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Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-48

Name of organisation making submission: DR-48 Toronto and Area Road Builders' Association

Responses to questions in submission form


Section A - The Public Interest in this Review

1. What do you understand by public interest?

In the context of the Ontario College of Trades, we do not understand the “public interest” to be the interests of the public at large. Rather, this term refers to those specific members of the “public” whose interests the College – as opposed to some other agency, regulatory body or legislative regime – should be serving. In this regard, HCAT and TARBA recognize that there is a general “public interest” in maintaining workplace safety and in ensuring that buildings and structures are constructed in accordance with applicable building code requirements – however, these are not public interests about which the College should be concerned with regulating. See also question 2 below.


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

The Purpose of the College must be Consistent with the Purposes of the OCTAA - Who the College should (or should not be) serving is a question that must be answered by reference to the purpose of the College. The purpose of the College must necessarily be consistent with the purposes of its enabling legislation, the OCTAA. - The OCTAA is Training Legislation - The purpose of the College must be consistent with the purposes of the OCTAA. In this regard, the OCTAA is, first and foremost, training legislation (just like its predecessor pieces of legislation, the TQAA and the ACA). We note that the Armstrong Report, the very document which recommended the establishment of the College in the first place, repeatedly refers to both the TQAA and the ACA as “training statutes” and cites with approval OLRB case law which refers to the TQAA and the ACA as “training statutes.” We also emphasize that the Armstrong Report did not recommend the development of the OCTAA for the purpose of creating new legislation that was more than a “training statute.” Rather, the Armstrong Report recommended the development of a new statute because it was unnecessarily confusing to have two different statutes governing apprenticeship and certification in the trades – one for construction (the TQAA) and one for non-construction (the ACA). As stated in the Armstrong Report [pp. 109-110]: “I have heard nothing that would alter my view that the existence of two concurrently operating statutes governing apprenticeship – especially with two separate processes by which trades are made compulsory or restricted – results in an inherently and unnecessarily complex and confusing situation. Accordingly, 6. I RECOMMEND that, following full and open consultations, one all-inclusive statute be developed and enacted to replace the ACA and the TQAA.” As training legislation, the purpose of the OCTAA is to develop and maintain training standards to ensure a level of competency of individuals working in the trades. More specifically, as training legislation, the purposes of the OCTAA are to: • Increase the amount of training available to those seeking to enter the trades • Enhance the quality of training • Increase both registration and completion rates for apprentices • Promote the development of training standards which accurately reflect the knowledge and experience required to work in a particular trade • Ensure that completion of training programs results in a level of competency of individuals working in the trades • Maintain or create a sustainable supply of appropriately trained tradespersons to meet the needs of employers and the customers of those employers • Regulate competency standards The above purposes are consistent with what the Whitaker Report (the report that set out certain recommendations in connection with the government’s intention to establish the College) described as being the purposes of the College: “the modernization of the apprenticeship and certification system” – in other words, the modernization of the training system for the trades. The Whitaker Report described the government’s intentions in establishing the College of Trades as follows [page 83]: “In response to the Armstrong report, the Government of Ontario has announced its intention to create a College of Trades, which will contribute to the modernization of the apprenticeship and certification system to make it more responsive to economic needs, enhance the quality of apprenticeship training and expand the system.” - The College Should not be Attempting to Serve “Public” Interests that are Already Covered by Other Legislative or Regulatory Regimes - In advancing the purposes described above, the College should not be attempting to expand its authority by purporting to serve certain interests which are already covered by other legislation or regulatory regimes. In other words, the “public” in the public interest the College should be serving does not include public interests that are already covered by other legislation, regulatory regimes and/or government agencies. For example, the College should not be expanding its jurisdiction by purporting to regulate the following areas – all of which would fall under a broad, dictionary definition of “public interest” but fall outside the narrow scope of public interests falling within the specific mandate of the College: • Occupational health and safety of workers: Already covered by the OHSA and enforced by the Ministry of Labour • Minimum standards for constructed buildings: Already covered by the Building Code and the Building Code Act • Electrical safety: Already covered by the Electrical Safety Authority • Minimum standards for boilers and pressures vessels, elevated devices, fuel, etc.: Already covered by the Technical Standards & Safety Authority • Labour relations and trade union jurisdictional issues: Already covered by the Labour Relations Act and enforced by the OLRB. In this regard, the College should not be interfering with, or substituting its judgment for, decisions and legislation which have been made or enacted by the other bodies which have the specific mandate and competence to regulate these other areas of public interest. For example, with respect to occupational health and safety, s. 182(1) of O. Reg. 213/91 (“Construction Projects”) to the OHSA provides that “no worker shall connect, maintain or modify electrical equipment or installations” unless the worker holds a valid Certificate of Qualification under the OCTAA in the trade of Electrician – Construction and Maintenance or Electrician – Domestic and Rural. However, despite the fact that the OHSA’s “health and safety” restrictions on the performance of electrical work by non-certified tradespersons is limited only to “connecting, maintaining and modifying electrical equipment,” the OCTAA is currently drafted and enforced in a manner which purports to make it unlawful for non-certified tradespersons to perform any work described in the Scope of Practice of “Electrician – Construction and Maintenance” in O. Reg. 275/11 – including a whole host of work which goes far beyond that described in s. 182 of O. Reg. 213/91, such as “installing brackets, hangers or equipment for supporting electrical equipment.” In this regard, the OCTAA encroaches upon, and conflicts with, the legislative regime which is actually responsible for regulating and enforcing workplace health and safety. Similarly, with respect to labour relations issues, the manner in which the OCTAA is currently drafted and enforced suggests that any work falling within the Scope of Practice of a compulsory trade, as described in O. Reg. 275/11, must be assigned to a member of that trade holding a valid C of Q (or a registered apprentice working in that trade). As described elsewhere in this document (see for example question 4 below), this effectively requires employers to make work assignments that are contrary to how the OLRB would rule the work should be assigned – the OLRB being the agency which is actually experienced in, and responsible for, determining disputes regarding the competing jurisdictional claims of trade unions. - Summary – The Public Interests the College Should be Serving - Although there is a general “public interest” in maintaining workplace safety and in ensuring that buildings and structures are constructed in accordance with applicable building code requirement, these public interests are the subject of other legislation which is expressly enacted and intended to regulate those areas, and are areas which are not within the mandate of the College and are not among the objects enumerated in section 11 of the OCTAA. The “public” interest the College should be serving, which does not unduly overlap or encroach on other legislative or regulatory regimes, is the public interest in having a sustainable supply of appropriately trained tradespersons to meet the needs of employers and the customers of those employers. The College, like other self-regulating bodies, should also be serving the interests of its own members – that is, tradespersons – by promoting of standards of competency and excellence among all trades (compulsory and voluntary), particularly through the establishment and maintenance of appropriate training standards and procedures, which will enhance the status and profile of workers in all trades. This will also facilitate recruitment or entry into the trades, maximize completion of compulsory and voluntary apprenticeship programs and retain certified workers in the compulsory and voluntary trades.


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

As much as possible, the College should avoid interfering with other legislative or regulatory regimes which promote aspects of the public interest which are outside the mandate of the College. This means that the College should focus specifically on making decisions which advance the underlying purposes of the OCTAA which, as mentioned above, is primarily training legislation (i.e. decisions regarding the development of training standards, journeyman-to-apprentice ratios etc.). The College should not be making decisions which may conflict with public interests already covered by other legislative or regulatory regimes, even if there is a slight overlap between the mandate of the College and those other regimes. To put it another way, there are certain public interests the College should be concerned about promoting (having a sustainable supply of appropriately trained tradespersons, promoting of standards of competency and excellence among all trades through the establishment and maintenance of appropriate training standards and procedures, facilitating recruitment or entry into the trades, maximizing completion of apprenticeship programs and retaining certified workers in the trades). There are also public interests that the College should not be concerned about promoting, but rather should be concerned about not interfering with (occupational health and safety, labour relations and trade union jurisdictional issues, etc.). See also, in this regard, question 4 below. As much as possible, the College should avoid interfering with other legislative or regulatory regimes which promote aspects of the public interest which are outside the mandate of the College. This means that the College should focus specifically on making decisions which advance the underlying purposes of the OCTAA which, as mentioned above, is primarily training legislation (i.e. decisions regarding the development of training standards, journeyman-to-apprentice ratios etc.). The College should not be making decisions which may conflict with public interests already covered by other legislative or regulatory regimes, even if there is a slight overlap between the mandate of the College and those other regimes. To put it another way, there are certain public interests the College should be concerned about promoting (having a sustainable supply of appropriately trained tradespersons, promoting of standards of competency and excellence among all trades through the establishment and maintenance of appropriate training standards and procedures, facilitating recruitment or entry into the trades, maximizing completion of apprenticeship programs and retaining certified workers in the trades). There are also public interests that the College should not be concerned about promoting, but rather should be concerned about not interfering with (occupational health and safety, labour relations and trade union jurisdictional issues, etc.). See also, in this regard, question 4 below.


4. Is the College currently protecting the public interest?

The College Should not be Making Decisions which may Conflict with Public Interests Already Covered by Other Legislative or Regulatory Regimes - As noted above, the College should not be making decisions which may conflict with public interests already covered by other legislative or regulatory regimes, even if there is a slight overlap between the mandate of the College and those other regimes. The enforcement arm of the College is currently acting in a manner contrary to this principle. - The College is Making Decisions that Encroach Upon Other Public Interests and are Contrary to the Decisions that Would Have Been Reached by the Agencies Responsible for Protecting Those Other Areas of the Public Interest - Any benefit that may potentially be gained by the College’s implementation of enforcement mechanisms designed to ensure that individuals performing the work of a given trade have received the necessary training in that trade has been completely offset because, in carrying out that enforcement mechanism, the College is making decisions that: • encroach upon other public interests (occupational health and safety, labour relations, etc.); and • are contrary to the decisions that would have been reached by the agencies responsible for protecting those other areas of the public interest (the Ministry of Labour, the OLRB, etc.). The following is an example of the problems in the manner in which the College is currently carrying out its enforcement mechanism. In the recent decision of Weinmann Electric, 2014 CanLII 80647, the OLRB found that the following work was appropriately assigned to members of the Labourers Union, rather than to the Electricians Union: • the trenching and installation of PVC conduit in the trench; • the laying of caution tape, also described as warning ribbon, and backfilling the trench; • the installation of pull boxes (electrical chambers and hand boxes), drains and conduit connectors or couplings; • the installation of the fish line to prove the conduit; and • the installation of traffic counting loops in the pavement of the roadway In the manner the OCTAA is currently drafted and enforced, a strict reading of s. 4 of the OCTAA and the Scope of Practice of “Electrician – Construction and Maintenance” in O. Reg. 275/11 would suggest that the above work would have to be assigned to an electrician holding a valid C of Q (or a registered apprentice). However, any such decision would have a significant detrimental effect on public interests that are outside the purview of the College, specifically: • Occupational health and safety: No health and safety concerns are created as a result of the fact that the work described above was performed by individuals who are not electricians, and yet the College would purport to make it unlawful for anyone other than electricians to perform that work. • Labour relations: A decision or fine effectively forcing the work to be given to electricians would be contrary to established employer and area practice (see paragraphs 34, 44 and 51 of the Weinmann Electric decision) and would therefore have a significant negative impact on harmonious and stable labour relations. - Labour Relations Issues – Geographic and Sectoral Distinctions - With respect to labour relations issues, it is important to note that the OCTAA’s restrictions on employers’ ability to assign work that arguably falls within the scope of work of a compulsory trade does not allow for any distinctions to be made having regard to geographic or sectoral conditions in the construction industry. For example, one of the most important considerations in resolving competing jurisdictional claims amongst construction trade unions is local area practice. Indeed, the OLRB has issued jurisdictional dispute decisions awarding certain work to one union in one area of the province, and the exact same work to a different trade union in a different area of the province. For example, in the context of hard landscaping work, the OLRB has awarded the carpentry portion of concrete formwork to the Carpenters Union in North Bay (PCL Constructors Canada, 2010 CanLII 78733), but to the Labourers Union in Toronto, where the work is often performed pursuant to a collective agreement applicable to TARBA (PCL Constructors Canada, 2014 CanLII 10697; Request for Reconsideration dismissed 2014 CanLII 22000). The OCTAA does not permit employers to vary their work assignments for work arguably falling within the scope of work of a compulsory trade depending on the area of the province where the work is being performed. Therefore, under the current system it is quite simply impossible for decisions to be made under the OCTAA that are consistent with established labour relations patterns in the unionized Ontario construction industry. Similarly, the work that is usually assigned to one trade union in the ICI sector of the construction may traditionally be assigned to a different trade union in a non-ICI sector. For example, the installation of PVC conduit is usually performed by members of the Electricians Union in the ICI sector, but is frequently performed by members of the Labourers Union in the road-building sector. Likewise, almost all “below grade” work is performed by members of the Labourers Union in the heavy construction sector, regardless of the nature of the work and regardless of the traditional trade lines that are applied to “above ground” work. The OCTAA does not permit employers to vary their work assignments for work arguably falling within the scope of work of a compulsory trade depending on the sector of the construction industry where the work is being performed. Therefore, under the current system it is quite simply impossible for decisions to be made under the OCTAA that are consistent with established labour relations patterns in the unionized Ontario construction industry. -The College’s Current Method of Enforcement is Contrary to the Recommendations Made in the Armstrong Report - We emphasize that the College’s method of enforcement of s. 4 of the OCTAA, without regard to its impact on the jurisdictional claims of trade unions, is directly contrary to the recommendations set out in the Armstrong Report, the very document which recommended the establishment of the College in the first place. At pages 8 and 110 of the Armstrong Report, in recommending that “one all-inclusive statute be developed and enacted to replace the ACA and the TQAA,” the Armstrong Report added the express caveat that “it should also be made clear, in any legislative redrafting, that nothing in the training legislation or in the Regulations under any Act (such as O. Reg. 572/99 under the Occupational Health and Safety Act) is to be construed as dealing with the jurisdictional rights of trade unions.” The Armstrong Report also emphasized at pages 84-85 of the Report: “These two issues – training, on the one hand, and union jurisdictional disputes on the other – have become intertwined. This is illustrated in the jurisprudence of the Ontario Labour Relations Board, extending now over some considerable period of time. I wish to make it abundantly clear that training legislation should have no impact on jurisdictional claims. The Ontario Labour Relations Board has correctly recognized this principle in its case law. An elaboration of this issue (Appendix 14) sets out the principal decisions of the OLRB on this issue. Although the Board has been consistent in separating training legislation from labour relations legislation, it will be my recommendation that this separation be made explicit in the relevant statutes governing each field. In recent years, following the passage of Regulation 572/99 under the Ontario Health and Safety Act, the tendency of some trade unions to pursue jurisdictional claims before the Ontario Labour Relations Board has intensified. For that reason, it is all the more important to stipulate, by statute, that neither training statutes, nor related provisions in other legislation or regulations, such as the OHSA and Regulation 572/99, can or should be used to support jurisdictional claims under the Labour Relations Act.” [Emphasis added] Unfortunately, the concerns described above are not recognized anywhere in the OCTAA (whether explicitly, as recommended by the Armstrong Report, or even implicitly) and are not currently being taken into account by College Enforcement Officers. As noted in the above passage, the Armstrong Report cited with approval various OLRB case law which clearly establishes that none of the training statutes have the effect of prohibiting anyone from doing any particular kind of work, whether or not such work is part of the work done by persons engaged in a compulsory trade.” The following are examples of passages from the Armstrong Report which summarize the OLRB jurisprudence in this regard: Pages 174-175: “The essential comments from the E.S. Fox case are the following: - The lines of demarcation between the jurisdictions of the various industry trades have never been clear and have, in recent years, tended to become even more blurred. - The TQAA was not intended to and has not had the effect of eliminating or lessening jurisdictional overlaps. It does not stipulate that certain work can only be done by certain people. It does not specifically prohibit anyone from doing any particular kind of work, whether or not such work is part of the work done by persons engaged in a compulsory trade. - In order to determine the trade in which a construction employee is working, it is essential to consider ALL of the work that the employee is qualified to or does do and not merely that part of his/her work which falls within the description of work done by a compulsory certified trade, particularly where such work clearly or arguably falls within an overlap between the jurisdiction of two or more trades.” [Emphasis added] Pages 176-177: In addition, the Board in [Comstock Canada] made the following comments about the TQAA: “The TQAA…is a training statute; it is not a statute applying standards of quality or safety to work methods in the construction industry. The concept of compulsory trades was introduced into that Act in 1961 as a means of compelling employers to hire apprentices so that a sufficiently large supply of skilled labour would be available in the face of declining immigration from Europe. Its purpose was to ensure that non-licensed and unregistered apprentices were not learning the trade badly or in a limited or partial fashion (see Report of the Royal Commission on Apprenticeship and Training by J. Simonette, 1961). In this case, as the Board said in E.S. Fox, if the work is performed by an iron worker as part of the trade of an iron worker, then they are working in the voluntary trade of an iron worker and are not performing work in the compulsory trade of a plumber or a pipefitter. If a person is performing that work as part of the trade of a plumber or pipefitter, then that person must be registered as an apprentice or a journeyman. If a person is performing the work as a member of no trade, or as an unlicensed member of a compulsory trade, then they are in violation of the TQAA. Clearly, this work can be performed by either trade [i.e., either the Plumbers or the Iron Workers] in compliance with the terms of the TQAA. This factor favours no one.” [Emphasis added] The above passage provide an explicit description of what the purpose of training statutes actually are: to ensure a “sufficiently large supply of skilled labour” which has not “learned the trade badly or in a limited or partial fashion.” Unfortunately, the College is detrimentally affecting the public interest by purporting to enforce the OCTAA in a manner which prohibits members of voluntary trades from performing particular types of work, thereby interfering with, among other things, trade union jurisdictional claims – something the Armstrong Report and the OLRB jurisprudence specifically state that training statutes should not do. - Additional Problems - In addition to all of the above, limiting employers’ ability to assign work to members of a particular trade is contrary to the public interest in having construction work performed in an economical and efficient manner, without unnecessary restrictions on which trade can do what work. Dividing tasks previously done by one trade into two or more trades will necessarily increase costs and lead to inefficiencies. This is also contrary to the interests of the purchasers of construction services (an area of public interest which, unlike occupational health and safety or labour relations, is not something already governed by an existing legislative and regulatory regime). “Red tape” created by restrictions on the assignment of work to voluntary trades will increase the cost of construction, which will in turn discourage investment in new construction in Ontario. as noted above, the College should not be Making Decisions which may Conflict with Public Interests alread


5. How should the College advance the public interest?

As noted above, the College’s narrow focus should be on advancing the specific public interests that are directly connected to the primary purpose of the OCTAA as training legislation (i.e. the development of training standards, etc.). The College should not be making decisions which may conflict with public interests already covered by other legislative or regulatory regimes, even if there is a slight overlap between the mandate of the College and those other regimes. Some of the most critical ways in which the role of the College should be amended to better advance the public interest in this regard are: • The OCTAA should be amended to expressly recognize that multiple trades’ scopes of practice may overlap and, as such, work may fall within the definition of a compulsory trade’s scope of practice but nevertheless may be lawfully and safely performed by other trades (including other voluntary trades) as well. • There should be no restrictions on employing members of a voluntary trade to perform work falling within the scope of a compulsory trade if specialized training or certification in the compulsory trade is not necessary to perform the work in a competent or safe manner. This would not create any conflicts with the existing occupational health and safety regime and would be consistent with the manner in which the TQAA was previously enforced. • Enforcement Officers should not be permitted to issue any fines under s. 4 of the OCTAA if the work in question was assigned to a member of a trade union. Any such work assignments are the appropriate subject matter of a jurisdictional dispute before the OLRB pursuant to s. 99 of the Labour Relations Act. • Any and all fines issued by Enforcement Officers under s. 4 of the OCTAA should be appealable to the OLRB – not Provincial Offences Court. The OLRB is the agency with the specialized knowledge and expertise needed to properly determine whether a particular type of work is work that can only be done by a compulsory trade or whether it is work that can also be performed by certain voluntary trades as well (see also question 27 below). The Provincial Offences Court has absolutely no expertise in this area. o It is important to note that if s. 4 fines issued by Enforcement Officers were appealable to the OLRB, this would be consistent with how stop work orders issued were appealed under the TQAA, the OCTAA’s predecessor legislation. Quite simply, when the TQAA was replaced by the OCTAA there was no reasonable justification for stripping the OLRB of jurisdiction over appeals of decisions regarding what does or does not constitute the exclusive work of a compulsory trade, and all such authority should be immediately restored to the OLRB. Such issues are ones that the OLRB has regularly dealt with for decades in the context of appeals of stop work orders issued under the TQAA, as well in the context of jurisdictional disputes between trade unions.





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.

- Our Businesses - Toronto and Area Road Builders (TARBA) is an association representing contractors engaged in road building and parking lot construction in OLRB Board Areas 8 and 18. The Association has been active for over 40 years and was accredited


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

We agree, at least with respect to the construction industry, that trades may have core elements as well as peripheral elements. The “core elements” of a trade are those elements of the trade that are regularly and frequently performed by that trade. However, it must be noted that even the “core elements” of one trade will frequently overlap with elements of another trade. See, in this regard, question 26 below.


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.

As noted above, the OCTAA is a training statute and should not be used to establish exclusivity over certain types of work for any particular trade, except in cases where there is no doubt that no other trade can perform the work in competent and safe manner. As such, the key elements of an SoP defined in the OCTAA should differ depending on whether the SoP is being referred to for training purposes or for enforcement purposes. For training purposes, an SoP should set out all the areas in which training is required for an apprentice to become certified in a particular trade. By contrast, for enforcement purposes, the SoP of a compulsory trade should only be relevant to the extent, if any, it sets out elements of the compulsory trade that are exclusive to that trade. Any disputes over whether or not particular work is exclusive to a compulsory trade should be heard at the OLRB (such disputes would presumably arise in the context of appeals of fines issued by Enforcement Officers under s. 4 of the OCTAA).


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

Respondent did not provide a response to this question


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

The primary purpose of SoPs should be to support the primary purpose of the College and the OCTAA – which, as mentioned, above, is first and foremost training legislation. For this reason, the primary purpose of the SoPs should be to set out all the areas in which training is required for an apprentice to become certified in a particular trade. The existing SoP provisions do not currently support any of the College’s purported functions, at least in the context of the construction industry. The current SoPs are of no value in determining training requirements because the OCTAA’s descriptions of each construction trade’s SoP: • are much too broad to be of any assistance in determining, with any degree of certainty or specificity, what training, experience or education is or should be required to become certified in a particular trade; and • in any event are not reflective of current realities regarding the work typically performed by the various trades in the construction industry. See, in this regard, question 25 below. For the same reasons, the current SoPs are of no assistance in determining whether or not a particular trade should be compulsory or voluntary. Similar problems arise with respect to the enforcement of restrictions on the performance of the work of a compulsory trade. It does not advance the purpose of the College to restrict the performance of work falling within a compulsory trade’s SoP to only members of the trade, because: • the SoPs of compulsory trades are so broad that they cover many areas of work which can be performed by, and are in fact regularly performed by, certain voluntary trades as well; • the SoPs of compulsory trades are so broad that they cover many areas of work which do not require specialized training or experience in that trade in order for that work to be performed competently or safely; and • the SoPs of compulsory trades are in any event are not reflective of current realities regarding the work typically performed by the various trades in the construction industry. See, in this regard, question 25 below. As noted in questions 11 and 19 below, a solution to this problem is to mandate that the only part of a compulsory trade’s SoP that may be subject to enforcement are those elements of the trade, if any, which are exclusive to that trade. Any disputes over whether or not particular work is exclusive to a compulsory trade should be heard at the OLRB (such disputes would presumably arise in the context of appeals of fines issued by Enforcement Officers under s. 4 of the OCTAA). The primary purpose of SoPs should be to support the primary purpose of the College and the OCTAA – which, as mentioned, above, is first and foremost training legislation. For this reason, the primary purpose of the SoPs should be to set out all the areas in which training is required for an apprentice to become certified in a particular trade. The existing SoP provisions do not currently support any of the College’s purported functions, at least in the context of the construction industry. The current SoPs are of no value in determining training requirements because the OCTAA’s descriptions of each construction trade’s SoP: • are much too broad to be of any assistance in determining, with any degree of certainty or specificity, what training, experience or education is or should be required to become certified in a particular trade; and • in any event are not reflective of current realities regarding the work typically performed by the various trades in the construction industry. See, in this regard, question 25 below. For the same reasons, the current SoPs are of no assistance in determining whether or not a particular trade should be compulsory or voluntary. Similar problems arise with respect to the enforcement of restrictions on the performance of the work of a compulsory trade. It does not advance the purpose of the College to restrict the performance of work falling within a compulsory trade’s SoP to only members of the trade, because: • the SoPs of compulsory trades are so broad that they cover many areas of work which can be performed by, and are in fact regularly performed by, certain voluntary trades as well; • the SoPs of compulsory trades are so broad that they cover many areas of work which do not require specialized training or experience in that trade in order for that work to be performed competently or safely; and • the SoPs of compulsory trades are in any event are not reflective of current realities regarding the work typically performed by the various trades in the construction industry. See, in this regard, question 25 below. As noted in questions 11 and 19 below, a solution to this problem is to mandate that the only part of a compulsory trade’s SoP that may be subject to enforcement are those elements of the trade, if any, which are exclusive to that trade. Any disputes over whether or not particular work is exclusive to a compulsory trade should be heard at the OLRB (such disputes would presumably arise in the context of appeals of fines issued by Enforcement Officers under s. 4 of the OCTAA).


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

The entire SoP for a compulsory trade should not be subject to enforcement. A compulsory trade’s SoP will always overlap with the SoPs of certain voluntary trades. Similarly, a compulsory trade’s SoP will always cover certain work which can also be safely performed by members of certain voluntary trades. Any work falling within a compulsory trade’s SoP that overlaps with the SoPs of certain voluntary trades should not be subject to enforcement. Enforcing the entire SoP for a compulsory trade has the following detrimental effects: • It results in prohibitions against members of voluntary trades performing the work of a compulsory trade despite the fact that specialized training or certification in the compulsory trade is not necessary to perform the work in a competent or safe manner; • In certain circumstances (such as where multiple tasks falling within one overall scope of work would have to be needlessly divided amongst multiple different tradespersons and/or contractors), it effectively requires employers to assign work in uneconomical and inefficient manner – again, despite the fact that specialized training or certification in the compulsory trade is not necessary to perform the task in a competent or safe manner; and • It effectively requires employers to make work assignments that ignore the competing jurisdictional claims of trade unions and run contrary to established labour relations patterns in the unionized Ontario construction industry. See question 14 below for examples of where the SoP of a compulsory trade overlaps with the SoP of a voluntary trade. Requiring employers to assign all such work to members of the compulsory trade would, as mentioned above, effectively require employers to make work assignments that ignore the competing jurisdictional claims of trade unions and run contrary to established labour relations patterns in the unionized Ontario construction industry - despite the fact that specialized training or certification in the compulsory trade is not necessary to perform the work in a competent or safe manner. As noted above, the OCTAA is a training statute and should not be used to establish exclusivity over certain types of work for any particular trade, except in cases where there is no doubt that no other trade can perform the work in competent and safe manner. In other words, the only aspect of a compulsory trade’s SoP that should be subject to enforcement are those elements of the trade, if any, which are exclusive to that trade. Any disputes over whether or not particular work is exclusive to a compulsory trade should be heard at the OLRB (such disputes would presumably arise in the context of appeals of fines issued by Enforcement Officers under s. 4 of the OCTAA). Limiting enforcement in this manner will prevent the enforcement arm of the College from unduly encroaching upon labour relations and trade union jurisdictional issues, which are already covered by the Labour Relations Act and which already properly fall under the jurisdiction of the OLRB.


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.

A distinct list of compulsory activities that may pose a risk of harm to the public, tradespeople, or other workers risks encroaching upon occupational health and safety and/or building code issues – all of which, as noted above, are already covered by other legislative and regulatory regimes.


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

An overlap between SoPs is when a particular work function falls within the SoPs of two or more different trades. See question 14 below for examples of overlapping SoPs.


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

The “Scopes of Practice” outlined in O. Reg. 275/11 to the OCTAA bear little resemblance to the practical realities of the types of work performed by various trades in the construction industry. More generally, however, different trades’ overlapping SoPs have a significant effect on road-building and heavy construction. When faced with work that gives rise to competing jurisdictional claims amongst trade unions, contractors have to decide how to assign the work to a particular trade in a manner that allows for construction to be completed an economical and efficient manner while at the same time maintaining labour relations stability and honouring collective agreement obligations. Work assignment issues and competing jurisdictional claims are issues that unionized contractors have to deal with essentially every day on construction sites. The following are examples of work functions which give rise to overlapping work jurisdiction amongst construction trades and, potentially, jurisdictional disputes in the heavy construction and road-building sectors: - Worked Claimed by Both General Carpenters and Construction Labourers (or “Construction Craft Workers”) - • Pile-driving in the heavy construction sector • The installation of lagging in the heavy construction sector • Welding in the heavy construction sector • The carpentry portion of concrete formwork - Worked Claimed by Both Operating Engineers (or “Heavy Equipment Operators”) and Construction Labourers (or “Construction Craft Workers”) - • The operation of mini-excavators, Bobcats, skid steers and boom trucks in the road building sector • The operation of Tunnel Boring Machines in the heavy construction sector • The operation of backhoes for material handling and/or clean-up purposes - Worked Claimed by Both Construction Electricians and Construction Labourers (or “Construction Craft Workers”) - • The installation of light posts used for street lighting • The installation of pressure and speed sensors into highways • The installation of traffic counting loops in the pavement of the roadway • The installation of pull boxes in the road building sector • The on-site rigging and material handling of electrical equipment • The trenching, installation of PVC conduit in the trench, and backfilling the trench Worked Claimed by Both Plumbers and Construction Labourers (or “Construction Craft Workers”) • The on-site rigging and material handling of plumbing equipment • The trenching, installation of PVC pipe in the trench, and backfilling the trench Worked Claimed by Both Sheet Metal Workers and Construction Labourers (or “Construction Craft Workers”) • The below grade installation and removal of sheet metal siding on heavy construction projects: claimed by both sheet metal workers and construction labourers (or “construction craft workers”)


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?

The Consultation Guide articulates the “third legal interpretation principle” as follows: “When work is contained in the scope of practice of a compulsory trade and the scope of practice of a voluntary trade, then any person may engage in that work (even if the person is not engaging in the practice of the voluntary trade) and membership in the College is not required provided that the person is not engaged in the practice of the compulsory trade while performing the work.” The application of the above principle does not pose a risk of harm to the public, tradespeople or other works on the job. If a particular work function falls within the scope of a voluntary trade, this means that specialized training or certification in a compulsory trade is not necessary to perform that work in a competent or safe manner – even if the work in question also falls within a compulsory trade’s scope of work. We note that the “third legal interpretation principle” is consistent with existing OLRB jurisprudence. For example, in determining that the TQAA did not require the installation of cup sinks and faucets into countertops to be assigned to certified plumbers, the OLRB confirmed in Action Group, 2010 CanLII 17736 and Action Group, 2011 CanLII 53859 [para 11 of both decisions]: “If work is found in the definition of two different trades, even if one of them is compulsory and the other is not, members of either trade can perform the work.” To suggest that the application of the above principle poses a risk of harm would be to assume that all work falling within a compulsory trade’s SoP can only be competently or safely performed by tradespeople who have received training in that compulsory trade. This is simply not the case. As illustrated by the examples set out in question 14 above, a compulsory trade may include many work functions that can also safely and competently be performed, and are in fact regularly performed, by members of a voluntary trade. Unfortunately, the OCTAA is not currently being enforced in a manner that is consistent with the third legal interpretation principle. Rather, the manner in which the OCTAA is currently being enforced suggests that any work falling within the Scope of Practice of a compulsory trade, as described in O. Reg. 275/11, must be assigned to a member of that trade holding a valid C of Q (or a registered apprentice working in that trade), regardless of whether that work also falls within the SoP of one or more voluntary trades.





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?

Respondent did not provide a response to this question


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?

Enforcement Issues - The current classification of trades as either compulsory or voluntary, and the College’s method of enforcing same, is not aligned with the College’s duty to serve the public interests it should be concerned with regulating. As noted above, the College should not be making decisions which may conflict with public interests already covered by other legislative or regulatory regimes, even if there is a slight overlap between the mandate of the College and those other regimes. The enforcement arm of the College is currently acting in a manner contrary to this principle. Any benefit that may potentially be gained by the College’s implementation of enforcement mechanisms designed to ensure that individuals performing the work of a given trade have received the necessary training in that trade has been completely offset because, in carrying out that enforcement mechanism, the College is making decisions that: • encroach upon other public interests (occupational health and safety, labour relations); and • are contrary to the decisions that would have been reached by the agencies responsible for protecting those other areas of the public interest (the Ministry of Labour, the OLRB, etc.). We note that the College’s method of enforcement of s. 4 of the OCTAA, without regard to its impact on the jurisdictional claims of trade unions, is directly contrary to the recommendations set out in the very document which recommended the establishment of the College in the first place (the Armstrong Report). The College is detrimentally affecting the public interest by purporting to enforce the OCTAA in a manner which prohibits members of voluntary trades from performing particular types of work, thereby interfering with, among other things, trade union jurisdictional claims – something the Armstrong Report and the OLRB jurisprudence specifically state that training statutes should not do. In addition, limiting employers’ ability to assign work to members of a particular trade is contrary to the public interest in having construction work performed in an economical and efficient manner, without unnecessary restrictions on which trade can do what work. This is also contrary to the interests of the purchasers of construction services (an area of public interest which, unlike occupational health and safety or labour relations, is not something already governed by an existing legislative and regulatory regime). “Red tape” created by restrictions on the assignment of work to voluntary trades will increase the cost of construction, which will in turn discourage investment in new construction in Ontario. A fuller response to this issue as it relates to enforcement is contained under question 4 above. - Reclassification Issues - Whenever a trade is reclassified as compulsory, this has certain negative impacts on public interests, including: • Encroaching on the occupational health and safety regime governed by the OHSA – particularly given that many aspects of a compulsory trade’s SoP may be safely performed by certain voluntary trades as well; • Decreasing the supply of available workers who can lawfully perform certain work; and • Adding more “red tape” and restricting employers’ ability to assign work in as economical and efficient a manner as possible (despite the fact that other safeguards are already in place with respect to, for example, occupational health and safety and building code issues), thereby increasing the cost of construction and discouraging investment in Ontario’s construction industry For this reason, the OCTAA and/or its Regulations should specifically and expressly articulate that whenever the College is faced with an application for review of trade classification status, the party/parties asserting that the trade’s status should be changed to “compulsory” bear a significant onus of demonstrating, by reference to relevant objective evidence, that there is a need (not just a desire) for a change to the status quo.


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?

Respondent did not provide a response to this question


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?

- Core Elements of the Trade - There would be little value in limiting compulsory certification to the “core elements” of a trade, because even the “core elements” of one trade will frequently overlap with elements of another trade. See, in this regard,


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.

Respondent did not provide a response to this question


21. How should expert opinion be obtained?

Respondent did not provide a response to this question


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 do not address how the public interest is negatively affected when a trade is reclassified as compulsory. Whenever a trade is reclassified as compulsory, this has certain negative impacts on public interests, including: • Encroaching on occupational health and safety regime governed by the OHSA – particularly given that many aspects of a compulsory trade’s SoP may be safely performed by certain voluntary trades as well; • Decreasing the supply of available workers who can lawfully perform certain work; and • Adding more “red tape” and restricting employers’ ability to assign work in as economical and efficient a manner as possible (despite the fact that other safeguards are already in place with respect to, for example, occupational health and safety and building code issues), thereby increasing the cost of construction and discouraging investment in Ontario’s construction industry For this reason, the OCTAA and/or its Regulations should specifically and expressly articulate that whenever the College is faced with an application for review of trade classification status, the party/parties asserting that the trade’s status should be changed to “compulsory” bear a significant onus of demonstrating, by reference to relevant objective evidence, that there is a need (not just a desire) for a change to the status quo.


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

Respondent did not provide a response to this question


24. Are the existing criteria the right criteria?

The current criteria do not address how the public interest is negatively affected when a trade is reclassified as compulsory. Whenever a trade is reclassified as compulsory, this has certain negative impacts on public interests, including: • Encroaching on the occupational health and safety regime governed by the OHSA – particularly given that many aspects of a compulsory trade’s SoP may be safely performed by certain voluntary trades as well; and • Restricting employers’ ability to assign work in as economical and efficient a manner as possible, thereby increasing the cost of construction and discouraging investment in Ontario’s construction industry For this reason, the OCTAA and/or its Regulations should specifically and expressly articulate that whenever the College is faced with an application for review of trade classification status, the party/parties asserting that the trade’s status should be changed to “compulsory” bear a significant onus of demonstrating, by reference to relevant objective evidence, that there is a need (not just a desire) for a change to the status quo.





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?

The SoPs do not reflect the ways in which work is actually assigned in the heavy construction or road-building sectors, as described below. - Almost no Work is Assigned Exclusively to One Trade - The SoPs applicable to the construction industry do not reflect the way that work is assigned in the heavy construction industry or the road-building industry, because very little of the work described in any construction scope of practice, regardless of whether it is compulsory or voluntary, is performed exclusively workers who would be associated with the trade or SoP in question. For example, elements of the Electrician - Construction and Maintenance SoP (such as “installing brackets, hangers or equipment for supporting electrical equipment”) are regularly assigned to members of other trades whose regular duties fall primarily within other compulsory and voluntary SoPs. Indeed, in the recent OLRB decision of Mellon, 2015 CanLII 4653, the OLRB determined that the fabrication and on-site installation of supports which supported, among other things, electrical and communications trays and cables was properly assigned to construction boilermakers and to structural ornamental ironworkers, rather than to construction electricians. - The SoPs are Overbroad - Furthermore, many of the SoPs applicable to the construction industry are drafted in an overly broad manner, such that they encompass broad descriptions of work, aspects of which are regularly performed by other trades. For example, the SoP for General Carpenter includes “establishing building procedures,” “preparing a work site for building,” and “performing renovations.” Much of the many different tasks involved under these broad headings are performed by members of trades other than carpenters. In this heavy construction industry specifically, most of the work involved in “preparing a work site for building” is actually performed by construction labourers (“construction craft workers”). - Some SoPs Omit Work that is Frequently Performed by a Particular Trade - Even though the SoPs are overbroad, in certain respects they actually omit work that is frequently performed by a particular trade. For instance, the SoP of “construction craft worker” does not include many of the examples set out in question 14 above of work that is frequently performed by construction labourers in the heavy construction and road building sectors of the construction industry. - The SoPs have not Been Updated or Amended to Reflect Modern Realities - Another reasons why the SoPs do not accurately reflect the manner in which work is assigned in the construction industry is because the SoPs have not been updated or amended to reflect technological changes, changing work assignment practices or the impact of jurisdictional dispute decisions issued by the OLRB. - The SoPs do not Allow for Geographic or Sectoral Distinctions - Another significant problem is that the OCTAA’s restrictions on employers’ ability to assign work that arguably falls within the SoP of a compulsory trade do not allow for any distinctions to be made having regard to geographic or sectoral conditions in the construction industry. For example, one of the most important considerations in resolving competing jurisdictional claims amongst construction trade unions is local area practice. Indeed, the OLRB has issued jurisdictional dispute decisions awarding certain work to one union in one area of the province, and the exact same work assigned by the exact same employer to a different trade union in a different area of the province. For example, in the context of hard landscaping work, the OLRB has awarded the carpentry portion of concrete formwork to the Carpenters Union in North Bay (PCL Constructors Canada, 2010 CanLII 78733), but to the Labourers Union in Toronto, where the work is often performed pursuant to a collective agreement applicable to TARBA (PCL Constructors Canada, 2014 CanLII 10697; Request for Reconsideration dismissed 2014 CanLII 22000). The OCTAA does not permit employers to vary their work assignments for work arguably falling within the scope of work of a compulsory trade depending on the area of the province where the work is being performed. Therefore, under the current system it is quite simply impossible for decisions to be made under the OCTAA that are consistent with established labour relations patterns in the unionized Ontario construction industry. Similarly, the work that is usually assigned to one trade union in the ICI sector of the construction may traditionally be assigned to a different trade union in a non-ICI sector. For example, the installation of PVC conduit is usually performed by members of the Electricians Union in the ICI sector, but is frequently performed by members of the Labourers Union in the road-building sector. Likewise, almost all “below grade” work is performed by members of the Labourers Union in the heavy construction sector, regardless of the nature of the work and regardless of the traditional trade lines that are applied to “above ground” work. The OCTAA does not permit employers to vary their work assignments for work arguably falling within the scope of work of a compulsory trade depending on the sector of the construction industry where the work is being performed. Therefore, under the current system it is quite simply impossible for decisions to be made under the OCTAA that are consistent with established labour relations patterns in the unionized Ontario construction industry. - Proposed Solution – OLRB Jurisdiction - Because the SoPs set out in O. Reg. 275/11 to the OCTAA do not accurately reflect the manner in which work is actually assigned in the construction industry, the OLRB should have jurisdiction over all issues relating to the impact (or lack thereof) of the OCTAA on work assignments in the context of construction workforces. In particular: • Enforcement Officers should not be permitted to issue any fines under s. 4 of the OCTAA if the work in question was assigned to a member of a trade union. Any such work assignments are the appropriate subject matter of a jurisdictional dispute before the OLRB pursuant to s. 99 of the Labour Relations Act. • Any and all fines issued by Enforcement Officers under s. 4 of the OCTAA should be appealable to the OLRB – not Provincial Offences Court. The OLRB is the agency with the specialized knowledge and expertise needed to properly determine whether a particular type of work is work that can only be done by a compulsory trade or whether it is work that can also be performed by certain voluntary trades as well (see also question 27 below). The Provincial Offences Court has absolutely no expertise in this area. o It is important to note that if s. 4 fines issued by Enforcement Officers were appealable to the OLRB, this would be consistent with how stop work orders issued were appealed under the TQAA, the OCTAA’s predecessor legislation. Quite simply, when the TQAA was replaced by the OCTAA there was no reasonable justification for stripping the OLRB of jurisdiction over appeals of decisions regarding what does or does not constitute the exclusive work of a compulsory trade, and all such authority should be immediately restored to the OLRB. Such issues are ones that the OLRB has regularly dealt with for decades in the context of appeals of stop work orders issued under the TQAA, as well in the context of jurisdictional disputes between trade unions.


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

We do not agree with the notion that most jurisdictional disputes arise from peripheral elements of the trades. Frequently, both of the competing trade unions in a jurisdictional dispute will characterize the work in dispute as falling within their “core jurisdiction.” For example, in cases involving the operation of machinery to perform materials handling and/or the pouring of concrete, both the Labourers Union and the Operating Engineers Union have each asserted that this work falls within their “core jurisdiction” (HB White, 2014 CanLII 66574; WC Contractors, 2013 CanLII 53176; Bruce Power, 2009 CanLII 17246). Unions claiming work in a jurisdictional dispute will rarely regard that work as peripheral to their trade - even if the OLRB might disagree with their characterization. For example, in the recent OLRB decision of Hydro One, 2014 CanLII 61234, the OLRB rejected the assertions of the Electricians Union that the installation of a precast concrete trench box system into which electrical conduit was subsequently placed fell within that union’s core jurisdiction. The OLRB ruled that the work in question ought to have been assigned to members of the Labourer Union, having regard to established employer and area practice. See also the decision in EllisDon, 2013 CanLII 6359, in which the OLRB held that the installation of lab sinks into countertops was properly assigned to members of the Carpenters Union, rather than to members of the Plumbers Union (this work, we note, would fall within the SoP of Plumber as described in O. Reg. 275/11, which includes “laying out, assembling, installing, maintaining or repairing in any structure, building or site, piping, fixtures and appurtenances for the supply of water for any domestic or industrial purpose or for the disposal of water that has been used for any domestic or industrial purpose”). In EllisDon, the OLRB noted that while both unions claimed the work fell within their “core jurisdiction,” this was a consideration that did not favour either side [para 23]: “The use of the term ‘core jurisdiction’ does not assist either side. Sinks are integral to certain piping systems, which are at the ’core’ of the plumbing trade. Yet equally sinks installed into countertops as part of a laboratory millwork and casework package constitute millwork which is at the ‘core’ of the carpentry trade. Both trades have a fundamental claim to the work in question.“ Indeed, the Armstrong Report, the very document which recommended the establishment of the College in the first place, expressly recognizes that overlapping scopes of work is inevitable even with respect to the core elements of various trades. As stated at paragraph 75 of the Armstrong Report: “Over the past 40-some years under the TQAA, it has become apparent that overlaps between and amongst trades are inevitable, not only on the periphery of the functions performed, but in some cases with regard to the various trades’ core functions.”


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.

OLRB decisions should have a significant impact on the application of the OCTAA. If the OCTAA, and in particular its restrictions on employers’ ability to assign work arguably falling within the scope of work of a compulsory trade, continue to be enforced without regard to OLRB decisions, employers will be effectively required to make work assignments that ignore the competing jurisdictional claims of trade unions and run contrary to established labour relations patterns in the unionized Ontario construction industry. If OLRB decisions were adopted in determining whether a particular work assignment has violated the OCTAA, this would result in much more predictability for employers in determining the appropriate manner of assigning work that falls within multiple construction trades’ SoPs. It would also result in much more stable labour relations on construction projects. Unfortunately, it is not sufficient to simply suggest that “the College” should “adopt” or “give consideration” to OLRB decisions. Only the OLRB itself possesses the necessary level of institutional knowledge and expertise in this regard. In particular: • 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. College Enforcement Officers and Provincial Court Justices, whose jurisdiction is derived from the Provincial Offences Act, lack any such expertise in labour relations or knowledge the construction industry. • The OLRB weighs factors such as employer and area practice, competing collective agreements, skills and training, safety, agreements between competing unions, and economic efficiency when resolving jurisdiction disputes. By contrast, the College and the Provincial Offences Court consider only a strict, literal reading of O. Reg. Reg. 275/11 in determining whether a particular work assignment has violated the OCTAA (thereby applying a “black and white” analysis, as would be the case if they were dealing with a parking infraction under the Provincial Offences Act). The College and Provincial Court justices lack the specialized knowledge and expertise to correctly apply the traditional “jurisdictional dispute” factors listed above (employer and area practice, competing collective agreements, etc.). The fact is that College Enforcement Officers and the Provincial Offences Court simply do not have the expertise or institutional knowledge to correctly interpret and apply existing OLRB decisions regarding jurisdictional or work assignment disputes under the Labour Relations Act. As set out above, only the OLRB itself possesses the necessary level of institutional knowledge and expertise in this regard. As such, HCAT and TARBA suggest that: • Enforcement Officers should not be permitted to issue any fines under s. 4 of the OCTAA if the work in question was assigned to a member of a trade union. Any such work assignments are the appropriate subject matter of a jurisdictional dispute before the OLRB pursuant to s. 99 of the Labour Relations Act. • Any and all fines issued by Enforcement Officers under s. 4 of the OCTAA should be appealable to the OLRB – not Provincial Offences Court. The OLRB is the agency with the specialized knowledge and expertise needed to properly determine whether a particular type of work is work that can only be done by a compulsory trade or whether it is work that can also be performed by certain voluntary trades as well. The Provincial Offences Court has absolutely no expertise in this area. o It is important to note that if s. 4 fines issued by Enforcement Officers were appealable to the OLRB, this would be consistent with how stop work orders issued were appealed under the TQAA, the OCTAA’s predecessor legislation. Quite simply, when the TQAA was replaced by the OCTAA there was no reasonable justification for stripping the OLRB of jurisdiction over appeals of decisions regarding what does or does not constitute the exclusive work of a compulsory trade, and all such authority should be immediately restored to the OLRB. Such issues are ones that the OLRB has regularly dealt with for decades in the context of appeals of stop work orders issued under the TQAA, as well in the context of jurisdictional disputes between trade unions.





Section E - General Response and Comments

28. Please provide additional comments below, if any.

HCAT and TARBA suggests that the following amendments to the OCTAA, its Regulations, and/or the mandate of the College would be of significant benefit in improving the manner in which the College makes decisions on issues related to scopes of practice of trades and the manner in which the College uses scopes of practice to support the objects of the OCTAA: 1. The OCTAA and/or its Regulations should specifically and expressly articulate that whenever the College is faced with an application for review of trade classification status, the party/parties asserting that the trade’s status should be changed to “compulsory” bear a significant onus of demonstrating, by reference to relevant objective evidence, that there is a need (not just a desire) for a change to the status quo. 2. The entire SoP for a compulsory trade should not be subject to enforcement. A compulsory trade’s scope of practice will always overlap with the scopes of practice of certain voluntary trades. The only part of a compulsory trade’s SoP that should be subject to enforcement are those elements of the trade, if any, which are exclusive to that trade. 3. The OCTAA should be amended to expressly recognize that multiple trades’ Scopes of Practice may overlap and, as such, work may fall within the definition of a compulsory trade’s scope of practice but nevertheless may be lawfully and safely performed by other trades (including other voluntary trades) as well. 4. There should be no restrictions on employing members of a voluntary trade to perform work falling within the scope of a compulsory trade if specialized training or certification in the compulsory trade is not necessary to perform the work in a competent or safe manner. This would not create any conflicts with the existing occupational health and safety regime and would be consistent with the manner in which the TQAA was previously enforced. 5. The OCTAA and its Regulations should expressly distinguish the training purposes of an SoP from the enforcement purposes of an SoP. For training purposes, an SoP should set out all the areas in which training is required for an apprentice to become certified in a particular trade. By contrast, for enforcement purposes, the SoP of a compulsory trade should only be relevant to the extent it sets out the elements of the compulsory trade that are exclusive to that trade, if any. 6. Enforcement Officers should not be permitted to issue any fines under s. 4 of the OCTAA if the work in question was assigned to a member of a trade union. Any such work assignments are the appropriate subject matter of a jurisdictional dispute before the OLRB pursuant to s. 99 of the Labour Relations Act. 7. Any and all fines issued by Enforcement Officers under s. 4 of the OCTAA should be appealable to the OLRB – not Provincial Offences Court. The OLRB is the agency with the specialized knowledge and expertise needed to properly determine whether a particular type of work is work that can only be done by a compulsory trade or whether it is work that can also be performed by certain voluntary trades as well. The Provincial Offences Court has absolutely no expertise in this area.