Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-50

Name of organisation making submission: DR-50 Ontario Sewer and Watermain Construction Association (OSWCA)

Responses to questions in submission form

Section A - The Public Interest in this Review

1. What do you understand by public interest?

Under the Ontario College of Trades and Apprenticeship Act, 2009 (OCTAA), the College has a duty to serve and protect the public interest. There is, however, no clear definition in OCTAA on what the public interest encompasses and as a result a number of decisions have been made at the OCOT that are perceived to have run counter to the public interest. Defining what is included in the public interest and how OCOT should address these interests in an objective and transparent manner it is therefore a critical exercise for this review process. 1. What do you understand by public interest? The public interest is the opposite of special interest. It is a broad and utilitarian concept that is meant to consider a wide range of issues outside of the interests of the immediately impacted group on any particular decision. In the context of the OCOT, the public interest represents a range of issues that fall outside of the immediate impact on the worker/employer. These interests include: • Consumer interests, such as the affordability of housing, renovations, and other construction services; • Competitiveness linked to business growth and investment, such as the accessibility and affordability of industrial, commercial, and institutional (ICI) and residential construction and the reliability of up-to-date infrastructure; • Workforce development, including access to training and employment, and training outcomes that are aligned with current and future labour market needs; • A rational and coherent regulatory framework, which includes health and safety priorities met within a sound risk management framework, participation in the legitimate economy rather than pushing the exchange of construction services to the black market, regulatory actions that are aligned with all aspects of the public interest agenda, and the elimination of duplication of resources, inspectorates, regulatory regimes, etc., to decrease costs without compromising quality and safety; • Information and research to ensure evidence-based analysis to support employer and worker decision-making and government policy development; and, • A future orientation, recognizing both the challenges and opportunities facing the Ontario workforce in the 21st century. As the OCOT is a self-regulatory body tasked with acting in the public interest, it is worth looking at how other existing regulatory bodies with a similar mandates define and address issues within the public interest.

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

To date, the College has represented a very narrow “special interest” mandate in its operation and this should be significantly expanded in order to properly address the OCOT mandate to represent the “public interest.” Where presently the College represents the compulsory tradespeople within its membership, it needs to expand its consideration to include everyone touched by the College, directly or indirectly, including employers and general public without the requirement of becoming funding members in order to participate in the OCOT processes. With this in mind, the public includes four primary stakeholder groups: • Consumers of a good or service provided by a tradesperson, including those items not directly purchased (community infrastructure); • Workers who are not members of the College, who have an interest in continued employment and freedom of association; • Tradespeople who are already incorporated in the College system; and, • Employers and employer associations who employ the services of tradespeople. At present, the OCOT is an organization that has the capacity to expand its own membership and is driven solely by its members, who are workers in the compulsory trades. In order to address its public interest mandate, the OCOT should not pursue the interest of one segment of the public without appropriately considering the impact that these interests (directly or indirectly) will have on other impacted stakeholders. As a regulatory body, it is necessary for the College to maintain the confidence of the public interest. In order to achieve this, it is important that those tasked with operating the regulatory body are not personally invested in its agenda. This is particularly important for decisions related to the expansion of compulsory trade jurisdiction over additional skilled trades, as this would represent an inherent conflict. Such conflicts must be dealt with in this review process.

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

Due to the nature of the decisions being made by the OCOT, differing opinions and interests are bound to arise on a variety of aspects within the College’s mandate. Where these differing interests and opinions arise, the decision of the College must adhere to its legislative mandate and objectives; meaning opposing viewpoints must be dealt with through a “risk of harm” lens, reflecting the greatest priority. These decisions must be made transparent and must be based on independent and objective evidence. The process to reach these decisions should never be sacrificed for the sake of expediency. As will be discussed in greater detail later in this response paper, it is our view that the Health Professions Regulatory Advisory Committee (HPRAC) model provides an effective method for ensuring adequate consideration of all relevant stakeholder input – resulting in an independent, objective, and evidence-based resolution of opposing interests. We believe that this model has the potential to assist in the design process for SoP reviews, ratio reviews, and trade classification reviews.

4. Is the College currently protecting the public interest?

No, the College is not currently protecting the broader public interest. The College does not have a clear definition of what the public interest includes and does not have clear guidance for how to appropriately protect and address the public interest. The College’s current structure and application of resources includes the duplication of services on the issue of consumer protection, has ill-defined parameters for its enforcement regime, and serves a very narrow special interest. It is also increasing the regulatory barriers for entry into the trades for new entrants into the workforce, which works counter to the public interest. Skills Canada reports that 40% of all new jobs created between 2012 and 2022 will be in the skilled trades; however only 26% of people aged 13-24 are considering careers in these trades. The Ontario Chamber of Commerce notes, “many businesses criticize the College for focussing its efforts on its new regulatory role, and ignoring its mandate to address the broader needs of employers and the labour force. An important part of the College’s mandate is to promote the skilled trades to youth and under-represented groups as a viable career path; however, this component has received little attention.” Further to this issue, a significant consideration which has not been addressed by the College is access to training. This is one of the biggest interests, and barriers, for those trying to enter a trade in the province. This is also a considerable concern of the consumer public, as proper administration of and accessibility to Training Delivery Agents (TDAs) is required to ensure the adequate supply of qualified tradespeople to meet consumer needs. In our view, the College should set the training standards for TDAs through an open and transparent planning process, allowing for significant stakeholder input throughout. TDAs should be opened up to Ontario Colleges and coordinated by the Ministry of Training, Colleges and Universities (MTCU). This could better ensure open access at a wide-range of facilities and effective and accountable oversight, devoid of special interests, all of which would best serve the public interest.

5. How should the College advance the public interest?

The College should advance the public interest by: 1) avoiding the duplication of government services; and, 2) undertaking thorough consideration of the broader economic impact of the College’s decisions. These considerations will increase the effectiveness and efficiency of existing services that protect the public and will avoid the addition of unnecessary costs on consumers and taxpayers generally. Avoid the Duplication of Government Services It is necessary for the College to identify all existing regulatory regimes and enforcement mechanisms that are already in place to govern the work of tradespeople, and avoid duplicating this work (e.g. inspectors from the College, the OLRB, and the Ministry of Labour who perform largely the same functions). Duplication of these services results in over-regulation, conflict, and waste limited public resources. While several of the College’s enforcement mechanisms are in place to protect the public, they often result in significant duplication with other government/industry bodies already tasked with the same duty. It is therefore necessary to identify the areas of duplication and refocus the existing College inspectorate on gaps that exist in the protection of the public interest, such as trades career promotion, stakeholder outreach, professional standards development, and promoting existing consumer protection regimes and how to interact with them, among other things. Examples of where there is existing duplication in the system include (but are not exclusive to): • Ministry of Labour (MOL) is the government body responsible for occupational health and safety (OH&S). The inspectorate is knowledgeable about the construction industry and trained to review worksite safety from a holistic perspective, which is critically important on a construction site. The MOL enforces the Occupational Health and Safety Act and its specific construction regulations. MOL also works with, or before, a number of specialized agencies, associations, boards, commissions, tribunals, etc., that all focus on different aspects of OH&S and workplace jurisdiction/scope of practice, including (but not exclusive to): • Grievance Settlement Board; • Ontario Labour Relations Board; • WSIB; • Workplace Safety and Insurance Appeals Tribunal; • Pay Equity Commission; This existing MOL infrastructure is in place to ensure safe work environments and to address a number of other issues related to work jurisdiction, pay equity, training, etc. With such an extensive and trained inspectorate already in place and familiar with the construction industry and its operations, and in the spirit of reducing red tape, decreasing workplace disruptions, and saving the province (and ultimately the taxpayer) money, there is significant merit in expanding the responsibility of the MOL inspectorate to absorb those responsibilities currently being performed by the College inspectors. • Ministry of Government and Consumer Services (MGCS) enforces the Consumer Protection Act (CPA), which governs most of the common consumer transactions in the market place and the home, including the contracting for a service performed by a tradesperson. The CPA includes provisions which make it illegal to provide a consumer with false information about the company, product, or service that is being offered. • Ministry of Municipal Affairs and Housing (MMAH) administers the Ontario Building Code Act and the Ontario Building Code (including new buildings and renovations). Under the Act and the Code, the province is responsible for developing laws, regulations and policies that promote safe, healthy and accessible buildings in the province. It is also the stated responsibility of the MMAH to ensure “…an effective and efficient building regulatory system that supports the economy with respect to new construction, renovations and change of use to buildings.” The Act and the Code are already enforced by local enforcement officers, including municipalities (i.e. municipality governs issuance of building permits and enforces compliance through inspections and has capacity to issue order to stop work or to comply). • Renomark operates as a professional registry for renovation contractors that hold all of its registrants to a particular standard. It requires members to abide by a renovation-specific code of conduct and a code of ethics. This code requires that the renovator provide the consumer with a detailed, written contract and offer a minimum two-year warranty on the work being performed. It also provides a reputational assurance, similar to those offered by licensed Realtors, and protections for consumers against grey-market “under-the-table” and “cash-only” deals. Utilizing a Renomark registered contractor provides consumers with a degree of protection and guaranteed work quality that does not exist in the marketplace outside of this organization. Its limiting factor is likely that many consumers of residential renovations do not know about the organization. • Tarion Warranty Corporation is a private corporation that administers the Ontario New Home Warranties Plan Act, which outlines the warranty protection that new home purchases are entitled to in the province. Tarion investigates illegal building practices, resolves warranty disputes between builders and homeowners and promotes high standard of construction among new home builders. It also works to educate home buyers about their warranty rights and how to protect and maintain their warranty. • Better Business Bureau (BBB) is a non-profit organization founded in the interests of increasing marketplace trust for consumers in Canada (and the United States). It provides a reputational assessment service for consumers and accreditation for businesses that pledge to adhere to its code of business practices. It also handles customer disputes with businesses within its membership to a limited degree. Similar to Renomark, the BBB offers a greater degree of consumer protection from unfair business practices and provides a forum for consumer complaints about poor products or services provided by a company. • Workplace Safety and Insurance Board (WSIB) administers compensation and no-fault insurance for workers injured on the job. WSIB coverage is mandatory in Ontario for all construction workers and provides a significant degree of workplace safety and protection based on its coverage rules. The above list is not exhaustive, as there are a host of other groups operating in public interest by addressing workplace safety, consumer protection, workplace competitiveness, training, etc. (i.e. Professional Engineers of Ontario, Ontario Association of Architects, Technical Standards and Safety Authority, Electrical Safety Authority [ESA], Ontario One Call, Canadian Standards Association, Ontario Building Officials Association, etc.). Our intention here is to highlight that there is a very significant regulatory regime already in place governing the construction trades in the province. Duplicating these regulatory mechanisms will only increase red tape and workplace disruptions. If the College is truly to operate within the public interest, then it must seek only to fill the existing gaps in the protection of the public interest, such as trades career promotion, stakeholder outreach, professional standards development, and promoting existing consumer protection regimes and how to interact with them, among other things. Considering the Broader Economic Impact of the College’s Decision-making The economics of supply and demand impact the public interest. Shrinking or restricting the available supply of qualified tradespeople through increasing the number of compulsory certified trades will lead to increased cost of services, by increasing 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. Additionally, the more levels of government that are involved in the compulsory licensing process, the greater the increase in wages. These are items of particular interest for consideration as elements of the public interest because the ultimate cost of construction is borne by the consumer or taxpayer. As a result, the public interest is not served by creating unnecessary restrictions on who may or may not provide the broadly described scopes of practice of a skilled trades’ service. The public interest balance to be struck necessitates narrowing what may or may not be done (i.e. tasks) by a particular trade in the context of what risks harm to the public. Another way the certification process limits the supply of workers is through control of training centres. At present there are too few OCOT designated Training Delivery Agents (TDAs) in Ontario to keep up with demand. For example, in the case of tower crane operators (TCOs), over 50% of the active operators are within 10 years of retirement and a significant number of retirees (ages 65 to 69) are filling present demand. Despite other centres (i.e. Durham College) willing to provide training but unable to gain the required certification from the province, there is only one TDA serving the entire industry in the province, 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. Meanwhile, it is estimated that there will be a shortfall of TCOs by 2020 of between 213 and 548 journeypersons. Therefore, as noted in the answer to question 4, the proper administration of and accessibility to Training Delivery Agents (TDAs) is required to ensure the adequate supply of qualified tradespeople to meet consumer needs. Ontario has a relatively high rate of compulsory certification and, if current trends continue, this will create a drag on the competitiveness of the province’s construction sector. Though little empirical evidence is available for Ontario, the dynamic has been widely identified in U.S. jurisdictions. In a comparison between states where occupations were licensed with those where the same occupations were unlicensed, the occupations in the unlicensed state exhibited a 20% faster growth rate. The drag effect losses are not limited to the construction sector alone and there will be spin-off effects on the province’s future economic prospects: home ownership will become more expensive, as will ICI construction. Ontario will also become less attractive to investors as the cost of modern infrastructure construction will increase, ultimately resulting in a decrease in the number of completed projects due to finite capital budgets. We submit that the College must clearly delineate between the “right to title” concept for the purposes of training and clear pathways to licensing, and “right to practice” concept to protect the public from harm. Balanced appropriately, these concepts will improve access to affordable services throughout the province while allowing for consideration of the entire system safety nets. These are the considerations that ought to lead to an appropriate balance in the overall supply and demand equation.

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.

Under OCTAA, Ontario Regulation 275/11 (O.Reg 275/11), the scope of practice of each trade in the construction sector is defined in very broad and general terms. The tasks listed for each trades include a significant amount of overlap and are not clearly defined. For instance, under the scope of practice for the General Carpenter trade, establishing building procedures and preparing a work site for building are both listed within the trade scope. This is the only trade that has these two tasks listed under its SoP. Without any specific explanation of what these two tasks entail, a successful certification bid from the carpenters could result in a number of unintended consequences with such a broad scope of practice listed, including the requirement to hire a general carpenter to prepare a worksite for construction in a field that does not involve any carpentry work whatsoever. Given the fundamental importance that SoPs play in the College’s mandate, an in-depth scope of practice review must be undertaken in order to sort out all of the existing overlaps, core and peripheral tasks of the trades, and unclear trade scopes before any trade reclassification bid is allowed to go forward. Components of an SoP 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. The current SoPs are not helpful. They confuse and complicate the way the construction industry operates in the province and they are very wide open to interpretation, which opens up the potential for significant workplace disruptions due to jurisdictional disputes. In many instances they do not consider historical practices, decisions on trade jurisdiction made by the OLRB, or evolving practices in the field. Broad SoPs as set out in the regulation have the potential to create an artificial scarcity in the construction labour supply which could have a particularly significant impact on projects in remote areas outside of the major urban centers where workers are more readily available. Having very narrow and flexible SoPs to fit the different contexts of construction, both within the industry and in the different regions of the province, is necessary to ensure productivity and labour supply issues are not created as an externality.

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


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.

A trade’s “key” or “core” elements are tasks that should be performed only by that trade. A task should only be performed by members of a particular trade to the exclusion of others where that task: • Poses a risk of harm to the public, tradespeople, or other workers; and • That risk cannot be ameliorated by any other existing regime. In other words, it is only those tasks that involve a risk of harm to the public, tradespeople, or other workers on the job, for which there is not currently an existing regime in place to govern over that risk, that should constitute the core tasks of an SoP. These aspects should be clearly and narrowly defined. However, these core tasks of a trade’s SoP should also be accompanied by “peripheral” tasks. Together, the core and peripheral tasks will comprise the range of tasks that are normally performed by that trade. On the other hand, task of a trade that is shared with another trade should be a peripheral task of each of those trades. If a task is not listed as core or peripheral in a SoP, that task may be performed by any trade. This is critical for the purposes of apprenticeship and entry into the trade from a pure skills development process, but not an ongoing enforcement process. NOTE: OSWCA believes that the LiUNA Local 183 submission response to this question, which speaks to the idea of “compulsory tasks” rather than “compulsory trades” does have particular merit for a number of sectors in the construction industry, particularly the sewers and watermains sector.

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

The process needs to be open, transparent, and extensive, with ample consideration given to construction operations outside of the Greater Toronto and Hamilton area (GTHA), particularly around the existing makeup of the construction labour force in major urban centres versus smaller, rural, and remote communities. Additionally, because the existing SoPs in regulation do not appropriately embody how work is actually performed in the construction industry, and there will be a significant reliance on SoPs by the College moving forward, a systematic review of all SoPs across trades is essential. In terms of the result of the process, carrying out a review or change of an SoP must result in: • Clear demarcation regarding what is a core task of that trade, as well as what is a peripheral task of that trade in each SoP; • Consistency in the application of the SoP; and, • Consistency in the form of the SoP. In terms of how to accomplish this process, below is a process which, in our view, will best achieve the mandate of the College, including producing results which best serve the public interest. At the outset, it is important to note the present situation in the Ontario construction industry already involves necessary overlap in the jurisdiction of the trades. That is, while some work is performed exclusively by one trade, there are many other tasks and functions which are commonly performed by two or more trades. This necessary overlap is the result of decades of carefully thought-out solutions and established practices in the Ontario construction industry. It is in the public interest to maintain these important structures based on the stability and predictability afforded to the public by maintaining the status quo in this regard. i. The Forum: Scope of Practice Advisory Council Reviews or changes to SoPs will be initiated by the Minister on the advice of the College. The matter will then be referred to the Advisory Council for recommendations on the matter. This will allow the process of reviewing and changing SoPs to occur gradually as opposed to a large push for these to occur all at once. ii. Consultation Phase Once the issue of a creation or revision to an SoP is referred to the Advisory Council, independent research conducted by the Council will be released as well as an invitation for submissions from interested parties. Interested parties may make written submissions to the Advisory Council concerning what ought to be in a trade’s SoP (both core and peripheral tasks) as well as what should not be in the SoP for that trade. These submissions should be supported by evidence and research concerning what the current SoPs are in the field and why the preservation or alteration of them will result in an outcome which best serves the public interest. iii. Oral submissions from interested parties Following the review of the written submissions, the interested parties that made written submissions will have the opportunity to expand upon their arguments with oral submissions. This will also provide the Advisory Council an opportunity to seek clarification on these submissions as well as challenge them, if necessary. iv. Consideration After hearing from all interested parties, the Evaluation Council will take time to consider submissions, both oral and written, as well as the evidence and research that was presented to it. Should the Council require more information before releasing its recommendation to the Minister on the SoP of a trade, it can request this from any party it sees fit. v. Recommendation of the Advisory Council A recommendation will be made to the Minister regarding the Council’s views on the course of action for the creation or amendment of the SoP that will best serve the public interest. This recommendation is not binding on the Minister. The discretion to act on it or implement it is in the Minister’s discretion. vii. Ongoing Review Following the creation/review of an SoP, there should be in place a review committee to deal with ongoing changes in practices including technological change.

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 previously, the SoPs outlined in O.Reg 275/11 are outdated and not relevant to the construction industry in the province. SoPs in the regulation are much too broad and out of touch with work practices occurring in the field to assist the College in developing effective assistance modules. Clear and consistent SoPs that actually mirror practices in the field – particularly accounting for work practices outside of the GTHA – that include tasks that are considered to be core and peripheral, need to be in place before they will truly support the College’s diverse functions.

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

If an SoP includes all of the tasks performed by members of a particular trade and not simply the core tasks with the appropriate restrictions as noted in the answer to question 8, then the entire SoP should not be enforceable or be subject to 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.

Yes, there would be a considerable benefit in developing a list of compulsory activities; however, as noted several previously, this list must be limited to the activities that pose a risk of harm to the public and are not currently governed by any other existing regulatory regime. This will ensure that the key activities of each trade are clearly and narrowly defined so as to not cause practical difficulties in implementation, jurisdictional disputes in the field, and the potential for duplication of government services.

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

An overlap between SoPs is when more than one trade historically performs the same task in the field. In their current format in regulation, there are significant overlaps in SoPs due to the overly broad nature of the SoPs in the regulation. As noted previously, these SoPs do not reflect actual industry practice in the field, and instead, exist more out of coincidence than design. SoPs should reflect the core and peripheral tasks performed by each trade in the field, thereby illustrating where multiple trades have jurisdiction to perform the same work.

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

The SoPs outlined in O.Reg 275/11 do not reflect the current practice in the field. To the extent that they are acknowledged on a construction site, overlaps between SoPs create inefficiencies, confusion, and conflict. The primary conflict occurs when multiple trades claim jurisdiction over the same work practice or task. In these cases, the trade claiming the work refers to the SoPs in regulation as justification for their claim. These instances have already led to disruptions on heavy civil construction projects because project agreements, past practice, and previous rulings from the OLRB were ignored by OCOT inspectors in favor of what was outlined in O.Reg 275/11. Workplace disruptions of this nature have not yet become commonplace, but they are likely to become more prevalent as time passes and confusion mounts over how to evaluate an overlap between an SoP or an overlap that inferentially exists as a result of past practice, different training, or adherence to prior OLRB decisions.

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?

Viewed through the appropriate lens, the third legal interpretation principle on overlapping SoPs does not pose a risk of harm to the public, tradespeople, or other workers on the job. Through other regulatory and enforcement agencies (i.e. OHSA, ESA), core tasks that pose harm, particularly physical harm, are addressed and dealt with. The core tasks that fall within this category do not overlap with other scopes of practice within voluntary trades; instead the overlap that exists is in non-core, non-unique tasks which do no present the same risks. Looking at this through an economic lens – specifically at the issues of workplace efficiency/productivity and cost – altering the current third legal interpretation principle would create a level of harm that does not presently exist. This harm would arise because restricting the ability of an individual to perform work that would otherwise fall within multiple trades would create conflict and inefficiencies, and would be counter to the public interest by increasing the overall cost to perform construction work.

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 OSWCA mirrors the OSTA position that the process of classification or reclassification of the construction trades ought to be kept on hold until all issues related to SoPs and the review process for SoPs has been resolved. This is due to the fundamental role that SoPs play in the classification of each trade. With this in mind, OSWCA would like to provide input on how the current process for trade classification or reclassification of trades as compulsory or voluntary can be improved upon. Compulsory Certification 16. What makes a compulsory trade compulsory and what makes a voluntary trade voluntary? As noted previously, where the core task being performed by a trade creates the potential for harm to the public, and this harm is not already governed by an existing regulatory regime, this will form part of the consideration as to whether that trade should be classified as compulsory or voluntary. Trades involving activities with no potential harm to the public and/or already being sufficiently governed by an existing regulatory regime, should be classified as voluntary trades.

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 of trades as either compulsory or voluntary is not aligned with the College’s duty to serve and protect the public interest. Based on research by the C.D. Howe Institute, regulating entry into the trades is not an effective means of ensuring high quality in the skilled trades. Instead, it was found that instituting minimum standards of service quality ensures better outcome performances and a much healthier labour market for the trades. Given the significant shortage in skilled workers forecasted in the province in the coming decade, making entry into the skilled trades’ labour force more stringent is in fact detrimental to the public interest as defined in our answers to the questions in Section 1. Moreover, the existing OCOT process for moving voluntary certified trades into a compulsory certified classification is considerably flawed and works against the public interest. Compulsory certification is more expensive to employers and apprentices (and therefore consumers). As the Ontario Chamber of Commerce noted in its report on the OCOT, “…compulsory certification has the potential to have a disproportionately negative impact on [small- and medium-sized enterprises].

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?

It is not reasonable to make an assumption about the hazards or risks of any task of an SoP. There must always be a burden of evidence, and the evidence presently points to a very safe and consistently improving construction industry in the province. Since 2004, the construction industry has seen a 52.7% decline in lost time injuries based on its present design and labour force make-up. Significant caution must be practiced here because a policy decision based on this assumption could deny individuals the right to earn a living performing tasks for which they are competent, even though uncertified, as current and past practice has demonstrated.

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?

See answer to question 16.

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 College should not continue to rely on an adjudicative review panel approach to for trade certification reviews. A number of significant concerns have been raised with this process since it was first envisaged. Some of these concerns include (but are not exclusive to): • The process for requesting a classification review; • The lack of sufficient empirical evidence required; • Insufficient clarity concerning criteria and proof; and, • The inability of the review panel to consider information from sources outside of the materials submitted/presented from interest groups. In the view of the OSWCA, the HPRAC provides an effective model to replace the existing regulatory model. The HPRAC model more appropriately considers the public interest in reviewing the classification of a trade and removes some of the bias in the current model. It enhances the decision-making process through a transparent, flexible and evidence-based approach. The HPRAC Model The HPRAC was established under the Regulated Health Professions Act (“RHPA”) with a statutory duty to advise the Minister of Health and Long-Term Care on regulatory matters including whether unregulated health professions should be regulated. In turn, the Minister of Health and Long-Term Care relies on recommendations from the HPRAC as an independent source of evidence-informed advice in the formulation of policy in relation to health professional regulation in Ontario. Under the HPRAC Model, a health profession requesting regulation under the RHPA will be assessed using a two-part assessment as the means by which it will decide to recommend a health profession for regulation: In the first part of the assessment, the HPRAC will determine whether the applicant meets a “risk of harm threshold” in order to be considered for regulation under the HRPA. The second part of the assessment the HPRAC will determine whether it should recommend regulating a profession that it has determined to pose a risk of harm to the public. This involves a consideration of whether regulation is the most appropriate course of action or whether another risk mitigation approach would result in a better outcome. This two-part assessment process is informed by a broad-based stakeholder consultation in which interested parties can raise issues and concerns with the potential regulation or non-regulation of a health profession. This consultation process includes not only input from interested stakeholders but also: (i) a consultation guide is provided to stakeholders; (ii) interviews to identify stakeholder interests as well as gather information on the issues related to regulation; (iii) research conducted covering literature reviews; jurisdictional reviews; jurisprudence reviews; and (iv) the potential for further submissions from experts. HRPAC’s criteria and process examines whether the applicant meets the risk of harm threshold and whether it is otherwise in the public interest that the profession be regulated under RHPA. In our view, this model provides a viable process for the classification of a trade as compulsory or voluntary. Independent Oversight Body or Function of the College? At the outset, it is important to consider whether an adaptation of the HPRAC Model to the College will result in an oversight body that is independent from the College, the Minister and the Ministry, or one which forms part of the functions of the College. The HPRAC Model will prove most effective, if it functions independent of the College. This will still leave the College with critical functions aligned with its mandate and objects to: (i) regulate the practice of trades (i.e. standards, licensing, etc.). (ii) govern the members (tradespeople) of the College. (iii) develop, establish and maintain qualifications for membership in the College. (iv) 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. (v) promote the practice of trades. (vi) establish apprenticeship programs and other training programs for trades including training standards, curriculum standards and examinations. (vii) maintain a public register of its members. (viii) receive and investigate complaints against members of the College and to deal with issues of discipline, misconduct, incompetency and incapacity. (ix) provide for the ongoing education of members of the College. The Skilled Trades Professional Regulatory Advisory Committee With fundamental aspects of regulation in the scope of activities carried out by the College, the OSTA proposes the creation of a Skilled Trades Professional Regulatory Advisory Committee (“SPRAC”). Similar to the process contained in the HPRAC Model, the sole function of the SPRAC would be to undertake sufficient research to enable evidence-based recommendations to the Minister on whether a trade warrants compulsory certification status. In our view, the most viable process for this determination is as follows. i. Minister Requests Trade Classification Review Minister requests SPRAC undertake a review of a trade’s classification as compulsory or voluntary following the application for consideration of a reclassification review. The initial application must be made to the Minister, who then refers the process to the SPRAC. ii. Research / Formulation of Submission Guidelines Phase Following the receipt of the Minister’s referral, SPRAC will begin research into whether the trade in question warrants compulsory certification. Timelines and other process management issues will also be addressed. In addition, SPRAC will conduct independent research during this phase. As in the HPRAC Model, three important factors will be researched: • Literature o Relevant and helpful reports / Peer-reviewed articles • Jurisdiction o Treatment of trade in other jurisdictions (Canada, US, Globally) • Jurisprudence o Provides insight into legal issues that may arise in regards to classification of a trade as compulsory o OLRB jurisdictional dispute decisions, perhaps similar decisions from other provincial boards Through this research, the SPRAC will develop a Submission Guidelines Document. The Submission Guideline Document will pose specific questions to aid the development of stakeholder proposals. These questions may relate to whether: there is a demonstrated public interest in the trade being classified as compulsory; whether tasks of the trade present a risk of harm to public safety; and whether there are regimes currently in existence to address any potential risks to the public. The results in the areas of research listed above, the Submission Guideline Document and the expected timelines for the process will be posted on the SPRAC website. iii. Broad-based Consultation Phase At this stage, SPRAC will notify stakeholders it is accepting submissions on the issue of the trade’s compulsory certification. Responses from certain stakeholders may be specifically requested, and submissions from stakeholders whose input was not specifically requested from will also be considered. Interested parties may include: • Tradespeople • Employers • Unions/contractors associations • General public Similar to the HPRAC Model, this phase will also involve “Key Informant Interviews” in order to identify further interests and concerns of stakeholders as well as collect relevant and first-hand knowledge from stakeholders on questions posed in the consultation guideline document. iv. Two-phase evaluation process Similar to the HPRAC model, the decision as to whether a trade should be classified as compulsory should be considered in a two-step process. Phase One The first phase will serve a gatekeeping function, focussed on whether or not the trade in question poses a risk of harm to the public. In order to establish whether certain tasks of a trade’s SoP pose a risk of harm to the public it must be shown, through research and evidence, that there is a substantial risk of physical or mental harm to members of the public that could not result from improper practice of a trade. If harm to the public is not established, the review will not continue to the second phase and the trade will be classified as voluntary. Phase Two If a risk of harm to the public is established in phase one, the review will then continue to the second phase. In this phase, a fundamental consideration must be whether any potential harm is already ameliorated by an existing regulatory regime. If existing regimes are in place to protect the public, this should weigh heavily in favor of classification of the trade as voluntary. This is in order to avoid the duplication of government services while still protecting the public. Further, as is the case with the second phase of the HPRAC model, additional consideration may also be considered in this phase including the economic impact of classification of the trade as compulsory, the adequacy of training delivery agents in place to ensure sufficient supply of qualified tradespeople in the event the trade is classified as compulsory, and the impact on the trade system in Ontario generally. Result The underlying purpose of this two-phase process must be to not disturb the current classification of trades as voluntary, unless it can be shown through research and evidence that a compulsory certification is the only determination that will protect the public. A method founded on concerns and interest other than this will not only fail to protect the public interest, but will do so in an ineffective and costly manner as it will lead to regulation where none is required. v. Consultation with Experts Should the SPRAC deem it necessary, at this phase, it may choose to consult with experts or hold focus groups to obtain information it considers necessary to complete the review of the Minister’s referral. Persons or organizations with identified expertise may be invited, at the discretion of the SPRAC, to make presentations, reports or submissions. Summaries of these sessions will be posted on the SPRAC website. vi. Recommendation to the Minister Once all evidence and stakeholder submissions have been considered. The SPRAC will issue a report to the Minister for consideration. Recommendations will be advisory only and the Minister will not be bound to accept the advice of the SPRAC. The release of the report and any follow-up action are at the discretion of the Minister. Should the SPRAC’s advice be accepted, the Ministry will be responsible for implementation.

21. How should expert opinion be obtained?

Under the HPRAC model, expert opinion is obtained through stakeholder submissions/interviews and third-party external advisors. Stakeholder submissions/interviews can provide a wide range of industry-based interests, recommendations, and field knowledge related to the classification of a trade and its impact on individual businesses or sectors. Third-party external advisors can then be engaged to help fill the gaps in information provided by industry stakeholders. At present the OCTAA does not allow for these third-party advisors to be engaged by the reviewers during the certification review process. As a result, the information provided is left to the special interest groups who have a direct interest in the outcomes of the classification review. Under this current model, the information being presented has an inherent bias, as proponents for or against certification will present only information to enhance their position. In the HPRAC model, in order to ensure that external advisors are appropriately selected, certain criteria are considered to measure the capacity of external consultants: conflict of interest; body of knowledge; credibility with stakeholders; technical competence; capacity; board experience; competitive rates; understanding of the public process; commitment to the public interest; communication skills; a foundation in Ontario; and, vendors of record.

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

No. The seven criteria that are currently in place are overly complicated and do not maintain any specific focus on the public interest. There is an inherent lack of evidence-based support required for this process and that is one of the most significant gaps in the College’s process. The public interest could be much better served by simplifying the review process by reducing the seven criteria down to the HPRAC two-step assessment, as noted in the answer to question 20(iv) above.

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

No (please see answer to question 22 above).

24. Are the existing criteria the right criteria?

No, as noted above, the seven criteria do not adequately focus on the protection of the public interest. The two-step assessment utilized by the HPRAC provides a more appropriate method of protecting the public interest. As noted in the answer to question 20 above, the two-step HPRAC model provides a much more appropriate method for protecting the public interest. As noted previously, the first part of the assessment serves as the “gatekeeper” function. The primary consideration is whether there is a demonstrated risk of harm to the health and safety of the public. If the risk of harm is established, the assessment moves to the secondary consideration which involves determining whether regulation is in fact the most appropriate course of action or whether another risk mitigation approach would result in a better or similar outcomes. This modified review process can still rely on the first four factors contained in the regulation (SoP; health and safety; effect on the environment; and economic impact); though they should be incorporated into the two-step assessment model rather than acting as standalone criteria. A modified model will better consider the public interest elements of these factors.

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, practices in the field are much more fluid and evolve much faster than the stagnant SoPs set out in regulation. The SoPs remain, at a minimum, out of date and are too broad to appropriately reflect how the construction industry operates in the field. Overlap between the trades is the norm. The vast majority of employers make an individual assessment based on skills available in its workforce and assign work in a way that will best ensure that work is completed efficiently, with minimal labour disruption, and in compliance with OH&S regulation and government and contractual requirements. In most cases, consideration is given to the practice historically employed by the contractor and its competitors and any jurisdictional accords or agreements reached by trade unions. For many employers, there is no attention whatsoever paid to the SoPs as they are generally viewed as being generic and lack the specificity to truly differentiate between trades.

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

No. Jurisdictional disputes commonly arise because opposing unions disagree on the categorization of the task being performed. Additional disputes arise when a union believes that another union is attempting to expand into its jurisdiction or is otherwise attempting to circumvent a jurisdictional accord or trade agreement that has been agreed to by the parties. These types of disputes do not arise when a union represents a number of trades on a construction project or the workers are not represented by any union. In those cases, subject to health and safety and other government and contractual regulations, the work is assigned to the most competent and efficient workers who are available. This assignment of work without regard to the trade of the worker further illustrates that most construction work can be performed by a number of different trades and additional regulations only creates inefficiencies which do not further the public interest.

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.

The OSWCA believes that OLRB decisions should be taken into consideration by the College; however it should occur within the context of the overall research function undertaken prior to, or as part of, each review – as opposed to a singular deference to it. The research function should consider, similar to the HPRAC process a literature review, a jurisdictional review and a jurisprudential review. Both the jurisdictional review (at a minimum across the Canadian provinces) and a jurisprudential review will provide for the opportunity to lessen, if not altogether eliminate, conflicting direction to the skilled trades industry. OLRB decisions, for the most part, only impact on the unionized areas of the construction sector of the Skilled Trades. While one may be attracted to defer to the OLRB, we think a research-based approach could accommodate the unique nature of OLRB decisions within the overall context of all four sectors of the Skilled Trades. We submit if the SOPs are narrowed to ‘core’ elements this will lessen the perceived conflicts between the review outcomes and the historical jurisprudence developed over decades at the OLRB. If the College were to simply adopt the OLRB decisions, OCOT will serve to propagate a system that has been developed to serve only unionized construction skilled trades; particularly those inside the GTHA. A much more cautious approach must be taken here to consider the practices and make-up of the construction labour force in the remote and rural areas of the province, where project agreements and historical practice govern the non-compulsory construction sector. A maintenance of the status quo is the preference to increasing regulation, as disrupting the operating environment on a sector when no problem has been identified is poor public policy.

Section E - General Response and Comments

28. Please provide additional comments below, if any.

About the OSWCA The OSWCA has been representing the sewer and watermain construction industry across the province since 1971. We currently serve over 700 companies, including contractors, manufacturers, and distributors who build, supply, and service the sewer and watermain construction sector. Our membership is made up of ten local Heavy Construction Associations, two Pipe Producers, and one Independent Association. We maintain a number of organizational goals, but our central objective is to enhance and protect the interests and welfare of the sewers and watermains sector of the construction industry. We work towards this objective through different avenues, including lobbying to improve the operating environment for our member companies, working to reduce the “red tape” burden on the construction industry, and addressing long-term labour force sustainability issues. It is for these reasons that we have been an interested an involved stakeholder throughout the development of the Ontario College of Trades (the OCOT or the College) and why we are participating in this review process. As an affected stakeholder group working to maintain the integrity of our sector of the construction industry, we will provide detailed responses to the questions posed in the Dean Review Consultation Guide, as well as provide a number of general comments and recommendations that fall within the broad scope of the review Terms of Reference. Ontario Skilled Trades Alliance As a member of the Ontario Skilled Trades Alliance (OSTA), we also fully endorse the OSTA submission to this review. You will find our responses to the Consultation Guide questions are complementary and in some instances directly mirror those put forward by the OSTA. Overview of the OSWCA Position The OSWCA submission provides feedback on all four areas being examined (the public interest; scopes of practice; trade classifications; and the Ontario Labour Relations Board (the OLRB) decisions). We have provided responses of varying length to each of the 27 questions in the Dean Review Consultation Guide. It was our intention to be as comprehensive as possible in our responses while maintaining the best interests of our members. Within our membership we have a very wide range of companies, from the extremely large and vertically integrated to the small “mom-and-pop” companies, and representing union, alternative union and open-shop sectors of the industry. Additionally, slightly less than half of our members reside in the Greater Toronto and Hamilton Area (GTHA) while the remainder are spread throughout the rest of the province. All of this is to say, we represent a very diverse group whose interests in this review process, and in the College more broadly, are quite varied. With all of the differing opinions that exist, we have been particularly attentive to those areas where we have almost universal agreement. Our primary issues from the broader College standpoint have been, and continue to be, the impact that it will have on the make-up and sustainability of our labour force under its present governance structure and process design. Of specific concern is the College’s current process and push for trade certification, and the enforcement of its Scopes of Practice (SoP) regulation. These two items promote the compartmentalization of the trades and do not reflect the reality of how our sector of the construction industry operates. There are a number of differences in how heavy civil construction work is performed across different regions of the province, as the outdoor elements (landscape, geology, weather, location of materials and depositories, etc) play a substantial role in the construction process. The result is a significant variance in the labour force make-up and in the skills requirements in the different regions of the province. It requires a lot of specialization and on-site, hands-on training and much less time understanding theory and mechanics of the trade in a classroom. This is why certification and imposing SoPs on our industry is a very difficult proposition. Subject to health and safety and other government and contractual regulations, work in our industry is assigned to the most competent and efficient workers who are available. We require workers in our industry to undertake a variety of different tasks on a site at any given time in order to maintain a high degree of productivity and efficiency. While elements of worker education and training are important and necessary, enforcing SoPs without regard for conflicting regulatory agencies/decisions and requiring certain tasks to be performed by certified workers would considerably disrupt the way we operate in the field. Reserving specific activities – especially those that are not risky or complicated – to be performed exclusively by one trade will create enormous inefficiencies and have wide-ranging economic impacts which would work counter to the public interest. Reviewing the SoPs and cautiously identifying the overlaps and how to address them, with all due consideration given to other regulatory regimes and past practices, is a necessary step that must be completed in advance of any further certification review (addressed in sections 2 and 4). Moreover, the certification process must also be rethought and reformed in order to more appropriately consider and respond to the public interest in its decision-making (addressed in section 3). Beyond our industry’s immediate concerns with certification and SoPs, we also believe that the “public interest” must occupy a much greater role in any decision being made by the College. What the public interest encompasses must be clearly defined and include considerations of economic competitiveness, access to skilled trades for Ontario’s youth, and accessibility to affordable construction services throughout the province, not just the GTHA (addressed in our responses to the questions in section 1). Many in the construction industry had high hopes for the College, given its broad mandate. A number of its major objectives appear to have some significant promise, particularly its ability to address labour shortages in the trades; elevate the standards in the construction industry; protect consumers; and promote the attractiveness of careers in the skilled trades. In its current form, however, the College is not well positioned to deliver on many of the core elements of its mandate, as it has focussed in on the more contentious and ill-defined areas of regulating the practice of trades; establishing scopes of practice; and, to determine whether a trade should have compulsory certification status. The result has been an enduring struggle against the College from a significant portion of the construction employer community. If the College is able to refocus on its wider objectives and reform its structure and processes to be more inclusive and accept and consider a wider range of feedback, there could be merit in the organization. We hope that this review process will provide effective recommendations to address the existing system gaps and problem areas in order to achieve this objective. Summary of Recommendations In summary, our primary recommendations based on the questions posed in this review are as follows: 1. A clear definition of what is the “public interest” must be established as a primary criterion for trade certification and SoP reviews. This definition must be expanded beyond the health and safety categorization to include considerations of economic competitiveness, labour force sustainability/mobility/productivity, consumer interests, access to skilled trades for Ontario’s youth, and accessibility to affordable construction services throughout the province, not just the GTHA. 2. A new independent body (not unlike the HPRAC) must be established by the Ministry of Training, Colleges and Universities with the responsibility for the provisions of evidence based research to support the need, or lack thereof, for the increased regulation of trades. 3. Evidence based research will afford the Ministry and interested stakeholders the opportunity to access unbiased information through: literature reviews; jurisdictional reviews to assess best practices, mobility of skilled trades, etc.; and, legal-based reviews to assess overlapping regulatory bodies in order to limit duplication. 4. This new independent body could allow for holistic considerations far beyond the seven criteria currently guiding the compulsory certification and ratio review process, which should allow for a greater consideration of the public interest mandate of the College. 5. This new body must be autonomous of the College. The body should provide the Minister with advice following a consultation process in which interested stakeholders have had the opportunity to provide submissions based on relevant labour market information developed by the college. 6. The responsibilities of the MOL inspectorate should be expanded to absorb the responsibilities currently being performed by the College inspectors. With such an extensive and trained inspectorate already in place and familiar with the construction industry and its operations, and in the spirit of reducing red tape, decreasing workplace disruptions, and saving the province (and ultimately the taxpayer) money, this seems like a practical approach. 7. The existing OCOT inspectorate should repurposed to focus on: ongoing development of standards, curriculum, and initial licensing; promotion of the skilled trades to both potential members and the users; coordinating roles for both the users of tradespeople and the tradespeople themselves to navigate the existing regulatory schemes efficiently; and., the development of internal responsibility systems, a complaints system, and a public registry for practicing skilled trades. OSWCA would like to thank you for the opportunity to provide feedback on the Ontario College of Trades, its impact on the construction industry labour market, and recommendation for how to improve its performance in the future. We look forward to having the opportunity to meet with you to further discuss our submission and recommendations. Please do not hesitate to contact Patrick McManus (905-629-7766 ext. 222 or if you have any questions or need information regarding this submission, the OSWCA, or its membership.