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Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-96

Name of organisation making submission: DR-96 Electrical Power Systems Construction Association

Responses to questions in submission form


Section A - The Public Interest in this Review

1. What do you understand by public interest?

Respondent did not provide a response to this question


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

Respondent did not provide a response to this question


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

Respondent did not provide a response to this question


4. Is the College currently protecting the public interest?

Respondent did not provide a response to this question


5. How should the College advance the public interest?

The public interest can vary widely, and must take into account many factors. In the case of the electrical power sector this would include the private and public utilities (Bruce Power, Hydro One and Ontario Power Generation), Government, rate payers (tax payer), contractors and workers. At times, there may be competing interests such as trade jurisdiction, making electricity affordable and contractor competitiveness. It is, then, from this or these public interest(s) that EPSCA respectfully provides our comments following. EPSCA’s position is that our public interest is broader than many others. EPSCA’s public interest impacts on a very large segment of Ontario society vis a vis the end-users of energy produced as a result of our operations and construction undertakings. Of course, EPSCA fully understands that our public interest be balanced with other legitimate public interests; as those should be balanced with ours. However, balancing of conflicting, divergent or competing public interests is a rather delicate undertaking. Nonetheless, EPSCA believes that there are some rather important and common public interests that should be taken into account. Such public interests would include, but not necessarily be limited to; safety, worker competency, environmental protection, efficiency, and record-keeping/oversight. With respect to what we will term “lesser” public interests (merely for convenience and lacking a more appropriate term at this time), they can be balanced in much the same way that the balancing of rights occurs in Canadian Constitutional matters; albeit in a much less stringent fashion. OCOT has a role to play in ensuring that work practices are safe and efficient, and they appear to be undertaking that role currently. But, it must also ensure that the enforcement practices do not make some contractors less competitive than others. The role of the College should be ensuring that all contractors play by the same rules; safely, with competent tradespersons, and environmentally aware. OCOT can serve and advance the public interest by instituting modern methodologies in record keeping and oversight, thereby allowing the general public an opportunity to determine if a trades’ person is qualified to do a particular type of work. The College also has a role to play, in our view, in skills competency and workplace safety, but OCOT should not be used as a pawn in the fight for trade jurisdiction.





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.

Respondent did not provide a response to this question


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

Respondent did not provide a response to this question


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.

Respondent did not provide a response to this question


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

Scope of Practice does have a significant impact on daily work activities in the EPSCA sector. Working with integrated or composite crews is a common occurrence. Many times, this involves a composite crew made up of workers from compulsory and voluntary trades (i.e. plumbers and boilermakers). There are long established work practices where such trades have worked cooperatively to perform the required tasks. If the Ontario College of Trades were to intervene in such practices there may be several unintended consequences, such as costly and time-consuming jurisdictional disputes before the Ontario Labour Relations Board (OLRB), delays in the performance of the required work, and inconsistent determination regarding SoP’s. We absolutely agree that there are core elements, as well as peripheral elements to the trades. EPSCA’s experience, and the shared experience of our individual employers, is that the vast majority of the issues surrounding scope of practice occur where the peripheral aspects of trades intersect, as demonstrated by the graphic below. Normally, the core Scope of Practice is not in dispute, but some of the peripheral activities are. The College has an important role to ensure that an unqualified person does not perform the hazardous components (core Scope of Practice) of a trade. Thus, we posit that the hazardous components within a trade’s SoP would be “key elements”, although not the only key elements. Ideally, the Trade Boards (former Provincial Advisory Committees) are the entities who should take a leadership role in any review or change to the Scope of Practice of a trade. There should be a larger consultation to ensure that these changes are not a jurisdictional manoeuver or forum-shopping. This process should be managed by the appropriate Divisional Board within the College structure. Final approval would be given by the OCOT Board of Governors. However, and as we mention below, there must be an efficiency of time to this process.


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

Respondent did not provide a response to this question


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

Respondent did not provide a response to this question


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.

These are key questions that would define OCOT’s mandate and functions. In general, it is necessary to have one stop shopping for all services outlined in question 10. Resources of the College and, of course, other government agencies dealing with these areas are limited. Duplication and, as we have unfortunately witnessed at EPSCA, triplication of functions, oversight, administration and such is unacceptable. The Scope of Practice essentially prescribes what a Certificate of Qualification (CofQ) holder (and a registered apprentice) is competent to perform. As described earlier, complications arise when two or more trades have identical or similar skills identified in their SoP and where the SoP intersects in the same workplace (as identified in the schematic above). The role of the College should be to ensure that a competent person is doing the work and is able to do so in a safe and efficient manner. Provided there is not duplication with other “authorities, it would seem to be logical that the College would enforce adherence to this principle. The issue of whether or not OCOT could benefit from identifying compulsory skill sets is extremely complicated. EPSCA is not prepared to make comment on this matter directly. Key considerations must be the competency of the person doing the work and the ability to perform the work safely. There are other agencies who have input on compulsory activities such as the TSSA and the ESA. OCOT must find a way to function in unison with such agencies that have a direct impact on the skilled trades. Once again, duplicate jurisdictions over this is not acceptable.


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

Respondent did not provide a response to this question


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

Respondent did not provide a response to this question


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

The electrical power sector contains multi-trade contractors, single trade contractors and owners that direct hire or have in-house trades people. The Scope of Practice is important to all of them because it defines who can perform certain types of work. In the electrical power sector, the intersection of the peripheral aspects of a trade can cause issues in the work place when unions use the SoP to assert trade jurisdiction. This can lead to project delays and expensive hearings at the Ontario Labour Relations Board. In respect to the third legal interpretation outlined in question 15, OCOT should be responsible to ensure that a competent person is performing the work and can do so safely and efficiently.





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

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

Respondent did not provide a response to this question


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

Respondent did not provide a response to this question


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

Consumer protection, worker health and safety, protection of the public and protection of the environment are key concerns that OCOT must take in consideration when defining a compulsory trade. At this point in time it is difficult to determine any consistent factors, public protection/policy concerns, or other criteria to evaluate the basis upon which a trade should be deemed as compulsory. EPSCA believes that there is a need to delineate some trades as compulsory, based on factors such as those enumerated above; the issue as stated previously is, “How does OCOT manage trade overlap in a sector that requires many trades, who at times compete for work or where past/standard practice requires the use of integrated crews that are made up of both compulsory and voluntary trades?” Further, “How does OCOT delineate trades with consistent standards or criteria (again, such as those enumerated above)?” While EPSCA believes that there are elements in the SoP for a trade that are inherently hazardous or that may pose a risk of harm to the public, etc., this is a matter for OCOT to decide as an impartial “industry expert”. That is, we feel that each of the stakeholders, including EPSCA, would bring an inherent bias to such a determination; a bias for which there is little or no room in such an important distinction. The bases upon which a trade should be delineated as compulsory should be fair, objective and in the greater public interest. Determining that a trade is compulsory, or voluntary, must be a fact-based, well-vetted decision, rather than an exercise in effective lobbying. We have already addressed the issue of the core elements of a trade earlier herein.


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?

Respondent did not provide a response to this question


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

Respondent did not provide a response to this question


21. How should expert opinion be obtained?

Respondent did not provide a response to this question


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

Respondent did not provide a response to this question


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

Respondent did not provide a response to this question


24. Are the existing criteria the right criteria?

The OCOT Act certainly brought transparency to the process of making a trade compulsory. This was a drastic change from the previous process of Ministerial decree. While the current process has had its challenges, one of the issues has not been transparency. OCOT must ensure that on a go forward basis this process receives expert input. The application to become a compulsory trade should be made by the Trade Board, who are the experts in that trade. There should also be a time limit to conduct the hearings and to render a decision. The overriding criteria in deciding if a trade should be compulsory is in the development of a competent trades persons who can perform the work safely and efficiently. OCOT must ensure that its enforcement functions to not become a mechanism to solely expand trade jurisdiction. It must confer compulsory trade status based on sound public policy. Timeliness also impacts the manner in which expert opinion is sought. EPSCA strongly believes that expert opinion should be sought by the adjudicative panel (or other body constructed to determine whether a trade is compulsory), and that it not be a general call for “expert” opinions. General calls for submissions with respect to whether a trade should be compulsory invite political interests and other irrelevant submissions; all of which complicate and lengthen the process. Unfortunately the current criteria do not appear to be consistent with the public interest if, in fact, the public interest is the primary concern. At the very least, there should be a weighting of the criteria (if not an overhaul) to reflect the greater public interest and those factors such as consumer protection, worker health and safety, protection of the environment and protection of the public; the factors we have referred to herein previously. Ergo, and to more simply answer questions 22 and 23- no.





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?

Respondent did not provide a response to this question


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

Respondent did not provide a response to this question


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 the electrical power sector work is assigned based on a combination of factors. This includes Scope of Practice, past practice and the contractor’s relationship with a certain trade or trades. Thus, the SoP in regulation alone does not necessarily reflect the ways in which work is actually assigned in the power sector. The determining factor, above all else, is the historical performance of the tasks by each of the trades involved; this is how work is assigned. In response to question 26, the answer is clearly yes. We believe that we have thoroughly explained this in our response to the section dealing with questions 6 through 9. In addition, it is our experience that the intersection of OCOT and the OLRB (perhaps also the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry [the “Plan”]) creates forum shopping for some of the industry stakeholders. Put more simply, if there are overlapping jurisdictions with respect to the determination of trade SoP’s, self-interest will dictate that the proponent of a position access the forum (OCOT, OLRB or the Plan) that most aligns with that proponent’s position. There must be, as we stated earlier, one stop for all. Question 27 provides us with an opportunity to further elaborate on this issue. The question outlines a recent problem that has arisen in the power sector where a company was performing work with a composite crew (using a compulsory and a voluntary trade) and was following a previous order from the OLRB. The compulsory trade objected to one aspect of the work being done by members of a voluntary trade. OCOT was called in and ordered the contractor to use compulsory trade workers to perform the task in question, despite the contractor articulating that they were following an OLRB decision. This type of situation cannot continue to exist. The construction industry has learned to function effectively (although in some instances at great expense) under the OLRB model. The most significant positive in using such a model is that it allows affected parties to provide evidence in a quasi-judicial forum. Another important positive in using the OLRB mode is that it creates an element of risk for all parties for going to the





Section E - General Response and Comments

28. Please provide additional comments below, if any.

Respondent did not provide a response to this question