Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-107

Name of organisation making submission: DR-107 Landscape Ontario Horticultural Trades Association

Responses to questions in submission form

Section A - The Public Interest in this Review

1. What do you understand by public interest?

Public interest refers to the duty to provide health and well being. In terms of OCOT, and the application of 'public interest' as it applies to the scope of the trades, it may include: access to reliable, relevant, compliant and consistent competency based skills training and delivery, access to customer service by stakeholders (employers, journey persons, MTCU, trainers, educators, apprentices, etc...) that supports a healthy economy both today and in future. Protecting the 'public interest should result in consumers having access to services provided by skilled, recognized, qualified and trusted tradespersons who competently meet trade standards, and consumer expectations and who contribute to the economic, environmental and social health of our province.

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

The College should serve the following groups who also represent the public: 1) Employers in the trade who currently and / or in future take advantage of the apprenticeship program in order to have access to the right quantity and quality of skills that enables firms to have the capacity to serve consumer demand and support the tax base. 2) Apprentices and journeypersons with a relevant, competency based curriculum and training program that leads to gainful employment and that supports the tax base 3) Stakeholder/partner organizations and agencies including government, employer/employment organizations, training providers and all agencies and organizations that support the skilled trades. 4) Consumers and future trades persons must also be served, to inform the general population of OCOT's role and function and also as the audience to market the trades to. In terms of serving the public interest, OCOT has the duty to serve and support the trades, which in the present environment requires progressive cooperation with the MTCU as the program management is now divided between the 2 organizations. With that, the College and the MTCU need to align to create an environment that supports and grows the trades by reducing the red tape, developing and conveying a clear and consistent message and enabling stakeholders and partners to support the message. There needs to be a process that enables registrations, access to training programs and completions. As with all progressive organizations, the College should operate with transparency which includes regular communication of performance metrics and report cards to measure and communicate accurate operational effectiveness to the public that it serves.

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

Once the definition of 'public interest' is finalized and priorities are clear, then each trade should be actively involved in the development of well informed process map that is unique to each trade and that supports a fair, effective and transparent decision making process supports public interest fairly. Trade seasonality and operations must be taken into consideration. A cross-disciplinary Public Interest board should be created that is mandated to oversee resolution of opposing interests. This board must be transparent and allow fair representation from each stakeholder group. This boards' members must have a very clear understanding of each trade and the environment they work in and must be committed to a fair and transparent process that results in an informed decision that supports public interest ( as yet to be defined).

4. Is the College currently protecting the public interest?

Effort to serve/protect is acknowledged, however it is fragmented due to what appears to be a lack of cooperation between MTCU and OCOT and a cumbersome apprenticeship process, which is challenging rather than protecting trades. If an employer registering an apprentice is challenged by the multi-level system registration requirements, ( MTCU, OCOT & TDA's) and employees/apprentices are more confused by the process then it has fallen short of protecting the Public Interest. Instead it has challenged access to training and skilled labour via the apprenticeship program for some trades. The complexity of the navigation required to support registrations, membership, seat assignments, requires review and organization in order to protect public in terms of developing and maintaining a skilled labour pool.

5. How should the College advance the public interest?

Define Public Interest in terms of the scope of OCOT. Ensure that the scope of the definition that applies to OCOT does not overlap/conflict with, or at least aligns with other legislation. ( IE: WSIB, MOL etc..). Develop a Code of Ethics/Code of Practice for Tradespersons with input from all stakeholders that defines the 'public interest' (as it relates to this application), scope and industry standards as the foundation. Ensure that all tradespersons and consumers understand the scope and process for oversight. Presently there is not a clear and aligned understanding of definitions of each trade across the various Ministry's which causes confusion around the application and compliance aspect to work performed, prevention and enforcement of legislative requirements. This must be resolved in order to advance public interest.

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.

Horticulture is a voluntary trade and as it is currently written, does not presently impact work activities, nor business conduct. The present SoP does not capture the breadth of the occupation, although it does provide a potential apprentice/employer a snapshot of some of the activities that are learned in the training program, however it is not inclusive of the scopes provided by the Ontario curriculum nor the Red Seal NOA . Presently it is simply a very basic marketing tool. As it seems that there is no established framework or standard for SoP's, it is suggested that the full scope of the trade should be included. Having said that, until the framework is established and the purpose assigned, this question should be tabled. Has an environmental scan been undertaken to see what other jurisdictions have in terms of an SoP standard? Perhaps there are best practices to adopt? SoP's should be defined broadly to capture the broad scope of each trade and overlaps. However SoP's should not cause restrictions or exclusivity that creates advantage for certain trades to operate and perform work over others.Important aspects of an SoP include: inclusion of the full scope of the trade competencies and work activities as outlined in the National Occupational Analysis for each Red Seal trade, and relevant NOC descriptions; in addition the SoP should take into consideration the identification of overlaps in scope with other trades. It is important to know what all other trade SoP's look like, and include, and if and where there is overlap between other trades. There should be a mass review and update of all SoP's and oversight of overlaps and updates. The determination of a Compulsory Trade should not rely on information gathered from inaccurate SoP's.

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

Yes, and as a voluntary trade, it does depend on the company and the scope of each project. Our industry often works in a project based environment so we do have variable peripheral elements to complete the work of this trade. Therefore it is important that the SoP's are as broad as possible to enable inclusiveness, yet provide clear framework in terms of overlap and legislation in terms of the overlap with a lisenced trade.

8. What should be the key elements of an SoP? In particular, should the SoP for a trade list all of the tasks, activities or functions in which an apprentice should be trained, only those that are unique to the trade, or only those that may pose a risk of harm to the public, tradespeople or other workers on the job? Please explain.

The key elements of an SoP should be broadly identified and include the blocks, tasks, activities, functions, environments etc. already identified by the trade in the NOA, and Curriculum/IPG and Training Standard scopes, and the SoP should also be informed by the corresponding NOC Codes, that include safety standards that are applicable to the apprenticeship training and the broad activities of the trade.

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

Based on the SoP for Horticulture Technician, OCOT should undertake a complete review of all SoP's, develop a framework that will support the purpose and undertake a revision process trade by trade. Full trade review should happen to ensure transparency, relevance and accuracy. There should be a review process identified to ensure that all trade SoP's are reviewed for updates and revisions made based on technology etc. perhaps every 5 years. There should be an SoP oversight committee that supports this activity. The SoP oversight committee should include representation from employers, employees, apprentices, journeyperson candidates, journeypersons, neutral parties, and ministry's that impact and affect Health & Safety and other stakeholders as identified and specific to the trade. Where overlap occurs (and it will) then those identified trades should be invited to consult and contribute to the process and consensus reached.

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

Based on the current Horticulture technician SoP, the existing SoP's should not be used to support the College's functions as identified above, as in it's current state it would not support OCOT's diverse functions. Presently it is merely a basic marketing tool that is not inclusive of all trade activities, nor apprenticeship training content. Nor is not well known. Industry should be enabled to lead the way on developing and approving the SoP, ultimately based on an established framework that supports the defined purpose. SoP's should not support competitive advantage nor territorial disputes between trades. SoP's should support and enable trades, thereby protecting public interest.

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

Until the current framework and process is standardized, and all SoP's are reviewed and revised, enforcement of SoP's must be delayed. As mentioned, currently, overlap has not been determined, nor a process established to support overlap enforcement. Once this is completed, all trades should be asked to respond to this important question after review of all SoP's that may overlap.

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.

This question suggests safety and thus falls under the MOL Jurisdiction. There is already a huge lack of clarity in terms of compliance, application and enforcement across and within trades, across the sectors and within the MOL. To add another layer will unnecessarily complicate an already complicated regime. OCOT should remain focused on trade scope

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

In terms of accuracy of and lack of definition and framework within OCOT in terms of SoP's there is concern surrounding the ability to accurately identify overlap. Without a standardized SoP definition framework and process for review and revision, the accurate identification of overlap is impossible. Overlap in scope of practice is prevalent across numerous trades in terms of activities and apprenticeship training. To date overlap between trades to the trades or the public under the current process is not well understood or known. Is it fair to enforce legislation that lacks clarity in definition, framework, a fair process and understanding? Overlap can be an issue if it is used to bring advantage to a Compulsory Trade, causing disadvantage to trades that may be less organized or less aware of the importance and purpose of the SoP. The first of the 3 principles used to determine impacts on overlapping trades favours compulsory trades under the proposed regime. Principle 2 is unclear ( all compulsory trades persons are supposed to be members of OCOT?), and principle 3 is subject to interpretation. The 3 principles require review and consideration to ensure service and protection of Public Interest.

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

Our trade has been impacted by the lack of clarity between scopes of practice. A recent issue occurred due to the lack of accuracy of the Horticulture Technician SoP, that unnecessarily imposed cost burden to a business owner. Had the SoP's been accurate and inclusive of the trades involved, and a formal process undertaken to identify and communicate the overlap from the start, then the outcome would likely have been much different. It is suggested that OCOT's focus on completing the development of outstanding and required framework, and communication and resources to complete a successful transition that supports the trades and OCOT. Communications can be distributed by leveraging trade organization and public service networks that can support OCOT in terms of engaging more trade members and public awareness.

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

The third legal interpretation as written is subject to misunderstanding. Is this principle not contradictory? The principle insinuates that when an overlap of SoP occurs between a compulsory and voluntary trade then anyone can perform the work with/ without skills as long as they are not practicing in a compulsory trade. Depending on the work activity this principle could be posing risk of harm to the public, tradespeople and others. This principle certainly enables a financial disadvantage to trades people and employers who have invested in training. Without a definition, framework and established process, this principle provides little guidance to industry or OCOT officers as written. The three legal interpretation principles need to be reviewed as stated earlier.

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?

The process and determination of a compulsory/voluntary trade seems to be historical in nature, and lacking in terms of definition, framework, purpose and process. The documentation implies that worker safety and public interest have been the foundation, however it appears that historically, it has been more of a territorial protection that has provided financial gain for some and disadvantage for others, without consideration of public interest. The classification, re-classification of trades requires an in depth process review to establish a forward thinking framework that enables OCOT and the trades in the future.

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. Based on history, re-classification was initiated by individual trades, who submitted documentation to support their individual argument, however not based on a specific framework or consistent process that considered specifically identified indicators and a complete environmental scan. A consistent validation process also seems to have been missing. The current process and history behind the Compulsory trades re-classification should be analyzed; studies of other best practices conducted and then through consultation with all trades and stakeholders, a review of need, if need is identified then a forward thinking and sustainable framework and process should be developed to serve public interest of today and tomorrow. A review time frame and process should be established to remain current with changes in technology, methodology and scopes of trades.

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?

Absolutely. In todays litigious society any work activity or environment has the potential to pose risk or harm. Health & Safety oversight lies with the MOL.

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 question begs discussion about the purpose and function of the College in comparison to the roles of the MOL( Health and Safety Prevention and standards as well as Employment Standards), MOE( Environment), and Consumer Protection Ontario etc. From the website - OCOT: 'Under the legislation, the College has the mandate and powers to regulate all approved trades in Ontario, and will perform standard regulatory functions such as: •Issuing licenses and certificates of membership; •Protecting the public interest through investigation and discipline mechanisms; •Setting standards for training and certification; •Conducting research and collecting relevant data to support future apprenticeship and certification policies; •Removing barriers and increasing access for internationally trained workers.' Is it the College's place to oversee H&S, when the MOL is clearly the Ministry covering that portfolio. Is this not duplication of jurisdiction and poor use of tax payer dollars? If compulsory trades certification was limited to only the core activities where risk/harm is a potential factor(potentially all activities pose risk/harm), then classification and oversight could and possibly should fall under the jurisdiction of other ministry's/organizations. If compulsory trades certification was to be determined based on risk/harm, then the trades would be potentially paralyzed, especially with the lack of clarity around SoP's. The College is urged to focus on training, standards and attracting more individuals to the trades to support Ontario's economy and well being.

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.

The present adjudicative review model is flawed and should undergo a complete review and update. A clear definition of 'public interest' and SoP should be determined and then classification processes and framework established that enables review of all relevant information and supports sound decision making . It would be prudent to review other jurisdictional models from within and outside of Canada including the Health Professions Regulatory Advisory Council model to identify best practices . Once benchmarking is complete, best practices can be identified to develop a functional framework, focus and process that is clear, transparent, inclusive and measurable.

21. How should expert opinion be obtained?

Expert opinion should be sought from within and outside of the trade and all stakeholders represented by and beyond the application and should include other relevant ministries and other trades where overlap is occurring or could potentially occur. (All trades should be offered consultation for every application.) Chair should be a neutral party.

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

Without a definition of public interest it is impossible to determine if the current criteria for trade classification review is consistent with OCOT's public interest mandate.

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

The criteria structure is not sufficient to support a robust application, assessment nor sound decision making by any review panel. It lacks data, detail and full 360 review requirements with established rubric to enable measurement of qualitative and quantitative variables.

24. Are the existing criteria the right criteria?

The current criteria list is simply a list of contents to include within an application rather than criteria that can be measured to support a validated decision/judgement. The current list ignores the need for complete internal and external environmental scans, expert opinions, and inclusion of fair and complete consultation with all trades and public interest groups(as OCOT protects public interest). The current list does not include consideration to ratio re-alignment and impact.

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?

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

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.

Section E - General Response and Comments

28. Please provide additional comments below, if any.

OCOT in it's mandate should focus on the advancement of the trades by removing barriers to access by simplifying the registration, training and completion process and ensuring that each trade has access to up to date and relevant standards in order to protect public interest. The burden of the MTCU/OCOT re-organization has fallen on the shoulders of the trade employers and apprentices and should be resolved. The convoluted process has frustrated and confused employers and apprentices alike and therefore we have lost critical mass. Alignment with the MTCU should occur with focus on simplifying process to bridge access to increase registrations, completions and employer engagement. This time of review provides additional opportunity for OCOT to consider the harmonization of Ontario training standards with those developed nationally for the Red Seal Trades by ESDC. The Horticulture Technician 441C would benefit from adoption of the Landscape Horticulturist NOA and IPG for instance. This would enable optimization of all resources. Trade organizations can be resourced to be stewards of the apprenticeship programs in terms of facilitating the process for employers and apprentices to inspire growth in completions through awareness and engagement strategies. Funding should be made available for progressive trade organizations to increase participation and completion in their respective apprenticeship programs that supports the public interest. The start up years of OCOT have been dedicated to internal organization, it is now time for the trades to have a voice working with OCOT so that decisions and solutions are made by the trades for the trades, facilitated by OCOT and respecting the mandate. The regulation of trades should be transparent in its operations to properly serve public interest. Performance indicators, and measurement should also be transparent and accountable to the trades and the tax payers for such performance, thus protecting public interest and building trust and confidence. To continue in the the theme of simplicity, may we suggest that trade associations/organizations be agents for their respective apprenticeship programs? Can the Landscape Horticulture Industry offer to be a voluntary trade pilot?