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Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-88

Name of organisation making submission: DR-88 Heating, Refrigeration and Air Conditioning Institute of Canada (HRAI)

Responses to questions in submission form


Section A - The Public Interest in this Review

1. What do you understand by public interest?

At the highest level, the Ontario College of Trades (OCT) should seek to uphold the health and safety of citizens and workers across Ontario through some assurance of competence among tradespersons and apprentices. In addition to this, the college should serve to protect consumers of the products and services delivered by the trades. In the context of the heating, ventilation, air conditioning and refrigeration (HVACR) trades (or more broadly the "mechanicals" industry) this means providing some confidence for Ontarians that the buildings they own and/or occupy are safe and possess mechanical systems that are installed and maintained properly, perform safely, and operate as designed and in accordance with prescribed standards (e.g. building code). The OCT should also serve the objective of supporting the trades as a meaningful occupation and an essential element of the economy. At the same time, the OCT should support an efficient, well functioning marketplace by maintaining a level playing field through effective enforcement of minimum standards. And finally, the OCT should support the development and maintenance of standards and practices among the trades that are not harmful to the natural environment.


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

As stated in the Consultation Guide, there are a number of "publics" that can be referenced when describing the "public interest" and these publics might occasionally have competing interests (it is even possible that the high level public interest objectives enumerated in response to the first question might occasionally come into conflict). The OCT should recognize and acknowledge these separate publics and develop means to address or accommodate their unique interests and values. In relation to products and services provided by the HVACR industry and what HRAI believes should be the mandate of the OCT, the key "publics" that must be served by an effective Ontario College of Trades are: a) Current and future citizens in the Province of Ontario who are entitled to own and/or occupy buildings with mechanical systems that are installed and maintained properly, perform safely, as designed and in accordance with prescribed standards (e.g. building code). This "interest group" includes homeowners, building owners and occupants; plant owners and operators as well as workers; business owners that rely on the services of the HVACR industry (e.g. grocery stores, restaurants, ice rinks); and public institutions (schools, hospitals, etc.). b) Tradespersons and apprentices working in the regulated trades; c) The companies that employ tradespersons and apprentices as well as the whole distribution channel behind them (product manufacturers and distributors who have a stake in proper product installation and performance); d) Other regulatory bodies that have responsibility for public and worker safety as well as the proper design and performance of buildings and mechanical systems (e.g. buildings departments in municipalities, fuel safety regulators [TSSA], etc.)


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

Where there is conflict among the different publics that are served by the OCT, decisions should be made with explicit reference to the higher principles articulated in response to Question 1. Some of these principles should be deemed as paramount and never to be violated: public safety; personal safety of workers; consumer protection. Other principles should be honoured wherever possible. In all cases, decisions should be transparent, with rationales clearly articulated and any trade-offs among principles/interests acknowledged.


4. Is the College currently protecting the public interest?

HRAI believes that the OCT is, for the most part, properly constituted and aligned to serve the public interest, and some of its actions have demonstrated that it is prepared to deliver on its mandate (e.g. development and posting of a registry; some initial forays into active enforcement of certifications in the field). On the other hand, certain decisions -- or non-decisions -- have betrayed an unwillingness to respond to real needs in the industry for constructive solutions to longstanding problems and this is not acting in the public interest. It is, however, too soon to judge whether the OCT is more effective in its responsibility to protect the public interest than the regulatory regime that preceded its creation.


5. How should the College advance the public interest?

There are a number of ways the OCT can (and in some cases already is) serving the public interest: 1. The OCT must set and maintain appropriate standards for certification for tradespersons and apprentices; 2. It must communicate these standards to the public that is served by the trades under regulation; 3. It should maintain a public register of individuals certified by the College and the companies that employ them; 4. It should provide a complaints process that makes members accountable and it should communicate this process to the public; 5. It should communicate to the public the benefits of dealing with certified trades and the companies that employ them; 6. It should ensure compliance with the regulations through effective enforcement in the field; 7. It should assist in the growth and development of an adequate supply of qualified tradespersons to meet the needs of industry and the public. 8. It should work actively and constructively with industry and stakeholders to ensure that training and certification regulations (Scopes of Practice) are current and reflective of emerging or transforming markets, changing technologies, practices, procedures and the demands that these place on worker skills and aptitudes.





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.

Some might argue that, until recently, existing Scopes of Practice (SoPs) were largely irrelevant to the marketplace and the public -- except to certain industry segments and companies committed to training, safety and excellence -- because of the almost complete absence of certification enforcement in the field. In the absence of enforcement and communication of the regulations, the SoPs for trades related to the HVACR industry have been largely left open to interpretation and self-policing. For HRAI, this has posed a challenge over the past 15-20 years, as the association has made it a membership requirement for all contractors to demonstrate that they employ duly qualified tradespersons to do the work they do. HRAI's management of membership requirements has tried to follow the letter of the law but for practical reasons must acknowledge some "blurred boundaries" between trades and in relation to emerging markets for new or changed products and services. Some examples of the latter include the hydronic heating in relation to the plumbing trade, the geothermal sector in relation to the refrigeration and air conditioning trade and the emergence of duct cleaning and duct sealing services in relation to the sheet metal trade. The relationship of the gas technician program -- which falls under the administration of (and relatively strict enforcement by) the Technical Standards and Safety Authority (TSSA) -- to other trades involved in the installation and servicing of mechanical heating systems (Plumber, Sheet Metal Mechanic, Refrigeration and Air Conditioning Mechanic) has also posed a challenge. Because of increased enforcement activity by the OCT in Ontario over the past year or so, some of these SoP issues are becoming more visible and problematic.


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

Yes, to a degree. If defined based on safety, some skill-sets and learned practices within existing trades are perhaps more essential than others. But trying to delineate the "core" from the "periphery" can be tricky and may be seen (correctly) as a slippery slope that leads to "dumbing down" a trade. Due to the varied types of work that exist within the HVACR industry, different elements (skill-sets, technical applications) will vary in importance as well. What is defined as "core" may vary depending on the sector in which the apprentice will ultimately find long-term employment. It may therefore be argued that all aspects must be learned and mastered in order to be a "fully qualified" certificate-holder.


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.

It would seem that all tasks, activities and functions should be listed, with an indication that the list may not even be exhaustive, but it may be worth considering that some tasks might be deemed "essential" and others "non-essential". As noted above, however, this could be a slippery slope. In general, the preferred approach would be to maintain a comprehensive list (acknowledging that some skillsets and activities might be shared with other trades). Having said this, it is also vital that the scope is periodically reviewed and updated (with the training and apprenticeship programs adapted as well) to ensure it keeps up with the changing needs of the industries and markets served.


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

The review of an SoP should include but not be limited to the input and assessment of formally constituted trade councils. There should also be extensive and ongoing consultation with industry, including employers, product manufacturers and distributors, as they will have detailed information and knowledge about new and emerging products, practices and applications that may require new or adapted skill-sets and knowledge. Such inputs can be facilitated or channeled through industry associations which have their own vetting and consensus-building processes. Indeed there should even be some direct mechanism for industry to bring these inputs forward for consideration. Ultimately, changes to SoPs should be seen as largely the domain of the trade councils, but there must also be some recognition that these councils might have a bias to the status quo.


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

As noted in the consultation document, the current application of SoPs to multiple purposes creates some challenges for the College, being simultaneously the basis for the development and administration of apprenticeship training standards, the guideline for compliance and enforcement and one of the key criteria for trade classification and ratio review. The real challenge, however, may not be in the multiple (and possibly conflicting) demands placed on SoPs but rather their rigidity once established. It is clearly important that apprenticeship training should be based on a clear and appropriately detailed set of expectations that comes out of the SoP. Similarly, enforcement should be based on clear rules and delineations that are best defined through SoPs. Problems arise (at least for the HVACR industry) when those SoPs no longer reflect the real needs of the marketplace. New technologies, new applications, new types of services and business activities, create new demands on existing trades that are not able to respond as they should. Solutions to this problem include: a) More frequent (and inclusive) reviews of SoPs to ensure they match the changing needs of the industries they serve (per response to Q9). b) Some ability to segment existing trades into different levels to meet different skill level requirements. Two examples from the HVACR industry include the creation in 2005 of the "Residential Air Conditioning Mechanic" trade (313D) as a subset of (or companion to) the Refrigeration and Air Conditioning Mechanic trade (313A) and more recently the development of the Residential (Low Rise) Sheet Metal Installer trade in relation to the existing Sheet Metal Mechanic trade. But these changes took a long time to materialize and came long after the need was first identified. c) More flexibility in cross-recognition of trades through endorsements. d) The ability to create multiple "branches" within an existing trade so that it can properly serve multiple demands (for example the plumbing trade, which is deemed to be the relevant trade license for installers of hydronic heating systems could (should) be adapted to allow an apprentice to pursue a path to become a hydronic installer or a sanitary plumber (or both). None of these ideas are particularly new or revolutionary, but the mechanisms to allow them to come into being are either missing ore seriously deficient.


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

As noted above, a more open and fluid process for re-defining SoPs periodically is key to ensuring the requirements of regulation match the real training and certification needs of the field. Once settled, SoPs should be the basis for enforcement.


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.

Perhaps. The question is somewhat unclear. Is the reviewer proposing a list of activities within each compulsory trade or and independent list that might apply to multiple trades? Either way, the effect might be to create confusion where it might be preferable simply to specify what type of work fall within what trades (subject to the points made above).


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

For the HVACR industry, overlaps generally occur when markets develop for new products or services, based on new technologies not currently captured precisely in existing regulations or, conversely, new markets emerge for existing products and services that are covered. For example, the Refrigeration and Air Conditioning Trade was initially developed at a time when residential air conditioning was generally not available. Contractors who developed a business in residential AC in the 1980s and beyond often simply provided supplemental training to their gas technicians or sheet metal mechanics, which eventually led to overlaps with the R&AC trade. Overlaps may also result from regulations covering different aspects of the same applications. For example, the installation, set up and/or servicing of gas-fired furnaces, water heaters and rooftop heating and cooling units require a gas technician license in addition to Sheet Metal, Plumber and/or Refrigeration and AC Mechanics licenses, all of which have some overlaps in their scope of training). Overlaps also occur as a result of lax enforcement in that industry practice evolves in certain directions in the absence of clearly defined boundaries: undocumented "understandings" emerge and become common practice.


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

Yes, these overlaps affect almost every contractor member of HRAI in some fashion.


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

If there is work that may be conducted under the SoP of a voluntary trade that poses a risk of harm to the public, tradespeople, or other workers on the job, then the trade should no longer be deemed voluntary. Any more detailed response is impossible in the absence of concrete examples.





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?

As noted earlier, a primary criterion for compulsory trade certification must be safety for consumers and the tradesperson/apprentice. However, HRAI believes that compulsory trades should also determine the essential skills to ensure proper system performance (i.e. not just "safe" functioning but "optimal" functioning of mechanical systems) that can reasonably be expected by consumers.


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?

Mostly yes, but there are problems with mismatches between existing regulations and the new realities of the marketplace (new technologies, new procedures, etc. as noted above).


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?

Yes, in most cases there are elements of this.


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?

This proposal sounds reasonable in principle but would be very difficult to implement in practice, given the diverse array of activities within trades (what to include, what to exclude?). If only some elements are required -- and are therefore enforceable -- the regulatory floor would be lowered. Given the competitive pressures of the market, the effect would be to push down the average level of competence.


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.

Again, this sounds reasonable in principle but, to date, HRAI's experience suggests that the process is flawed. Whereas the process is purported to allow for a balanced assessment of evidence and arguments in a quasi-judicial format, the industry found that relying on this approach for the review of apprenticeship ratios yielded results that defied both the weight of evidence and argument, favouring a status quo for what might appear to be political reasons. If the review panel approach is maintained, perhaps some consideration should be given to an appeals process which would allow parties to show faulty reasoning, misreading of facts or other elements of a flawed decision as a basis for re-consideration (as in a court of law).


21. How should expert opinion be obtained?

The current expectation that stakeholders will present evidence and argument for consideration should be maintained but review panels should also be able to initiate their own gathering of facts and research to assist in sound decision-making.


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

The current criteria for trade classification review are consistent with the public interest, capturing as they do multiple implications of the classification or re-classification. The process for initiating such a review may be flawed, however, as it requires that the review may only be initiated through a request by the Trade Board (where one exists). If the review process is appropriately rigorous and protective of the public interest, it might be reasonable to allow the process to be initiated through some external input. Though it is reasonable to expect that the most logical and appropriate channel for initiating such a review would be the Trade Board, it is also possible that such a board might be unduly conservative and resistant to initiating change, even when it is needed.


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

Yes, though most are open to some interpretation.


24. Are the existing criteria the right criteria?

The existing criteria capture relevant public interest concerns but do not recognize the impact of existing SoPs for other trades and/or other regulations that may cover off some or all of these concerns (e.g. existing environmental protection regulations).





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?

To a degree, yes, but for reasons cited above, the actual work conducted in the field in some case may have become seriously mis-aligned with the SoPs due to an inability of the regulations to "keep up".


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

Yes.


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.

No opinion.





Section E - General Response and Comments

28. Please provide additional comments below, if any.

HRAI thanks the Dean Review for the opportunity to comment on these matters and we look forward to engaging in further discussion when the opportunity is presented.