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Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-54

Name of organisation making submission: DR-54 Sack Goldblatt Mitchell LLP on behalf of LIUNA Locals 625, 1059, 1089

Responses to questions in submission form


Section A - The Public Interest in this Review

1. What do you understand by public interest?

INTRODUCTION This is a joint submission by Labourers International Union of North America (“LIUNA”), Locals 625, 1059 and 1089. Locals 625, 1059 and 1089 together represent approximately 5500 workers across Southwest Ontario, predominantly in the construction industry. More information about each of these locals can be found respectively at www.liuna625.ca, www.liunalocal1059.com, and www.local1089.ca. This submission will address the impact of trades regulation on organized construction labourers in the construction industry, with a special emphasis on the enforcement of compulsory trades. WHAT LOCALS 625, 1059 AND 1089 UNDERSTAND BY THE PUBLIC INTEREST While there may be many purposes of the Ontario College of Trades and Apprenticeship Act (“OCTAA”), the fundamental purpose of compulsory trade enforcement is to promote occupational and public safety. This purpose is acknowledged in the Consultation Guide, which repeatedly invites consideration of whether compulsory certification should be limited to “those tasks, activities, or functions that may pose a risk of harm to the public, tradespeople or other workers on the job” (see p. 18 and Q 19). Safety considerations have always been regarded as the main purpose of compulsory trades enforcement. This was certainly the case under the Trades Qualification and Apprenticeship Act (“TQAA”). From 1999-2014, the TQAA’s compulsory trade restrictions were incorporated into a regulation under the Occupational Health and Safety Act (“OHSA”), Regulation 572/99, and enforced just like any other occupational health and safety standard. The Ontario Labour Relations Board (“the Board”) exercised adjudicative oversight over Regulation 572/99, and in this capacity repeatedly recognized the safety purpose of the compulsory trade restrictions, noting that Regulation 572/99 “was designed to promote public health and safety by ensuring workers have the proper and appropriate training to do certain work” (PCL Constructors Canada Inc., 2010 CanLII 26852 (ON LRB) para 29). While safety may be the purpose of compulsory trades restrictions, other public interest considerations are engaged by the enforcement regime. The main one, from our perspective, is the preservation of labour relations peace and industrial stability in the construction industry. The preservation of peace and stability consideration is sometimes mistakenly regarded as being in tension with the regime’s safety purpose, when it is actually complementary to it. As discussed below, construction labour relations norms have evolved consistently with the very safety considerations that underlie the compulsory trades restrictions. Thus, the safety purpose of compulsory trades enforcement can, and should, be achieved without destabilizing the regime it seeks to regulate. In order to adequately fulfill the complementary goals of safety and construction labour relations peace/stability, the compulsory trades enforcement regime must recognize some fundamental realities, which are as described below. --> The Compulsory Trade Definitions are Overbroad and Outdated Under the TQAA regime, the SoPs for the compulsory trades were widely acknowledged as being overbroad. This is because the SoPs for the compulsory trades, like all the SoPs, aim to include all the work of the trade, not just work that requires specialized training in order to be performed safely. The broad ambit of the SoPs capture work that can be safely performed by members of other trades, both regulated and non-regulated. While the SoPs may be useful for training purposes, it is irrational, harmful and counterproductive to apply these same definitions for enforcement purposes. As the Consultation Review acknowledges, "While all of the tasks in an SoP are relevant to apprenticeship training because apprentices are to be trained to the full scope of the trade, it is not necessarily clear that there is a public interest in enforcing every single activity in a compulsory trade SoP. For instance, there may be activities in a compulsory trade SoP that may not necessarily pose a risk of harm to the public, tradespeople, or other workers on the job…(p. 14)." The SoPs are also out of date. Each SoP was drafted at a particular point in time, and have been overtaken, to varying degrees, by changes in construction technology and techniques. Under the TQAA/OHSA regime, the Board addressed the problems with the SoPs by interpreting them purposively and contextually: compulsory trade orders were only upheld if the work in dispute, understood in its practical context, could not be performed safely without the specialized training available exclusively to members of the compulsory trade. An example of the Board’s purposive and contextual approach to the compulsory trade SoPs is well-illustrated by the case of PCL, cited above. In that case, PCL had a contract to perform work in connection with a multi-million dollar redevelopment of the Kingston General Hospital. The work included the demolition, removal and disposal of HVAC materials after they had been capped off by certified sheet metal workers. PCL subcontracted some of this demolition work to a company that employed construction labourers who were members of the LIUNA Local 247. In response, the Sheet Metal Workers Association (SMWA) filed a complaint with the Ministry of Labour alleging that the work in question fell within the sheet metal worker’s SoP, which defined a sheet metal worker as a person who, among other things, “handles” and “dismantles” sheet metal. The inspector who visited the site upheld the SMWA’s complaint. The inspector appears to have found that by demolishing the HVAC materials, the labourers were “handling” and “dismantling” sheet metal within the meaning of the sheet metal workers SoP. The inspector issued orders preventing labourers from continuing to carry out the demolition work in question. The orders were appealed to the Board by both PCL and Local 247. The issue to be decided was whether the demolition work in question fell within the sheet metal worker SoP. The Board began its analysis by recognizing that the terms “handle” and “dismantle” in the sheet metal worker’s SoP cannot be defined with the aid of a dictionary, but rather must be interpreted in light of regime’s purpose and in its proper context. As described above, the Board discerned that the purpose of the compulsory trade restrictions was “to promote public health and safety by ensuring that workers have the proper and appropriate training to do certain work” (para 29). Accordingly, it found that the question to be answered was whether the work in question was “work that sheet metal workers exclusively do, and more importantly must exclusively do, because of the training required to do such work correctly?” (para 32). The Board answered this question by properly characterizing “the work that the construction labourers actually did in connection with this part of the project” (para 37) which it found “was limited to taking down scrap metals and moving them out of the building so they could be disposed of appropriately” (para 37). The Board found that this work could have had no impact on an existing HVAC system, as prior to the commencement of this work, the portions of the HVAC system that were to be removed had been identified, isolated, capped off and decommissioned by the certified sheet metal workers. Thus, the work in question did not require any of the specialized and exclusive training that sheet metal workers have in order for it to be performed correctly and/or safely. To the contrary, the Board noted “this is work of a type or nature which construction labourers regularly perform, on a daily basis, across in [sic] this Province” (para 37). The Board concluded that the work in question did not fall within the sheet metal worker SoP, and the inspector’s orders were set aside. In our submission, any revisions to the SoPs in general, to the compulsory trade definitions in particular, or to the manner in which the compulsory trade restrictions are enforced, must begin by acknowledging the problems with the SoPs. Enforcing the compulsory trade definitions to their letter would wreak havoc with the construction industry without meeting the safety purposes for which the restrictions were enacted. --> LIUNA Provides Indispensable Training to Its Members Another reality that must be considered in fulfilling the dual purposes of safety and stability is that construction labourers represented by LIUNA are unique among the non-regulated trades. These workers have extensive experience and supportive training that distinguishes them from members of the “underground economy” who comprise a more rational target for compulsory trades enforcement. The majority of construction work in this province is carried out by workers represented by LIUNA. These workers operate in all sectors and subsectors of the construction industry, including the Industrial, Commercial and Institutional (ICI) sector; concrete forming; utilities; pipeline; sewer and watermain; heavy engineering; masonry; demolition; fencing; residential; railroad; landscaping; maintenance; and electrical power systems. While a limited number of LIUNA members are certified in the regulated trades, most of them are not. This latter group of workers is nonetheless highly skilled. Not only do they have real world experience performing a broad range of work, they are provided with regular training by LIUNA that is specialized, relevant and recognized by the Ministry of Training, Colleges and Universities (MTCU) and Human Resources Development Canada (HRSDC). Various locals of LIUNA provide training on topics that include the following: • Asbestos Abatement (Types 1, 2, and 3) • Bobcat/Skid Steer Safety • Boom Crane 8 Ton • Chainsaw • Confined Space Entry and Attendance • Confined Space Rescue • Electrical Safety • Elevated Work Platform/ Working at Heights • Fall Protection • Fire Extinguisher • First Aid/CPR • Fit Test Respirator • Forklift Safety • High Angle Rescue • Hoisting and Rigging • Horizontal Directional Drilling • Installation of Concrete Reinforcement Materials (such as rebar and wire mesh). • Lockout/Tagout Electrical Awareness • Overhead Crane • Propane Safety • Scaffold and Ladder Safety • Suspended Access Equipment • Traffic Control • Transportation of Dangerous Goods • Trenching Safety • Traffic Control • Worker Health and Safety Awareness • Workplace Hazardous Materials Information System (WHMIS) Locals 625, 1059 and 1089 are all active in the provision of training, with training centres that are recognized by the MTCU as “Training Delivery Agents”. Local 1059, for example, has a training budget of approximately $1 million per year. Training is provided to over over 1800 individuals annually. Additionally, approximately 120 apprentices receive training annually in the following certified trades: Brick and Stone Mason, Cement Finisher, Construction Craft Worker and Hazardous Material Worker. Local 1089 has two full time trainers on staff, with an annual training budget of approximately $400,000 - $500,000 per year. Training is provided to approximately 500 individuals per year. Additionally, approximately 50 apprentices receive training annually in the certified trades of Construction Craft Worker and Cement Finisher. Local 625 has 4 trainers on staff, with an annual training budget of approximately $500,000 - $600,000 annually. Training is provided to approximately 800-1200 individuals per year. Additionally, approximately 50 apprentices receive training annually in the certified trade of Construction Craft Worker. What this reveals is that from a skills and safety perspective, not all non-regulated trades are alike. A member of LIUNA may very well have the training and/or skills to perform a particular task safely, while a non-unionized participant in the “underground economy” may not. A sensible trades regime should not treat these two different kinds of construction workers alike. Consideration must be given to the experience and training that unionized members of the non-regulated trades may have. --> The Board’s Jurisdictional Dispute Resolution System In order to prevent the compulsory trades’ enforcement regime from undermining the stability of the construction industry, it must be recognized that the Board’s jurisdictional dispute resolution system plays a fundamental role in maintaining that stability. At the same time, the jurisdictional dispute resolution system is appropriately attuned to, and supportive of, the safety purposes that underlie the compulsory trades regime. A jurisdictional dispute arises when two unions assert bargaining rights with respect to the same work. While jurisdictional disputes can arise in any industry, they come up most frequently on construction sites, where members of multiple trade and craft unions apply overlapping skills on a single project. The Board has had jurisdiction to resolve jurisdictional disputes since 1966. The purpose of vesting this power in the Board is to substitute an effective legal process for labour relations strife. As the Board noted over 35 years ago, “nothing has a greater disruptive effect on amicable relations between the craft trade unions and the employers in the construction industry than jurisdictional disputes over which craft is to perform certain work” (Eaman Riggs Limited, 1978 CanLII 540 (ON LRB) para 34). In resolving jurisdictional disputes, the Board typically considers the following factors: collective bargaining relationships; skills, training, health and safety; economy and efficiency; the employer’s practice; the area practice; and employer preference. While the Board has broad discretion to weigh these factors in the facts of any given case, it tends to attach significant and primary weight to the factor of area practice. This ensures that jurisdictional disputes are resolved consistently with existing work patterns. A vast body of jurisprudence has been generated under s. 99. The jurisprudence itself provides trade unions and employers with practical guidance needed to structure their relationships. Employers are guided by this jurisprudence in making work assignments and in estimating costs. The decisions also provide a relatively stable and predictable context from which trade unions acquire and enforce their bargaining rights. The jurisdictional dispute resolution system is also attuned to, and supportive of, the same safety considerations that underlie the compulsory trades enforcement regime. The Board has not infrequently considered compulsory trade restrictions as a factor in adjudicating jurisdictional disputes involving one or more compulsory trades. While the Board does not and should not treat the compulsory trade definitions as determinative of work jurisdiction, it nonetheless tends to resolve jurisdictional disputes in accordance with the broader purposes of the compulsory trades restrictions. It does so in two ways. First, and most obviously, the Board always considers safety, skills and training in resolving jurisdictional disputes, which is the very purpose of compulsory trades enforcement. Second, when the Board considers area practice, which weighs most heavily in its jurisdictional analysis, it is implicitly addressing considerations of safety, skills and training: the fact that a particular category of workers have a practice of performing disputed work can indicate either that the workers in question are adequately trained to perform the work safely, or that specialized training is not required for the safe performance of that work. In short, the Board has been interpreting compulsory trade definitions purposively and contextually in its adjudication of jurisdictional disputes, which is precisely how these definitions must be approached under the trades regulation regime. Indeed, we are not aware of any case in which the Board has upheld an assignment of safety-sensitive work to a union of workers who are not able to perform the work safely. In cases where compulsory trades restrictions are outweighed by other considerations, safety is not a significant issue. An example that illustrates the Board’s approach to jurisdictional disputes in general, as well as its treatment of compulsory trade restrictions in the context of jurisdictional disputes, are the Board’s two decisions in Weinmann Electric Limited. In Weinmann Electric Ltd, 2010 CanLII 71126 (ON LRB) (“Weinmann #1”), the International Brotherhood of Electrical Workers (“IBEW”) asserted a claim to work that had been assigned to Local 1089. The work in question was performed in connection with a new highway traffic monitoring system, and included the installation of conduit and other equipment that was then threaded and connected by members of the IBEW. The Board resolved Weinmann #1 mainly in favour of the IBEW. In this regard, the Board considered that the electrician’s SoP covered at least part of the work in dispute. However, while this was a factor in the Board’s analysis, the determinative factor was that area practice supported the IBEW. The Board determined that area practice ought to be given the greatest weight in the analysis, given that the Board has long been reluctant to “’disturb what appears to be a successful and long-lived work jurisdiction’” (para 95). On the other hand, the Board also found that employer practice favoured Local 1089. From this it followed that members of Local 1089 had sufficient skills, ability, safety and training to perform the work, given that the members employed by this particular employer “had been doing this work for a long time” and had been doing so “as safely as possible.” Still, these considerations were outweighed by the matter of area practice which, again, favoured the IBEW. In the end, the Board made an order re-assigning most of the work in dispute to IBEW. However, the Board acknowledged the employer’s concerns that simply reassigning the work to members of the IBEW would give rise to inefficiencies. This was because members of Local 1089 were necessarily required to start a given work day by digging the trench. The PVC conduit, pull boxes and fish line would then be installed later in the day. If members of the IBEW were to be assigned that afternoon work, they would be standing idle for a portion of the morning while the trenches were dug. As such, the Board made a practical order that was “subject to considerations of efficiency” (para 102). In this regard, the Board made the following comments in which it acknowledged the everyday reality of overlapping work in the construction industry: "I am hesitant to make an unrestricted order assigning the work encompassed in items 1, 2 and 3 to the IBEW without some modification. I do not propose to make an order that requires employees to stand around waiting for work that they can do. If an employee is on the job, he or she must be fully employed for the entire working day that the employer schedules. Indeed it is extremely common in multi-trade construction projects to find that, in situations where an employer has made a series of work assignments that all parties are content with, nonetheless on a day-to-day basis, Millwrights, for example, will perform work which is, strictly speaking, Iron Workers’ work for part of the day, and that Iron Workers routinely perform work that is, again strictly speaking, Millwrights’ work for portions of different days. That is what is required to get the job done even though it results in members of one trade performing work that would otherwise be performed “properly” by members of a different trade union. The unionized construction industry only works when this sort of give-and-take occurs every day, and everyone works in an efficient manner to get the job done. In this case I find that the work in items 1, 2 and 3 ought to have been awarded to members of the IBEW, except in those situations where the amount of such work to be performed would occupy only a small part of that employees’ time. The Board does not expect the parties to require it to micromanage the allocation of time on every project in Sarnia. Rather the Board expects the parties to proceed with the same sort of accommodation and co-operation that characterizes most assignments of work where two trades work closely together" (para. 100-101). It is to be stressed that the plain meaning of the TQAA regulation was not the definitive factor supporting the Board’s determination in Weinmann #1; as noted, area practice determined the result. Had the area practice favoured Local 1089, the Board may well have decided the case differently. And this is precisely what occurred in Weinmann Electric Ltd, 2014 CanLII 80647 (ON LRB) (“Weinmann #2”), which involved a different Labourers Local (Local 1081) performing the same kind of work in a different board area. In that case, area practice (as well as employer practice) was found to favour Local 1081, and thus the Board confirmed the work assignment to Local 1081. Although this result ran afoul of the compulsory trades restriction in a strict technical sense, it posed no threat to the broader purpose of the trades regime, since the Board determined, again, that Local 1081 had a history of performing this work and its members could perform it safely. To quote from the decision: "The work is, as noted above, within the core jurisdiction of the trade of electrician. That is not to say that only an electrician can, by law, do the work, but that this work is associated with the core of the trade. However, as long ago as K-Line Maintenance and Construction Limited, [1979] OLRB Rep. Dec. 1185, the Board commented on the convergence of the work of utility contractors and of electrical contractors. Whatever the reasons for this, the change in technology or perhaps simply the change in construction techniques, the two sets of contractors found that they were both performing the same kinds of work, although they approached the contracts from a different perspective. That is, labourers have been doing this work for some time. The photographs contained in the IBEW’s brief that demonstrate that one or more persons who are members of the Labourers’ Union have improperly installed a conduit or a fish line is not probative of anything. It is likely true that, if one were to take a group of newly licensed electricians and newly employed labourers, the electricians would likely be more skilful in the performance of the work. That is not the test. If UIL has been able to assemble a group of persons who are members of the Labourers’ Union, and is able to remain profitable while employing them and replacing and perhaps training them over time, then the question of skill is not an issue that is of any significance in this jurisdictional dispute" (paras. 45-46). Three points follow from the above discussion. First, for the trades regulation regime to preserve peace and stability in the construction industry, it must align with, and not undermine, the jurisdictional dispute system; for it is the jurisdictional dispute system that is key to upholding peace and stability in the construction industry. Second, an alignment between the two regimes has not threatened the safety purpose of the compulsory trades regime, because the jurisdictional dispute system is informed by the same safety considerations that underpin the compulsory trades restrictions. Third, the jurisdictional dispute jurisprudence is evidence of which trades have a practice of carrying out which work, where regional variations in work allocation exist, how the work is actually carried out, whether and how work has changed, where overlaps between trades exist, and the extent to which specialized training is (or is not) required to perform the work safely. All of these considerations are relevant to various determinations forming the subject of this review, including how the compulsory trades should be designated, defined and enforced. --> The Trades Regulation Regime is Vulnerable to Abuse by Trade Unions and Specialty Contractors Seeking to Attain Jurisdictional Objectives In order to preserve the integrity of the jurisdictional dispute system (and hence the stability of the construction industry itself), the compulsory trades enforcement regime must safeguard against abuses by trade unions or specialty contractors seeking to attain jurisdictional objectives that could not be achieved through the jurisdictional dispute resolution system. It should first be acknowledged that questions of trade exclusivity are different from questions of jurisdiction. A tradesperson’s claim to exclusivity over a particular kind of work is rooted in considerations of safety and training. A union’s claim to jurisdiction over that same work is based on a broader set of considerations. At a practical level, a compulsory trade restriction may not affect a union’s jurisdiction, because unions often represent members of various trades. Thus, for example, if work falling within LIUNA’s jurisdiction was deemed to be work of a compulsory trade (say, electrician), then LIUNA may be able to effectively exercise its jurisdiction by supplying certified LIUNA electricians to perform the work. At the same time, it cannot be denied that in some situations, compulsory trade restrictions can effectively determine questions of union jurisdiction. This holds most true in the ICI sector, where bargaining rights are delineated by trade (LIUNA can represent only construction labourers, IBEW can represent only electricians, etc). In that context, a determination that certain work falls within the exclusive domain of a compulsory trade could effectively amount to a loss of jurisdiction for LIUNA. This may even be the case in the non-ICI sector, despite the fact that bargaining rights are not necessarily designated by trade. While LIUNA may be able to address compulsory trades restrictions in the by deploying its own certified tradespeople to perform the work, it may be limited in many cases by availability. It is this practical relationship between compulsory trade restrictions and union jurisdiction that leaves the compulsory trades regime vulnerable to abuse. Trade unions or specialty contractors will inevitably attempt to use the compulsory trades regime to secure jurisdictional advantages or work that could not be achieved through the jurisdictional dispute system. The potential for abuse is heightened by the overbreadth of the compulsory trades definitions, which have the potential to wreak havoc with existing work patterns if interpreted and applied literally. This vulnerability was recognized and addressed under the old regime. For one, inspectors were cautioned to distinguish between bona fide OHSA/TQAA-based complaints and what were in essence jurisdictional disputes: "When determining whether a contravention falls under OTAB or MOL, the inspector should determine whether the concern is a bona fide health and safety concern or whether this is in reality an economic or political dispute. A common example of the latter would be two trades “squabbling” because each wants to be awarded work on a contract (i.e. jurisdictional dispute). Clarification is also necessary whether an individual contravention is of a TQAA nature or is alleged as a TQAA/OTAB issue. Many non-compulsory Trades that are certified under TQAA contain similar or same functions as do the compulsory trades … ie, Sprinkler Vs. Plumber/Fitter. We must recognise that either trade could legitimately do this job. If there is a dispute in that regard it should be dealt with as a jurisdictional matter." (July 18, 1994 Ministry of Labour Policy regarding the Trades Qualification and Apprenticeship Act, as quoted in Buttcon, 2000 CanLII 13479 (ON LRB) para 5 and Paul Daoust Construction Canada Ltd., 2001 CanLII 18679 (ON LRB) para 7). Even more significantly, the Board had jurisdiction to suspend the effect of an order pending adjudication of the matter on the merits (OHSA, s. 61(7)). In deciding whether to grant a suspension, the Board regularly considered whether the complaint giving rise to the order was jurisdictionally motivated, which was a factor weighing in favour of granting the suspension. For example, prior to the PCL decision, discussed above, the Board issued an interim decision in which it suspended the effect of the order (PCL Constructors Canada In., 2009 CanLII 2411). The Board found that there was credence to the allegation that the Sheet Metal Workers filed the complaint not because of a concern with the health and safety of the workers, but as a “jurisdictional dispute in disguise” (para 16). The Board held that this was an appropriate consideration weighing in favour of suspending the order. The Board’s suspension powers, and the sensitivity with which these powers were exercised, made it difficult, if not impossible, for jurisdictionally-motivated complaints to disrupt the jurisdictional status quo for any significant period of time. Even if an inspector did issue an order in response to a jurisdictionally-motivated complaint, the order would be suspended in a matter of weeks if there were no safety concerns associated with the performance of the work.


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

The College should not serve the interests of any particular group or groups, but should focus on its safety purpose, especially in the area of enforcement.


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

The College should make enforcement decisions in accordance with its broader safety purposes. It should not allow itself to become a forum through which certain trade unions or speciality contractors can attain jurisdictional advantages or work that could not be achieved through the jurisdictional dispute resolution system that exists under the Ontario Labour Relations Act. To this end, a number of measures must be put into place, which are detailed in the answer to Q5 below.


4. Is the College currently protecting the public interest?

OCTAA’s compulsory trades enforcement regime is currently failing to protect the public interest. To the contrary, the compulsory trades restrictions are being enforced in a way that is disrupting peace and stability in the construction industry without promoting safety. There are a number of fundamental problems with the present regime, which are as follows. -->The SoPs for the Compulsory Trades Remain Overbroad and Outdated As noted, the SoPs for the compulsory trades have been overbroad and outdated for a long time. The redesign of the trades regime presented the government with an opportunity to address this problem head-on by redefining the compulsory trade definitions. This did not happen. Instead, the ill-defined, overbroad and outdated definitions from the old regime have been simply imported into the new one. --> The Board’s Expert Oversight has been Eliminated Under the former regime, the Board exercised adjudicative oversight over enforcement of compulsory trades restrictions. The Board’s role has been eliminated under OCTAA. Charges laid can only be challenged in provincial court, which lacks the expertise to interpret the compulsory trade restrictions purposively, contextually and consistently with the Board’s jurisdictional dispute jurisprudence. -->No Jurisdiction to Interpret Compulsory Trade Restrictions Purposively and Contextually The provincial court apparently lacks jurisdiction to interpret the compulsory trade restrictions in a purposive and contextual manner. OCTAA does not provide that its compulsory trade restrictions must be interpreted in light of its broader purposes. OCTAA’s broader purposes are not even identified. This creates the risk, and indeed the likelihood, that the trades restrictions will be mechanically applied on the basis of the overbroad and outdated SoPs, without taking into account the realities of construction work or the Board’s vast jurisprudence on jurisdictional disputes. -->Trade Unions and Employer Associations Lack Status Under the old regime, unions and other affected parties had standing to appeal an order and full participatory rights in any appeal of an order. This is no longer the case. Status is reserved for the parties who have been charged with OCTAA offences, who can only be the employer or an individual employee. This creates grave problems of fairness for the trade unions and employer associations whose interests are clearly affected by charges involving their members. It also contributes to the risk that the compulsory trade restrictions will be interpreted rigidly and divorced from their proper context. It is often only trade unions and employer associations who have the motivation to challenge the charges in the first place, the resources to mount an effective challenge, and the knowledge and perspective to provide the court with relevant contextual evidence. Indeed, all of the compulsory trades appeals under the OHSA/TQAA regime benefited from the active participation of affected trade unions and/or employer associations. --> No Suspension Powers Under the former regime, the Board had the power to suspend the operation of the order pending the disposition of the appeal. The provincial court has no similar powers. This renders the trades regulation system vulnerable to jurisdictional abuse. A trade union or employer can now circumvent the jurisdictional dispute resolution system, or undo the effects of a jurisdictional decision, simply by convincing an OCOT inspector to lay charges under OCTAA. This would likely cause the affected employer to immediately halt or reassign the work in order to avoid further charges. This disruption to the status could end up being determinative of the work assignment, as the provincial court is unlikely to render a decision, or even hear the matter, until after the work is complete. There is no practical and accessible mechanism through which a defendant (let alone an affected trade union or employer’s association) can seek to preserve the status quo until the matter is decided. ---> Inspectors Lack Neutrality and Guidance In the former system, trades inspectors were government employees working for the Ministry of Labour. They were hired in accordance with the usual processes governing the Ontario Public Service. Their primary concern was with occupational health and safety; they had no vested interest in the outcome of any particular case. OCOT inspectors, in contrast, lack the appearance of neutrality and are not provided with appropriate oversight and guidance. It is not clear on what basis OCOT inspectors are hired, but it appears that they have been disproportionately drawn from the compulsory trades. This raises the appearance of bias, as the inspectors stand to gain or lose from how they exercise their discretion. Moreover, we are not aware of whether OCOT inspectors have been provided with appropriate training and guidance as to how to distinguish between compulsory and non-compulsory type work in the SoPs of the compulsory trades, how to address inevitable overlaps between the trades, and how to guard against abuses of the system by identifying complaints that are essentially jurisdictional in nature. --> Example of Shortcomings in New Regime An example that illustrates the shortcomings inherent in the OCTAA enforcement regime took place in April of 2014, immediately after OCTAA took effect, when an electrical contractor, Stacey Electric, was charged with offences under OCTAA. The charges related to some of the work involved in the installation of street and tunnel lights on the Herb Gray Parkway in Windsor. The work in question included the installation of conduit, cable tray and ground rods. This is the kind of work that has been carried out by members of LIUNA for decades both in the Windsor area and across the province. The work did not involve installing electrical cables or working with live electricity; that kind of work was carried out by certified electricians. The work in question fell within the scope of the Windsor Essex Parkway Collective Agreement, which had been negotiated by Local 625. That Collective Agreement bound all subcontractors on the project, including Stacey. Local 625 then reached a jurisdictional agreement with IBEW that permitted IBEW electricians to perform certain electrical work on the project in situations where an IBEW-represented company is awarded the work. Stacey’s work on the Parkway proceeded in accordance with the jurisdictional agreement and without incident. Unexpectedly, a College inspector arrived at the site and claimed that labourers employed by Stacey were performing electricians' work. The inspector proceeded to issue 11 tickets over the course of the next several days, each of which charged Stacey with committing the offence of “employing or otherwise engaging individual to engage in compulsory trade – without certificate of qualification that is not suspended, contrary to Ontario College of Trades and Apprenticeship Act, 2009 [OCTAA]”. Each ticket carried a fine of $360. Although the inspector did not particularize the charges, they presumably related to the SoP for an “electrician – construction and maintenance,” which is as follows: "Electrician — construction and maintenance 11. (1) The scope of practice for the trade of electrician — construction and maintenance includes the following: 1. Laying out, assembling, installing, repairing, maintaining, connecting or testing electrical fixtures, apparatus, control equipment and wiring for systems of alarm, communication, light, heat or power in buildings or other structures. 2. Planning proposed installations from blueprints, sketches or specifications and installing panel boards, switch boxes, pull boxes and other related electrical devices. 3. Measuring, cutting, threading, bending, assembling and installing conduits and other types of electrical conductor enclosures that connect panels, boxes, outlets and other related electrical devices. 4. Installing brackets, hangers or equipment for supporting electrical equipment. 5. Installing in or drawing electrical conductors through conductor enclosures. 6. Preparing conductors for splicing of electrical connections, securing conductor connections by soldering or other mechanical means and reinsulating and protecting conductor connections. 7. Testing electrical equipment for proper function. O. Reg. 275/11, s. 11 (1)." The work forming the subject of the dispute presumably related to the installation of conduit, cable trays and ground rods, which, on a mechanical and decontextualized reading of the regulation, arguably falls within items 3, 4 or 6. The inspector threatened to issue more tickets, with higher fines, unless and until the alleged offence ceased. As a result, Stacey was forced to stop assigning the work in question to members of Local 625 who were construction labourers. Stacey opted to defend itself by pleading not guilty to the charges. Local 625 had no status or standing to contest the charges or to participate in the proceedings, despite its obvious interest in the matters at issue. Had Stacey opted to enter a guilty plea, Local 625 would have been left without any recourse to defend its work and the livelihoods of its members. The provincial court scheduled the hearing of the charges for September 2014 – approximately five months after the charges were laid. In the interim, Stacey was placed in an impossible bind: comply with its OCTAA obligations and breach its contractual obligations to Local 625, or comply with its contractual obligations and be charged with an indefinite series of provincial offences, with the possibility of fines increasing to $10,000 per infraction. There was no access to a stay procedure to address this problem on an interim basis. Fortunately, the parties were able to work out a partial solution in which Stacey hired electricians represented by Local 625 to perform the work in dispute. In this way, Stacey was able to proceed with its work without incurring liability under the Local 625 collective agreement. However, significant prejudice was caused to the construction labourers who were forced out of work that they were qualified to perform. As well, this kind of solution may not have been available in some sectors or regions. The charges against Stacey were ultimately stayed by a court order placing Stacey into receivership (for reasons unrelated to the OCTAA charges). However, had the hearing proceeded, it was not clear that Stacey would have been able to mount an effective defence, as the provincial court lacked the expertise and the express jurisdiction to analyze the charges purposively, contextually and consistently with the Board’s jurisprudence on jurisdictional disputes. It is to be noted that in Weinmann, the Board found that non-electrician members of LIUNA had the experience to perform precisely this kind of work safely, even though the work in question technically fell within the scope of practice of the compulsory trade of electrician. There was a risk that the provincial court would have disregarded this jurisprudence in favour of a mechanical and decontextualized interpretation of the electrician’s SoP. Moreover, the provincial court lacked the expertise and the express jurisdiction to consider whether the motives behind the complaint and/or the prosecution were jurisdictional in nature, specifically whether the OCTAA regime was being abused by the IBEW to defeat LIUNA’s bargaining rights and to circumvent the jurisdictional agreement that the two unions had negotiated. While the Stacey charges have been temporarily resolved, the Stacey scenario threatens to repeat itself unless OCTAA’s enforcement regime is remedied on an urgent basis. There are hundreds of construction employers in Ontario who employ thousands of workers to do work that could easily attract the attention of OCOT inspectors, on a mechanical and/or biased reading of the compulsory trade restrictions. Furthermore, more trades have applied for compulsory status, on the basis of overbroad and outdated SoPs, which will increase the potential for more charges.


5. How should the College advance the public interest?

In our view, the following measures must be implemented in order to ensure that the College is acting for the public interest and not in the interest of any particular trade group or union. --> Revise Compulsory Trade Restrictions The compulsory trade restrictions are overbroad and out of date, and should be revised to define restricted and non-restricted work. The revision must begin with the premise that not every task that falls within a compulsory tradesperson’s scope of practice requires specialized training to be performed safely. A process must be established whereby compulsory tasks are distinguished from the non-compulsory ones. A compulsory task ought to be defined as a task that requires specialized training provided to members of the compulsory trade. It is only the compulsory tasks that ought to be subject to restrictions and enforcement. However, as our next recommendation provides, regardless of whether or not the SoPs for the compulsory trades are reviewed, and even if they are, the essential focus for reform ought to be on how the compulsory trade restrictions are enforced. ---> Codify Requirement to Interpret Compulsory Trade Restrictions Purposively and Contextually As noted, our first recommendation is that the compulsory trade restrictions be updated and revised such that only compulsory tasks are made subject to enforcement. However, revising the compulsory trades restrictions can never be a complete solution to the problems of overbreadth and outdatedness. These problems are inherent to the definitional exercise. Even if a given task is prima facie of a compulsory nature, it may nonetheless be inappropriate to enforce it in circumstances that include the following: • Members of other regulated or non-regulated trades may be able to perform the task safely, either because of training (such as the training provided by LIUNA), or due to experience. • The safety-sensitive aspect of the task may be minimal when considered within the broader context and purpose of the work. In this situation, it may be impractical, inefficient and/or uneconomical to have members of a compulsory trade carry it out. • Technology may evolve to the point that tasks once regarded as safety-sensitive no longer raise safety concerns. • Enforcing the restriction may conflict with a jurisdictional dispute decision. Thus, no matter how accurately or sensitively the compulsory trades definitions are drafted, these definitions will always be words on a page that will have to be interpreted purposively and contextually. This was how the Board interpreted the compulsory trades requirement under the old regime; this purposive and contextual approach should be an express requirement under the new regime. While this recommendation stands on its own, it takes on particular importance in the event that adjudicative oversight over the trades regime is not restored to the Board but remains with the provincial court. Lacking specialized expertise in the construction industry, the provincial court will require clear and specific guidance on how the compulsory trades restrictions ought to be interpreted and applied. --> Consider Board’s Jurisdictional Dispute Jurisprudence For the trades regulation regime to preserve peace and stability in the construction industry, it must align with, and not undermine, the jurisdictional dispute system, for it is the jurisdictional dispute system that is key to upholding peace and stability in the construction industry. At the same time, the jurisdictional dispute resolution system is attuned to, and supportive of, the same safety considerations that underlie compulsory trades restrictions. The Board’s jurisdictional dispute jurisprudence should be considered at every stage of decision-making in the OCTAA system. For one, the jurisprudence should be considered in any SoP review, compulsory trades designation review, or compulsory trades designation hearing, as it provides compelling evidence of which trades have a practice of carrying out which work, where regional variations in work allocation exist, how the work is actually carried out, whether and how work has changed, where overlaps between trades exist, and where specialized training is (or is not) required to perform the work safely. Moreover, in order to protect the trades regulation regime from jurisdictional abuse, the jurisdictional dispute jurisprudence should be accorded consideration at the enforcement level. Specifically, it should be a defence to a charge under OCTAA that the work in question or similar work has been confirmed in a jurisdictional dispute. At the very least, in cases where OCTAA charges conflict with a jurisdictional decision of the Board, the charges should be dismissed or stayed unless it is proven on a preponderance of evidence that there are clear and compelling safety reasons to uphold them. As well, where an OCTAA complaint appears to be a jurisdictional dispute in disguise, it ought to be deferred to the jurisdictional dispute resolution system. --> Restore Adjudicative Oversight to the Board Adjudicative oversight over the trades regime must restored to the Board. The Board is the only tribunal in Ontario with the expertise necessary to interpret the compulsory trade regulations purposively, contextually and consistently with its jurisprudence on jurisdictional disputes, as well as to distinguish a bona fide compulsory trades issue from a jurisdictional dispute in disguise. The provincial court, in contrast, has no equivalent expertise. Although it technically could adjudicate charges under the TQAA, it rarely did so. There is no good reason for the provincial court to play a role under OCTAA, let alone as the sole tribunal overseeing the entire system. --> Restore Standing to Affected Trade Unions Unions and employer associations must have the right to participate in compulsory trades enforcement proceedings. Where a union or employer association considers itself aggrieved by an inspector’s charge, it must have the right to appeal or otherwise challenge that charge. As well, unions and employer associations must have full party status in any challenge involving the workers/employers that they represent. It is essential that the status of all parties affected by trades regulation disputes be restored. It is unions and employer associations who have the most at stake in these matters. As such, it is often the unions and employer associations, not employers or individual employees, who have the motivation, resources and knowledge to mount a defence to the charges and to ensure that all relevant contextual factors are considered. Indeed, most of the litigation under the previous enforcement regime benefited from the active participation of trade unions and/or employer associations. -->Restore Power to Suspend Orders Under OCTAA, the suspension of an enforcement order should issue automatically upon the filing of an appeal. The suspension should only be lifted if the party seeking to revoke the suspension can establish a prima facie case for the order, a significant safety reason to lift the order, and irreparable prejudice if the order is not suspended. We note that this is was not the procedure for suspending an order under the previous regime, where orders would remain in effect unless and until they were suspended by the Board. However, under the previous regime, compulsory trades restrictions were enforced under OHSA, where they were treated like any other health and safety requirement. While health and safety violations can generally be presumed to create an immediate risk to health and safety that should, in the ordinary course, trump other considerations, infringements of the compulsory trade restrictions should not in and of themselves be presumed to create an immediate safety risk. Indeed, requests for suspension were almost always granted in the previous regime, because the Board rarely found that suspending the order would create any real and immediate risk to workers or to the public. Now that the compulsory trade restrictions have been transferred from OHSA to OCTAA, it is no longer appropriate or necessary to enforce them as though they were pure health and safety requirements. At the same time, OCTAA prosecutions have an obvious potential to disrupt labour relations and compromise economic stability on construction projects across the province. This militates strongly in favour of a process that favours the status quo by making suspension the default position, at the very least on construction industry worksites where unions have competing claims to the work. In the alternative, charges under OCTAA should be subject to stay proceedings akin to those available under OHSA. This would go at least some measure toward ensuring labour relations and economic stability and protecting the system from abuse. --> Restore Inspection Functions to Ministry of Labour Enforcement of the compulsory trades restrictions ought to be restored to the Ministry of Labour. This would address the problem of bias or perceived bias, as MOL inspectors are government employees who are not drawn from any particular trade. It would also avoid duplication and costs to have OHSA and OCTAA inspections carried out simultaneously, by the same individuals and on the same worksites. Alternatively, if enforcement functions continue be vested in OCOT, then OCOT’s inspectors must be given appropriate oversight and guidance to ensure that they are exercising their authority fairly, and not to protect (or expand) the jurisdiction of the compulsory trades. To start, the process for appointing OCOT inspectors must be made public and transparent. Measures must be taken to ensure that OCOT inspectors are drawn from a wide representation of professional affiliations. In particular, decisions about the recruitment, hiring and guidance of OCOT inspectors must be made by a diverse board that includes representatives of the organized, non-regulated trades. This will promote public confidence in the system by protecting against bias and/or the appearance of bias. Moreover, OCOT inspectors must be provided with appropriate training and guidance to ensure that the compulsory trades restrictions are not applied mechanically, but contextually and purposively. At a minimum, OCOT inspectors must be instructed not to lay charges if the work in question does not require specialized training to be performed safely. Indicators that work is not suitable for charges include: where the work is not of a compulsory nature, where the work overlaps with the work of another trade (regulated or non-regulated), where the work in question or similar work has been confirmed in a jurisdictional dispute decision, and/or where it appears that the trades regulation regime is being abused to achieve jurisdictional ends.





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.

As noted above, the SoPs in regulation are overbroad and out of date and accordingly have little impact on the daily work of our members, except as training standards for on-the-job training for apprentices.


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

The characterization of a task as compulsory ought to turn on whether or not it requires specialized training in order to be performed safely. The core versus peripheral distinction is not useful for this purpose, as many tasks that are regarded as core to certain trades do not necessarily require specialized training in order to be performed safely and may overlap with the tasks that are also core to other regulated and non-regulated trades. The Board has recognized, for example, that the installation of conduit is arguably “core” to the work of both electricians and labourers: "…The work is, as noted above, within the core jurisdiction of the trade of electrician. That is not to say that only an electrician can, by law, do the work, but that this work is associated with the core of the trade. However, as long ago as K-Line Maintenance and Construction Limited, [1979] OLRB Rep. Dec. 1185, the Board commented on the convergence of the work of utility contractors and of electrical contractors. Whatever the reasons for this, the change in technology or perhaps simply the change in construction techniques, the two sets of contractors found that they were both performing the same kinds of work, although they approached the contracts from a different perspective. That is, labourers have been doing this work for some time" (Weinmann Electric Ltd, 2014 CanLII 80647 (ON LRB) [“Weinmann #2”] para. 45). Thus, although the distinction between “core” and “non-core” tasks may exist, it is not a distinction that is useful to the task of compulsory trades enforcement.


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.

The SoP for a trade should continue to list all of the tasks, activities or functions in which an apprentice should be trained. However, it is only compulsory tasks that should be made subject to enforcement. A compulsory task should be defined as a task that requires the specialized training associated with the compulsory trade in question in order to be performed safely. Still, just because a task in a SoP is compulsory and subject to enforcement does not mean it should be enforced in any situation; the context must always be considered to determine whether enforcement is appropriate in any given case. Even if a task is compulsory in nature, it may nonetheless be inappropriate to enforce it in circumstances that include the following: • Members of other regulated or non-regulated trades may be able to perform the task safely, either because of training (such as the training provided by LIUNA), or due to experience. • The safety-sensitive aspect of the task may be minimal when considered within the broader context and purpose of the work. In this situation, it may be impractical, inefficient and/or uneconomical to have members of a compulsory trade carry it out. • Technology may evolve to the point that tasks once regarded as safety-sensitive no longer raise safety concerns. • Enforcing the restriction may conflict with a jurisdictional dispute decision. The SoPs should not, and indeed cannot, strive to list tasks that are unique to the trade, as overlap amongst the trades is inherent to construction work. Thus, the project of identifying the tasks unique to each trade would be conceptually impossible and would serve no principled or practical purpose in terms of training or enforcement.


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

We generally support an SoP review. However, it is not realistic to imagine that OCOT alone could achieve the monumental task of revising the SoPs for all of the regulated trades within a reasonable amount of time, or at all. Indeed, an SoP review that was commenced by OCOT last year was unsuccessful and had to be cancelled. Not only does this cast doubt on OCOT’s ability to complete an SoP review, but it highlights the extent to which the OCTAA regime is vulnerable to jurisdictional agendas. The SoP review failed because representatives of certain compulsory trades, in a bid to retain or expand jurisdiction, refused to acknowledge that their SoPs may include non-compulsory work. If the SoPs are reviewed, this project ought to begin with a review of the SoPs for the compulsory trades, as it is these SoPs that are being interpreted and applied in an unprincipled manner that presents an immediate threat to the stability of the construction industry. A review of the SoPs for the compulsory trades requires not only an update of the SoPs, but an identification of the tasks within each SoP that are compulsory in nature, in the sense that the task in question requires specialized training provided to members of the trade in question in order to be performed safely. Still, regardless of whether the SoPs for the compulsory trades are reviewed, and even if they are not, the focus for reform ought to be on how the compulsory trade restrictions are enforced. Inspectors and adjudicators must interpret and apply the restrictions purposively and contextually. A restriction should not be enforced unless safety considerations make it appropriate to do so in the particular circumstances in which the work is performed.


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

The existing SoPs cannot meaningfully support any of the College’s diverse functions, as they are overbroad and out of date. If the SoPs were to be adequately revised and updated, they would support some of the College’s functions, such as apprenticeship training. They would not, however, support enforcement in and of themselves. There would need to be an accurate identification of which tasks in a given SoP are compulsory in nature in the sense that the task in question requires specialized training provided to members of the trade in question in order to be performed safely. Moreover, even a compulsory task should not necessarily be enforced. A purposive and contextual analysis must be carried out in the circumstances of each case to determine whether enforcement is appropriate in the circumstances.


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 enforceable or subject to enforcement. It is only the tasks that require specialized skills associated with the compulsory trade that ought to be regarded as compulsory and subject to enforcement. Even where a task is compulsory in nature, a purposive and contextual analysis must be carried out in the circumstances of each case to determine whether enforcement is appropriate in the circumstances.


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.

The College could 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. Such activities may be regarded as compulsory in nature and subject to enforcement. However, just because an activity is subject to enforcement does not mean that it ought to be enforced in the circumstances of any given case. A purposive and contextual analysis must be carried out in each case to determine whether enforcement is appropriate.


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

In the construction industry, overlaps between SoPs are inevitable, as are overlaps between the SoPs in regulation and work not contained in any SoPs. Overlaps may arise because different trades perform the same work from different perspectives. As the Board has noted, there is a “convergence” in the work of electricians and construction labourers specifically with respect to the installation of conduit: "…The work is, as noted above, within the core jurisdiction of the trade of electrician. That is not to say that only an electrician can, by law, do the work, but that this work is associated with the core of the trade. However, as long ago as K-Line Maintenance and Construction Limited, [1979] OLRB Rep. Dec. 1185, the Board commented on the convergence of the work of utility contractors and of electrical contractors. Whatever the reasons for this, the change in technology or perhaps simply the change in construction techniques, the two sets of contractors found that they were both performing the same kinds of work, although they approached the contracts from a different perspective. That is, labourers have been doing this work for some time. (Weinmann Electric Ltd, 2014 CanLII 80647 (ON LRB) [“Weinmann #2”] para. 45). The Board has also recognized that overlaps may be demanded by practicality, efficiency and economy: "…it is extremely common in multi-trade construction projects to find that, in situations where an employer has made a series of work assignments that all parties are content with, nonetheless on a day-to-day basis, Millwrights, for example, will perform work which is, strictly speaking, Iron Workers’ work for part of the day, and that Iron Workers routinely perform work that is, again strictly speaking, Millwrights’ work for portions of different days. That is what is required to get the job done even though it results in members of one trade performing work that would otherwise be performed “properly” by members of a different trade union. The unionized construction industry only works when this sort of give-and-take occurs every day, and everyone works in an efficient manner to get the job done (Weinmann Electric Ltd, 2010 CanLII 71126 (ON LRB) [“Weinmann #1”]).


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

As noted, the SoPs in regulation are overbroad and out of date and accordingly have little impact on the daily work of construction labourers, except as training standards for on-the-job training for apprentices. More recently, the SoPs in regulation have had an adverse impact on LIUNA and its members in the sense that that they have been interpreted in a mechanical, decontextualized fashion (see Stacey example in answer to Q5 above).


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 third legal interpretation principle holds as follows: “When work is contained within 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 third legal interpretation principle is flawed to the extent that it lacks the required focus on safety. Any principle of enforcement should ask whether the workers performing the work in question have the experience or training necessary to perform the work safely. The existence or absence of overlap between a compulsory and non-compulsory trade does not necessarily address this question. The fact that work is contained within the SoPs of both a compulsory and a voluntary could indicate that specialized training is not required to perform the task in question safely, but not necessarily so: it may be the case that specialized training is provided to members of the compulsory trade as well as the voluntary trade, but not to members of other trades. For example, connecting powerlines arguably falls within the scope of practice of both electricians (compulsory trade) and powerline technicians (voluntary trade), but this does not necessarily mean that any person should be permitted to engage in that work. Conversely, the third legal interpretation principle fails to account for compulsory work that does not fall within the SoP for any of the voluntary trades, but that can be performed safely by skilled, non-regulated workers such as members of LIUNA. For example, in the PCL case described above, the Board found that construction labourers represented by LIUNA had the required skills and training to safely perform the disputed work, namely demotion of decommissioned HVAC systems. Indeed, LIUNA construction labourers were arguably in the best position to perform this work safely given their training and experience in demolition work. This result followed from a purposive and contextual analysis of the work in question. The third legal interpretation principle would not necessarily have taken the Board to this conclusion, since the work in question appeared to fall within the scope of practice of the compulsory trade of sheet metal worker but not within the scope of practice of any of the voluntary trades. Thus, a mechanical application of the third legal interpretation principle could result in unsafe work being permitted and safe work being prohibited. The question that rather should be asked in every case is whether the task in question requires specialized skills associated with a particular compulsory trade in order to be performed safely, and whether enforcement is appropriate in the circumstances of the case.





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?

Respondent did not provide a response to this question


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?

While it may be reasonable to assume that there are elements in the SoPs for a trade that are inherently hazardous or risky, it does not necessarily follow that these elements should be exclusively restricted to members of that trade. In every case, a purposive and contextual analysis must be applied to determine whether it is appropriate to enforce the restriction in the circumstances.


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?

Compulsory certification should not be limited to the “core” elements of a trade, as the “core” elements of a trade may or may not include the tasks that require specialized training in order to be performed safely. Compulsory certification could and should, however, be restricted to the those tasks, activities and functions that may pose a risk of harm to the public, tradespeople or other workers on the job. It is only those tasks that should be regarded as compulsory and subject to enforcement. However, just because a task is subject to enforcement does not mean it should be enforced in any situation; a contextual and purposive analysis must always be applied to determine whether enforcement is appropriate in any given case.


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.

Respondent did not provide a response to this question


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?

Respondent did not provide a response to this question





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 in regulation are overbroad and out of date and thus do not reflect the way work is actually assigned in the construction industry.


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. Jurisdictional disputes also arise with respect to the core work of the trades. For example, over the decades, there have been dozens of jurisdictional disputes relating to formwork. This is arguably work going to the core of both carpenters’ work and labourers’ work. In any event, we do not believe that the core versus peripheral distinction has much relevance to the compulsory trades regime, at least insofar as enforcement is concerned. The operative distinction ought to be between safety-sensitive and non-safety sensitive work. Even where the work is safety-sensitive, a purposive and contextual analysis must be carried out to determine whether enforcement is appropriate in the circumstances.


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.

The College must consider decisions made by the OLRB in jurisdictional or work assignment disputes under the Labour Relations Act. This is necessary to maintaining stability in the construction industry, for the jurisdictional dispute system plays a critical role in preserving that stability. At the same time, the jurisdictional dispute resolution system is attuned to, and supportive of, the same safety considerations that underlie compulsory trades restrictions. The Board’s jurisdictional dispute jurisprudence should be considered at every stage of decision-making in the OCTAA system. For one, the jurisdictional dispute jurisprudence should be considered in any scope of practice review, compulsory trades designation review, or compulsory trades designation hearing, as it provides compelling evidence of which trades have a practice of carrying out which work, where regional variations in work allocation exist, how the work is actually carried out, whether and how work has changed, where overlaps between trades exist, and where specialized training is (or is not) required to perform the work safely. Moreover, in order to protect the trades regulation regime from jurisdictional abuse, the jurisdictional dispute jurisprudence should be accorded consideration at the enforcement level. Specifically, it should be a defence to a charge under OCTAA that the work in question or similar work has been confirmed in a jurisdictional dispute. At the very least, in cases where OCTAA charges conflict with a jurisdictional decision of the Board, the charges should be dismissed or stayed unless it is proven on a preponderance of evidence that there are clear and compelling reasons to uphold them. As well, where an OCTAA complaint appears to be a jurisdictional dispute in disguise, it ought to be deferred to the jurisdictional dispute resolution system.





Section E - General Response and Comments

28. Please provide additional comments below, if any.

OCTAA’s compulsory trades enforcement regime suffers from some serious shortcomings that threaten the very stability of the industry that it purports to regulate. However, we believe that these problems can be fixed, and that the fixes are not difficult. Specifically, adjudicative oversight over the compulsory trades restrictions should be restored to the Board. Whichever tribunal exercises adjudicative oversight over the regime must be accorded the express jurisdiction to interpret the restrictions purposively, contextually and consistently with its own jurisdictional dispute jurisprudence. Affected trade unions must be given standing and full participatory rights. Safeguards must be built into the system to protect it from jurisdictional abuse; this would have to include, at the very least, vesting the overseeing tribunal with the power to suspend charges pending adjudication. The inspection ought to be restored to the MOL. Failing this, OCOT inspectors must be given appropriate oversight and guidance to ensure that they are exercising their authority rationally and fairly.