe the representative tasks which a member of trade is trained to perform. The purpose of SoPs is not to balkanize work into protected islands. However, if the primary responsibility for determining the SoP of a trade is delegated to representatives of that trade, the SoP will be used to advance the interests of that trade at the expense of other workers and at the expense of the Ontario economy. Reviews of SoPs should not be led by the Trade Boards. Rather the review process should be impartial, inclusive of all stakeholders, and rigorous. Reclassification of a Trade as Compulsory: The process for considering an application to reclassify a trade should be rigorous, thorough, impartial, and inclusive. Proponents should understand the evidentiary onus they are expected to meet. The current model is impartial, but it cannot be described as thorough. Indeed, the decision in the Sprinkler and Fire Protection Installer case commented that, “the adequacy or sufficiency of evidence is a problem and a theme that recurs throughout this trade classification review” (para 25 at p 11). Nor can the current process be considered inclusive. There were no consultative meetings held with stakeholders nor were any meetings or hearings held outside of Toronto. While the review chair has acknowledged expertise, there was no external counsel to assist the panel, as would be the usual case in an inquiry. No independent studies were commissioned to understand the potential economic impact of reclassification. In our view, the review process used under the Regional Health Professions Act offers more rigour, greater thoroughness and substantially more inclusiveness. The College also needs to replace its current ‘one size fits all’ approach to reclassifying trades. Reg. 275/11 provides for an ‘industrial exemption’ to compulsory status. Following that precedent, two principles should be recognized. The first is that some elements in the Scope of Practice of a compulsory trade need not be restricted since there is no demonstrable harm to public or worker safety when those tasks are performed by someone who is not qualified in the trade. The second important principle is exemptions will be appropriate for some sectors of the construction industry and some types of projects. The review process used under the Regulated Health Professions Act would be more suited to this, more granular approach to considering an application to reclassify a trade. Enforcing Restricted Scopes of Practice: The current approach to enforcement is seriously flawed. It invites unions representing compulsory trades to use the College’s regulatory power to achieve jurisdictional gains at the expense of other trades that were unachievable under the OLRB’s adjudication process. The enforcement approach by the College of Trades is radically different from the adjudication process of the OLRB: First: the OLRB weighs factors such as collective agreements; agreements between competing unions; employer practice; area practice; safety, skills and training; and economy and efficiency. The College and the provincial courts consider only the black-and-white literal reading of Reg. 275/11, in the same manner as if they were dealing with a parking infraction. Second: the OLRB is an expert tribunal in labour relations and is also knowledgeable of the construction industry. The College lacks the same knowledge of the construction industry. And certainly the provincial courts cannot be described as either experts in labour relations or knowledgeable of the construction industry. Third: every affected party (e.g., other unions, employers, industry associations, etc.) has standing at the OLRB and must be notified of the proceedings. This is not the case with either the College or the provincial courts. In our view, the OLRB is a more appropriate tribunal than the Provincial Courts for deciding Scope of Practice enforcement issues.


4. Is the College currently protecting the public interest?

OCOT is currently falling short of serving the public interest in a number of ways that need to be addressed: First: OCOT has not undertaken a systematic review of Scopes of Practice for the construction trades. Many of these SoPs are seriously out of date or too vaguely worded to even plausibly support the College’s regulatory functions. There are also pervasive inconsistencies between provincially sanctioned Training Standards and the Scopes of Practice. It was a serious error on the part of OCOT to invite reclassification applications prior to completing a review of all of the Scopes of Practice for the construction trades. Second: OCOT’s review panels are not guided by independent expertise on the economic impact of reclassification decisions. The recent review of the reclassification application of the Sprinkler and Fire Protection Installer trade illustrates the problem. OCOT did provide the review panel with an independent economic impact study. Moreover the quality and extent of the evidence presented in the proceedings was exceptionally thin. As a result, this decision was made with scant evidence on the economic impact of changing the trade’s status. . Third: in adjudicating the ratios for construction trades, OCOT did not commission economic impact studies. Nor did OCOT conduct any research into the health and safety implications (or lack thereof) of altering ratios. Both of these factors figured prominently in the hearings, although review panel decisions sometimes commented that the quality and extent of the evidence insufficient to support any strong conclusions. Fourth: the current enforcement model is deeply flawed. Decisions of the OLRB are not taken into account. Only the person or employer who has been fined has any standing in the legal proceedings. Both the College and the provincial court make decisions as if the world were black and white like a parking violation. And worst of all, the current enforcement model is virtually an invitation to individual trades to use the College’s regulatory powers to advance their jurisdictional interests at the expense of other workers and the Ontario economy.


5. How should the College advance the public interest?

OCOT should advance the public interest by altering its practices in the following way: First: OCOT should undertake a systematic updating of occupational standards, training standards and Scopes of Practice for the construction trades. This review process should be led by knowledgeable and independent persons and should involve all stakeholders in the construction industry. There should be a moratorium on enforcement of restricted Scopes of Practice and applications for reclassification of a trade until this review process in completed. Second: OCOT should adopt a different model for reviewing applications to change the status of a trade. This model should be rigorous, thorough, impartial, and inclusive. Regulated Health Professions Act would be more appropriate. Third: the process for reviewing an application to change the status of a trade should have the discretion to recommend that only some elements of a Scope of Practice should be restricted and that there should be exemptions to compulsory status for some sectors or types of construction projects. Fourth: the process for reviewing an application to change the status of a trade should be supported by an independent assessment of the economic impact of changing a trade’s status. Fifth: OCOT should establish a clear public interest test for changing the status of trade. This test should focus on demonstrable harm to public and worker safety when certain tasks are performed by persons not qualified in the trade coupled with an economic impact assessment that demonstrates no unreasonable, negative consequences for other workers, employers, or the Ontario economy. Owing to the potential damage arising from an ill-considered change in status, there should be a high evidentiary threshold with clear onus on proponents. Sixth: the current enforcement model should be replaced with a new framework for guiding enforcement activity and with the OLRB replacing the provincial courts as the tribunal to for deciding Scope of Practice enforcement issues. The new framework for enforcement should be based on three principles: (1) enforcement should be restricted to tasks that pose a demonstrable risk of harm to public or worker safety if performed by persons not qualified in the trade, (2) other mechanisms for protecting public or worker safety (e.g., OHSA or Building Code inspections) are not sufficient to achieve this goal, and (3) enforcement should not override or set aside assignments of work that are sanctioned by OLRB decisions, private arbitrations or collective agreements. Seventh: OCOT compliance orders on restricted Scopes of Practice should not take effect until the opportunity for appeal to the OLRB has expired.





Section B - Issues Related to Scopes of Practice (SoPs)

6. What impact do SoPs in regulation have on your daily work activities or on the way you conduct business? What aspects of an SoP are important to the work of your trade? Please explain.

The members of the CLRAO employ a range of voluntary trades in the ICI sector. The voluntary trades include: General Carpenters, Drywall Acoustic and Lathing Applicators, Construction Craft Workers, Heavy Equipment Operators, Hoisting Engineers, Plasterers, Bricklayers, Cement Masons and Concrete Pump Operators. Many of our employer members also undertake construction work outside the ICI sector. Our members are affected by SoPs in a number of ways. • All of our collective agreements are trade specific, as this is a statutory requirement for collective bargaining in the ICI construction sector. Each collective agreement (termed ‘provincial agreements’ by the OLRA) contains detailed provisions that describe the work that is governed by the collective agreement. These provisions are legally binding on our members and supersede Scopes of Practice under OCOT. However, if an OCOT Scope of Practice were made compulsory, this could create a number of conflicts between the OCOT Scope of Practice and our collective agreement obligations. • For all of our members, disputes about which trade should perform what work are resolved either by negotiation, private arbitration, or by OLRB adjudication. Both private arbitration and OLRB adjudication take notice of OCOT Scopes of Practice, but also give weight to factors such as collective agreements; agreements between the competing unions; employer practice; area practice; safety, skill and training; and economy and efficiency. This is especially relevant when the OLRB decision pertains to a dispute between a voluntary trade and a compulsory trade . • All of our members participate in training trust funds which support apprenticeship training. In none of the trades employed by our members do the OCOT Scopes of Practice provide any useful guidance in planning and delivering training.


7. Do you agree with the suggestion that trades may have core elements as well as peripheral elements?

The distinction between core and peripheral elements of a Scope of Practice is a concept which is attractive in the abstract but which is more complex when applied to particular trades. There is a common sense logic to the notion of core tasks and core skills. They encompass the skills and tasks that are commonly associated with the trade. Employers and the public expect someone qualified in the trade to be trained to undertake those tasks. The notion of core skills is highly relevant when determining whether an uncertified tradesperson should be given a C of Q on the basis of their experience-based learning. In light of the important role played by immigration in Ontario’s economy, this is an important consideration and consistent with the public interest in inclusiveness. The concept of core skills is also relevant to training. Core skills should be the primary focus of the in-school portion of apprenticeship training and also the on-the-job learning. The notion of peripheral skills is germane to recognizing specializations. For example, in some trades, there are skills and tasks, which are not commonly performed by all members of the trade but for which training in the trade is necessary. Where appropriate, these skills can be recognized through an ‘endorsement’ to a C of Q. It is important, however, that the concept of core skills and tasks not be associated with exclusivity. Core skills and tasks may be shared by more than one trade. The defining characteristic of core skills and tasks is not that they are exclusive to a particular trade, but that employers and the public can be assured that persons with a C of Q in that trade have been trained to perform the task. There may be some skills and tasks for which only one trade is trained. However, there should be no presumption that this will be the case. It is also important that the concept of core skills not be equated with restricted status or compulsory status. Tasks should not be restricted to persons qualified in a trade unless they are core skills, but this does not imply that tasks should be restricted simply because they are core to a trade.


8. What should be the key elements of an SoP? In particular, should the SoP for a trade list all of the tasks, activities or functions in which an apprentice should be trained, only those that are unique to the trade, or only those that may pose a risk of harm to the public, tradespeople or other workers on the job? Please explain.

There are three documents that must be consistent with one another. These are: 1) Occupational Standards (Competency Standards): Occupational Standards analyze an occupation in terms of the knowledge and skills required by someone in an occupation and the duties and tasks they commonly perform. Occupational Standards are typically lengthy documents. It is critically important that Occupational Standards are industry validated. Employment and Skills Development Canada (ESDC) produces National Occupational Analyses (NOAs) for a range of occupations, including almost all of the skilled trades. Many provinces rely entirely on the NOAs as their Occupational Standards. For the Red Seal trades, the NOAs are the benchmark Occupational Standards. 2) Training Standards are based on the Occupational Standards. Training Standards are used to determine and structure the in-school and on-the-job training that an apprentice will obtain. Training Standards are written in terms of the specific competencies (i.e., knowledge and skills) that must be acquired by an apprentice and also the amount of classroom or on-the-job time that should be allocated to a particular competency. Training Standards tend to be lengthy documents. 3) The Scope of Practice is the regulatory statement of the tasks that persons in a trade are trained to perform. A Scope of Practice should be founded on the Occupational Standards. However, a Scope of Practice differs from an Occupational Standard in two ways. First, the focus is on generic or broadly representative tasks, rather than skills and knowledge. Second, a Scope of Practice is brief statement. There are a number of the College’s regulatory functions for which a Scope of Practice is relevant. These include: • whether a new trade should be established, • whether a specialization should be recognized, • whether a trade should be made compulsory in whole or in part, and • in the case of a compulsory trade, the Scope of Practice includes (but is not limited to) the tasks which are potentially enforceable. Within the framework described above, it would not be appropriate to limit a Scope of Practice to tasks involving public safety or workplace safety. In the construction industry, the application of a public safety and workplace safety test depends critically on the circumstances. These include (among others): the sector, the size of the project, the training and experience of the workers, requirements under OHSA regulations, and requirements under other public safety codes and standards.


9. How should a review or change in SoP be carried out?

This question puts the cart before the horse. An SoP is founded on Occupational Standards which, in turn, is based on a rigorous occupational analysis. It is therefore the Occupational Standards that should be subject to systematic and regular review. The review process should be rigorous, inclusive and impartial. Rigorous: the process for reviewing an Occupational Standard for a construction trade should follow a consistent methodology that achieves a complete description of the knowledge and skills required by someone in that trade and the duties and tasks they perform. This will require examining the trade in numerous contexts across a range of sectors. Given the inter-relatedness of construction work, it is not practical to examine trades in isolation from one another. The view process needs to be systematic across all construction trades. Inclusive: it is critically important that the review of an Occupational Standard for a construction trade involve a full range of industry stakeholders including: (1) representatives of the trade board, (2) other members of the trade, (3) employers, (4) general contractors, (5) members of other trades, (6) unions, (7) industry associations, and (8) representatives of owners and buyers of construction. The review process must include an active outreach to the construction industry and all of its stakeholders. Impartial: the review process must be managed and chaired by persons who are impartial and who have no vested stake in the outcome of the process.


10. Can or should the existing SoP provisions support the College’s diverse functions (e.g., apprenticeship training, enforcement, classification reviews)? Please explain.

For the construction trades, the majority of the current SoPs are too dated and too poorly drafted to provide a basis for any of the College’s regulatory functions. A revised set of SoPs should be based on a systematic and industry-validated review of occupational and training standards for the construction trades. In light of the inter-connectedness of trade work in the construction industry and overlaps between trades, it will be important to look at the construction trades as a coherent whole. A revised and updated set of SoPs would be derived from these updated occupational and training standards and would also distinguish between core and peripheral tasks. Only the core tasks should be included in an SoP. These revised SoPs would provide the foundation for enforcement (where relevant) and classification reviews. Apprenticeship training would be based on the occupational standards which is a more complete statement of required skills and competencies. This should not be interpreted as supporting suggestions that the entirety of an SoP (even after being updated) should be subject to compulsory status or enforcement. The test for compulsory status should be task-by-task and should also include an economic impact assessment and scope for exemptions. Similarly the test for enforcement should be based on demonstrable public harm and should also take account of OLRB and other relevant factors.


11. Should the entire SoP for a compulsory trade be enforceable or be subject to enforcement? Please explain.

Treating all elements of an SoP for a compulsory trade as equally subject to enforcement is to ignore a basic reality of the construction workplace and also to set aside at least five decades of OLRB jurisprudence. There should be no presumptions that some elements of an SoP ought to be compulsory or ought to be compulsory in all circumstances. The tests for enforcing a compulsory task in the construction industry should be: 1) demonstrable harm in terms of public safety or workplace safety, 2) the existing mechanisms to protect public safety or workplace safety (e.g., the Building Code, TSSA or OHSA) are insufficient in the absence of enforcing the SoP, and 3) the circumstances have not been addressed by the OLRB. These tests are applicable to every element of a compulsory trade’s SoP.


12. Could the College benefit from a distinct list of compulsory activities that may pose a risk of harm to the public, tradespeople or other workers on the job? Please explain.

All work in the construction industry in intrinsically hazardous. The degree of hazard depends on a variety circumstances including the environment in which the task is undertaken, the materials that are used and the machinery and equipment that are used. It is not feasible to develop a distinct list of tasks or activities that are hazardous to the public, the tradespersons performing the task or other workers. The presumption of such a list would be that other tasks are not hazardous. This, however, would not be true. It is our submission that the determination of hazardous tasks and/or hazardous situations should be left to the authorities specifically charged with regulating public and worker safety.


13. What is your understanding of what an overlap between SoPs is?

An overlap arises when essentially similar tasks are listed in more than one SoP. Overlap in competencies across two or more occupations is a widespread and normal feature of the workplace. It is impossible to precisely demarcate where the competency of one trade ends and the competency of another trade begins. Overlap is both inevitable and desirable. There should be no bar on the SoP of one trade containing tasks that are also included in the SoP of another trade when that reflects the reality of how work is undertaken. Indeed, the presumption should be that a degree of overlap is the norm, not the exception. The primary purpose of an SoP is not to demarcate work and limit who can perform tasks. Rather, an SoP should describe the generic tasks that members of that trade are expected to be competent to perform.


14. Do overlaps between SoPs in regulation have an impact on your daily work or on the way you conduct business? Please explain.

The demarcation of work responsibilities in the unionized construction industry is performed by: o collective agreements, o the OLRB, o private arbitration procedures such as the “Chestnut Park Accord”, and o voluntary agreements between trades. SoPs are relevant only in so far as they influence recognition clauses in collective agreements or decisions of the OLRB or private arbitrators. As a practical matter, the majority of the current SoPs for the construction trades are so dated and so poorly drafted that they have little influence on either collective agreement provisions or the decisions of the OLRB or private arbitrators. Nevetheless, there have been instances in which OCOT enforcement of an SoP for a compulsory trade has upset work assignments that were previously the historical norm. In Windsor, OCOT directed that the laying of roadside conduit be performed by a licensed electrician rather than a labourer, as had been the historic practice and as was sanctioned by a Ministry of Labour inspector.


15. Does the application of the third legal interpretation principle on overlapping SoPs pose a risk of harm to the public, tradespeople, or other workers on the job? Please explain. If so, what can and should be done about it?

If a task is included in the SoP of a voluntary trade, then the performance of that task does not pose a risk to public safety or to safety in the workplace, presuming that the employer also has fulfilled its obligations under OHSA to ensure that the worker has been properly trained to perform the work in a safe manner.





Section C - Classification or Reclassification of Trades as Compulsory or Voluntary

16. What makes a compulsory trade compulsory and what makes a voluntary trade voluntary?

A construction trade should be compulsory if the performance of a majority of the tasks in the SoP should be restricted to persons who hold a C of Q in that trade or who are apprentices that are actively supervised by qualified journeypersons. The test for determining whether a specific task listed in an SoP should be restricted should have five elements: 1) whether there is demonstrable harm to public safety or workplace safety, that does not also exist in relation to a voluntary trade, when the task is performed by someone who is not qualified in the trade, 2) whether there is a compelling reason to conclude that the existing mechanisms to protecting public safety or workplace safety (e.g., the Building Code, TSSA or OHSA) are insufficient in the absence of restricting performance of that task for a person qualified in the trade, 3) whether there are unreasonable, negative economic consequences for other workers, employers or the Ontario economy as a result of restricting the task, and 4) whether restricting the task would be inconsistent with OLRB jurisprudence or collective agreements. 5) whether restricting the task and making the trade compulsory would be inconsistent with Ontario’s obligations under the Red Seal Program, the Agreement on Internal Trade, or the Labour Mobility Act.


17. Is the current classification of trades as either compulsory or voluntary aligned with the College’s duty to serve and protect the public interest?

We have no dispute with the current classification of the 22 trades that are classified as compulsory. Nor are we closed to arguments that there may be other trades which should be compulsory. We are also open to arguments that in some trades it may be appropriate to restrict certain tasks in some sectors. However, our view of the meaning of ‘compulsory’ is that not that all elements of an SoP are necessarily restricted and, even if restricted, may not be equally enforceable in all contexts or all sectors. Our support for the current compulsory classification of the 22 trades is dependent on accepting that principle.


18. Is it reasonable to assume that there may be elements in the SoP for a trade that are inherently hazardous or that may pose a risk of harm to the public, tradespeople, or other workers on the job?

Assuming that some elements in the SoP of a trade may be inherently hazardous in all circumstances opens the door to potentially serious economic injustice. Adopting this principle could deny some individuals the right to earn a living by performing tasks for which their competence, even though uncertified, has been recognized by employers. In light of the potential for economic injustice, it would be a serious error to make an assumption that some elements in an SoP are inherently hazardous or that they always pose a risk of harm to the public, tradespeople or other workers. There must always be a burden of evidence and a consideration of the context. It is also important to keep in mind that other legislation has established sophisticated systems of standards and inspection for protecting both public safety and worker safety. These are the primary means by which public and worker safety are achieved.


19. Could compulsory certification be limited to either the core elements of a trade or those tasks, activities, or functions that may pose a risk of harm to the public, tradespeople or other workers on the job? What kind of impact would these approaches have on your daily work or on the way you conduct business?

Review Panels tasked with assessing the evidence and submissions in an application for compulsory status will determine whether a recommendation should or should not follow from its decision. The essence of the panel’s decision, however, should be both specific and limited. In this regard, it is submitted that the only matters which should accompany a recommendation are those which the applicant has demonstrated, in accordance with the rigorous standards recommended herein, are tasks which are core proficiencies. Matters and tasks which are “peripheral” ought not to form part of the recommendation to the College and Minster for compulsory status. Further, where the evidence before the review Panel has indicated that another trade may also include such tasks as part of its core proficiencies, a notation to that affect ought to accompany any such recommendation. The clear intention of the Statute and the applicable Regulations is to ensure that the work of trades is accomplished in a manner which is competent; which is safe and in the public interest. Neither the Statute nor the Regulation ought to be used to establish exclusivity except in cases where there can be no doubt and no evidence that another trade may also do the work in a competent and safe manner and in the public interest. Where such cannot be demonstrated, to a high and rigorous standard, it is submitted that the Review Panel tender its recommendation accompanied with the caveat or clarification as to the limitation of its recommendation. In this regard the following is submitted: “where the Review Panel, having heard and considered all of the evidence presented by the applicant and having considered the evidence and submissions of all interested parties, has determined that a recommendation for compulsory status shall be made to the College and Minister, then such recommendation shall include the following: 1. The specific tasks which form part of the core proficiencies of the trade; 2. Any and all necessary detail with respect to the performance of such tasks (including specific exemptions relating to geographic areas, sectors of the construction industry and/or type of construction projects), such that those tasks are described in a manner which is no wider than necessary to meet the criteria set out in Regulation 458/11; 3. The Review Panel shall not make any recommendation which results in any tasks being performed exclusively by a single trade except and unless the Review Panel is satisfied on a preponderance of the evidence that no other trade can perform the task in a manner which satisfies the criteria set out in the regulation; 4. Where the evidence and submissions before the Review Panel demonstrates that another trade may perform the tasks in accordance with the criteria in the regulation, such shall be noted within the recommendation in such a fashion so as to not preclude other trades from including such tasks in any application for compulsory status which they may make.” In principle, we agree that tasks should be restricted only when their performance by someone not qualified in the trade poses demonstrable harm to public or worker safety. However, we also added three additional considerations to this test: (1) that existing mechanisms to protect public and worker safety are insufficient in the absence of restricting performance of the task, (2) that there are no unreasonable, economic consequences for other workers, employers or the Ontario economy, and (3) that restricting the task would not conflict with OLRB jurisprudence or collective agreements.


20. Should the College continue to rely on an adjudicative review panel approach (i.e., the Ontario Labour Relations Board model) or should a different model be considered? Please explain.

Clearly there are deficiencies in the current review process as demonstrated by the decision of the Independent Review Panel in respect of Sprinkler and Fire Protection Installers. In that case the Review Panel determined that compulsory status was warranted even though by its own admission, the evidence before it was inadequate. Notwithstanding this deficiency, the Review Panel granted compulsory status. The evidentiary threshold, and therefore the onus on the applicant, was so low as to be virtually nonexistent. The current review process, although charged with considering, among other things, the public interest, contains no mechanism for assessing that standard other than through the evidence it receives. But if the standard of that evidence remains low, the public interest cannot in any way be said to have been considered or served. Nor can any of the other criteria set out in the regulation. The review process should reach out to all potentially affected stakeholders including: (1) representatives of the trade board, (2) other members of the trade, (3) employers, (4) general contractors, (5) members of other trades, (6) unions, (7) industry associations, and (8) representatives of owners and buyers of construction. It is submitted that the following points must be addressed in order that the Review Panel is engaged in a manner which is efficient, inclusive, rigorous, effective, thorough, and fully considers the public interest. 1. Notice and Participation: Review Panels pursuant to the regulation are provided with seven (7) very specific criteria. The adequacy of those criteria is addressed elsewhere. However, each of the existing criteria is subject to multiple interpretations and decisions. Each of the criteria are also vulnerable to subjective and self-interested submissions. The criteria are also to be assessed on the basis of written and oral submissions. That is as far as a direction goes in Section 7 of the Regulation. The current review process presumes that informed, interested and well-resourced parties will present all of the relevant evidence to the review panel. However, under the current process it cannot be safely assumed that such parties will actually participate since there are no active outreach or notice requirements. As was evident in the ratio hearings and also in the Sprinkler and Fire Protection Installer case, the parties actually participating in a review hearing cannot be relied upon to present all of the relevant evidence to the review panel. It is submitted that the first step to addressing this vulnerability is to ensure broad and thorough participation (a concept that is commonly applied in OLRB proceedings such as Sector Determination Applications). Accordingly, it is submitted that the following requirement be included in any application for review: “An applicant who seeks compulsory status for a trade shall provide, with the application, the identity and contact information of any other trade; trade association; employer group or association and any other persons or associations who may be affected by the application in whole or in part.” The above is intended to be in addition to any requirement for posting on the College website. It is also submitted that in order to ensure that the opportunity to participate is made available and that the “public interest” (however that is defined), is represented, notice should be mandatory to every Employer and Employee Bargaining Agency as well as every Accredited organization that might reasonably be considered to have an interest in the outcome of the application. Assuming that the object of the Review Panel is, in fact, to objectively assess the evidence, and to do so with the view to the seven (7) stated criteria and, further, to assess that evidence and make its determination “in the public interest”, then the full participation of the industry and trades is required. With regard to participation in the proceedings, it is submitted that full participation - at least as an intervenor if not as a party – ought to be permitted to any party, (whether an association; a trade or other group), should they meet the following criteria: “The right to participate; to present evidence and witnesses; to examine and cross examine witnesses shall be granted to any party, upon an application, which can demonstrate on a reasonable basis, that they may be affected by the decision to grant or deny compulsory status to the applicant.” This intervention standard is sufficiently broad to ensure that those who wish to participate and who can assert and demonstrate that they may reasonably be affected by the outcome of the application will have their voices heard and interests addressed. 2. Evidence and Onus: The Sprinkler Fitter and Fire Protection Installers decision identified a significant problem regarding both evidence and onus. Indeed, the Sprinkler and Fire Protection Installer decision repeatedly commenting that, “the adequacy or sufficiency of evidence is a problem and a theme that recurs throughout this trade classification review” (para 25 at p 11). If the evidentiary threshold is inadequate, it is submitted that the panel cannot make determinations in accordance with existing criteria let alone additional criteria. For this reason, the OCTAA and/or its Regulations should expressly articulate that whenever the College is faced with an application for review of trade classification status, the party or parties asserting that the trade should have “compulsory” status bear a significant onus of “showing cause,” by reference to relevant clear and cogent evidence, that there is a need for that trade to have “compulsory” status. This clear and cogent evidence should be established via oral evidence as the Independent Review Panel determines necessary – or, if the evidence is sought to be established via Declarations or “Will Say” statements, such materials must meet high standards for detail and relevancy in order to be relied upon at all by the Independent Review Panel (a concept that is commonly applied in OLRB consultation decisions involving Jurisdictional Disputes or Sector Determination Applications). Moreover, it is also submitted that the public interest cannot possibly be addressed adequately or at all if the evidentiary threshold is inadequate. For that reason, it is submitted that the following must be included for the direction of the Independent Review Panel: “The applicant shall bear the onus of demonstrating, on the basis on the preponderance of the evidence that its application for compulsory status ought to be approved and recommended to the College and the Minister. The Independent Review Panel shall not make such a recommendation unless it is satisfied that: 1. The application is no broader than is reasonably necessary; 2. That the application and submissions before the Independent Review Panel, whether in writing, orally or by way of documentary evidence, has demonstrated that all of the criteria set out in the regulation have been addressed and that the preponderance of the evidence with respect to each criteria demonstrates that compulsory status ought to be recommended.” With regard to this submission, it is intended that applicants be required to frame their application in narrow and specific terms, so as to minimize the likelihood of incursion into the scope of practice of other trades. Moreover, this submission is also founded on the principle that the public interest requires that the case for compulsory status be made on the basis of clear and cogent evidence that such status is required, and not merely desired. Where the evidence does not meet the above standard, the application ought to be dismissed. Where the applicant has not met its onus it ought not to be permitted a replay. It is submitted that such would be inefficient and a waste of the limited resources available. Accordingly, it is submitted that: “Where the evidence presented by an applicant for compulsory status has not demonstrated, on the basis of the preponderance of the evidence, that the application ought to be granted, then the applicant shall be prohibited from the same or substantially the same application for a period of five (5) years.” It is submitted that a statutory or regulatory bar to further application for a 5 year period is sufficiently onerous to minimize or preclude frivolous applications, yet it is brief enough to take into account any substantial changes which might make a new application necessary in the public interest. 3. College to Research and Maintain Relevant Information: As emphasized above, the party or parties participating in a Trade Classification Review who are asserting that the trade should have “compulsory” status should bear a significant onus of “showing cause,” by reference to relevant clear and cogent evidence, that there is a need for that trade to have “compulsory” status. That being said, it is noted that one of the advantages to an “inquiry model” of decision-making (as opposed to the “full hearing” or “consultation” model currently utilized by the College) is that it allows a panel to make a recommendation based on all information obtained, whether through submissions, consultations or commissioned research. In this regard, “conducting research in relation to trades” is one of the current objects of the College, as defined in s. 11 of the OCTAA. It is submitted that the College should be required to conduct and/or commission, and maintain as up-to-date, research in relation to all Review Panel criteria, and that no Review Panel should be established until all such research had been conducted and obtained in relation to the Scope of Practice in question. This type of process (which is similar to the process used under the Regulated Health Professions Act) offers more rigour, greater thoroughness and substantially more inclusiveness. 4. Nature of a Review Panel Decision: First, decisions of a review panel should be recommendations only. Second, decisions of a review panel should assess a scope of practice on a task-by-task basis and should recommend restriction of that task to a qualified tradesperson only when that task meets the relevant tests (demonstrable harm to public or worker safety, no unreasonable economic harm, no inconsistency with collective agreements or OLRB decisions, and no inconsistency with Ontario’s obligations under labour mobility agreements) Third, decisions of the review panel should include recommended exemptions in terms of industries, sectors and types of construction projects Fourth, the Board of Governors of the College should have the authority not to proceed with a recommendation to the Minister, The current process binds the hands of the Board of Governors of the College. The review process should make a recommendation to the Board of Governors which the Board should be able to decline or modify. Fifth, the ultimate authority of the Minister and the Cabinet to review, reject or modify a recommended regulation should be explicit. The current process appears to presume that the Minister and Cabinet will implement the regulation prepared by the Board of Governors on the basis of the review panel’s decision.


21. How should expert opinion be obtained?

The Ontario Labour Relations Board has, of course, considerable expertise in dealing with trade jurisdiction as it is asserted in all sectors of the construction industry in all areas of the Province. The OLRB is also cognizant of the realities of the construction industry and the need for administrative law to respect those realities. Moreover, the OLRB has developed substantial expertise in assessing jurisdictional and sector disputes, as between trades and as between various Employers and Employer Associations. In determining these issues the Board has historically and, as demonstrated by its substantial jurisprudence, effectively taken into account many, if not all, of the criteria set out in Regulation 458/11. These include matters of Occupational Health and Safety and efficiency, which clearly fall within the realm of public interest. The OLRB has made these decisions not in a vacuum, but rather have done so with the advice and expertise of not only the parties to the dispute before it, but with substantial input from the industry veterans on its Adjudication Panels. These “side people” are drawn from both management and from the trades, and bring an informed workplace perspective to bear on the decision and the manner in which it will affect how construction work is actually undertaken. It is submitted that this expertise is both fundamental and necessary in assessing the evidence brought before a Review Panel in an application for compulsory status. It is submitted that the effective assessment of the evidence upon an application is, at the least, enhanced by the presence on the panel of those who are permitted to bring their relevant industry experience to bear, whether they be from management or from a trade union. For that reason the following is submitted: Each Independent Review Panel assigned to consider an application for compulsory status shall, in addition to a Vice Chair of the Ontario Labour Relations Board, consist of one person with construction industry experience in a management role and one person with construction experience in a trade role. These persons shall be appointed to the Review Panel on the basis of their experience and shall be permitted to bring their experience to bear on both the assessment of evidence upon the application and upon the decision with respect to a recommendation for or against compulsory status.” It is submitted that the efficient use of resources in any adjudication should include input from, and reliance on, those who can demonstrate experience “in the field.” Any party making a submission should be allowed to submit expert opinion in whatever manner it deems appropriate. OCOT or a review panel should commission an independent economic impact assessment prior to the commencement of proceedings. The usual practice is to invite third parties that wish to perform this work to pre-qualify based on their experience and qualifications. Assignments can then be competitively tendered to these pre-qualified suppliers. The panel that pre-qualifies suppliers should be composed of knowledgeable persons from the College, MTCU, the Ministry of Labour and the Ministry of Finance. Parties submitting to the review process should be allowed to comment on that assessment. Applicants for compulsory status could be charged an application fee that would be approximately commensurate with the cost of commissioning an economic impact assessment.


22. Are the current criteria for trade classification reviews set out in O. Reg. 458/11 consistent with the public interest? Please explain.

The current criteria for trade classification reflect some aspects of the public interest, but are not well focused. Nor do the current criteria communicate the central importance of the public harm and economic harm tests. We will comment on each of the seven criteria set out in Reg. 458/11: i. The scope of practice of the trade. The scope of practice is not a criterion. It is the subject of the review process. ii. How the classification or reclassification of the trade may affect the health and safety of apprentices and journeypersons working in the trade and the public who may be affected by the work. This criterion is fundamental to the public interest. However, as stated, the criterion does not explicitly take into account the important role of other statutes, codes and statutory bodies in achieving these goals. Nor does the criterion make clear that the test is demonstrable harm if the subject tasks are performed by persons who are not qualified in the trade. iii. The effect, if any, of the classification or reclassification of the trade on the environment. This criteria is germane to the public interest. Again, however, as stated the criterion does not explicitly take into account the important role of system established by the Environmental Protection Act in achieving this goal. iv. The economic impact of the classification or reclassification of the trade on apprentices, journeypersons, employers and employer associations and, where applicable, on trade unions, employee associations, apprentice training providers and the public. The economic impact of reclassification is clearly germane to the public interest. The phrasing should be more general. The current wording appears to omit the impact on other workers who may be performing the subject work, but could be prohibited from doing so following reclassification of the trade. v. The classification of similar trades in other jurisdictions. This is an appropriate criterion, but the reference should be to Canadian jurisdictions. This is an important qualifier since all Canadian jurisdictions have broadly similar industrial relations systems and codes, standards and regulations for public and workplace safety and for environmental protection. This is not necessarily the case in non-Canadian jurisdictions. vi. The supply of, and demand for, journeypersons in the trade and in the labour market generally. This criterion is central to the public interest. vii. The attraction and retention of apprentices and journeypersons in the trade. Criterion vii is not relevant to the public interest. We believe that there should be a task-by-task assessment and that compulsory status should only be conferred on a trade when a majority of the tasks are appropriate for restriction. Further, restriction should only apply to those task. Within that framework, we propose that the criteria for assessing individual tasks should be simplified and more clearly stated. We propose: 1) whether there is demonstrable harm to public safety or workplace safety when the task is performed by someone who is not qualified in the trade, 2) whether there is a compelling reason to conclude that the existing mechanisms for protecting public safety or workplace safety (e.g., the Building Code, TSSA or OHSA) are insufficient in the absence of restricting performance of that task for a person qualified in the trade, 3) whether there are unreasonable, negative economic consequences for other workers, employers or the Ontario economy as a result of restricting the task, 4) whether restricting the task would be inconsistent with OLRB decisions or collective agreements, and 5) whether restricting the task and making the trade compulsory would be inconsistent with Ontario’s obligations under the Red Seal Program, the Agreement on Internal Trade, or the Labour Mobility Act.


23. Are the criteria specific, clear and measurable enough to inform you of what data and evidence are needed to meet those criteria?

The current criteria need redrafting to make clear what the nature of the test is and therefore what type of evidence speaks to that test. In particular, the current criteria must be amended to clearly and expressly stipulate that a case for compulsory status must be established, on the basis of clear and cogent evidence that is relevant to the statutory criteria, that such status is required, and not merely desired. We will comment further on each of the seven criteria as they are currently drafted: i. The scope of practice of the trade. Criterion (i) should be deleted. The scope of practice is the subject of the review process, not a criterion for review. Alternatively, criterion (i) could be redrafted to read: “how the scope of practice of the trade overlaps with other trades.” ii. How the classification or reclassification of the trade may affect the health and safety of apprentices and journeypersons working in the trade and the public who may be affected by the work. As drafted, criterion (ii) is too vague to guide parties as to what type of evidence is relevant. The test needs to be clearer and should parallel the test used in similar contexts such as the demonstrable harm test used in reviews under the Regulated Health Professions Act. iii. The effect, if any, of the classification or reclassification of the trade on the environment. Criterion (iii) is too vague to guide parties as to what type of evidence is relevant, and encroaches upon areas that are already regulated by other legislation. The question should be why and in what contexts the standards and procedures under the Environmental Protection Act are insufficient to protect the environment without restricting tasks to persons who are qualified in the trade. iv. The economic impact of the classification or reclassification of the trade on apprentices, journeypersons, employers and employer associations and, where applicable, on trade unions, employee associations, apprentice training providers and the public. Criterion (iv) leaves out the potential impact on other workers, especially those who would be barred from performing certain tasks if those tasks were restricted. Aside from this omission, the types of evidence that are relevant are clear and available. v. The classification of similar trades in other jurisdictions. The evidence required by criterion (v) is clear and readily available. However, criterion (v) should be redrafted to read: “the classification of similar trades in other Canadian jurisdictions.” This is an important qualifier since all Canadian jurisdictions have broadly similar industrial relations systems and codes, standards and regulations for public and workplace safety and for environmental protection. This is not necessarily the case in non-Canadian jurisdictions. vi. The supply of, and demand for, journeypersons in the trade and in the labour market generally. The types of evidence that are relevant to criterion (vi) are clear and available, although they may require the use of economic modelling and forecasting systems which may not be accessible to all proponents, especially as some of these are proprietary. vii. The attraction and retention of apprentices and journeypersons in the trade. Criterion (vii) should be omitted. When a trade has difficulty attracting or retaining apprentices and journeypersons, it is because there is some fundamental asymmetry between the occupational and training standards and the actual needs of the economy. The solution to the attraction and retention problem is to address the asymmetry, not to make the trade compulsory.


24. Are the existing criteria the right criteria?

Two additional criteria need to be added: 1) Whether reclassifying a trade will conflict with the assignment of work in collective agreements or in decisions of the Ontario Labour Relations Board. This criterion is essential if decisions of OCOT panels are to avoid overturning established practices in the unionized construction industry and thereby detracting from constructive and stable labour relations. 2) Whether reclassifying a trade will conflict with Ontario’s obligations under the Labour Mobility Act, the Agreement on Internal Trade or the Red Seal Program. This criterion is important because inter-provincial mobility of skilled labour has been accepted as a public interest by the government of Ontario through its participation in the Agreement on Internal Trade and the Red Seal Program as well as its adoption of the Labour Mobility Act. A full statement of the criteria would therefore read as follows: 1) whether there is demonstrable harm to public safety or workplace safety when the task is performed by someone who is not qualified in the trade, 2) whether there is a compelling reason to conclude that the existing mechanisms for protecting public safety or workplace safety (e.g., the Building Code, TSSA or OHSA) are insufficient in the absence of restricting performance of that task for a person qualified in the trade, 3) whether there are unreasonable, negative economic consequences for other workers, employers or the Ontario economy as a result of restricting the task, 4) whether restricting the task would be inconsistent with with OLRB decisions or collective agreements, 5) whether restricting the task and making the trade compulsory would be inconsistent with Ontario’s obligations under the Red Seal Program, the Agreement on Internal Trade, or the Labour Mobility Act.





Section D - Decisions of the Ontario Labour Relations Board (OLRB)

25. Do the scopes of practice (SoPs) in regulation reflect the way in which work is actually assigned in your trade or sector?

No. Many of the SoPs do not reflect current practice in the construction industry or the results of OLRB decisions. The current scopes of practice (SoPs) applicable to the construction industry do not reflect the way that work is assigned in any sector of the construction industry, in the sense that very little of the work described in any construction scope of practice, regardless of whether it is currently compulsory, is performed exclusively by or assigned exclusively to workers who would be associated with the trade or SoP in question. For example, elements of the Electrician - construction and maintenance SoP (“Installing brackets, hangers or equipment for supporting electrical equipment”) are regularly assigned to members of other trades or construction employees whose regular duties fall primarily within another SoP (“compulsory” and “non-compulsory” or voluntary). In a recent Decision of the Ontario Labour Relations Board (“OLRB”), the Board determined that the fabrication and on-site installation of supports for “multi-use” racks, which support, among other things electrical applications, was properly assigned to Construction Boilermakers and to Structural Ornamental Ironworkers, rather than to Construction Electricians (who are members of the International Brotherhood of Electrical Workers – “IBEW”). It is submitted that there are countless examples where work that is described in one of the SoPs is regularly assigned to construction employees whose regular duties fall primarily within another SoP (“compulsory” and “non-compulsory” or voluntary).


26. Do you agree with the notion that most jurisdictional disputes arise from peripheral elements of the trades? Please explain.

No. In the first place, a trade that is claiming work will rarely regard that work as peripheral. Second, union jurisdiction is sometimes not based on traditional trade lines. For example, in most contexts, underground work falls within the jurisdiction of the Labourers International Union, regardless of the trade or the core or peripheral nature of the task. We do not agree with the notion that most jurisdictional disputes arise from peripheral elements of the trades. It is fair and accurate to say that some jurisdictional disputes involve what might be referred to as “peripheral elements” of the claimed jurisdiction of a trade union. However, it is submitted that, in the majority, if not the vast majority of jurisdictional disputes, at least one, if not both or all of the competing trade unions assert that the work in dispute falls within its “core jurisdiction”. See, for example, the following cases: WC Contractors, 2013 CanLII 53176 Work in dispute: (1) The loading, unloading, handling and distribution of foundation posts; (2) The supply and placement of concrete to set foundation posts, for a solar farm project. The Operating Engineers Union claimed this work fell within the core of the jurisdiction of Hoisting Engineer because it involved the operation of machinery. The Labourers’ union submitted that the work consisted of material handling and the pouring of concrete, which is included in the core jurisdiction or construction Craft Worker (Labourer). Result: The Board upheld the assignment of the work in dispute to the Operating Engineers Union. Ellis Don Corp. v. UA, Local 46, 2013 CanLII 6359 Work in dispute: All work in connection with the unloading, site distribution and installation of chemical resistant S2 laboratory sinks into phenolic countertops. On behalf of the United Association (Plumber) it was submitted that sinks are integral to certain piping systems, and, accordingly are at the core of the trade jurisdiction of the United Association. Conversely, on behalf of the Carpenters’ Union, it was submitted that sinks installed into countertops as part of a laboratory millwork and casework package constitute “millwork”, which it was submitted is at the core of the jurisdiction of General Carpenter. Result: The Board upheld the assignment to the Carpenters Union. Bruce Power LP, 2009 CanLII 17246 Work in Dispute: The work of operating forklifts in the waste-handling portion of the Bruce 1 and 2 restart projects The Labourers claimed this work was waste disposal and the movement of material on a construction site, which is one of the types of work that is core to the Labourers’ jurisdiction. However, this work could also be characterized as the operation of machinery on a construction site, which falls within the core jurisdiction of the Operating Engineers. Result: The Board affirmed the assignment of work to the Operating Engineers. PCL Constructors Canada Inc., 2014 CanLII 55206 Work in Dispute: The use of a Bobcat E45 Excavator and a Bobcat E80 Excavator to excavate a trench for the purpose of placing a high-voltage duct bank and to backfill the trench. The operation of machinery is at the core of the Operating Engineers’ jurisdiction. However, “certain types of equipment that define the jurisdiction of an operating engineer may be used by other trades to perform the core work to which their craft relates” (para. 106). In this case, the machine was being used to perform work necessary to the installation of electrical ducts that were part of a distributing system outside of a building, which falls within the IBEW’s jurisdiction. Result: The work should have been assigned to the Iron Workers. Industrial Trade Solutions, 2014 CanLII 26330 Work in Dispute: The installation of horizontal framed metal panels located underneath overhead conveyors, above the plant floor, together with the supports and perimeter rails required for those panels. The Iron Workers claimed that this work fell within their core jurisdiction, because it involved the moving, rigging and installation of steel metal panels, metal hangers and metal rail, including bolting and welding. The Millwrights argued that the work was actually part of their core jurisdiction, because the work was inextricably linked to and necessary for the conveyor to which it related. Result: All of the work in dispute should have been assigned to a composite crew consisting of an equal number of members of the Iron Workers and Millwrights, except for the installation of the perimeter rail systems, which should have been assigned solely to Iron Workers. Black & McDonald Limited, 2013 CarswellOnt 16396 Work in Dispute: The installation of racks and panels and all work incidental thereto, including material handling and cleanup at the respective solar farm projects of the Employer. The Labourers argued this work fell within their jurisdiction, because it involved material handling, stockpiling and assembly of non-electrical components. The IBEW claimed that this work should be characterized as the assembly and installation of electrical apparatus, and the installation of brackets or equipment for supporting electrical equipment, which was part of its core jurisdiction. Result: The Work in Dispute should have been assigned to the IBEW. Hydro One Inc., 2014 CanLII 61234 Work in Dispute: The installation of pre-cast cable trench, covers and ducts including the excavation, levelling and backfilling of the trench. The IBEW claimed that the Work in Dispute was electrical work that lay at the core of its jurisdiction. The Labourers’ Union stated that the work involved the installation of concrete, which was actually at the core of its jurisdiction. Result: The work should have been assigned to the Labourers. It is submitted that there are many other OLRB Decisions to this effect. It is further submitted that these Decisions are authority for the proposition that the Board will only disturb or vary a work assignment by an employer in the construction industry if there are compelling reasons to do so. Accordingly, it is submitted that the public interest is not served by the College or Inspectors appointed by the Registrar encroaching and/or interfering in the exclusive jurisdiction of the OLRB in this regard and that it is clearly in the public interest that the college defer to the decisions and jurisdiction of the Board, set forth below.


27. What consideration should the College give, if any, to the decisions made by the OLRB in jurisdictional or work assignment disputes under the Labour Relations Act? If the College were to adopt the OLRB's decisions, what impact would that have on your trade and the way you conduct business? Please explain.

In deciding jurisdictional disputes the OLRB relies on the following criteria: (a) collective agreements; (b) agreements between the competing unions; (c) employer practice; (d) area practice; (e) safety, skills and training; and (f) economy and efficiency. Both in reclassifying trades and in enforcing SoPs, OCOT should defer to OLRB decisions, to private arbitration decisions (e.g., decisions under the Chestnut Park Accord), and to the terms of collective agreements. This would ensure that work assignments that have been sanctioned by past practice are not overturned by OCOT orders that take no account of how work is actually performed and who has actually got the training and experience to do that work. The procedures for assigning work to trades and adjudicating disputes are well established in the unionized construction industry and have served Ontario well. It is foolhardy to undermine these procedures by introducing a new process under OCOT which would override negotiated collective agreements and decisions made by impartial and expert adjudicators. OCOT should not allow itself to be dragged into serving the jurisdictional interests of particular unions. That would fundamentally undermine confidence in OCOT and ultimately lead to its demise. It is submitted that, from the perspective of (a) enforcement and administration, and (b) the classification and reclassification of SoPs as “compulsory”, the College should defer completely to the OLRB, where the issue is the subject of a decision of the OLRB, or where the circumstances are the subject of a jurisdictional dispute or other proceeding before the OLRB, wherein trade jurisdiction or the appropriate assignment of work in the construction industry may be determined. From the perspective of enforcement and administration of the Act, it is submitted that the Act and/or the Regulations should be amended to provide that and an Inspector appointed by the Registrar shall not seek to vary or affect the performance of work or a work assignment practice in relation to a Scope of Practice described or referred to in Regulation 275/11, by issuing or serving an Offence Notice or Summons pursuant to the Provincial Offences Act (“POA”) if: • If the work or work assignment practice in question is the subject of a decision of the OLRB; or • the work or work assignment practice is or will be the subject of a jurisdictional dispute or other proceeding before the OLRB, wherein trade jurisdiction or the appropriate assignment of work in the construction industry has or may be determined The Decision of the OLRB involving PCL Constructors Canada, [2010] 0275-09-HS, illustrates why the OLRB is the proper forum for the adjudication and determination of scope of practice issues (regardless of whether the SoPs are “compulsory” or “non-compulsory”) which involve matters which are (and should be) the exclusive jurisdiction of the OLRB pursuant to Section 99 of the Labour Relations Act, 1995. 99. (1)This section applies when the Board receives a complaint, (a) that a trade union or council of trade unions, or an agent of either was or is requiring an employer or employers’ organization to assign particular work to persons in a particular trade union OR IN A PARTICULAR TRADE, CRAFT OR CLASS rather than to persons in another; (b) that an employer was or is assigning work to persons in a particular trade union rather than to persons in another; or (c) that a trade union has failed to comply with its duties under section 74 or 75. 1995, c. 1, Sched. A, s. 99 (1). (emphasis added) As noted earlier herein, the current approach of the College and its Inspectors in relation to enforcement is seriously flawed. Among other things, it invites unions representing compulsory trades to use the College’s regulatory power to achieve jurisdictional gains at the expense of other trades that are unachievable under the Jurisdictional Dispute adjudication process of the OLRB. The enforcement approach by the College of Trades is radically different from the adjudication process of the OLRB. In particular: • The OLRB weighs factors such as safety, area practice and economic efficiency among others, as well as Reg. 275/11 when resolving jurisdiction disputes. The College and the provincial courts consider only the black-and-white literal reading of Reg. 275/11, in the same manner as if they were dealing with a parking infraction; • The OLRB is an expert tribunal in labour relations and is also knowledgeable of the construction industry and construction industry work assignment issues and practices. Inspectors appointed by the Registrar of the College and, more significantly, Provincial Court Justices, whose jurisdiction is derived from the Provincial Offences Act, lack the same or any material knowledge of the construction industry. The provincial courts certainly cannot be described as either experts in labour relations or knowledgeable of the construction industry; and • Every affected party (e.g., other unions, employers, industry associations, etc.) has standing at the OLRB and must be notified of the proceedings. This is not the case with either the College or the provincial courts. The OLRB is a more appropriate tribunal than the Provincial Courts for deciding Scope of Practice enforcement issues. Accordingly, the Act and/or the Regulations should be amended in the manner set forth above, so that Inspectors appointed by the Registrar of the College are required to defer to the OLRB.





Section E - General Response and Comments

28. Please provide additional comments below, if any.

It is our submission that the problems that have led to this review stem from OCOT being used to advance the interests of particular trades at the expense of other workers and the Ontario economy. The public interest needs to be front and centre in OCOT’s operations. The Ontario College of Trades Act is essentially a training statute. The College was not created to balkanize the labour market into protected islands of work or to use enforcement powers to advance the jurisdictional interests of unions that are dissatisfied with the results of OLRB decisions. OCOT’s governance, its policies and its mode of operation need to align more closely with its original mandate and with a clearer understanding of the public interest. While governance is not within the mandate of the current review, the problems that prompted this review ultimately stem from governance shortcomings. These shortcomings need to be addressed. Governance is the “elephant in the room”.