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Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-74

Name of organisation making submission:  DR-74 RESCON

Responses to questions in submission form


Section A - The Public Interest in this Review

1. What do you understand by public interest?

As indicated in the Consultation Guideline, there are many “publics” and many “interests” that make up the “public interest”. However, the Ontario College of Trades and Apprenticeship Act, 2009 (the “OCTAA”) is not intended to serve all of the varying public interests. Rather, the public interest to be served by the OCTAA is defined with reference to its duties, powers, objects and functions.

Accordingly, it is our submission that the necessary and appropriate question is not what the term “public interest” means on a global level, but rather:

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What public interests are (or are not) served by having the College self-regulate trades and apprenticeship programs?
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It is equally critical to examine what public interests do not need to be served by the College, either because they are not consistent with the purpose of the OCTAA, or because they are protected elsewhere. Accordingly, we have set out in our responses to these questions both our views on what public interests the College should serve, and what public interests it should not serve.


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

The public for provincially enacted legislation is all Ontarians. There are countless groups of individuals who make up this public, and those groups have an endless amount of varying and contrasting interests. There is no single unifying public and there is no single, unifying public interest.

However, some key groups for the purpose of considering the public interests served by the College are:

a) Employers of all shapes and sizes, who are interested in performing work in a manner that is safe, efficient and economically viable;
b) Unions, whose work jurisdictions often overlap and who have developed individualized training methods that may or may not be connected to the College;
c) Tradespeople themselves, who require consistent and appropriate training, as well as clear and transparent rules and regulations;
d) All Ontarians who benefit from housing being affordable and who rely on a thriving and economically efficient construction industry; and
e) Groups of Ontarians who are historically underrepresented in the construction industry trades, including women, new Canadians and young workers.

Because there is a myriad of groups that make up the “public”, it is important that public interest legislation remain focussed on its own scope and not overreach by addressing public interests not within the scope of that legislation and/or that are addressed through other existing regimes.

While the College serves all Ontarians when it focusses on promoting and encouraging the training of a larger body of certified tradespersons, it most directly serves those who will benefit from the College promoting an increased awareness of the trade, including women, young workers, new Canadians and other marginalized and/or underrepresented groups in the construction trades. The College’s focus, it is submitted, should be on serving those groups, who are not being adequately served under the College’s current “enforcement focussed” approach.

Conversely, the College does not need to serve the groups that already benefit from existing regimes. This includes the regimes designed to deal with issues related to the health and safety of workers, environmental protection, consumer protection and public safety protection.


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

In order to reduce the potential for conflicting public interests, the College should ensure that it serves the public interest that it is designed to serve, and that it does not infringe on the public interests better dealt with through alternative systems. In particular, the College’s focus should be on attracting and training tradespersons, which we submit is the primary public interest that the College is designed to serve. There is less potential for conflicting public interests on the issues surrounding teaching tradespersons and/or attracting persons to the trades. As dealt with in these submissions, it is the issue of how to enforce the prohibition of work by non-members that has the greatest potential for opposing interests. Further, many perceived opposing interests (e.g. jurisdictional disputes between trade unions, enforcement of occupational health and safety legislation) are better dealt with by regimes intended to address those particular interests.

Another important way that the College can minimize opposing interests is by better recognizing that it serves several vastly different sectors, and therefore implementing approaches that are individually tailored to each particular sector that it serves. The recommendations set out throughout these submissions are, in our view, the best approach for the College to employ with respect to the construction industry. These recommendations may not necessarily be applicable to the other sectors that the College serves. This is to be expected, as many legislative bodies treat the construction industry differently from other sectors. A prime example of this is the Labour Relations Act, 1995, which has an entirely separate section for addressing labour issues in the construction industry. Similarly, there is a separate regulation in the Occupational Health and Safety Act for work in the construction industry. Ontario has repeatedly recognized that the construction industry faces entirely different issues than other sectors. As such, we recommend that the College tailor its approach to each individual sector that it serves. By adopting tailored approaches for the different sectors (as opposed to the current inflexible, “one size fits all” approach), the College can minimize the unnecessary creation of opposing interests caused by it trying to deal with industry specific issues without having industry specific solutions.

Improving the College’s transparency in its processes would also ensure that decisions are made in a manner that reduces the potential for opposing interests. Where the College’s decisions may affect different groups who may have opposing interests, all affected groups need to be engaged in the process.

The College’s current process of appointing decision makers is not reflective of the groups likely to have opposing interests within the scope of the College’s authority. Section 63(10) of the OCTAA requires the Appointments Council to:

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…take into the account the importance of reflecting across the governing structure of the College,
(a) Ontario’s English and French linguistic duality;
(b) the diversity of Ontario’s population;
(c) gender balance;
(d) representation from unionized and non-unionized and from large, medium and small business environments; and
(e) the various geographic areas of Ontario named in a Board regulation.
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The above criteria do not recognize that different trades may have opposite interests, and thus have different perspectives on how the College makes its decisions. It is not sufficient to simply consider union vs. non-union or the size of the business. More consideration needs to be made regarding the type of trade, the scope of a trade’s work jurisdiction and the business considerations of various employer groups.

Even if the above changes in focus are implemented, it is acknowledged that inevitably there will be conflicting interests. Accordingly, it is submitted that the College ought to adopt a “minimal impairment” approach in its decision making processes, especially where affected groups have opposing interests. If alternatives are available that impair certain groups of the public less than others, while protecting the public interests that the College is intended to serve, those alternatives should be employed.

Another manner by which the College can minimize the existence of conflicting interests is by focussing on being reactive to issues as they arise, rather than creating issues that otherwise may never arise. Most legislative bodies, especially those with an adjudicative function like the College, are by nature reactive, responding to issues as they arise. In the construction industry, however, the College is creating new (and unnecessary) issues, rather than responding to existing issues. This is especially the case when the College seeks to enter into the fray of work jurisdictional disputes, which the Ontario Labour Relations Board (the “OLRB”) has been resolving for nearly a half-century. Indeed, the OLRB’s approach to dealing with work jurisdiction disputes is a good example of an adjudicative body being reactive (i.e. responding to a complaint from an applicant union), as opposed to unnecessarily proactive (i.e. the College creating new (or previously resolved) work jurisdiction through its enforcement officers issuing orders). A reactive approach pushes the parties to work together and resolve issues independently, something that the construction industry has a long history of being able to achieve. However, the College’s unnecessarily proactive approach encourages the escalation of disputes which can exacerbate opposing interests and increase conflict. By refocussing its purpose on responding to existing issues, the College would minimize the creation of opposing interests.

Ultimately however, the best way for the College to avoid opposing interests is by embracing its role as teacher and promoter of the trades, and to lessen its focus on its perceived role as a police officer.


4. Is the College currently protecting the public interest?


It is submitted that the College as currently constituted is not protecting the public interest. It is overly focused on enforcement and not on attracting and training new tradespeople.

The College is a self-regulating body, but it also has the ability to regulate non-members through enforcement of compulsory trade provisions in the OCTAA. The College also has the power to expand its membership through the review process. Because the College is self-funding, it has a built-in incentive to focus its energies on the regulation of non-members and the expansion of its membership.

This built-in, misaligned incentive is unique compared to other self- regulating bodies for occupational groups. For instance, the Health Professions Regulatory Advisory Council (“HPRAC”) describes its role and mandate as follows (See page 1 of Regulation of a New Health Profession under the Regulated Health Professions Act (RHPA), 1991: Criteria and Process (“HPRAC Criteria and Process”):

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The Health Professions Regulatory Advisory Council (HPRAC) is established under the Regulated Health Professions Act, 1991 (RHPA), with a statutory duty to advise the Minister on health professions regulatory matters in Ontario. This includes providing advice to the Minister on:
• Whether unregulated health professions should be regulated;
• Whether regulated health professions should no longer be regulated;
• Amendments to the Regulated Health Professions Act (RHPA);
• Amendments to a health profession’s Act or a regulation under any of those Acts;
• Matters concerning the quality assurance programs and patient relations programs undertaken by health colleges; and,
• Any matter the Minister refers to HPRAC relating to the regulation of the health professions.

The Minister of Health and Long-Term Care relies on recommendations from HPRAC as an independent source of evidence-informed advice in the formulation of policy in relation to health professional regulation in Ontario. In providing its advice and preparing its recommendations, HPRAC is independent of the Minister of Health and Long-Term Care, the Ministry of Health and Long-Term Care, the regulated health colleges, regulated health professional and provider associations, and stakeholders who have an interest in issues on which it provides advice. This ensures that HPRAC is free from constraining alliances and conflict of interest, and is able to carry out its activities in a fair and unbiased manner.
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The College, on the other hand, is not free from constraining alliances and conflicts of interest. No other statutorily empowered self-regulating occupational group in Ontario has the power to appoint inspectors to attempt to stop non-members from performing work. Further, with respect to classification reviews, unlike the HPRAC, the College is both investigator and decision-maker.

The College’s misplaced focus is illustrated by its “Membership Fee FAQs”, wherein it states that:

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The primary function of regulatory bodies is to protect the public from unqualified, incompetent or unfit practitioners. [http://www.collegeoftrades.ca/faq/membership-fee-faqs]
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This statement, in our submission, completely misunderstands the College’s purpose. The College was originally designed to be a teaching institution, but has instead become a policing institution.

Further, by focussing on non-members already working in the trades rather than the public at large, the College is not addressing one of its primary responsibilities; the skills shortage in Ontario trades. The College is creating new barriers for entry into the trade. At page 20 of “Modernizing Ontario’s Skilled Trades System: Building New Opportunities Through Governance and Regulatory Reform” (the “Dawson Report”), the authors state:

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The main implication of compulsory certification in any trade is a restriction in the supply of that trade, i.e. the number of workers available and with reduced competition, higher wages and reduced incentive to innovate. Jurisdictional barriers that reduce competition create a vested interest for those who benefit from the system and they, in turn, will endeavour to keep barriers to entry high. This makes it politically difficult to deregulate trades, even if the benefits of compulsory certification fail to outweigh the costs.
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By focussing on the enforcement of a non-member already in the trades, the College has neglected its role in attracting underrepresented groups. While the College acknowledges that it should “advance diversity and foster a culture of inclusion” (2014-2020 Strategic Plan, http://www.collegeoftrades.ca/about/governance/strategic-plan), the College materials do not provide any information on how to advance that goal. Rather, the materials inordinately focus on enforcing the prohibition of non-members performing work.


5. How should the College advance the public interest?


The College should advance the public interest by focussing on its predominant purpose of ensuring that employees are trained properly and that underrepresented groups are attracted to the trades. Enforcement is already in the purview of other public interest legislation.

We have set out below: a) our position regarding the public interests that the College should serve; b) the public interests the College need not infringe upon; and c) our recommended overarching principles that the College should adopt in order to advance the public interest.

A) What Public Interests Should the College Serve?

It is our submission that the public interests to be served by the College is to: a) attract new people to the trades (including historically underrepresented groups); and b) to ensure that its members are properly trained and maintain occupational standards within the certified trades.

The role of teacher and promoter is the primary public interest served by other self-regulating professions. This is also the public interest historically served by the regulation of the skilled trades in Ontario, even if the predecessor legislation did not explicitly refer to itself as public interest legislation. The Trades Qualification and Apprenticeship Act (the “TQAA”) and Apprenticeship and Certification Act (the “ACA”) were both training statutes at their core, both in terms of purpose and application.

Our submission that the fundamental purpose of the College is to be a teacher and a promoter is supported by the following:

a) The Armstrong Report on Compulsory Certification (the “Armstrong Report”) and The Report of the Advisor to the Minister of Training, Colleges and Universities dated May 1, 2009 (the “Whitaker Report”), both of which were written as a precursor to the enactment of the OCTAA;

b) The Hansard, which set out the discussions by parliament while enacting the OCTAA; and

c) The statutory language used in the OCTAA itself.

Armstrong and Whitaker reports

Both the Armstrong Report and the Whitaker Report emphasize the public interest in the College training new tradespeople. Both Reports focus on the demonstrated need to increase the number of tradespeople in Ontario, particularly amongst marginalized and/or underrepresented groups of Ontarians.

The Reports also address the need for enhanced training. It is in this context of increased training that Armstrong and Whitaker discuss other public interests such as safety, protecting consumers and the changing needs of the economy.
At page 104 of the Armstrong Report, the author describes his overall objective in the following terms:

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Ensuring that the apprenticeship and certification system ‘continues to meet proper safety standards, provides value to consumers, and serves to meet the needs of the province’s growing economy’.
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It is also important to note that, to the extent the Armstrong Report considers how the College would promote health and safety, his recommendations are based on the importance of training members, not the prohibition of non-members.

The Whitaker Report also places a primary focus on the training of tradespeople. At pages 12-13, the Whitaker Report sets out its terms of reference in the following manner:

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…to develop a recommended governance and mandate framework for the 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 of Apprenticeship and Certification.
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The Whitaker Report also establishes the following “Key Organizing Principles” for the College, at page 54:

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8. The College of Trades should redress the under-representation in the trades of women, francophone, visible minorities, first nations/aboriginals and persons with disabilities;
9. The College of Trades should be responsible for addressing current and future skilled trades shortages through timely and thorough advance planning;
10. The College of Trades should be accountable to the public and government for the conduct of its membership and the quality of its work;
11. The College of Trades should work with government to ensure the cultivation and development of the Trades and the protection of the public interest.
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The Whitaker Report also recommends finding ways of training more young workers to become certified tradespersons.

In short, it is evident from a review of the Armstrong Report and the Whitaker Report that the focus of these reports is on the public interest of: (a) training new and existing tradespersons in order to grow the industry; and (b) attracting more Ontarians to become involved in the trades.

Hansard

Parliament has repeatedly focussed on the fact that more Ontarians need to enter the construction trades when debating the OCTAA and the establishment of the College. See, for example, the following:

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It would have a mandate to seek ways of attracting more people to the trades, especially youth and underrepresented groups. It would help make it easier for internationally trained workers to get certified and find work in the trades in Ontario. It would be responsible for setting training and certification standards to serve the skilled trades sector and Ontarians who use their services. It would be responsible for conducting research to make sure Ontario has the right workers for the future. (Hansard, Hon. John Milloy, First Reading, May 13, 2009)
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[W]e need to make sure we have more and more people going into the skilled trades in all areas but most particularly in construction. (Hansard, Hon. John Milloy, Second Reading Debate, June 1, 2009)
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It would bring all those involved in the skilled trades—employers, those who are training apprentices, and obviously we want to hear from apprentices themselves—everyone who is involved, bring them together into a college that would set up mechanisms and set up a structure to examine all these issues, and in a sense, be the real point for apprenticeship training and skills training in the province of Ontario. (Hansard, Hon. John Milloy, Third Reading, October 27, 2009)
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Parliament emphasized that the College was not intended to replace existing roles played by the Ministry of Labour and other agencies in enforcing health and safety issues and other public interests:

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…I want to stress that this would not replace the role that government currently plays performing a variety of enforcement functions through the ministries of transportation, labour, and training, colleges and universities, as well as the inspections and enforcement secretariat, the Technical Standards and Safety Authority, the Electrical Safety Authority and the Workplace Safety and Insurance Board. All of those would continue in the enforcement role, and obviously the college would play a complementary and important role. (Hansard, Hon. John Milloy, Second Reading Debate, June 1, 2009)
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A critical aspect of the Review is to ensure that the OCTAA and the College exercise functions consistent with Parliament’s original intention in enacting the legislation. Currently, it does not.

The Statutory Language Used in the OCTAA

The courts have repeatedly held that it is necessary to consider the term “public interest” in conjunction with the language used in the legislation itself:

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The term “public interest” must be measured against the components of that right in issue (in that case a statutory right to bail rather than a Charter s. 11 right), in a statutory context in which the safety of the public has already been taken into account. (R. v. Farinacci, 1993 CanLII 3385 (ONCA), para. 35); (See also R. v Morales, College of Physicians and Surgeons of Ontario v Metcalf, [2009] 98 OR (3d) 301 (ONSC - Div Ct) and CETAMS v OSC, [2001] 2 SCR 132).
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The OCTAA does not describe the College as protecting any and all interests of the public. Rather, section 10 of the OCTAA states:

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The College has a duty to serve and protect the public interest in carrying out its objects and its functions under this Act.
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The objects of the College are set out in section 11 of the OCTAA, and are as follows:

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Objects
11. (1) The College has the following objects:
1. To establish the scope of practice for trades.
2. To regulate the practice of trades.
3. To govern the members of the College.
4. To develop, establish and maintain qualifications for membership in the College.
5. To issue certificates of qualification and statements of membership to members of the College and renew, amend, suspend, cancel, revoke or reinstate those certificates and statements as appropriate.
6. To promote the practice of trades.
7. To establish apprenticeship programs and other training programs for trades including training standards, curriculum standards and examinations.
8. To maintain a public register of its members.
9. To determine appropriate journeyperson to apprentice ratios for trades subject to ratios.
10. To determine whether a trade should have compulsory certification status.
11. To receive and investigate complaints against members of the College and to deal with issues of discipline, misconduct, incompetency and incapacity.
12. To address compliance issues in respect of matters within the jurisdiction of the College.
13. To provide for the ongoing education of members of the College.
14. To work with other governments in Canada and the Minister with respect to the interprovincial standards program for apprenticeship and with respect to qualifications required for trades.
15. To conduct research in relation to trades.
16. To perform such additional functions as may be prescribed by a Lieutenant Governor’s regulation.
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It is submitted that as currently constituted, the College is not serving the object of “promoting” the practice of the trades. While the majority of the objects of the OCTAA relate to the role of the College as teacher and trainer, the College has become overly focussed on its role in enforcing what work non-members can and cannot perform. That is not one of the objects set out above. Indeed, the third object is to: “Govern the members of the College”. It is not an object of the OCTAA to govern non-members, but it has somehow become the College’s main focus.

It is important to note that these objects (other than those related to self-governance) are very similar to the objects of the predecessor legislation, the TQAA. This is important because administrative tribunals have commented on the purpose of the TQAA. For example, in HS Donald Construction Ltd., 2005 CanLII 40199, the OLRB stated as follows, at paragraphs 26-28 and 35:

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26. The Ministry argues that OHSA is and always has been concerned with safety in terms of skills and qualifications (specifically with regard to the TQAA). Clearly, there is some overlap between the necessary qualifications to perform the work and the ability to perform it safely. However, this argument must also be seen in the context of the purpose of the two statutes. The purpose of the TQAA is that of a training statute. The purpose of OHSA is that of a health and safety statute…

27. The Ministry argued that there are safety considerations under the TQAA that have been incorporated into OHSA. Counsel pointed to two instances the OHSA Construction Regulation that require a Certificate of Qualification under the TQAA as a pre-condition for the performance of certain work: section 150(1) which deals with hoisting engineers and section 191(1) dealing with electricians. Significantly, there is no such requirement under the OHSA or any Regulation thereunder dealing with plumbers.

28. Before the promulgation of O. Reg. 572/99, the OHSA governed the safety of employees on construction sites in Ontario. The OHSA Construction Regulation is amended frequently, but at no time did the drafter of the Regulations feel it necessary, as a health and safety matter, to refer to the TQAA other than the two references noted above (both of which were promulgated in 1994). That is, the Act never contemplated certification under the TQAA to be a health and safety issue, except in those two limited circumstances.

35. This decision may be a frustrating one for Inspectors under OHSA. It is entirely logical that an Inspector would apply his or her own analysis to a worksite based on the kind of assessment and reasoning that he or she applies to construction projects under the OHSA Construction Regulation. Nothing in this decision should dissuade him or her from considering the application of the OHSA Construction Regulation to the work being performed on any construction site, particularly at the municipal sewer line where the trench is likely to exceed 1.2 meters in depth. The application of the OHSA Regulation to this work is vitally important to the health and safety of workers and employers on job sites in Ontario, including the pipe layers who lay pipes for sanitary or storm sewers. In enforcing section 3 of O. Reg. 572/99, however, the Inspector is in fact enforcing the requirements of a different statute, and must look to the TQAA for the content and meaning of the terms, rather than to automatically import the same or similar terms from the OHSA and Regulations enacted under that statute.
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The OLRB has also emphasised, at paragraph 53 of HM Construction Ltd, 2014 CanLII 39508, that the purpose of the OCTAA is not to be confused with that of the Labour Relations Act, 1995:

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53. Both unions make reference to the trade of drywall taper under the regime created now by the Ontario College of Trades and Apprenticeship Act, 2009, S.O. 2009, c. 22 (“TQA”). That is a statute that regulates and encourages training of skilled workers in many industries and may at some point regulate skill levels. It applies to all persons who practice a trade, regardless of the union that may represent them, or who are not represented by any union. It has nothing to do with bargaining rights.
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The language used in the OCTAA, as well as the commentary on the statute and its predecessor, confirms that the public’s interest in the College is focussed on training - not enforcement.

B) Public Interests that are Outside the College’s Scope

The College is not intended to and should not infringe upon public interests that are outside of its intended scope. Where legislation and/or adjudicative bodies already exist to address a public interest, it is submitted that it is contrary to the public interest to empower the College to overlap with those same interests, especially when it does so in a conflicting manner.

Existing Public Interest Regimes

It is important to be mindful of the existing regimes that the College may infringe upon in its current incarnation, which include:

• The Occupational Health and Safety Act;
• The Labour Relations Act, 1995 and the OLRB;
• The Environmental Protection Act;
• The Environmental Assessment Act;
• The Clean Water Act;
• The Nutrient Management Act;
• The Ontario Water Resources Act;
• The Lakes and Rivers Improvement Act;
• The Provincial Parks and Conservation Reserves Act;
• The Consumer Protection Act;
• The Construction Lien Act;
• The Ontario New Home Warranties Plan Act;
• Various municipal Building Codes;
• Various municipal Fire Codes;
• The Electricity Act and standards established by the Electrical Safety Authority;
• The Technical Standards and Safety Act and standards established by the Technical Standards and Safety Authority; and
• Standards established by the Canadian Standards Association.

While not all of the above legislative regimes are explicitly described as public interest legislation, it is submitted that all of the above statutes and standards are intended to serve the public interest in some fashion. It is contrary to the public interest to have two regimes serve the same public interest, especially where they would conflict or cause unnecessary overlap.

At pages 18-19 of the Dawson Report, the authors highlight all the ways in which the construction industry is already regulated, as follows:

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Network of construction industry protections for Ontario workers, employers, and consumers

Better Business Bureau

A non-profit organization that provides a reputational assessment and dispute resolution services for customers and accreditation for businesses that pledge to adhere to its code of business practices.

Canadian Standards Association

A standards association accredited by the Standards Council of Canada with standards in 57 areas including construction – publishes standards for safety and interoperability, provides training and advisory services.

Electrical Safety Authority

An independent authority acting on behalf of the Government of Ontario to administer the Ontario Electrical Safety Code; license Electrical Contractors and Master Electricians, electricity distribution system safety and electrical product safety.

Employment Standards Act

Ontario legislation enforced by Ontario’s Ministry of Labour regulating employment in the province to set minimum standards, including wages, maximum work hours, and workplace health and safety.

Ministry of Labour

Legislates on employment standards, occupational health and safety, employment rights and responsibilities, and labour relations.

Ontario Association of Architects

Self-regulating body with a provincial mandate to govern Ontario’s architectural professionals and students, ensuring all architects meet the education requirements, gain a minimum of two years practical experience, pass extensive examinations, and attend the OAA Admission Course, and participate in continuing education.

Ontario Building Code

Governs the construction, renovation, change of use, and demolition of buildings to ensure safe, healthy, and accessible building and develop and maintain a system for training and certifying building officials; updated every five years.

Ontario Building Officials Association

Works for municipalities across the province to promote the construction of safer and more sustainable and accessible buildings in Ontario by training and certifying building officials who apply and enforce Ontario’s building codes.

Ontario Fire Code

Governs the standards of equipment, systems, buildings, structures, land and premises, as those standards relate to fire safety or the risk created by the presence of unsafe levels of carbon monoxide.

Ontario Labour Relations Board

Quasi-judicial arm of the Ontario Ministry of Labour mandated to mediate and adjudicate cases involving the Employment Standards Act, Occupational Health and Safety Act, and Labour Relations Act

Ontario One Call

Central clearing house for excavators and utility providers to help Ontarians avoid damaging underground infrastructure such as gas, water, sewer, phone, and electrical lines and avoid legal liability for damage they cause through excavation.

Professional Engineers of Ontario

Self-regulating body with a provincial mandate from the Professional Engineers Act to govern Ontario's 73,000 professional engineers, and set standards for, certify, and regulate engineering practice in the province.

RenoMark

Voluntary certification association for renovators, offering educational updates on building codes, municipal requirements, health and safety regulations, and other relevant. Ensures a minimum standard similar to licensed Realtors.

Tarion Warranty Corporation

A private corporation that protects the rights of new home buyers and regulates new home builders by administering and enforcing the Ontario New Home Warranties Plan Act, which outlines the warranty protection that new home purchasers are entitled to in Ontario.

Technical Standards and Safety Authority

A not-for-profit, self-funded regulator delivery public safety services on behalf of the government of Ontario in four key sectors: boilers and pressure vessels, and operating engineers; elevating devices, amusement devices and ski lifts; fuels; and, upholstered and stuffed articles.

Workplace Safety and Insurance Board

Administers compensation and no-fault insurance and access to industry-specific health and safety information, provides a loss of earnings and health coverage for workers.
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The construction industry is already highly regulated. It is not in the public interest for the College to duplicate, or even conflict, with these existing regulatory enforcement mechanisms.

It should be noted that in addition to protecting the health and safety of workers, the Occupational Health and Safety Act empowers Ministry of Labour inspectors to enforce certification requirements for construction workers under several different Regulations enacted pursuant to the legislation. Accordingly, empowering College inspectors to enforce certification requirements creates a direct conflict and unnecessary overlap. This is also contrary to the public interest.

Great care should be taken to ensure that the College does not impact upon labour relations issues, as this is an important public interest already served by the Labour Relations Act, 1995 and the OLRB. At pages 175-176 of the Armstrong Report, the author frames this concern in the following manner:

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175. 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....

176. In recent years, following the passage of Regulation 572/99 under the Occupational 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.
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There are existing regimes that are intended to address the public’s interest in the health and safety of workers, jurisdictional disputes between trades, environmental protection, consumer protection and public safety. It is not in the public interest for the College to unnecessarily infringe upon and conflict with these regimes. Rather, the College should focus on its own public interest; the role of being a promoter of the trades and a teacher of tradespersons.

The College Should Not Harm Other Public Interests

As noted at the outset of these submissions, there are a myriad of interests that can be considered “public interests”. Important examples include the freedom of association, the importance of a thriving economy and the affordability of Ontario housing. The College needs to be structured in a manner that does not unnecessarily infringe upon those public interests.

One of the key public interests that needs to be addressed in Ontario is the shortage of Ontarians seeking to become tradespersons.

At pages 5-6 of the Dawson Report, the authors’ state:

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Ontario has many educated workers and many people looking for work, unfortunately, it does not have enough of the right people in the right place with the right skills. Across sectors, skills mismatches cost Ontario’s economy more than $4.1 billion in GDP and $627 million in provincial tax revenues annually (Stuckey and Munro 2013: ii).
Forty-one percent of employers are currently seeking employees with trades training. The highest demand is in the areas of construction and technology (Stuckey and Munro: 16). A 2013 membership survey by the Ontario Chamber of Commerce found that 30 percent of businesses had difficulty finding qualified candidates for job openings. The problem was most acute in skilled trades including construction, infrastructure, and engineering (Holmes and Hjartarson 2013: 4).

The problem is expected to get worse as baby boomers retire from the labour market. Ontario’s working-age population as a share of the total population is expected to decline by almost 9 percent between 2011 to 2036 (Ontario Ministry of Finance, 2012 in Holmes and Hjartarson: 4). Not enough young people are entering the trades. Skills Canada states that 40 percent of new jobs created in the next decade will be in the skilled trades but only 26 percent of young people aged 13 to 24 are considering a career in these areas (Spence, 2012). The problem runs deeper than the choices that young people are making or the guidance they are receiving. Even those who choose a career in the trades face significant barriers to entry, in particular finding an apprenticeship position.
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Most significantly, the Dawson Report notes that the average age of a carpenter in Ontario is 61. This exemplifies the significant skills shortage in Ontario. In order to rectify this increasingly problematic issue, the College needs to focus on its role as teacher and promoter. Putting up barriers to employment in the trades by forcing compulsory certification to perform tasks that do not pose a risk of harm will exacerbate the skills shortage in the construction industry, and will affect the entire economy.

On page 7, the Dawson Report explains the impact of compulsory certification as a barrier to employment, by relying on the following quotation from Adam Smith’s The Wealth of Nations:

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The exclusive privilege of an incorporated trade necessarily restrains the competition, in the town where it is established, to those who are free of the trade. To have served an apprenticeship in the town, under a master properly qualified, is commonly the necessary requisite for obtaining this freedom. The bye-laws of the corporation regulate sometimes the number of apprentices which any master is allowed to have, and almost always the number of years which each apprentice is obliged to serve. The intention of both regulations is to restrain the competition to a much smaller number than might otherwise be disposed to enter into the trade. The limitation of the number of apprentices restrains it directly. A long term of apprenticeship restrains it more indirectly, but as effectually, by increasing the expense of education.
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In short, there is a significant economic cost for Ontarians if the College’s current role in enforcing the work performed by non-members is not appropriately limited.

At page 12 of the Dawson Report, the authors explain the connection between compulsory certification and the number of workers in the industry, as follows:

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The major effect of compulsory certification is that it restricts the number of workers in a given occupation, leading to increased wages for the workers. In turn, higher labour costs are passed on to the consumer, resulting in a higher price for the good or service. There are numerous studies documenting this phenomenon including: Rottenberg 1980; Perloff 1980; Carroll and Gaston 1983; Kleiner and Kurdle 2000; Adams et al. 2002; Kleiner 2000, 2006; and empirical analysis performed specifically in the New Zealand’s building industry by Lobo and Wilkinson 2006.

Cross section analysis across a range of occupations finds that licensing increases wages by approximately 15 percent across a range of occupations (Bryson and Kleiner 2010). (Note that this is on a continuing basis, not just in the period after licensing is imposed.)
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There is no existing evidence that these economic costs are counterbalanced by a positive impact on the health and safety of workers or the public. A focus on enforcement does not correlate to increased safety. In order to positively impact the health and safety of tradespersons and/or the public, the College’s focus should be on ensuring that tradespersons in all trades are properly trained. The work of non-members can be addressed under other existing regimes.

The College need not and should not have a monopoly on all forms of training for all tasks in the construction industry. Work must be undertaken in a manner that is consistent with public safety. The College does not serve the public interest by monopolizing the way in which work is performed. There are existing regimes designed for the purpose of ensuring that work is safely performed (i.e. the Occupational Health and Safety Act, Building Codes, Fire Codes, etc.). The College’s purpose is to train its members in a manner consistent with the public safety standards defined by the relevant authority. However, the College oversteps its boundaries when it presumes that it is the only entity that can ensure that workers are trained in a manner consistent with public safety requirements. For instance, labourers are typically responsible for many tasks associated with site safety: (i.e. signage, traffic control, safety barriers, hoarding and general clean-up). Labourers are provided the necessary training in order to ensure that these tasks are undertaken in a manner that protects the safety of the public and other workers. This further exemplifies why the College should focus on ensuring that the training of tradespersons matches up with the needs of Ontarians. The College, in accordance with its stated objects, should focus on its role as a research body. In particular, the College should be assessing the future demands for labour in the construction industry, the existing skills shortages, and determining the best methods of ensuring a sufficient body of trained tradespersons.

The College’s focus on training tradespersons should also include a review of the training delivery agent (“TDA”) model. At page 12 of the Dawson Report, the authors note:

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Another way to limit the supply of workers is through control of training centres. At present there are too few MTCU designated Training Delivery Agents (TDAs) in Ontario to keep up with demand. For example, in the case of tower crane operators (TCOs), over 50 percent of the active operators are within 10 years of retirement and a significant number of retirees (ages 65 to 69) are filling present demand (Emptage and Associates Inc. 2014). Despite other centres willing to provide training there is only on [sic] TDA serving the entire industry, run by Local 793 of the International Union of Operating Engineers in Oakville, Ontario. Since 2007, the centre has graduated fewer than 30 new tower crane operator journeypersons per year (Emptage: 5). Meanwhile, it is estimated that there will be a shortfall of TCOs by 2020 of between 213 and 548 journeypersons (Emptage: 4).
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The primary manner in which the College can address the issues highlighted in the Dawson Report is by focussing on its role as a training and research body. The College should deal with issues related to the availability of and access to training both proactively and purposively, in order to ensure that there is a sufficient body of tradespersons in Ontario. The College does not have limitless resources, and to date it has been overly focussed on enforcement. As a result, it has neglected its important role in ensuring that Ontario overcomes its current skilled labour shortage. The College will serve the public interest by helping to ensure that there are sufficient tradespersons to meet the future demands in Ontario’s construction industry.

In summary, the intended purpose of the College is to train its members, in accordance with the public interest of having a larger body of trained tradespeople. The College should serve that primary goal, and should not infringe upon the public interests served by other regimes, including health and safety of workers, environmental protection, consumer protection and public safety. Those public interests are better dealt with through existing regimes. Further, the College should ensure that in serving the public interest of training tradespeople, it does not harm other important public interests, including the freedom of association, affordability of housing and the importance of a thriving economy.

C) How the College can Advance the Public Interest

In light of the above, it is our view that in order to advance the public interest, the College should: a) focus on attracting and teaching persons currently not working in the trades; and b) minimize its role as the enforcer of what work may be performed by non-members.

Focus on Attracting and Teaching Persons Currently Not Working in the Trades

By focussing on the enforcement of non-members already working in the trades, the College has neglected its role in attracting underrepresented groups, especially in the construction industry. For example, while it ought to be an important goal to attract women to the trades, currently there are no women involved in the construction industry on the OCOT Board of Governors. There are no women on the Divisional Board for construction and of the 125 members of the construction Trades Boards, there appears to be only two women. The Strategic Plans do not address how to attract women, just as they do not address how to attract foreign workers or other underrepresented groups. These are just examples of how the College has diverted its focus from its intended purpose.

The College needs to increase its energy and focus on attracting underrepresented groups to the construction industry trades, and addressing the skills shortage that currently exists in Ontario. This would be achieved by reaching out to schools, interest groups and community centres, with an overarching goal of becoming a leader in promoting the benefits of working in the trades in Ontario. By repurposing itself in this manner, the College could truly advance the public interest.

Another manner by which the College can serve the public interest is by determining where the skills shortages exist in Ontario, and taking steps to address those skills shortages through its roles in attracting persons to the trade, and in training tradespersons. One of the College’s stated objects is “[t]o conduct research in relation to trades”. In accordance with this objective, one of the College’s prime functions should be as a body for research. In the construction industry in particular, it would strongly serve the public interest for the College to be a leading source of up to date research identifying future labour demands, where skills shortages exist, and by focussing its resources on promoting the trades where increased enrollment is most required (and then training interested individuals in those trades). We submit that the College ought to consider its research function as one of its prime roles in serving the public interest. As indicated above, and highlighted in the Dawson Report, there is a serious skills shortage in Ontario trades, and the College is not doing enough to address that overarching concern. The College’s focus should be upon increasing the ability of Ontarians to access training, rather than putting up barriers on what work these individuals can perform.

Minimizing the College’s Enforcement Role

The College’s enforcement responsibility, if any, should be limited to a list of specific functions that pose a risk of harm that cannot be addressed elsewhere. The College should be focussed on identifying tasks or occupational standards that could possibly require a prohibition on non-members performing the work. These tasks may be performed by multiple certified trades, but require a degree of precision and skill that warrants College intervention.
In considering the extent to which the College needs to fulfill an enforcement role, it is important to be mindful of the existing public interest regimes that the College may infringe upon as currently designed. It is not clear whether the above regimes have any gaps that require College intervention to enforce the prohibition on non-members performing work. If there are gaps that require College intervention, it is a priority for those gaps to be specifically identified. The College’s enforcement functions, if they continue to exist, cannot continue to be based on the existing Standards of Practice (“SoPs”), which are overbroad, out of date, inconsistent and not connected with the protection of any public interest.

It is also important to be mindful of whether or not increased regulation is actually in the public interest. Under the HPRAC model, even if a risk of harm is established, several secondary criteria are considered as part of the determination of whether or not to regulate the profession. Those secondary criteria include:

• Economic Impact of Regulation;
• Health System Impact; and
• Labour Mobility.

The “Health System Impact” criterion refers to whether increased regulation would positively impact the health system as a whole. In the same manner, when assessing whether further regulation is required in the construction industry, the College ought to be mindful of the economic impact, the labour impact, and whether increased regulation benefits the industry as a whole. There will likely be circumstances where a task that conceivably could pose a risk of harm need not be regulated because there already exists extensive training and safety oversight, and for various reasons (remoteness of the task, value of the equipment involved, lack of skilled tradespersons willing/able to perform the task, etc.), the cons of making the task compulsory outweigh the pros. TThe College needs to take a global approach when assessing the risk and value of increased regulation.

The College’s enforcement powers should be suspended until the tasks that require enforcement can be specifically and appropriately defined. The list that we propose be developed would be akin to the list of controlled acts found in the Regulated Health Professions Act, 1991 (“RHPA”).

The College’s review processes will also need to be amended to ensure that there is no appearance of bias or conflict of interest, and that all stakeholders are given an opportunity to participate.

Finally, before the College re-engages in any enforcement activities, the enforcement process will need to be addressed. Other self-regulating professions do not have their own inspectors to police the actions of non-members. It is our view that, at least in the construction industry, MOL inspectors should enforce non-members performing any tasks deemed to be compulsory, rather than College employed inspectors.

Where an enforcement order involves two trades claiming the work, the order should be stayed pending review by the OLRB, in order to prevent College enforcement officers from inadvertently becoming the arbiter of work jurisdiction issues. This concern was highlighted in the Armstrong Report, and needs to be addressed in order to provide stakeholders with confidence that the College will not override decades of industry practice.

Invoking the concepts set out above will allow the College to advance the public interest in a manner that it is currently not achieving.





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.


SoPs have the potential to have a significant impact on RESCON. If the entirety of a SoP is used for enforcement purposes, this would drastically impact the manner in which residential construction builders and their subtrades perform work, especially if the carpenters were to gain compulsory certification.

Residential construction builders rely on work performed by both direct employees and subtrades in order to operate in the sector in an efficient and economically viable manner.

The members of RESCON include builders who are also bound to the following collective agreements: a) the Collective Agreement between the Metropolitan Toronto Apartment Builders’ Association (“MTABA”) and the Labourers International Union of North America, Local 183; b) the Collective Agreement between the Durham Residential Construction Labour Bureau (“DRCLB”) and the Labourers International Union of North America, Local 183and c) the Collective Agreement between the Toronto Residential Construction Labour Bureau (“TRCLB”) and the Labourers International Union of North America, Local 183. The MTABA Collective Agreement covers the following trades, either through direct employees or, more commonly, subtrades:

• General Construction Labour;
• Forming;
• Concrete and Drain;
• Hard Landscaping;
• Sheet Piling, shoring and Lagging;
• Buried Internal Site Services;
• On-site manufacture and erection of structural pre-cast concrete balcony panels and concrete stairs (and other related tasks, excluding landscaping components); and
• Bricklaying and Masonry.
Similarly, the DRCLB and TRCLB Collective Agreement covers the following subtrades:
• Basement Forming;
• Concrete and Drain;
• Frame Carpentry;
• Utility Construction;
• Bricklaying;
• Marble, Tile and Terrazzo; and
• General On-Site Labour (with certain exemptions).
In addition to the above, residential construction builders use tradespersons not covered by their respective collective agreements with the Labourers International Union of North America, Local 183.

Accordingly, up to 25 sub-trades may work in co-ordination with one another on the same construction project. This, in our submission, is vastly different from the other sectors that the College serves. The College’s approach must be mindful of the complex system of trades working together in the residential construction industry.

If the work traditionally being performed by labourers was required to be performed by other trades, it is unclear how the industry could continue to operate in the same manner as it does today. First, in an industry that already faces skilled labour shortages, it is unclear how contractors could find the necessary skilled tradespersons to perform this non-skilled work. Second, even if these skilled tradespersons could be obtained, there would be an increased labour cost. At page 12 of the Dawson Report, the authors’ state:

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Cross section analysis across a range of occupations finds that licensing increases wages by approximately 15 percent across a range of occupations (Bryson and Kleiner, 2010). (Note that this is on a continuing basis, not just in the period after licensing is imposed.)
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The increased cost would be passed onto the consumer, which may lead to an economic downturn in the overall industry, affecting the economy of the entire province. This is an extremely important consideration, especially in the Greater Toronto Area, where housing affordability is becoming an increasingly critical issue. Housing prices in the Greater Toronto Area are becoming increasingly out of reach even for high income residents. A recent TD Economic Report indicated that the dramatic shift in the housing market “is contributing to poor housing choice and reducing mobility of residents” (See Toronto Star article entitled “GTA housing affordability falling; we’re not far behind New York”, January 19, 2015). Housing prices are currently 6.5 times the average income in the GTA. With respect to the reasons for the increasing housing affordability crisis, the Toronto Star states as follows:

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The GTA is facing “growing structural challenges” that are pushing both renting and home ownership increasingly out of reach of even high-income residents, it warns. Top among them are government regulations and taxation.
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The connection between government regulations and housing affordability for residents of this Province is unique to the residential construction industry. As such, the College must ensure that it adopts an approach that includes unique solutions to this ever-increasing concern. Any role that the College plays in exacerbating this problem is clearly contrary to the public interest.

In order to work efficiently, contractors must use composite crews that can perform all necessary on-site tasks without artificial barriers. In the construction industry, composite crews are a reality, not a choice. If the College were to create barriers that threatened the use of composite crews as a result of the inflexible application of SoPs, the cost and timing to complete a residential housing project would skyrocket. Instead of having multiple tradespersons perform different tasks simultaneously, one certified technician would have to perform each task one at a time. Given that the tasks performed by labourers carry no risk of harm, the fallout to the construction industry if the use of composite crews was threatened would be entirely contrary to the public interest. The resulting cost increases would significantly exacerbate the existing housing affordability crisis in the residential construction sector, especially in the GTA. Further, the time frame to complete a residential construction project would increase exponentially.

In addition to risking the continued use of composite crews, the College’s rigid application of its enforcement responsibilities threatens the freedom of choice that workers in the residential construction industry currently enjoy. Currently, new formwork employees receive basic safety training (fall arrest, WHMIS, etc.) and then will try several jobs/tasks involved in forming (e.g. flying the form, cement finishing, rod-work, etc.). If those tasks were to become part of a compulsory trade (i.e. by carpenters or ironworkers gaining compulsory status), not only would it jeopardize the use of composite crews, but it would also prevent a new employee from trying several jobs/tasks in order to find one they both prefer and excel at. This is an example of an artificial and unnecessary barrier to attracting individuals to the trades, given that it is self-evident that an individual is more likely to stay in a certain career if they are performing work that they enjoy and are good at. It is therefore in the public interest to allow new tradespersons the time and opportunity to find their best fit.

Flexibility amongst the trades is also necessary in order to deal with changes in technology, building practices and other evolving issues that are especially prevalent in the construction industry. For instance, Ontario’s Building Code was recently amended to allow for 5 and 6 storey mid-rise wood framing. The building methods for this new type of residential construction have not yet been determined, and could include one or more of the below options:

• For stick framed projects, one would expect the vast majority of work will be completed by framers (although the size or composition of the crew may vary).
• For panelized projects (especially ones with underground parking garages), it may make more sense to use forming contractors who could form the underground parking structures and continue using the crane and wood panels above grade.
• There could be a hybrid model using both framing and formwork crews, or composite crews combining framing and formwork crews.
• A new building method could be developed by innovative builders seeking efficiency and superior building quality for their customers.

The residential construction industry is building better homes than ever before. This industry will continue to evolve to suit the needs of homeowners. Future advances may include an increase in panelization, the use of offsite construction (especially if there are skill shortages), and/or the use of new building techniques and technologies. It is in the public interest for the College to embrace these innovations, as the efficiencies created will help address the housing affordability issues facing many parts of this Province, especially in the GTA. The College must ensure that it does not create unnecessary, artificial barriers to these innovations through a rigid, inflexible approach to enforcing the work of trades in the residential construction industry.

The concerns associated with the strict enforcement of the “grey areas” in a SoP are not speculative. Lorne Richmond and Charlene Wiseman, in their paper on OLRB jurisprudence, “An Overview of the Ontario Labour Relations Board’s Approach to Enforcement of Trades Qualifications” (the “Richmond and Wiseman Paper”) describe a recent situation involving Stacey Electric. While it involves an electrical contractor, it highlights the risks associated with an enforcement officer applying a strict reading of the SoPs:

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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 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 the Labourers for decades both in the Windsor area and across the province. The work did not involve running wires or working with live electricity. That 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 of the Labourers (“the Labourers”). That Collective Agreement bound all subcontractors on the project including Stacey. The Labourers 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 initially proceeded without incident. Then, unexpectedly, an OCOT inspector arrived at the site. The inspector claimed that labourers employed by Stacey were performing electrician’s work and threatened to bring charges under OCTAA. 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.

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 the Labourers.
Stacey opted to defend itself by pleading not guilty to the charges. The Labourers 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, the Labourers would have been left without any recourse to defend its work and the livelihoods of its members.

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This example provides significant concern to employers in the construction industry. Unless substantive changes are made to the College’s approach, there will be a real risk for all contractors in the residential construction sector, as they generally use labourers to perform the work arguably within the SoP of other trades (both compulsory and voluntary), and have done so for many decades. Accordingly, SoPs in practice have the potential to create real chaos for the entire industry.


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

Yes. However, it must be recognized that: a) there are overlaps between both ‘core’ and ‘peripheral’ elements of a trade; and b) whether or not a task is core or peripheral, and whether or not it overlaps between multiple trades, has no connection to whether or not there is a risk of harm associated with the task.

The purpose of having SoPs should be to provide a detailed and accurate scope of the tasks that a person working in that trade is deemed to be competent to perform. Peripheral tasks are often elements of multiple trades. However, there may also be core elements of a trade that overlap over multiple trades. For example, it is self-evident that a core element of the painting trade is to paint. However, painters are not the only trade that paints (For example, in Ontario Provincial Council of the International Union of Painters and Allied Trades, International Union of Painters and Allied Trades, Local 1590 v. Electrical Power Systems Construction Association, 2007 CanLII 904, the OLRB upheld the assignment of touch up painting to members of the Iron Workers).

In addition, the elements of a SoP, including the “core elements”, do not directly correlate to the protection of worker safety, public safety, environmental protection and/or consumer protection. There are numerous tasks that are not “core elements” of any particular trade but which nevertheless pose a risk of harm if not performed by a competent tradesperson (i.e. welding or scaffolding). The risk of harm associated with such tasks is protected through other means (for example, the Occupational Health and Safety Act, and associated regulations such as Ontario Regulation 213/91 Construction Projects, as well as the Technical Standards and Safety Act, 2000 and associated regulations e.g. Ontario Regulation 220/01).

The College also needs to be mindful of the use of handymen, or “jacks of all trade”, in the residential construction industry. These individuals spend their day engaged in any number of activities from minor plumbing or electrical work to painting or water box repairs. This allows builders to best utilize direct employees and subcontractors to complete the work in the most efficient manner. These “jacks of all trade” perform any number of tasks that are both “core” and “peripheral” to various trades. This illustrates that the core vs. peripheral analysis is not appropriate for the construction industry; rather the focus needs to be on risk of harm, and whether that risk is better addressed outside the College’s ambit.

Accordingly, while there are core and peripheral elements of each trade, that fact does not necessarily assist the College in the construction industry, in light of the prevalence of overlaps between the trades.


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 long as the SoPs are used exclusively for training purposes, the College should list all of the tasks, activities or functions in which an apprentice should be trained. The SoPs should be detailed and provide a road map of the competencies that the public can expect a trained tradesperson to have knowledge of and the skill to perform.

SoPs should reflect occupational standards. Occupational standards are important to support the public interest of ensuring that there are sufficient competent tradespersons available to meet the needs of the industry. The goal of these occupational standards is to define the skills necessary to perform the work, and to ensure that the person is trained on those skills. For training to be effective, it must teach and develop the competencies and standards that form the scope of that trade.

The entirety of a SoP should not be used for enforcement purposes because they should be broad and cover many elements that do not pose a risk or harm and/or overlap between multiple trades. Rather, the College’s enforcement role should be limited to specifically defined tasks.

In 1982, the Ontario government commissioned a review of the manner in which health professionals were regulated. This ultimately resulted in the creation of the HPRAC model. The outcome of the Review is set out in “Striking a New Balance: a Blueprint for the Regulation of Ontario’s Health Professions” (the “Health Professions Blueprint”).

At page 3 of the Health Professions Blueprint, the author’s state:

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The Review recommends a new system for regulating the health professions’ scope of practice, or areas of permitted practice. The system is based on the principle that the sole purpose of regulation is to protect the public interest, and not to enhance any profession’s economic power or to raise its status. The existing system, in which a small number of health professions are “licensed” (their members have the exclusive right to use certain titles) does not effectively protect the public from unqualified health care providers. As well, it has undesirable effects on the health care system. In particular, it inhibits innovation in the way various health professionals can be utilized, making it more difficult to provide the best service at the lowest cost.

The system recommended by the Review has three main elements:

• Every Professional Act contains a general statement describing, but not licensing, the profession’s scope of practice. In most cases the general statement describes the profession’s scope of practice.
• All potentially harmful acts and procedures are licensed. Licensed acts may be performed only by qualified health professionals authorized by their Professional Act to perform them.
• The Health Professions Procedural Code makes it an offence to treat, or advise in respect of any human health condition in circumstances in which the treatment, offer of treatment or advice (or any omission from them) may result in harm. An exception is granted to health professionals acting within the scope of their practice.
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The above passage addresses, in a similar fashion, our concerns with the College as currently constituted, as well as our recommended changes. The College, as currently constituted, allows certain trades to enhance their economic power and/or raise their status, contrary to the public interest. The current system also inhibits innovation, which is also contrary to the public interest. Accordingly, we recommend that the College’s enforcement role be limited to specifically defined tasks, rather than the entirety of a trade. Further, before regulating a task, the College must go through the process of determining if the enforcement is better dealt with through other mechanisms, and whether or not the pros of regulation outweigh the cons. If it is determined that a task should be a “controlled act” that is regulated by the College, the College should also determine which compulsory trade(s) is authorized to perform that task.


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


It is our submission that a review of change in SoP requires a two-step process:

1. Drafting and then regularly updating the list of controlled acts, as well as which compulsory trade(s) can perform each controlled act; and
2. Reviewing or changing a SoP for training purposes.

The list of controlled acts (and who can perform them) would form the basis of the College’s role, if any, in enforcing the prohibition of work of non-members.

1) Controlled Acts Process

The most pressing concern is for the College to determine the scope of its enforcement responsibilities. Where there is no public interest to be served by prohibiting non-members of the College from engaging in a task, the task should not be compulsory, regardless of what trade it is associated with.

An Independent Review Tribunal

The determination of what controlled acts exist in the construction industry (and which compulsory trade(s) can perform those acts) should not be undertaken by the College itself. The College, as noted above, has an inherent, structural bias towards ensuring a larger than necessary body of controlled acts, as it allows the College to increase its membership and therefore its income. Further, the College’s expertise is (or at least should be) on training, not on dealing with the complex multi-trade issues in the construction industry.

The independent review panel should be made of persons without vested interests or connection to stakeholders. Further, the review panel’s process should be more in the nature of a public inquiry that an adjudicative, adversarial model. It is submitted that an example of the appropriate model is the HPRAC model pursuant to the RHPA. We recommend that the College adopt the HPRAC model by creating an independent tribunal that would make recommendations to the applicable Minister.

Process

The process of determining whether a particular task is a controlled act must be predominantly focussed on the risk of harm to the public or to workers. In this regard, the use of risk of harm as a primary criterion should be similar to the approach used by HPRAC. HPRAC describes the risk of harm analysis in the following manner, at page 2 of HPRAC Criteria and Process:

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Primary Criterion:

The primary criterion assesses whether the health profession seeking regulation under the RHPA poses a risk of harm to the health and safety of the public, and it is otherwise in the public interest that the particular profession be regulated under the RHPA. The applicant must demonstrate with evidence that there is a risk of harm to the public.
As such, applicants from new professions seeking regulation under the RHPA must meet the risk of harm threshold.
In order to meet the risk of harm threshold, the applicants must meet all three conditions below and demonstrate with relevant, verifiable evidence that:

• the profession is involved in duties, procedures, interventions and/or activities with the significant potential for physical or mental harm to patients/clients, including instances where the profession delivers services under direct or indirect supervision by another regulated or unregulated health professional;
• the profession is engaged in making decisions or judgment that can have a significant impact on patients’/clients’ physical or mental health, including instances where the profession delivers services under direct or indirect supervision by another regulated or unregulated health professional; and,
• there is a significant potential of risk of harm occurring within the professional duties and activities.

Applicants that meet the primary criterion with relevant, verifiable evidence will then be assessed on the extent to which they meet the secondary criteria.
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It is submitted that the risk of harm criterion ought to be the primary criterion in the consideration by the proposed independent review tribunal of whether any task ought to be a controlled act, and such risk of harm must be demonstrated with clear and cogent evidence. The onus of proving a risk of harm should be on the party seeking to make a task compulsory. Further, the evidence of whether a risk of harm actually exists should be based on research conducted by the College itself.

With respect to secondary criteria, one of the key considerations should be whether there are available alternatives to address any risks of harm. If there is a way to address the potential risk of harm without creating a barrier to employment, that alternative should be implemented. Further, the independent review tribunal ought to consider other secondary criteria such as economic impact, labour mobility, and the impact on the construction industry as a whole when determining whether a particular task should be regulated by the College as a controlled act.

The review must also take into account existing work assignment practices based on decades of OLRB jurisprudence.

The review should also involve all interested stakeholders, especially in light of the overlapping trades in the construction industry. Notice and time to make submissions based on objective expert evidence are critical elements of this process.

It is equally important that the review panel determine which compulsory trade (or, in certain circumstances, trades) is authorized to perform each controlled act. The review panel should take into account historical practice and the risk of harm when assessing which compulsory trade is authorized to perform each controlled act. Compulsory trades will be those that are authorized to perform one or more controlled acts. In this regard, there shall remain a distinction between compulsory and voluntary trades, but the entirety of a compulsory trade shall not be enforceable.

In short, it is our submission that the HPRAC model be adopted, both in terms of the process used to determine whether a task should be a controlled act or compulsory activity (and which compulsory trade can perform it), as well as the criteria that should be considered by the independent review tribunal when making this assessment.

Once the review process is completed and controlled acts have been defined, the Review Panel should have the ability to continually reconsider the list of controlled acts as technology, innovation and other circumstances develop.

2) SoP review for Training purposes

The SoPs need to be reviewed for training purposes. A complete review of SoPs is obviously an enormous project. Once the enforcement and related jurisdictional issues are dealt with through the creation of a list of controlled acts (and which compulsory trades can perform those acts), the opposing interests that have hampered the ability to revise the SoPs will be minimized. Removing the roadblocks and opposing interests associated with enforcement issues will make revising the SoPs more manageable.

SoPs should be revised with the predominant purpose of training tradespeople. They are currently inconsistent, inaccurate and developed for varying and contrasting purposes. However, where a compulsory trade is authorized to perform a controlled act, that controlled act should be specified in the compulsory trade’s SoP, in order to make it clear to all stakeholders which trade is entitled to perform that task.

The manner in which the SoPs are reviewed is dependent on whether our primary recommendation is adopted. If the SoPs are used solely for training purposes, and the College’s enforcement role is limited to defined controlled acts (and who can perform them), then it may make sense for the Trade Boards to review the SoPs to ensure they accurately reflect the scope of skills and knowledge that a new tradesperson should be trained on. If however, the College continues to have the ability to enforce the entire SoP of a compulsory trade, then the SoPs will need to be updated and revised by an independent review tribunal with input from all stakeholders. Further, the College’s enforcement responsibilities will need to be suspended until the review of the SoPs is complete.


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 do not support the College’s diverse functions. Further, it is unclear that simply revising the SoPs and continuing to have the entirety of a compulsory trade’s SoP be subject to enforcement would allow them to serve the College’s diverse functions. In particular, it is difficult to have a comprehensive SoP that deals with all elements necessary to properly train a person in the trade, while being narrow and specific enough to provide for a reasonable enforcement regime that does not infringe on other important public interests. This is especially the case in the construction industry, where overlaps between trades are common.

SoPs should reflect occupational standards, but they should not necessarily be the basis of whether an individual has the ability to practice each of those tasks, including the ones that pose no risk of harm. The SoPs should be designed for and used for the purpose of training. Enforcement and training speak to very different public interests, and the same approach should not be used for these divergent purposes and interests. Different and nuanced approaches to training and to enforcement are what best serves the public interest as a whole, particularly in the construction industry. As set out above, we recommend that an independent review tribunal define a list of controlled acts (and which compulsory trade(s) can perform those acts). The SoPs for compulsory trades should set out which controlled acts the trade is authorized to perform. However, other than those controlled acts, the rest of the SoP should not be subject to enforcement. Rather, as with voluntary trades, the rest of the SoP would be used for training purposes.


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


The entire SoP of a compulsory trade should not be enforceable. The SoPs as currently drafted are overbroad, vague and, most significantly, unconnected to the question of whether the task poses a risk of harm. Splitting the tasks of a SoP into core and peripheral functions does not resolve the issue, as that distinction is unconnected to the risk of harm or the complex issue of overlapping trades.

Making the entire trade subject to enforcement would result in the College rewriting the OLRB’s decades of jurisprudence on work jurisdiction. For example the carpenters have indicated their intention to seek compulsory status. The current SoP for carpenters’ states:

***
1. Establishing building procedures.
2. Preparing a work site for building.
3. Laying out, constructing and installing form work.
4. Framing floors, walls, ceilings and roofs.
5. Installing interior and exterior finishing materials and hardware.
6. Constructing heavy framing using post and beam and timber construction.
7. Building stairs, newel posts, handrails and balustrades.
8. Laying out, constructing and installing door and window systems including hardware.
9. Performing renovations. (O. Reg. 275/11 s. 15.)
***

How could any public interest be served by having carpenters exclusively perform all of the work described in their SoP? The scope of the carpenters’ SoP overlaps with any number of both compulsory and voluntary trades, and there is no connection to the public interest of avoiding the risk of harm. It cannot be said that carpenters are the only persons who could perform this work competently. The ramifications to the construction industry of the carpenters being granted compulsory status cannot be overstated.

The SoPs for trades that are already compulsory are equally broad. For instance, the electrician’s scope of trade 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.)
***

Many of these tasks are too broad to be defined, and on their face do not reflect a risk of harm to workers or the public. Further, it includes tasks that have been performed by labourers for many years.

The reality is that all trades perform many acts on a daily basis that pose no risk of harm. In this regard, we note the comments at page 14 of the Health Professions Blueprint regarding the use of entire scopes of practice to regulate the health industry:

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The licensed professions justify their exclusive licenses, and the registered professions justify their claims for licensure, in terms of protecting the public interest from inadequate or harmful treatment rendered by unqualified caregivers. While we of course agree that this is an important objective, we are also aware that their claims are often influenced by the desire for status and the economic benefits of monopoly. In any event, we believe that a regulatory model that depends on classifying positions as “licensed” or “registered” is no longer the best way to achieve public protection.

The reality is that in no profession are all the activities engaged in by members potentially harmful. To prohibit other caregivers from providing harmless activities solely because they are within the scope of practice of a licensed profession maintains a useless fiction.
***

The above comments apply equally to the College. Indeed, the “useless fiction” described above is arguably worse under the College’s current system, as the SoPs being relied upon by College are overbroad, outdated and not reflective of the way work is actually performed in the industry.

It is evident that a different approach is required. We strongly submit that a distinct list of controlled acts is necessary.

Where there is no public interest to be served by prohibiting non-members of the College from engaging in a task, the task should not be compulsory, regardless of what trade it is associated with. Once an independent review tribunal determines the list of controlled acts (and which compulsory trade can perform those tasks), then only those elements of the compulsory trade’s SoP should be subject to enforcement. This is consistent with the HPRAC model that we recommend be adopted by the College.


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.


Yes. The public interest would be best served by having a distinct list of compulsory activities (or, as we have described them, “controlled acts”).

The “controlled act” approach has been used with great success in the health profession industry. Under the RHPA, the prohibitions on non-members are limited to: a) the use of a title; and b) the performance of specifically defined controlled acts. Specifically, section 27 of the RHPA states:

***
27. (1) No person shall perform a controlled act set out in subsection (2) in the course of providing health care services to an individual unless,
(a) the person is a member authorized by a health profession Act to perform the controlled act; or
(b) the performance of the controlled act has been delegated to the person by a member described in clause (a).
***

Contrast this with the College’s approach, which restricts non-members from performing all tasks listed in an outdated and overbroad SoP. It is submitted that limiting the restrictions on work to specified controlled acts is far more aligned with the public’s interest than the current approach. It is not sufficient to distinguish between core and peripheral elements of a SoP because there is no correlation to the risk of harm. For these reasons, we submit the controlled act approach should be adopted by the College. As we have indicated above, our recommended approach is to have an independent review tribunal determine the list of controlled acts/compulsory activities, as well as which compulsory trade(s) can perform those tasks. Once that list is created (and implemented into the applicable SoPs), the College’s scope of enforcement responsibility would be limited solely to that list of tasks.


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


An overlap in SoPs occurs whenever a particular act can be interpreted to be within the scope of practice of two or more trades, whether compulsory or voluntary. These overlaps may not even be apparent from the definitions in the SoPs, but rather through practice that has developed over decades and which has been adjudicated and determined by the OLRB.

At page 75 of the Armstrong Report, the author noted:

***
…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.
***

Overlaps exist between “core” elements of trades, as well as “peripheral” elements. The SoPs are sometimes so broadly defined as to include virtually all trades. For example, the first function listed in the carpenters’ SoP is “establishing building procedures” (O. Reg. 275/11 s. 15.). This is a task that is performed on a daily basis by any number of trades.

Further, there are overlaps between SoPs even where there is the potential for risk of harm associated with the task. For instance, the SoP for a plumber states:

***
Installing piping for any process, including the conveyance of gas. (O.Reg 275/11, s. 29)
***

The SoP of a steamfitter similarly states:

***
Installing the piping for any process, including a process that conveys gas. (O.Reg 275/11, s. 42)
***

Overlaps are prevalent in all trades of the construction industry, and in all sectors.

The overlaps are so prevalent that in 1966, Parliament enacted section 99 of what is now the Labour Relations Act, 1995, which states:

***
Jurisdictional, etc., disputes

99. (1) This section applies when the Board receives a complaint,
(a) that a trade union or council of trade unions, or an agent of either was or is requiring an employer or employers’ organization to assign particular work to persons in a particular trade union or in a particular trade, craft or class rather than to persons in another;
(b) that an employer was or is assigning work to persons in a particular trade union rather than to persons in another; or
(c) that a trade union has failed to comply with its duties under section 74 or 75.
***

The OLRB has a known and respected expertise in this area and the College should defer to this expertise. Perhaps the best example of the OLRB’s understanding of and experience with jurisdictional disputes is set out in Carpenters and Allied Workers, Local 27 v Universal Workers’ Union, 2014 CanLII 54367. At paragraphs 10-18 of that decision, the OLRB surveys four decades of jurisprudence regarding the dispute between carpenters and labourers over the scope of their respective rights to formwork:

***
10. The Board can illustrate this proposition with a quick survey of the case law over the past four decades. In Dunker Construction Ltd., [1971] OLRB Rep. December 813, the Board directed that members of the Labourers be assigned the work associated with the construction and erection of forms for concrete curbs, retaining walls and other concrete structures at the New Dundas Mill Dam Restoration project in Waterloo. The Board found that past practice, as well as economy and efficiency, supported the award to the Labourers.

11. Later that decade, the Board directed the assignment of the following work to the Labourers at the Talbot Square project in London in Urban Consolidated Construction Corporation Ltd., [1977] OLRB Rep. February 41: the construction and erection of footing forms, flying forms, wall forms and ancillary, continuous and special forms, for example, sidewalks, curbs and stairs.

12. The fact that there is an overlap between the skill sets of labourers and carpenters with respect to concrete formwork is again illustrated by the following observation found at paragraph 20 of Gisar Contracting Limited.

14. To the same effect are the following statements from the Board in Ellis-Don Limited, [1988] OLRB Rep. December 1254 at paragraph 32:

…It may also be that both carpenters and labourers are able to build, erect and set concrete forms …. form setters may be, but are not necessarily, carpenters (and vice versa) … The same can be said for form builders.

16. Contrary to the submissions of the Carpenters, the Board finds that there is no “clear line of demarcation” between the Carpenters and Labourers when it comes to the performance of concrete formwork in the ICI sector, or in any other sector of the construction industry.

18. However, both carpenters and labourers can and do perform various aspects of concrete formwork. Whether any particular type or portion of concrete formwork is properly assigned to one trade union or the other is an issue to be determined on the facts of each individual case.
***

The issue of overlapping jurisdictions in the construction industry is both common and complex. Any enforcement role performed by the College needs to be deferential to the OLRB’s significant experience and expertise in dealing with overlaps in the construction industry.


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

Overlaps between SoPs have the potential to have a significant impact on RESCON’s members. As indicated above, many tasks performed by labourers on a daily basis are caught within a broad reading of other SoPs (carpenters, electricians, plumbers, ironworkers, etc.). In order to engage in the residential construction sector in an efficient and economically viable manner, it is necessary for builders to be able to use labourers (either directly or through subtrades) to perform tasks that do not pose a risk of harm. Labourers have been used in this manner for decades, either on their own or as part of composite crews.

As mentioned above, handymen are an important aspect of the residential construction sector. Contractors rely on these “jacks of all trades” to perform tasks that are both “core” and “peripheral” to various trades. Separate and apart from these handymen, on a general level residential construction builders need to be able to assign work as efficiently as possible. This flexibility is key to adapting to changes in projects, weather, and other factors beyond the builders’ control. This flexibility is an important aspect of ensuring that homeowners are provided with the home they purchased on time and in the most affordable way possible.

Accordingly, the overlap between SoPs is a significant issue for RESCON. The fact that other SoPs describe tasks that are typically performed by labourers is very concerning for our operations. This is especially the case for trades that either have been granted compulsory status or may be granted compulsory status in future.


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?


As indicated in the Consultation Guideline, the third legal interpretation principle is as follows:

***
3. 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 person is not engaged in the practice of the compulsory trade while performing the work.
***

The third legal interpretation principle does not directly address the issue of risk of harm. That is because it does not distinguish between tasks that do or do not pose a risk of harm to the public.

While the third legal principle may be useful in an ideal world, it is problematic where the SoPs are outdated, overbroad, inaccurate and inconsistent. In order for the principle to work in any meaningful way, a complete overhaul of the SoPs would be required. This would be a much larger task than simply creating a list of controlled acts.
In addition, the third legal principle can only been utilized if an appropriate enforcement mechanism is in place. We recommend that the enforcement of compulsory activities/controlled acts be undertaken by Ministry of Labour inspectors, at least in the construction industry. As set out above, many legislative regimes treat the construction industry separate from other sectors, due to its unique considerations. Ministry of Labour inspectors already spent a great deal of time attending at construction sites. It is duplicative for College enforcement officers to attend at construction sites to perform an enforcement role that has been performed by Ministry of Labour inspectors in the past, without issue. The College’s enforcement officers would then be allowed to focus on the other sectors that the College serves.

Irrespective of whether the above recommendation is adopted, clarity is required regarding how the College’s enforcement role and responsibility will be interpreted. For instance, the Ministry of Labour: Policy and Interpretation Guide for the Employment Standards Act, 2000 has been used by employment standards officers for many years, and is made publicly available. The College would have to provide guidelines with a similar level of detail in order for this principle to provide any comfort.

The process for appealing orders would have to be completely changed in order for the third legal interpretation principle to carry any weight. Even if the third legal principle could be successfully applied, it is not feasible to wait several months to appeal an order and argue that the principle should be applied.

The Richmond and Wiseman Paper provides an example of the potential effect of waiting to have your case heard before a Justice of the Peace. Stacey Electric was charged for having labourers perform tasks within the scope of their collective agreement, which they had performed for years. The authors describe the process that Stacey Electric was forced to undertake, and the impossible bind that the company was in, as follows:

***
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 the Labourers, or comply with its contractual obligations and be charged with an indefinite series of provincial offences, with the possibility of fines increasing up 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 the Labourers to perform the work in dispute. In this way, Stacey was able to proceed with its work without incurring liability under its collective agreement with the Labourers. 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 would not have been available in the ICI sector, where Labourers’ bargaining rights extend only to construction labourers and not employees in the compulsory trades. [LRA, s. 158]
...
Moreover, the provincial court also 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 the Labourers’ bargaining rights and to circumvent the agreement that the two unions had negotiated.
***

It is our view that if properly applied, an application of the third legal interpretation principle would have allowed labourers to perform the work in question. However, in practice, that question was never answered.

In order for the third legal principle to be effective at all, the review of enforcement orders would have to be conducted by the OLRB, with the ability to stay orders pending their review. The OLRB has specialized expertise in dealing with the overlaps between trades, occupational health and safety issues and the jurisdictional motivations of the parties At paragraph 16 of PCL Constructors Canada Inc. v. Labourers’ International Union of North America, Local 247, 2010 CanLII 46852, an appeal of an Inspector’s order relating to a regulation made under the Occupational Health and Safety Act involving the interpretation of a regulation made under the TQAA, the Board stated:

***
Clearly ... jurisdictional issues may have motivated the actions and positions of certain of the parties. However, this decision, under the OHSA, in no way determines the jurisdiction of either of the two principal unions involved, being the Labourers and the Sheet Metal Workers, and what particular parts of the work described above (related to the removal of portions of the HVAC system) falls within the work jurisdiction of either, or both, of these two unions.
***

The College’s current approach to appealing orders is not at all reflective of the needs of the construction industry, and is wholly ineffective in resolving the very real issues inherent to this industry.





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?

In our view, a compulsory trade should be defined as a trade that performs one or more controlled acts/compulsory activities. It is not the entire body of work of a trade that is likely to cause harm – it is specific tasks within that trade. It is those specific acts that should be considered “compulsory”.

The entire scope of a trade is only relevant for training purposes. When the College performs its primary training function, it should ensure that tradespersons are trained on the entire body of work that would be performed when working in that trade. However, in order to ensure that tradespersons are being properly trained on the scope of a trade, the SoPs will need to be updated and revised.

For enforcement purposes, the entire scope of the trade should not be enforceable, given the overlaps between trades in the construction industry and the fact that many tasks performed by compulsory trades pose no risk to the public. Rather, as we have recommended, an independent review tribunal should determine: a) a list of controlled acts/compulsory activities; and b) which compulsory trade(s) can perform each controlled act. Trades that are authorized to perform one or more controlled act would maintain the distinction of being a compulsory trade, with the important caveat that its entire SoP would not be subject to enforcement – only the defined controlled acts.


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?

No. The current classification system does not address the College’s primary public interest in training tradespersons and attracting Ontarians to the trades, and infringes upon the public interests already being addressed by different regimes.

At page 12 of the Dawson Report, the authors note that the impact of compulsory status can disproportionately be felt by underrepresented and historically disadvantaged groups:

***
Compulsory testing and associated test anxiety creates barriers for workers with language limitations. It also prevents workers with social and intellectual disabilities but who could otherwise do the job under supervision from making a productive workforce contribution. There is clear evidence that compulsory certification impedes exits out of the welfare system and creates barriers for marginal social groups. (Dorsey 1980; Hazlett and Fearing 1998)
***

By enforcing the entire scope of a compulsory trade, barriers to employment are created. This will inevitably and detrimentally impact the number of workers in the trade, rather than enhance it.

The College’s enforcement role should be limited to a specific list of controlled acts. For each controlled act, it should be specified which trade can perform that controlled act safely and competently. Compulsory trades would be those authorized to perform one or more controlled act.

It is our view that enforcing the entire scope of a compulsory trade does not serve the public interest. A more nuanced approach, as described in the preceding paragraph, better serves the public interest and we submit that it ought to be adopted by the College.


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?

We agree that there are tasks that are inherently hazardous or that may pose a risk of harm to the public, tradespeople, or other workers on the job. Those tasks need to be performed in a manner that minimizes this risk of harm.

However, in order to require a certified tradesperson to perform a particular task, something more than an “assumption” must be the basis on which the College determines that there is a risk of harm. Rather, the determination should only be made based on impartial, objective evidence, following the opportunity for all stakeholders to provide submissions on the risk of harm associated with the task. For some tasks, this analysis may be less rigorous than for other tasks (i.e. where all stakeholders agree that there is a clear risk of harm associated with the task).

The process of determining what particular tasks need to be performed by a compulsory trade also needs to ensure that it minimally impairs upon other important public interests, such as freedom of association, affordability of housing and the importance of a thriving economy. Where the risk of harm is adequately addressed through other regimes, the College should not infringe upon the role played by those regimes.

It is also important to be mindful of whether or not increased regulation is actually in the public interest. This is an important aspect of the HPRAC model that we recommend the College adopt. When assessing whether further regulation is required in the construction industry, the College ought to be mindful of such considerations as the economic impact, the labour impact, and whether increased regulation benefits the industry as a whole. If the cons of making the task compulsory outweigh the pros, the task should not be regulated. The College needs to take a global approach when assessing the value of increased regulation.

Finally, we note that it is not always apparent from the SoPs whether that trade performs specific tasks that pose a risk of harm. For this reason the public interest is best served by defining and specifying those acts as a separate list of controlled acts (similar to the process under section 27 of the RHPA), rather than trying to decipher them from the current SoPs. The SoPs for compulsory trades should then be updated to ensure that they reflect the controlled acts/compulsory activities that the compulsory trade is authorized to perform.


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?

It is submitted that compulsory certification should be limited to controlled acts that pose an established and objective risk of harm.

We submit that the focus for the College needs to be on: a) determining what tasks present a risk of harm; b) determining whether there is a better way to address the risk than prohibiting non-members of the College from performing those tasks (i.e. minimum impairment test); c) determining whether the pros of regulating the task outweigh the cons; and d) if not, including that task in a list of controlled acts, and defining which trade(s) can perform those acts.

As set out in response to question five, the construction industry is already heavily regulated. This point is emphasized at page 18 of the Dawson Report with respect to carpenters, as follows:

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Low levels of voluntary certification does not mean that the carpentry trade is unregulated. Regardless of what kind of carpenter is employed, work must be approved by building departments and inspectors to ensure that it conforms to the building code. In addition, Workplace Safety and Insurance Board coverage is mandatory, and Occupational Health and Safety apply to carpenters. (Melchers 2014)
***

Other skilled trades are similarly regulated. Accordingly, there already exists significant oversight in how work is performed in the construction industry. The regimes already in place protect the public and workers from the risk of harm.

It is also important to remember, when assessing risk of harm, that compulsory trades do not necessarily have a monopoly on the ability to perform tasks safely. For example, labourers performing work in the residential construction sector undergo significant industry training and health and safety courses, both in terms of general work practices and work practices specific to the work performed by contractors.

By limiting compulsory tasks to controlled acts that are shown to have a risk of harm, and which risk is not adequately addressed through existing regimes and that ought to be regulated by the College, the impact on contactors in the residential construction sector would be minimized. Contractors would be able to maintain the efficient work approaches that have been in place for many decades. This would benefit the public’s interest by impacting the provincial economy and housing industry far less than if the College’s current approach remained in place.


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.

In our view, the adjudicative model should be replaced by a public inquiry model more akin to the model used by the HPRAC. This is because:

a) There are significant problems with the current model; and
b) The HPRAC model is a proven model that could be used to the same effect by the College.

The College’s Existing Structural Bias

The College’s classification review process entitles it to expand its own jurisdiction by classifying trades as compulsory. Because it is self-funding, there is a built-in incentive to exercise that right and expand its membership, thereby increasing its funding.

The College’s ability to expand its membership is unique to the College. For example:

• The Ontario College of Teachers does not have any ability it to expand its membership and assume jurisdiction over other unregulated educational professionals.
• Self-regulating health care professionals cannot review and add mandatory membership requirements on related professions under the guise of the RHPA.
• The Law Society of Upper Canada could not unilaterally add the ability to regulate paralegals. Rather, Parliament was required to pass a bill amending the Law Society Act in order give the Law Society of Upper Canada the ability to regulate paralegals.

This issue is compounded by the College’s additional unique ability to enforce the prohibition of work by non-members, which is another revenue stream for the College.

Decision-Maker Bias

As it currently stands, the review process is determined by trade board members and industry parties who have a vested interest in monopolizing the work. This restricts the ability to have decisions that reflect the public interest of attracting new workers. The Ratio Review decisions show that there is little attention paid to the adequacy of ratios for training and attracting new workers (See, for example, the Electricians ratio review dated July 2, 2013, in which the IBEW Construction Council of Ontario and the Electrical Contractors Association of Ontario argued at page 14 that “first, apprenticeship is a job and only secondly is it an educational opportunity”).

The current system needs to be overhauled to protect against the College’s inherent biases.

Trades Boards

Trades Boards are responsible for initiating and engaging in the process for reviewing a trade’s classification. Members of these boards are appointed by the Appointments Council under the OCTAA. This process lacks transparency and does not reflect the divergent interests in whether or not a trade gains compulsory status. For example, the employee members of the Carpentry Trade Board are all members of the United Brotherhood of Carpenters and Joiners of America. When the Carpenter’s Trade Board decided to seek compulsory status, the employer member abstained. As such, the decision was made entirely by members of the carpenters’ union, who would inevitably have self-serving interests.

Roster of Adjudicators

It is also unclear how the roster of adjudicators is selected. This is another area where greater transparency is necessary.

Selection of Review Panels

Section 21(4) of the OCTAA states that Review Panels will be composed of three members chosen from the roster of adjudicators, two chosen by the Divisional Board for that sector and one chosen by the Board of Governors. In the construction sector, the Divisional Board is composed of two employee representatives, two employer representatives, and a member of the Board of Governors from the construction sector acting as the chair.

While the Divisional Board’s structure acknowledges that there may be competing interests between employees and employers, it does not recognize the competing interests between different trade unions, employer associations, or unionized and non-unionized tradespeople. The selection of the Divisional Board needs to be reflective of the actual opposing interests relevant to these proceedings.

The OLRB/Adjudicative model is not Reflective of the Public Interest

The College’s adjudicative model is inconsistent with the public interest it intends to serve. By adopting an adjudicative approach modelled on the OLRB, review panels do not have credible and impartial evidence available to them. This is evident from the Review Panel’s decision in the Trade Classification Review Sprinkler and Fire Protection Installer decision dated July 10, 2013 (“Sprinkler Review Decision”) where the panel expressed significant concerns with quality of evidence:

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This lack of clear evidence of a connection has troubled us significantly... Frequently in the ratio reviews, panels when in doubt with respect to the impact of this criterion erred on the side of safety.
***

The OLRB model is intended to work in a system where employers and employees/unions have opposing interests. In the College’s review process, interests are differently aligned. For instance, in the Sprinkler Review Decision, the groups that supported compulsory certification were:

a) The Sprinkler and Fire Protection Installer Trade Board;
b) The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 853;
c) The Canadian Automatic Sprinkler Association;
d) The Ontario Pipe Trades Council;
e) The Provincial Building & Construction Trades Council of Ontario;
f) The Ontario Plumbing and Steamfitting Trade Board;
g) The Facilities Mechanic/Facilities Technician Trade Board;
h) The Ontario Association of Fire Chiefs;
i) The Ontario Municipal Fire Prevention Officers Association;
j) The Ontario Professional Fire Fighters Association; and
k) Various sprinkler installation contractors (both union and non-union).

Accordingly, there was aligned interest between trade unions and employer associations. Similarly, those opposed to compulsory certification included both unions and employer associations.

Opposing interests in review panel decisions will rarely, if ever, be as straightforward as employers versus unions. This needs to be reflected in how the review process is conducted.

The HPRAC Model

The HPRAC applies the following process when determining whether to regulate a new health profession (See page 13, HPRAC Criteria and Process):

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1. The Minister may request that HPRAC undertake a review of a health profession seeking regulation and/or other health professions regulatory matters, and make recommendations. As per the RHPA, HPRAC undertakes reviews only on the Minister’s request.
2. Following receipt of the Minister’s referral, the Advisory Council may arrange a meeting with the applicant(s) to discuss the timeframe and other process management issues.
3. If similar or related professions are involved in consideration of a referral, responses to the proposal may be considered jointly by the Advisory Council. Applicants will be informed, to the extent possible, should HPRAC intend to combine projects where there is an overlap in issues to be considered.
4. HPRAC will provide the applicant(s) with: (1) a package that includes questions and guidelines to aid the development of proposal; (2) research conducted by the Advisory Council (e.g., literature, jurisdictional and jurisprudence reviews); (3) timelines; and, (4) other relevant material.
5. These materials will also be posted on the Advisory Council’s website at www.hprac.org.
6. Upon receipt of the proposal from the applicant, HPRAC will notify stakeholders (e.g., the public, health professionals, health professional associations, health professions regulatory colleges, etc.) that the applicant’s response to the questionnaire has been posted on the HPRAC website for stakeholder feedback.
7. Following notice, stakeholders interested in the review may participate in the feedback process. Notice of opportunities for stakeholder participation in the Advisory Council’s review of a matter will be communicated via the Advisory Council’s website at www.hprac.org and other media. Stakeholders are encouraged to visit the HPRAC website for regular updates concerning the specific referral, or follow HPRAC on Twitter at http://Twitter.com/HPRACOntario to obtain updates and notifications.
8. The purpose of the feedback process is to obtain comments on the proposal for regulating a profession and/or other regulatory matters referred to HPRAC by the Minister. HPRAC will provide questions, guidelines and timelines to aid the feedback process. Stakeholder responses may contain information, with citations and evidence where applicable, that they consider relevant to the question(s) under consideration.
9. The stakeholder feedback can be provided via the HPRAC on-line consultation platform, e-mail, fax or mail. To ensure transparency and encourage open dialogue, the feedback HPRAC receives will be posted on the HPRAC website (please see the section on access to information for guidelines).
10. If required, HPRAC may consult with experts as well as hold focus groups or meetings to obtain information it deems necessary to complete the review of the Minister’s referral. Persons or organizations with identified expertise may be invited, at the discretion of the Advisory Council, to make presentations, reports or submissions to the Council. Summaries of these sessions may be posted on HPRAC website (please see the section on access to information for guidelines).
11. HPRAC will conduct all its consultations in both official languages. In some cases, advance notice of the need for French language services may be required.
12. At the conclusion of the recommendation-making process, HPRAC will submit a report containing its recommendations to the Minister for consideration. This report is confidential until released by the Minister. As per the RHPA, HPRAC recommendations are advisory only. The Minister is not bound to accept HPRAC’s advice. The release of an HPRAC report and any follow-up action are at the discretion of the Minister. Should the minister choose to accept HPRAC’s advice, the Ministry of Health and Long-Term Care is responsible for implementation based on the direction of the government.
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We submit that the HPRAC model should be adopted by the College, both in terms of process and criteria, as it is far better aligned with the public interests that self-regulating professional bodies are designed to serve. In particular, the focus is on stakeholder involvement, a collaborative inquiry and, most importantly, an advisory role with final decision-making authority vested in the appropriate Minister. These principles can be equally applied to decision-making on reviews conducted by the College. We submit that there is no reason not to adopt this approach.

21. How should expert opinion be obtained?

First and foremost, decisions need to be made based on objective, unbiased, expert evidence, which unfortunately was not available in the Sprinkler Review Decision. A system needs to be put in place to ensure that expert evidence is available.

It is critical that the expert evidence obtained is independent and impartial. This is obviously in the public interest. Accordingly, it is submitted that no matter if reviews are conducted through a public inquiry model, as we have recommended, or through an adjudicator, the College should be able to (and indeed, expected to) obtain expert evidence on its own by commissioning its own reports. Expert evidence obtained by vested or interested parties is of little assistance to the review panel and is not in the public interest. This independent research could be paid for by the trade initiating the application.

We note that one of the objects of the College under the OCTAA is as follows:

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15. To conduct research in relation to trades.”
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We submit that the College should, in accordance with this legislative objective, be responsible for conducting its own research.

 

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 are, in our submission, not consistent with the “public interest”. In particular, the current criteria are insufficiently directed at the risk of harm, and balance a set of criteria that are not reflective of the public interests.

While “risk of harm” is referenced as a criterion, there is no indication in the OCTAA that it is given primary importance. As well, there is no guidance on how to establish the risk of harm. Finally, the other criteria are vague, unclear and are given equal weight when, at best, they should be of secondary importance.

In our view, the HPRAC model better reflects the “public interest” that should be served by the College. Most importantly, the HPRAC model is focussed on the risk of harm, by separating it out as the primary criterion to be considered before all others. Specifically, HPRAC states (See page 4, HPRAC Criteria and Process):

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Primary Criterion: Risk of Harm

The fundamental principle with respect to health professional regulation under the RHPA is the protection of the public from harm in the delivery of health care, premised on the fact that it is in the public interest to do so. As such, it is vital to demonstrate that the health profession seeking regulation under the RHPA poses a risk of harm to the health and safety of the public. The term risk of harm refers to actions where a substantial risk of physical or mental harm may result from the practice of the profession. This criterion is intended to provide a clear articulation of the degree of harm posed by the profession to the health and safety of the public. In addressing the risk of harm in this context, the applicant is asked to identify the risks associated with the practice of the profession concerned, as distinct from risks inherent in the area of health care within which the profession operates.
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It is our submission that the HPRAC’s focus on risk of harm is consistent with public interest. HPRAC also reviews the potential for risk of harm very closely, applies a minimal impairment approach, and considers whether increased regulation makes overall sense, all of which are reflective of the public’s interest. It is our submission that any restriction on the right to work should be limited to specifically defined controlled acts. We further submit that in order to regulate such controlled acts, clear, cogent and demonstrable evidence of a risk of harm must be provided by the applicant, as in the HPRAC model. A minimal impairment approach also limits the barriers to employment, which could affect many historically disadvantaged groups. For this reason, it is our submission that a realignment of the College’s focus is necessary to reflect the public interest.


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


No. In our submission, the criteria are unclear and lack specific guidance on how to apply.
Review Panels have noted the difficulty in applying these criteria. At paragraph 6 of the Sprinkler Review Decision, the panel noted:

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The problem that every Review Panel has focused on is that the criteria are, for the most part, fairly general criteria and hence difficult to quantify or prioritize. Where they are susceptible of precise measurement, the data is very difficult to find and what there is has proved difficult to rely on. This suggests both a need to give some weight to the anecdotal or impressionistic evidence we received, and to be cautious about the entire factual foundation for any analysis.
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Similarly, at pages 12-13 the Drywall, Acoustic and Lathing Applicator ratio review decision, the panel noted:

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We are left with what is, in our view, intuitive; namely that a workplace that has employed with it a large number of experienced tradespeople will be safer than a similarly situated workplace that has employed within it a smaller number of experienced tradespeople.
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These types of “intuitive” conclusions made without evidence are not in the public interest, which includes attracting new tradespeople. Putting up barriers to employment without supporting evidence runs directly contrary to that goal.
By contrast, not only does the HPRAC provide stakeholders with a list of the criteria that it will consider, it also provides significant guidance on what information is required with respect to those criteria. HPRAC considers “risk of harm” to be the primary criterion in assessing whether to regulate a new profession. When assessing the risk of harm, HPRAC requires applicants to provide the following information (See pages 4-5 of the HPRAC Criteria and Process):

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Information required:
1. Provide a general description of services provided by the practitioners of the profession.
2. Specify and describe the diagnostic modalities employed by practitioners of the profession.
3. Specify areas of practice, diagnosis, treatment, interventions, modalities, and services:
a) Performed exclusively by practitioners of the profession;
b) Also performed by other regulated health professions;
c) Also performed by other unregulated health professions;
d) Performed in conjunction with other regulated health professions, with specific examples and information on the following: Include references to, and copies of, scientific literature and other published information
• the nature and extent of any overlaps in practice with other health professions; and
• diagnostic and treatment modalities and services provided by the practitioners. Demonstrate how they may differ from other health professions.
4. Specify which diagnoses/assessments, interventions, substances, treatment modalities, and services provided by the profession entail a risk of harm to patients/clients. Include references to, and copies of, scientific literature and other published information.
5. Explain the extent to which public safety is at risk because the profession remains unregulated. In particular, please respond to the following questions:
a) Explain the nature and severity of the risk of harm to patients/clients. Include references to, and copies of, scientific literature and other published information.
b) Provide examples of patients/clients being harmed by a practitioner who performed services incompetently or inappropriately. Include references to, and copies of, scientific literature and other published information.
c) Where possible, provide the rate and nature of complaints of harm received by professional associations and related organizations in the past 10 years.
d) Describe any existing voluntary disciplinary or investigations process, including the outcomes of these processes. Where possible, provide supporting documentation to illustrate these examples.
6. Explain the anticipated effect of regulation on the current risk of harm presented by the profession?
7. Where the profession is supervised by regulated and/or unregulated health professionals, what direct and indirect mechanisms are in place to ensure the delivery of safe care, including quality of work performance?
8. What proportion of practitioners in the profession concerned performs duties without direct and indirect supervision?
9. How do recent advances in treatment and technology contribute to potential risks of harm posed by the profession?
10. Explain the profession’s experience with liability/insurance protection, including the current percentage of practitioners of the profession who carry liability insurance coverage. What is the position of professional associations and related organizations on this matter?
11. Describe any process undertaken to determine the public need for regulation and the response/results achieved.
12. What professional titles should be restricted to members of the profession? Why?
13. Identify any known circumstance(s) under which a member of the profession should be required to refer a person to another health profession?
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The same level of detailed guidance on the information that is required is also provided by HPRAC with respect to its secondary criteria. We submit that, whatever criteria are adopted by the College, this same level of rigorous evidentiary requirements should be applied to assessing those criteria, and that transparent guidelines be provided regarding the information that is required as part of the review. This will prevent a repetition of the College’s decisions thus far, which have clearly been hampered by the lack of available data.


24. Are the existing criteria the right criteria?


The current OCTAA criteria are not the right criteria, as they are insufficiently directed at the issue of harm, and rely on a set of criteria that are not reflective of the public interests that the OCTAA is intended to serve.

Pursuant to section 2(6) of the O. Reg. 485/11 a classification review panel must consider the following:

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1. The scope of the practice of the trade;
2. How the classification or reclassification of the trade may affect the health and safety of apprentices and journeypersons working in the trade and the public who may be affected by the work;
3. The effect, if any, of the classification or reclassification of the trade on the environment;
4. The economic impact of the classification or reclassification of the trade on apprentices, journeypersons, employers and employer associations and, where applicable, on trade unions, employee associations, apprentice training providers and the public;
5. The classification of similar trades in other jurisdictions;
6. The supply of, and demand for, journeypersons in the trade and in the labour market generally; and
7. The attraction and retention of apprentices and journeypersons in the trade.
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We note that the same criteria are used in classification reviews as well as in ratio reviews. In our submission, there is no legitimate reason to use the same criteria for vastly different purposes.

We submit that the HPRAC model should be adopted, as those criteria much more consistent with the “public interest”. HPRAC specifically states that “risk of harm” is the primary criterion. If (and only if) a risk of harm is established, the HPRAC then considers the following secondary criteria (See pages 6-12, HPRAC Criteria and Process):

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1. Professional Autonomy;
2. Educational Requirements for Entry to Practice;
3. Body of Knowledge & Scope of Practice;
4. Economic Impact of Regulation;
5. Regulatory Mechanisms;
6. Leadership’s Ability to Favour the Public Interest and Membership Support and Willingness of the Profession to be regulated; and
7. Health System Impact.
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One of the secondary criteria is the existence of other regulatory mechanisms. Specifically, the HPRAC provides the following guidance on this criterion (See page 9, HPRAC Criteria and Process):

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The applicant is asked to demonstrate that regulation under the RHPA is the most appropriate means to regulate the profession. The applicant is asked to explore potential statutory and non-statutory regulatory regimes which could be appropriate and merit consideration. In other words, the applicant is required to demonstrate why it prefers a particular type of regulatory mechanism over others. This criterion is intended to provide information to ascertain the most appropriate way to regulate the health profession concerned.
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Further, and consistent with the HPRAC model, when assessing whether further regulation is required in the construction industry, the College ought to be mindful of the economic impact, the labour impact, and whether increased regulation benefits the industry as a whole. The College needs to take a global approach when assessing the value of increased regulation, by assessing whether the pros of making the task compulsory outweigh the cons.

We submit that the same analysis must be part of the College’s review of whether to enforce work performed by non-members in the trades. The College, to the extent it has any enforcement role, must take a “minimal impairment” approach.

In summary, it is our submission that the HPRAC model be adopted as closely as possible. If this approach is aligned with the public interest for the regulation of health professionals (where the risk of harm to the public is more direct and more frequent), it is submitted that the criteria more than reasonably protects the risk of harm to the public that the College seeks to protect.





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

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

No. In particular, the SoPs of many other trades (electricians, plumbers, carpenters, ironworkers, etc.) go far beyond the actual work performed by those trades in the residential construction sector in practice. Labourers are used extensively in the residential construction sector, and have been used in the same manner for decades. The work performed by labourers for contractors in this industry would likely be included in a broad reading of several other SoPs. Accordingly, the SoPs as currently drafted do not resemble the way work is actually performed by contractors in the residential construction sector.


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


No, we do not agree. Jurisdictional disputes can arise from a core element being shared by multiple different trades. In those circumstances, the OLRB’s refined historical practice examines the area practice, employer practice and other relevant factors to determine how best to assign the work. Area practice may be different in one part of Ontario than in another part of the province. Jurisdictional disputes can arise in any circumstance, including with respect to acts that many would consider to carry a risk of harm (see the piping installation overlap between steamfitters and plumbers, for example).

Jurisdictional disputes also often arise because the parties disagree on how to describe the work in dispute, which will affect whether it is core to one or both of the competing trade unions.

The OLRB in its decisions regarding jurisdictional disputes have long recognized that many different trades have the ability to safely perform work. For example, at pages 31-32 of Bruce Power LP, 2006 CanLII 33923, the Board stated:

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The Board notes that many trades have work and training components that overlap one another. This is perfectly reasonable. It makes sense that plumbers, ironworkers, and other trades such as millwrights should all acquire rigging skills to further the performance of their trade. This does not grant exclusive jurisdiction over such work to any one trade. It does not mean that any one trade has a monopoly over the safe performance of any particular type of work.
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At page 23 of the Richmond and Wiseman Paper, the authors note the following:

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Indeed, we are not aware of any case in which the Board has upheld an assignment of safety-sensitive work to a union that represents workers who are not able to perform the work safely. In cases where compulsory trade restrictions are outweighed by other considerations, it is because the work in question does not require specialized training available associated exclusively with a given compulsory trade to be performed safely. For example, in the Weinmann scenarios, the work in dispute may technically have fallen within the broad scope of practice for an electrician, but it did not involve live electricity or engage other safety considerations. Thus, the Board did not offend the purposes of the TQAA when it held, that non-electrician members of the Labourers could perform the disputed work to the extent demanded by efficiency (Weinmann #1) or in full (Weinmann #2). In neither case was the work in question so hazardous or difficult that the training available exclusively to electricians was required for the safe performance of the work.
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Both the OLRB and the Ministry of Labour have noted that it is not appropriate to intervene when work is within the scope of multiple trades, irrespective of whether the task is “core” or “peripheral”. At paragraph 28 of Action Group Inc., 2010 CanLII 17736, the OLRB noted:

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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.
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Similarly, at paragraph 30 of Buttcon, 2000 CanLII 13479, the OLRB quoted the Ministry of Labour’s TQAA guidelines:

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Many non-compulsory Trades that are certified under TQAA contain similar or same functions as do the compulsory trades... We must recognize 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.
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Accordingly, the two labour regimes that have the most experience in addressing overlaps in the scopes of trades in the construction industry have recognized that the distinction is not based on core or peripheral tasks, but are simply a function of how the industry has developed. The OLRB has also recognized that particular trades should not be assumed to have a monopoly on performing any particular tasks safely. This Review should be mindful of not creating such a monopoly.

 

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


In our view, the OLRB’s existing jurisprudence provides a wealth of information and experience in terms of how work in the construction industry is assigned. While the OLRB’s jurisdictional dispute decisions are limited to work in the unionized sector, the decisions are an important source of information for employers, as they provide guidance and certainty on how work ought to be assigned. In particular, residential construction builders have organized their work assignments and approach based on the OLRB’s case law in jurisdictional disputes. The OLRB has always served the public interest and has been mindful of public and worker safety in determining work jurisdiction disputes.

In the Richmond and Wiseman Paper, the authors note the OLRB’s expertise in jurisdictional disputes at page 17:

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Finally, perhaps the most important element of the jurisdictional dispute system is the expertise of the Board itself. As noted, the Board’s powers under section 99 have existed for over half a century. In exercising these powers, it has issued literally hundreds of jurisdictional decisions. The specialized expertise it has acquired in adjudicating these disputes is beyond dispute. As the Divisional Court has recognized, the Board acts in a “doubly specialized capacity” in adjudicating jurisdictional disputes in the construction industry: not only is it an expert in the “‘dynamic, complex and specialized field’ of labour relations,” but it has been entrusted with responsibility over the highly specific regime that governs the construction industry. (International Brotherhood of Electrical Workers Local1739 v. International Brotherhood of Electrical Workers, 2007 CanLII 65617 (ON SCDC) 47))

In deciding section 99 cases on their merits, 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. (Sack & Mitchell at para 7.36) While the Board has broad discretion to weigh these criteria in the facts of any given case, it tends to attach significant and primary weight to the historical factor of area practice. (Electrical Power Systems Construction Association, 1992 CanLII 6371 (ON LRB) at para 95; Weinmann Electric Limited, 2010 CanLII 71126 (ON LRB) at para 93 (“Weinmann #1)) This is in keeping with the purpose of section 99, which is to preserve labour relations peace and stability. (TESC para 39) The focus on area practice also permits accommodation of local practices, (Black & McDonald Limited, 2013 CanLII 76431 (ON LRB) (“Black & McDonald’) at para 52] which may in turn be shaped by geographical variations in labour supply. As well, the area practice factor is often relevant to the application of the other factors. For instance, the fact that disputed work has historically been performed by members of a particular trade within the Board area in question may indicate that the employees have the skills and training to perform the work safely, (Black & McDonald at para 65) as well as the capacity to perform it economically and efficiently, (Bruce Power LP, 2006 CanLII 33923 (ON LRB) (“Bruce Power”) at para 51) and hence in accordance with the broader public interest.
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It is our submission that the College must defer to the OLRB’s expertise on work jurisdiction issues. There is no basis for the College’s enforcement regime to interfere with the Board’s expertise and its five decades of refined approach to dealing with these issues. The jurisdictional decisions made by the OLRB are based on the unique nature and requirements of the construction industry. The ability to involve stakeholders is a fundamental tenet of any consideration of work assignment disputes, including with respect to SoPs. The OLRB’s half-century of expertise in managing these multi-party inquires is another reason to defer to the OLRB and its jurisprudence.

Deferring to the OLRB ensures that the consistency of work assignments remains in place. This certainty would ensure the construction industry does not devolve into chaos, and will allow the industry to continue to thrive, which is an important public interest.

If the College defers to the OLRB and/or adopts the OLRB’s decisions, it would allow contractors to continue to operate in the manner that they have always operated, avoiding the uncertainty and potential for significantly increased labour costs and/or construction delays.

The College was created to attract new tradespersons and ensure access to a certain standard of training. It is intended to be a teacher and a promoter. It can play an important role in Ontario’s construction industry if it keeps to those roles. It does not need to enforce relations between trades, between employers, between trade unions or between employees. The OLRB has been doing that for decades, and it is in the public interest to allow it to continue to be the adjudicator of these disputes. It is time to ensure the College fulfills its role as teacher, and let others fulfill the “police officer” role.




Section E - General Response and Comments

28. Please provide additional comments below, if any.

Labourers International Union of North America, Local 183

We have had an opportunity to review an advance draft of the submissions from Labourers International Union of North America, Local 183 (the “Labourers”). We have adopted many of the submissions made by the Labourers, and are generally in agreement on many of the principles outlined in the Labourers’ submissions, which are reflected in our responses to these questions.

Ontario Skilled Trades Alliance

RESCON is a member of Ontario Skilled Trades Alliance ("OSTA") and as such is signatory to its submission. OSTA is a consensus group and worked together to create a submission that all parties support. You will notice slight variations between the two submissions as we used our individual submission to expand on issues related to construction, residential construction, and our individual members.

Dawson Report

RESCON was also part of a group that commissioned the Dawson Report. While it has not been formally released, it will become a public document in the very near future and will be provided as an attachment once finalized.