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Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-97

Name of organisation making submission: DR-97 Technical Standards and Safety Authority

Responses to questions in submission form


Section A - The Public Interest in this Review

1. What do you understand by public interest?

Respondent referred to an appended document


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

Respondent referred to an appended document


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

Respondent referred to an appended document


4. Is the College currently protecting the public interest?

Respondent referred to an appended document


5. How should the College advance the public interest?

Respondent referred to an appended document





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 referred to an appended document


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

Respondent referred to an appended document


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 referred to an appended document


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

Respondent referred to an appended document


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

Respondent referred to an appended document


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

Respondent referred to an appended document


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.

Respondent referred to an appended document


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

Respondent referred to an appended document


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

Respondent referred to an appended document


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?

Respondent referred to an appended document





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 referred to an appended document


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 referred to an appended document


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

Respondent referred to an appended document


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 referred to an appended document


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 referred to an appended document


21. How should expert opinion be obtained?

Respondent referred to an appended document


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

Respondent referred to an appended document


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

Respondent referred to an appended document


24. Are the existing criteria the right criteria?

Respondent referred to an appended document





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 referred to an appended document


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

Respondent referred to an appended document


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.

Respondent referred to an appended document





Section E - General Response and Comments

28. Please provide additional comments below, if any.

Background:

The Technical Standards and Safety Authority (TSSA) is the delegated administrative authority to administer the Technical Standards and Safety Act, 2000 (TSS Act) and its regulations:

O. Reg. 221/01 Amusement Devices
O. Reg. 220/01 Boilers and Pressure Vessels
O. Reg. 187/03 Certification and Training of Amusement Device Mechanics
O. Reg. 222/01 Certification and Training of Elevating Device Mechanics
O. Reg. 216/01 Certification of Petroleum Mechanics
O. Reg. 223/01 Codes and Standards Adopted by Reference
O. Reg. 214/01 Compressed Gas
O. Reg. 209/01 Elevating Devices
O. Reg. 215/01 Fuel Industry Certificates
O. Reg. 213/01 Fuel Oil
O. Reg. 212/01 Gaseous Fuels
O. Reg. 217/01 Liquid Fuels
O. Reg. 210/01 Oil and Gas Pipeline Systems
O. Reg. 219/01 Operating Engineers
O. Reg. 211/01 Propane Storage and Handling
O. Reg. 218/01 Upholstered and Stuffed Articles

Since the Government of Ontario passed the Ontario College of Trades and Apprenticeship Act to establish OCOT in 2009, TSSA has worked to resolve a number of issues of regulatory overlap with OCOT. Meetings between MTCU, the Ministry of Government and Consumer Services, OCOT and TSSA have been held over the past few years to discuss overlap issues and to propose solutions. To date these issues have been addressed on an ad hoc basis.

As required by the TSS Act, TSSA issues authorizations in the form of certificates for individuals working in its regulated sectors, such as fuels, elevating devices, ski lifts and operating engineers. TSSA’s regulations stipulate that no person shall perform the functions of a certificate holder without first having obtained a certificate from the statutory director. TSSA directors’ powers are derived from the TSS Act and his or her responsibility to oversee the administration of the TSS Act and its regulations is mandated by statute.

Of the College’s 156 trades that are currently prescribed by regulation, two trades are currently prescribed under both OCOT and TSSA legislation, namely Elevating Device Mechanic (EDM) and Ski Lift Mechanic (SLM). These two trades are classified as voluntary trades with no requirement for an OCOT Certificate of Qualification exam upon completion of the apprenticeship. For those that choose the apprenticeship route to certification in these trades, this means that although the members of the trade are members of the College during the apprenticeship phase, upon completion of the apprenticeship members are eligible, but not required, to apply and become members of OCOT as journeypersons.

It is important that the standards for OCOT and TSSA are the same and that any future changes made to the training standards by OCOT are done in consultation with TSSA to ensure that apprentices acquire the necessary training and experience required under the TSS Act and its regulations. For example, OCOT and TSSA work together to develop training standards for EDMs so that the Apprenticeship Training Standards developed by OCOT match the skills passport requirements for the EDM-A certificate issued by TSSA. To date, the partnership has been very positive and we hope it continues in the future.

The Gas Technician (GT) trade category is another certification within TSSA’s purview that may be prescribed through legislation as a trade under OCOT. A GT apprenticeship program, which was being developed by industry and MTCU at the time of the creation of the College, was ultimately not established under OCOT due to unresolved public safety concerns related to the regulatory overlap between OCOT and TSSA.

Regulatory Overlap between TSSA and OCOT:

The Dean Review is to identify opportunities to clarify and improve how OCOT interprets its duty to serve and protect the public interest, how it determines the public interest in its decision-making processes and how it deals with competing interests. This exercise is of particular interest to TSSA because of the overlap in jurisdiction over the trades of EDMs and SLMs (and potentially in the trades of Gas Fitters. For TSSA the delivery of public safety services on behalf of the Government of Ontario should take precedence in instances of jurisdictional overlap.

The overlap of regulatory authority is explained as follows:

OCOT has a duty to serve and protect the public interest from professional misconduct. This would include investigating complaints of failing to meet professional standards, which would include allegations of incompetence or fraudulent activity, etc. Where serious issues arise, OCOT has the power to revoke certification for failing to maintain a professional standard.

However, since the inception of TSSA in 2000, TSSA is responsible for regulation of Elevating and Ski Lift mechanics, Refrigeration Operators and Gas Fitters. TSSA issues licenses to these groups, and inspects and investigates complaints in these fields. By way of the specific and extensive training of TSSA inspectors and investigators, TSSA has developed considerable expertise in these areas. TSSA also holds its licensees to a standard of competence by ensuring compliance with technical codes that are adopted by the TSSA and insuring that installations and activities are safe for the public. As well, in order to enhance public safety, TSSA has imposed a safety value chain ranging from approval of design or installation, initial inspection, periodic inspection, contractor audits, incident investigation and prosecution. TSSA also has the authority, where warranted, to revoke a license where a licensee fails to carry out the licensed activities safely or according to law, or where the licensee lacks honesty and integrity, or is incompetent, or lacks resources, etc.

TSSA accredits training providers and approves certificate program curricula to ensure that candidates are trained appropriately and will possess the technical knowledge and competency required to be a certificate holder. TSSA reviews the development of lesson plans, instructor qualifications, practical skills development and examination standards by conducting audits of certification programs and training providers to ensure that these standards and conditions are adhered to.

Where regulatory overlap between self-regulation of the professions and the protection and enforcement of public safety is concerned, it is critical that a formal mechanism be established to resolve jurisdictional overlap. Such a mechanism would define the respective roles and responsibilities of TSSA and OCOT and would describe how the two organizations can cooperate to fulfill their respective statutory mandates. Several recommendations have been put forward to address OCOT-TSSA overlap, including:

• The removal of TSSA trades prescribed under OCTAA;
• The designation of TSSA-regulated trades as voluntary;
• A Memorandum of Understanding (MOU) outlining the potential collaboration/partnership between TSSA and OCOT.

The most clear-cut option would be the removal of all TSSA designated trades from OCOT’s purview, and for TSSA to be the sole jurisdictional body that grants certificates of qualification for trades that fall under TSSA’s regulatory mandate. This option avoids public confusion about qualifications. Tradespersons would not be charged a double fee as part of their certification and licensing process, which would ensure continued public support for the public safety regime TSSA administers.

TSSA and OCOT have worked toward an MOU that was meant to establish formal roles and responsibilities. An MOU would help generate efficiencies, as well as avoid redundancies and negative public perceptions. A draft MOU was prepared by TSSA but is being held up by OCOT.

The Gas Technician Certificate of Qualification:

TSSA agrees with the Dean Review that greater clarity is needed regarding the purpose and objectives of compulsory certification. The GT apprenticeship program, which had been under development between industry and MTCU, was not established under OCOT due to unresolved public safety concerns related to the regulatory overlap between OCOT and TSSA. If designated a compulsory trade, GT could be subjected to compulsory membership, including an OCOT certificate of qualification examination. GTs would pay OCOT for apprenticeships and certifications and payment of annual dues. They would also be subject to OCOT’s disciplinary process.

Under the OCTAA, OCOT is authorized to issue certificates of qualification to members of the college in a named trade. As such, if the GT trade was named as a trade under OCOT and an apprenticeship program established, GTs would be issued an OCOT certification of qualification upon completion of an apprenticeship program. Under the TSS Act, TSSA currently issues certifications of qualification to qualified GTs in the Province of Ontario. Only a TSSA certified gas technician is authorized to service fuel-fired appliances.

It is important to note that the Director of Fuels Safety for TSSA is statutorily appointed. The director’s powers are derived from the TSS Act and his responsibility to oversee the administration of the TSS Act and its regulations is mandated by statute. Under section 5(1) of the TSS Act, the Statutory Director of the Fuels Safety Program has “general supervisory and administrative responsibility with respect of all or any part of” the TSS Act, or any regulation to which he or she is appointed. This section of the TSS Act mandates that the Director of Fuels Safety is solely responsible for supervision of all aspects of the fuel safety program and is responsible for the administration of the TSS Act and its regulations.

If the GTs trade was named under OCOT and an apprenticeship program established, OCOT certificates of qualification would exist in the marketplace alongside TSSA certifications of qualification. Two certificates for GTs could cause confusion among the public about who is qualified to service gas-fueled appliances.

Fuel appliances, components and equipment, together with the installation, servicing and supplying of gas to those appliances, are strictly regulated by TSSA to ensure that minimum standards and practices are met to protect the public. TSSA works closely with the gas industry through work with gas equipment manufacturers, installation and service contractors and individual GT certificate holders.

TSSA remains supportive of a GT apprenticeship program administered by OCOT provided the public safety risks associated with the issuance of two certificates of qualification are sufficiently addressed. TSSA was willing to accept an OCOT GT certificate named something other than certificate of qualification, such as a certificate of apprenticeship or membership. The OCOT certificate would only be issued to holders of a valid TSSA certificate of qualification. At the time, OCOT took the position that it did not have the authority to create a new class of membership or certificate and rejected the TSSA proposal.

The term “certificate of qualification” has long been associated with TSSA and has become well established in Ontario as a competency document to practice specifically in TSSA’s regulated sectors. OCOT’s use of the term could create public confusion about the respective authorities underlying each certificate of qualification and diminishes the positive association between the term and TSSA’s public safety mandate.

As GTs interact directly with the public, the risk of homeowner confusion about who is qualified to service their fuel-fired appliances, and who is not, poses a safety risk. The safety risk is compounded by the risk that some tradespeople who hold only an OCOT certificate of qualification may represent themselves as being qualified to service fuel-fired appliances in Ontario.

Scope of Certificates: Refrigeration and Air Conditioning Systems Mechanics and Operating/Power Engineers and Refrigeration Operators:

While not a case of actual jurisdictional overlap, there is confusion surrounding the scope of the Refrigeration and Air Conditioning Systems Mechanics and Operating and Engineers and Refrigeration Operators. TSSA is responsible for the certification and examination of Operating/Power Engineers and Refrigeration Operators at all registered plants under O. Reg 219/01 (Operating Engineers). All refrigeration installations beyond a specific energy rating are considered a registered plant. While Refrigeration and Air Conditioning Systems Mechanic is a compulsory trade under OCOT, the scope of trade notes that a certificate holder under OCTAA is not authorized to perform any function for which a certificate is required under the TSS Act. Nonetheless, TSSA is aware of instances where certificate holders under OCTAA have assumed that their certificate qualified them to work on any refrigeration system in the province, leading to confusion about the certification of refrigeration mechanics and operators. The limitations on the OCOT certificate should be made clear to students of the program upon entry.