Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-77

Name of organisation making submission: DR-77 Ontario Home Builders' Association

Responses to questions in submission form

Section A - The Public Interest in this Review

1. What do you understand by public interest?

Defining ‘public interest’ within the context of a regulatory college requires a multi-faceted approach. In the residential construction sector OCOT needs to be considered within a broader regulatory framework of federal, provincial and municipal legislation, regulations, by-laws that are enforced through courts, enforcement divisions and delegated authorities. Home builders must already be registered with Tarion and therefore are bound by a 7-year warranty on the new homes and condominiums they build for consumers. The Ontario Building Code (OBC) ensures consistent building practices that ensure homeowners meet international leading energy efficiency requirements. Health and Safety provisions for both workers and the public are met through the Occupational Health and Safety Act and enforced through the Ministry of Labour. Taken together, Ontario builders operate in one of the most regulated jurisdictions in North America. Our members are proud to deliver safe, energy efficient and accessible homes within this framework, provided that the regulations are reasonable and do not overlap with each other. Within the broader regulatory framework, OCOT’s responsibility to the public should be focused first and foremost on the promotion of skilled trades and apprenticeship in Ontario. This means ensuring workers can find opportunities with employers and employers can find a quality skilled labour force to build the next generation of energy efficient homes and communities across Ontario. This also means researching, studying and creating policy recommendations to break down the barriers for employers to hire apprentices. Unfortunately this has not occurred to date and there continues to be a disconnect between skills demanded by employers and training outcomes. Examples of regulatory agencies that operate in the same space as OCOT include: Tarion Administers the New Home Warranties Act which outlines the warranty protection that new home purchasers are entitled in Ontario. License new home builders and vendors Ensure builders/vendors abide by the Ontario New Home Warranties Plan Act Help educate new home buyers about their warranty rights Protect consumers when builders fail to fulfil their warranty obligations Resolve disputes about warranty coverage Investigate illegal building practices. Promote high standards of new home construction Tarion receives no government funding and is financed entirely by fees collected for builder registration and renewal and new home enrolments. Since it was created in 1976, Tarion has become one of the most comprehensive new home warranty programs in North America. ( Technical Standards and Safety Authority: Purpose: To promote and enforce public safety. Vision: To be a valued advocate and recognized authority in public safety. Company Profile: Putting Public Safety First Since 1997, the Technical Standards and Safety Authority (TSSA) has delivered public safety services on behalf of the government of Ontario in four key sectors: boilers and pressure vessels, and operating engineers; elevating devices, amusement devices and ski lifts; fuels; and, upholstered and stuffed articles. TSSA is a not-for-profit, self-funded organization dedicated to enhancing public safety. With headquarters in Toronto, TSSA employs approximately 380 staff, 70 percent of whom work in operations. Governed by a 13-member board of directors, TSSA is accountable to the Ontario government, the residents of Ontario and its other stakeholders. (Source: Electrical Safety Authority: The Electrical Safety Authority (ESA) was established in 1999 with the mandate to enhance public electrical safety in Ontario. ESA’s vision is an Ontario free of electrical fatalities and serious injury, damage, or loss. ESA’s activities include: • Identifying and targeting leading causes of electrical risk; • Raising awareness, educating, and training in electrical safety; • Ensuring compliance with regulations; • Investigating fatalities, injuries and fire losses associated with electricity; • Engaging with stakeholders to improve safety. (Source: Ministry of Labour: Established in 1919 to develop and enforce labour legislation, the Ministry of Labour's mission is to advance safe, fair and harmonious workplace practices that are essential to the social and economic well-being of the people of Ontario. Through the ministry's key areas of occupational health and safety, employment rights and responsibilities, and labour relations, the ministry's mandate is to set, communicate and enforce workplace standards while encouraging greater workplace self-reliance. The Ministry also develops, coordinates and implements strategies to prevent workplace injuries and illnesses and can set standards for health and safety training. (Source: Workplace Safety and Insurance Board: • For employers, WSIB provides no-fault collective liability insurance and access to industry-specific health and safety information • For workers, WSIB provides loss of earnings benefits and health care coverage. (Source: Ontario Building Code and Ontario Building Officials: The Ontario Building Code is a regulation made under the Building Code Act. There are a minimum of 11 legislated building code inspections for a typical new single detached home. The OBC also requires municipal building code inspections for renovations where there is any significant alteration of a home. The Code: • focuses primarily on ensuring public safety in newly constructed buildings, but also supports the government’s commitments to energy conservation, barrier-free accessibility and economic development • sets out objectives and requirements for new construction • does not provide standards for existing buildings, with the exception of small on-site sewage systems • establishes the qualification and registration requirements in Ontario for certain building practitioners (Source: Building Code Act, 1992 The Role of chief building officials (6) It is the role of a chief building official, (a) to establish operational policies for the enforcement of this Act and the building code within the applicable jurisdiction; (b) to co-ordinate and oversee the enforcement of this Act and the building code within the applicable jurisdiction; (c) to exercise powers and perform the other duties assigned to him or her under this Act and the building code; and (d) to exercise powers and perform duties in accordance with the standards established by the applicable code of conduct. 2002, c. 9, s. 3. (Source:

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

The Dawson Strategic report on Modernizing Ontario’s Skilled Trades and Apprenticeship System will provide additional context in answering the question. “The public” includes stakeholders that aren’t represented formally within the OCOT structure. Students leaving high school searching for apprenticeship opportunities and small builders and renovators who may not have a full time CofQ tradesperson or apprentice on staff nonetheless have a stake in the future of Ontario’s training and apprenticeship system.

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

The Dawson Strategic report on Modernizing Ontario’s Skilled Trades and Apprenticeship System will provide additional context in answering the question. It has been OHBA’s experience working through the ratio reviews, the compulsory certification review of SFPI trade, as well as a close observer of OCOT that there could be more improvement in OCOT’s decision-making processes in balancing opposing interests. OCOT has done a poor job at engaging the diversity of the construction industry throughout the province. This is not necessarily the fault of any of its own institutional failings, but rather due to operating in an inadequate legislative and regulatory framework. The decision-making process is especially flawed as trade boards for voluntary trades are granted statutory powers that allow the board to request certification reviews. This is a procedural ability that sets in motion a costly review of the trade for all stakeholders involved in the review along with OCOT itself. This authority lends itself to increased pressure towards certification everywhere as individuals that populate those trade boards are already inclined towards a certain regulatory landscape that benefits the interest of CofQ holders in that trade. In this system both the employers and employee representatives share similar regulatory goals. While adjudicators and the public may see the employee versus employer dichotomy on a trade board as representative of the industry, it is not adequately capturing the diverse different segments of the public in a policy conversation. In the current structure, trade boards for voluntary trades are almost exclusively populated by unionized employees and unionized employers who likely have direct and indirect relationships with a training delivery agency that receives funds from the province. For instance, in order to be a member of the Sprinkler and Fire Protection Installer Trade (SFPI) board a worker must have a CofQ in that trade and employers are typically engaged in that voluntary apprenticeship program. Since training for SFPI’s is exclusively controlled by the UA Local 26 and Canadian Automatic Sprinkler Association (the employer bargaining association) there is a symbiotic relationship between all workers and employers on that board as it is mutually advantageous for both parties to transfer their monopolistic control over this trade in its limited voluntary status to a provincial context by making this a compulsory trade. Doing so allows both the union and unionized employers to gain significant market share in other areas of the province where they would not normally be able to compete for work. The relationships and incentives for the SFPI trade to become compulsory are repeated to varying degrees for each other voluntary trade board throughout OCOT. Painters, drywall installation, and general carpentry all are trades which the organized industry is directly involved in granting Certificates of Qualification to workers and will therefore benefit from increased demand for workers to register in their training centers. This is also why those voluntary trade boards vigorously defended the highest journeyperson-to-apprentice ratio in the country – which is as high as 4-1 for drywall installation (the highest ratio for any trade, voluntary or compulsory). This incentive structure is also why five voluntary trades made applications for certification prior to the pause and review of OCOT. In this current structure the Ontario Labour Relations Board members, who are used to typically ruling on union-employer collective agreement disputes, found themselves playing an unusually significant role in direct provincial regulatory decision-making. The outcomes in the ratio review process and the SFPI compulsory certification decision reflect a unionized Toronto-centric decision-making framework with Toronto-centric outcomes. The result is Ontario is left with a new compulsory trade (SFPI) with one training centre in the GTA controlling the certification process for an entire trade throughout Ontario. Therefore, OCOT’s structure follows establishes an adjudicative process that appears to be inclusive and transparent engaging the relevant stakeholders to determine industry outcomes. However as the SFPI example demonstrates this is a seriously flawed as it oversimplifies the diversity of construction stakeholders which is far more complicated than an employee versus employer discussion.

4. Is the College currently protecting the public interest?

OCOT is not old enough to provide a complete answer to this question. As the regulator for trades and apprenticeship in Ontario, the Ontario College of Trades (OCOT) is positioned in an important function; however, as the last question highlighted, if ‘public interest’ is interpreted too broadly OCOT can conflict with numerous other agencies and ministries with no way of measuring the effectiveness of the results. The legislation does provide guidance in how ‘public interest’ should be interpreted. According to the Ontario College of Trades and Apprenticeship Act, 2009 Section 10 states that OCOT has a duty to protect the public interest in carrying out its ‘objects and functions’; OCTAA then outlines 16 separate objects. Looking at each object separately it is clear that there have been inconsistent results in how successfully OCOT has performed. Based on OHBA’s engagement over the past few years, the following is how we rank OCOTs ability to fulfil this portion of the Act since it became fully operational. Adequate: 5. To 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. OHBA has heard anecdotal evidence regarding failures in how this has been performed. However, it should be noted that this is a significant administrative change from the previous method under MTCU which was less rigorous in tracking CofQ holders and apprentices. 8. To maintain a public register of its members: Consumers can now search the database to see if a compulsory trade is a licensed member of OCOT. Inadequate: 1. To establish the scope of practice for trades: Although OCOT inherited the SoP from a previous regulation, this remains outdated and with the addition of a new compulsory trade and additional enforcement for previously compulsory trades, there is confusion how overlapping SoPs interact with each other. 2. To regulate the practice of trades: This is a broad and ambiguous legislative responsibility. Although OCOT has handed out tickets to employers for employing workers without a CofQ in compulsory trades there needs to be more transparency in how it goes about performing this object. 3. To govern the members of the College: While OCOT collects fees and has an enforcement division, it is unclear if they have actually disciplined OCOT members for contravening the Act or regulations through any of its disciplinary committees. 10. To determine whether a trade should have compulsory certification status: OHBA participated in the only certification process for the Sprinkler and Fire Protection Installer (SFPI) Trade. Stakeholder concerns with this process have been well documented. OHBA believes that the process failed to serve the public interest. 11. To receive and investigate complaints against members of the College and to deal with issues of discipline, misconduct, incompetency and incapacity: There is no evidence OCOT has formally disciplined any of its members for misconduct, incompetency or incapacity. 14. To work with other governments in Canada and the Minister with respect to the interprovincial standards program for apprenticeship and with respect to qualifications required for trades: OHBA is not aware that OCOT has performed any outreach with respect to his proposal. In fact, in order to transition the SFPI trade as compulsory it is unclear the standards post-February 2017 to determine what workers with what CofQs can install fire sprinklers. In other areas it also is unclear if OCOT is even attempting to harmonize training standards pursuant to the Agreement on Internal Trade and the Ontario Labour Mobility Act. 15. To conduct research in relation to trades: Neither during the ratio reviews or the certification reviews was there any independent research into Ontario’s apprenticeship system. To Be Determined: 4. To develop, establish and maintain qualifications for membership in the College: Not enough context or background to determine whether or not OCOT has been successful in this role. 6. To promote the practice of trades: OCOT is still in its early stages and has done positive outreach to stakeholders and through social media and a new website has created a platform to champion tradespeople and careers in the trades. OHBA looks forward to this becoming a more substantive focus in OCOT resources. 7. To establish apprenticeship programs and other training programs for trades including training standards, curriculum standards and examinations: OHBA has not been able to conclusively comment on this based on information available. 9. To determine appropriate journeyperson to apprentice ratios for trades subject to ratios: OHBA was the most active participant in the ratio review process. We acknowledge and are pleased by positive changes to the ratio. However, the changes were inconsistent and incremental. Ontario is left with the highest ratio system in Canada which makes it more difficult for tradespeople to find apprenticeable work and receive a CofQ. 12. To address compliance issues in respect of matters within the jurisdiction of the College: Too vague of an objective to comment on OCOT’s performance. 13. To provide for the ongoing education of members of the College: To date it is unclear what continuing education OCOT has developed or provided to its members. 16. To perform such additional functions as may be prescribed by a Lieutenant Governor’s regulation. 2009, c. 22, s. 11 (1).: This function will likely be tested at the conclusion of this consultation whether or not they act on recommendations.

5. How should the College advance the public interest?

OCOT needs to consider a broader economic and social agenda to advance the public interest, including fostering relationships between employer associations, the Ontario Youth Apprenticeship Programs, and colleges. While OCOT has done some commendable stakeholder outreach, more could be done to promote training and apprenticeship as OCOT should take a lead role identifying misalignment in demand for workers and outcomes. OCOT reports that only 20 percent of employers are currently taking advantage of the apprenticeship system. Therefore, a re-allocation of resources to allow for additional research capabilities would be central to improvement outcomes. For instance, OCOT should be a resource to both apprentices and employers to promote workplace apprenticeships, acting as an information resource for training tax credits, rebates, and incentives available from the provincial and federal government. Beyond the high ratio, small business could be more active in apprenticeships and OCOT should be examining obstacles for small businesses hiring apprentices. For instance, OCOT could establish a small business committee to study the unique challenges within small business and present policy recommendations that allow more apprentices to learn their trade through a small business. OHBA home builders and renovators have a wealth of experience and knowledge. We need a system that allows these skills to be passed on to the next generation of workers. The Dawson Strategic report on Modernizing Ontario’s Skilled Trades and Apprenticeship System will provide additional context in answering the question.

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.

The SoP for a voluntary trade is only relevant in a practical context if that trade becomes compulsory. For the vast majority of new home builders and renovators, workers perform their tasks in accordance of contractual obligations, collective agreements as well as ensuring compliance with ESA, building codes, the Occupational Health and Safety Act (OHSA), along with numerous other regulatory statutes and authorities. SoP is only relevant in a compulsory trade in the context of OCOT enforcement. Prior to the OCOT enforcement the SoP did not carry much regulatory weight as almost all active regulators in this regulatory field made no reference to the SoPs. For instance, Ontario Regulation 213/91 in the Occupational Health and Safety Act, which governs safety requirements on construction projects, only makes reference to SoPs twice in the entire document. The first reference is for work performed by a “hoisting engineer” in the section related to cranes, hoisting and rigging (Section 150). The second reference is for “electrician – construction or maintenance/ electrician – domestic and rural” in the electrical hazards section (Section 182).

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

OHBA agrees that there is core as well as peripheral elements of a trade in terms of how this is interpreted in an enforcement capacity. The plumbing trade is a good example of this. Plumber 29. (1) The scope of practice for the trade of plumber includes the following: 1. Laying out, assembling, installing, maintaining or repairing in any structure, building or site, piping, fixtures and appurtenances for the supply of water for any domestic or industrial purpose or for the disposal of water that has been used for any domestic or industrial purpose. 2. Connecting any appliance that uses water supplied to it or disposes of waste to piping. 3. Installing piping for any process, including the conveyance of gas, or any tubing for a pneumatic or air-handling system. 4. Making joints in piping. 5. Reading and interpreting design drawings, manufacturers’ literature and installation diagrams for piping and appliances connected to piping. O. Reg. 275/11, s. 29 (1). If the entire plumbing trade’s SoP was enforced literally as written this would become problematic. Taken literally, enforcement would have the ability to fine a worker and employer reading and interpreting design drawings for a piping system. The current SoP also essentially forbids a homeowner from hooking the water supply to a water cooler or new laundry machine or installing a new faucet or showerhead in their own bathroom. OCOT has the legal authority and responsibility to enforce O. Reg. 275/11, but the manner in which they enforce it has been controversial. For instance, construction groups in Windsor have argued that “enforcement officers are going too far with general labourers being fined, booted from job sites or projects being stopped if general workers are found doing such tasks as installing underground plastic pipe for electricity wires or plumbing pipe laying — which OCAT says an electrician or plumber should do.” (source: “Construction industry up in arms over job site enforcement officers” Dave Battagello, Windsor Star March 27, 2014) There have also been instances where OCOT enforcement have visited OHBA member construction sites and have issued documents where OCOT recommendations, in trying to enforce O. Reg 275/11, go well beyond OCOT’s practical regulatory scope and interfere with the role of regulatory agencies like ESA, Tarion, and municipal building officials. These conflicts only serve to highlight the complications in OCOT current legislative enforcement role and scope. Such broad discretionary power is unreasonable. Therefore revisions to SoPs as it relates to OCOT enforcement are needed. Beyond an enforcement capacity it is unclear for what purpose reorganizing SoPs into core and peripheral elements would have as well as how any changes would occur.

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.

Clearly there are elements of a SoP that impact public safety, tradespeople or other workers more than others. However, the process for reviewing how this should be determined is not clear. In the previous example of a plumber SoP, it includes: “installing piping for any process, including the conveyance of gas, or any tubing for a pneumatic or air-handling system” as well as “laying out [...] piping or fixtures” clearly ensuring that gases are vented correctly is more important than ensuring pipes are transported correctly. In an enforcement capacity, it is clear that there needs to be a revision to limit the broad discretionary power of enforcement officers. However, any revised SoP and how this would be interpreted In terms of moving a trade from voluntary to compulsory is much more controversial. The antiquated nature of the SoP only became problematic from a public policy perspective once OCOT was established. All of a sudden, the SoP’s took on additional meaning as they provided the authoritative definition of what a trade is. This definition informed both the new enforcement division and adjudicative process for defining potentially new compulsory trades. If the SoP is to continue to determine what enforcement enforces, it should be limited to core elements in the present compulsory trades where there is a demonstrated risk to public or worker safety. In the context of a compulsory certification review for a voluntary trade, the answer is far more complicated as any modified SoP needs to be reasonably consistent with present construction practices, college curriculums, regional characteristics, worker mobility, collective agreements, Agreement on Internal Trade, and training delivery agent capacity to name a few.

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

The construction industry continues to evolve with new technologies, building materials, tools and best practices. The SoP’s provide a static backdrop against the fluid nature of the industry. And while the SoP’s are clearly outdated and overly broad, answering how SoPs should be defined to inform enforcement activities and compulsory trade reviews is difficult as no other province has established a formal adjudicative process that essentially provides for a perpetual cycle of compulsory certification reviews. The following are three significant characteristics a review should consider: 1. REGIONAL OUTREACH: Any change in an SoP would need broad consultation with all industry stakeholders, not just individuals sitting on OCOT Trade Boards, Divisional Boards or the Board of Governors. In order for the diversity of Ontario’s construction industry to have buy-in to any changes to a SoP, there needs to be outreach more inclusive than the ratio review or compulsory certification review process and regional roundtables should be established with a cross section of industry representatives to provide input into any SoP change. OHBA members in Toronto may allocate workers to perform tasks much differently than our members organize a jobsite in Stratford. Therefore broad-based consultation will be required. 2. SENSITIVITY TO JURISDICTIONAL DISPUTES Any changes to a SoP would also have consequences to jurisdictional claims in the organized sector. Therefore, any reforms would need to undergo a review of collective agreements and OLRB jurisprudence. However, a balance needs to be struck in terms of how much deference should be given to the OLRB. OHBA remains concerned that the OCOT processes already rely too heavily on OLRB. It would be unfair to the non-union construction industry if compulsory trades’ SoP or voluntary SoP relied on negotiations between employers and workers in Toronto. If this happens, a Toronto-based labour system would be directly imposing its bargaining decisions on companies, workers and purchasers of construction services in the rest of the province. An over-reliance on Toronto union-employer bargaining outcomes in policy-making is not in the long-term interest of OCOT as there is already a perception that OCOT is Toronto-centric. Certainly, college curriculums, industry practices, training delivery agent curriculums, and collective agreements all determine the kind of work performed on a site. Changes to the SoP would be a significant undertaking that cannot be addressed with the procedures currently in place. 3. CONSISTENT WITH LABOUR MOBILITY OBLIGATIONS We suggest that if OCOT or MTCU would like to modernize the SoP, this would require regional consultations, a case study examination of collective agreements. Most importantly, if the SoP change resulted in a new compulsory trade, this would also require the province make any changes in consultation with other provinces so that this would not negatively impact labour mobility between provinces by limited workers from outside of Ontario to work in this province. To do so might be contradicting the Agreement on Internal Trade (AIT) and the Labour Mobility Act. Ontario’s obligations under the AIT have important real consequences for OHBA members. Builders in Thunder Bay should be able to use workers from Manitoba if there are no local skilled trades available to complete the work. Ontario has shown in past that the manner in which it designates trades often contradicts our obligations under the AIT. Most recently, the province has been found in contravention of the AIT in the way it issues Certificates of Qualification for crane operators which ruled against Ontario. The adjudicators found that the Ontario system “restricts access to the practice of the occupation” to outside workers, in this case, from Quebec. (source: Agreement on Internal Trade. “Report of the Article 1716 Panel Concerning the Dispute Between Mr. X, a Private Person from Quebec, and Ontario Regarding a Crane Operator Certification.” 23 February 2012.) OHBA is leery of how OCOT would decide to carve out core and peripheral elements in both compulsory and voluntary trades. But if this remains a core recommendation of this review, it will need to proceed with caution. Any new definition will almost certainly create a conflict as a new SoP is essentially superimposing a new definition of a trade on top of decades of labour relations jurisprudence, labour mobility law and diverse regional labour delivery characteristics.

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 above the present SoP is antiquated and overly broad to be considered useful or relevant to support the College’s policy functions.

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

As noted above, although the entire SoP is too broad to be enforceable as a whole.

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 alludes to the development of a ‘core’ and ‘peripheral’ compulsory SoP as outlined in Question 7. This may be potentially more useful than the current approach where the entire SoP is enforceable. OCOT needs to be mindful that a list of activities that pose a risk of harm to the public, tradespeople or other workers likely conflicts or is duplicative with the Occupational Health and Safety Act or other regulatory agencies such as ESA.

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

An overlap is when a task or activity in one trade overlaps with a task or activity in another trade.

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

Overlaps generally do not impact how a business operates and structures its operations day-to-day. What occurs on a site is determined by numerous other regulatory and contractual obligations as well as how a business determines allocate workers to maximize productivity. In the OHBA Submission on the Construction Millwright response, we argued that both the arbitrary nature and the broad scope of an SoP is significantly problematic in how it would be transferred into a compulsory setting. "The construction industry is a dynamic and fluid sector with both short and long-term contract commitments, financing, and collective agreements arranged within the context that the scope of work defined by voluntary trades could be performed by anyone (provided that worker is performing the task consistent with the Occupational Health and Safety Act, legal to work in Ontario based on and other related statutes). Under our voluntary system employers have spent money hiring and training workers to perform tasks that make sense for that employer. Employers have also signed contracts and made commitments based on costs and labour availability within this ‘voluntary’ trade system. Organized labour has also arranged itself to be compatible with the current ‘voluntary’ regulatory environment. Workers have been organized and collective agreements have been defined that already carve out a workers job regardless of the training regulations governing a ‘trade’. Therefore, at present, there are likely numerous firms that (unknowingly) are employing ‘construction millwrights’. Unions may also unknowingly be representing ‘construction millwrights’ and may find themselves in both a jurisdictional dispute as well as an enforcement standard they did not create and did not request. This is because a ‘scope of trade’ (O. Reg. 175/11) is a demarcation of skills based upon a trade boards understanding of a ‘construction millwright’, it may overlap with numerous other skills and trades. While O. Reg. 175/11 definition is not better or worse than others, it was created based on best practices that work for this particular trade board. What this application for certification is effectively doing is attempting to impose a training standard on a group of economic sectors that were not part of that initial standard, nor are they likely even aware it exists. To impose an arbitrary training requirement onto an industry or set of industries that have already established formal and informal relationships and practices outside O. Reg. 175/11 would be a tremendous burden to the economy as a whole. A ruling in favour of compulsory certification would disrupt every relationship with significant consequences to employment, training, and project completion." Although this explanation was specific to construction millwrights, the disruptive effect compulsory certification would have on any trade is significant, in part because of the SoP. However, even if OCOT were to create a system to limit the scope of an SoP prior to a certification review it would only serve to highlight the challenges when trying to create from new a trade definition that will likely conflict with collective agreements.

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 legal interpretation cited on page 15 of the Dean Review Consultation document is a valuable resource as this has never been made public by OCOT (from OHBA’s observation). The interpretation raises two important questions: first, is OCOT’s present enforcement activity complying with this interpretation? Second, does OCOT have the discretionary authority to ignore this interpretation? As this report has highlighted, OHBA has been concerned by regulatory overlap OCOT enforcement is engaged with relative to other agencies. However, this interpretation provides additional concern as to how much discretion OCOT enforcement is using and whether this discretion is in the public interest. OHBA supports this interpretation as it allows for flexibility and potentially takes away an overly-discretionary ability of an OCOT officer to produce fines. However, the fact that this important interpretation is only being made available through this review now is worrisome as this appears to form a significant departure our understanding of OCOT enforcement’s jurisdiction. Again, this document suggests additional scrutiny of OCOT enforcements mandate and function.

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?

A trade should only be deemed compulsory if there are unique and significant health and safety hazards that cannot be addressed within an existing regulatory structure or a new regulatory structure that would be less disruptive than compulsory certification. Equal to this statement is the need for research, jurisdiction review and economic impact of decision. The Dawson Strategic report on Modernizing Ontario’s Skilled Trades and Apprenticeship System will provide suggestions for alternative models for fact-based decision making.

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?

The current compulsory trades are generally aligned with an interprovincial training and apprenticeship system. OHBA believes the current number of compulsory trades is appropriate. As the Dawson Strategic Report highlights, additional certified trades in Ontario would limit apprenticeship and training opportunities, while producing negative outcomes for industry, workers and the public.

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

Yes. However, that does not mean that because hazardous elements exist in a trade that the trade itself should therefore be deemed compulsory. There are ways of regulating hazardous elements in a SoP without having to go through certification. For instance, Ontario now requires mandatory Working At Heights Training due to the health and safety concerns for workers engaged in that activity, regardless of the task they are performing at heights. Compulsory certification implies an incredibly onerous, time-consuming and costly burden on industry that could be achieved more effectively through other regulatory channels.

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?

Identifying elements in a voluntary trade which could be deemed compulsory is an unusual interpretation of the purpose of a mandatory apprenticeship/journeyperson system. First, if this question is implying that a set of tasks that are currently in a ‘voluntary’ system should be deemed ‘compulsory’ this is more or less how proponents of compulsory certification go about advocating for change under the present set of rules. For instance, the SFPI trade board’s central argument during the certification review was around potential hazards during installation of fire sprinkler systems. Nowhere in the SFPI Trade Board submission did they speak to other peripheral components in their SoP such as “prepare cost estimates for clients”. In other words the current adjudicative structure creates a debate that would be very similar to a future review presented in this question. Although the current system designates an entire trade’s SoP as compulsory, it is notable that any conflict with a voluntary trade would essentially make peripheral components of the new compulsory trade voluntary by virtue of that conflict (as outlined in page 15 Dean Review Consultation Guide). Therefore, although the proposal introduces a new method of dealing with how SoP’s are delineated in a compulsory versus voluntary system, it may be similar to how the present system operates. Second, compulsory certification is incredibly disruptive and costly to almost all parties in the construction sector. If there is another regulatory mechanism to address the core elements that may “pose a risk of harm to the public, tradespeople, or other workers” then this should be examined as a more effective option. Regardless of future processes that are established, any new outcome cannot limit apprenticeship and training opportunities. Ultimately, any additional compulsory trades would limit opportunities in the trades by narrowing what a worker can and cannot perform.

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.

OHBA has been critical of the present model for a number of reasons. 1. OLRB is unfamiliar with non-unionized and non-urban environments. OLRB decisions show a complete lack of regard for how a decision may affect different regions in the province. For instance in the SPFI trade, the decision showed no sensitivity to the fact that there is only one training delivery agency authorized to perform the training in the entire province. 2. OLRB model prevents participation from non-experts. The ratio reviews in particular demonstrated how individuals with legitimate concerns regarding the regulatory process were not able to access the onerous and formal requirements to engage the review. 3. OLRB model is adversarial. In both ratio reviews and compulsory certification reviews OLRB organized oral discussions similar to a court room with a formal process for introducing ‘evidence’. 4. OLRB has a limited view of the public interest and construction ‘stakeholders’. OLRB decisions place significant deference for representatives from the trade boards themselves. As articulated in this paper, those individuals, particularly in a voluntary trade have clear objectives towards certification as well as protectionism in terms of entrants into the trade. 5. OLRB decisions disconnected with operationalization. The SFPI certification decision (Section 37) in particular, relied completely on oral deputation from CASA/ UA Local 853 on its capacity to train workers in its training centre. However as the operators of the TDA, CASA/UA Local 853 are clearly incented to remain the sole TDA under a compulsory regime. While we are not suggesting this was inaccurate or inappropriate for CASA/UA Local 853 to make this claim, it is concerning that the process did not attempt to research further into regional training needs for a new compulsory trade. OHBA members from Windsor, Thunder Bay, Ottawa an Kingston need to be confident that there is local training for workers to comply with this new compulsory trade. The certification process as completed for the SFPI trade did not seriously consider the policy implications for builders from outside the GTA. 6. Location limits access for rural participants. Hosting one day for deputations in downtown Toronto severely limits who can access the policy decision-making process. OHBA members from across the province should have the same opportunities to provide input and comment than our members in Toronto. 7. Current process can only accept information provided to it. The process relies completely on individuals to provide evidence. In this system proponents have a clear advantage as they tend to have relationships with the training delivery agencies. They also have more time to prepare a submission as they tend to have members within the trade boards that are making the initial application for certification. This process provides a clear advantage for advocates of certification. Independent expert opinion should be sought through OCOT itself, outside of stakeholders with vested interest in outcomes.

21. How should expert opinion be obtained?

OCOT needs to take a more significant role in providing independent analysis of data to create a regulatory environment that aligns the needs of workers and employers. Unfortunately, expert opinion was lacking in the SFPI review as well as the journeyperson-to–apprentice ratio reviews. OHBA suggests that OCOT should provide in-house research as well as engaging outside economic analysis of any trade prior to the formal submission process so that stakeholders have an opportunity to verify, refute or include this evidence in their submission process.

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

This submission will address the three questions together under question 24 commenting on each criterion separately as outlined in O. Reg. 458/11.

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

This submission will address the three questions together under question 24 commenting on each criterion separately as outlined in O. Reg. 458/11.

24. Are the existing criteria the right criteria?

i) The Scope of Practice of the Trade: This is not even a criteria or up for amendment in the current process. This is a static regulation presented for review. It is unclear how review participants were to engage this. ii) How the classification or reclassification of the trade may affect the health and safety of apprentices and journeypersons working in the trade and the public who may be affected by the work In a voluntary trade this data would be actually be impossible to quantify as its unclear how many workers may be performing work at any given time given the expansive SoPs. To illustrate this, we will use the ‘painter’ a trade. According to data supplied by OCOT there are 266 CofQ holders and 89 active apprentice painters (Trade 404C Painter and Decorator Br 1 Commercial and Residential) in Ontario. The SoP for trade 404C is straightforward: 27. The scope of practice for the trade of painter and decorator — commercial and residential includes the following: 1. Preparing substrates. 2. Applying coatings to substrates. 3. Applying wall coverings to substrates. O. Reg. 275/11, s. 27. Based on this simple SoP, this is a ‘trade’ that is performed time to time by homeowners, students, labourers, property management companies, fulltime non-CofQ painting contractors, or any number of workers either under a collective agreement or not. While “resins, paint, ink and adhesives” is a WSIB Rate Group (512) with a claims history that would provide some context into the safety of workers under that WSIB rate, it would tell you nothing about the safety of that work generally. Workers that are “applying coatings to substrates” as per O.Reg. 275/11, s.27, could be covered under any number of WSIB rate groups including: homebuilding (RG 764), Inside Finishing (RG 719), or Industrial, Commercial and Institutional Construction (723). Alternatively, there are workers that are performing tasks defined by the SoP that may be covered under Hospitals (853) if they are employees of the hospital or landscaping and related services (RG 190) if the worker is employed by a landscaping company. To make it more complicated there are workers that may not even be covered by WSIB if they are in an exempted sector or if it is a casual worker like a home owner. There is no way of producing a data set of workplace accidents for a many voluntary trades. This makes clear comparisons under a compulsory regime difficult. OHBA is not suggesting that because safety data is unavailable or difficult to obtain that safety should not be a criterion, rather that OCOT stakeholder submissions have been unable to articulate safety information beyond anecdotal information. iii) The effect, if any, of the classification or reclassification of the trade on the environment. It is unclear how certification of a trade ever related to environmental sustainability; either positively or negatively. iv) The economic impact of the classification or reclassification of the trade on apprentices, journeypersons, employers and employer associations and, where applicable, on trade unions, employee associations, apprentice training providers and the public. While this question is a key component to any future certification review it also appears to not include workers currently performing this work that do not hold a CofQ. This needs to be added to the criterion. v.) The classification of similar trades in other jurisdictions This question is necessary to answer independently as Ontario has obligations under the Agreement on Internal Trade and the Ontario Labour Mobility Act, 2009 to harmonize certification and licensing of workers. vi.) The supply of, and demand for, journeypersons in the trade and in the labour market generally. There is no way of estimating this as OHBA does not know the number of workers performing this type of work without a Certificate of Qualification. The only somewhat reliable quantitative data would be held by parties with a vested interest in creating a compulsory standard for this trade. How many non-certificate of qualification holders performing work that is related to the SoP is an important question that relates to potential labour shortage issues if this trade becomes compulsory. Similarly, the SoP could be overlapped at any point by any other tradesperson according to our interpretation of O. Reg 275/11. Therefore answering this question is impossible as supply and demand questions in a voluntary trade are not transferable if this became compulsory. OCOT continues to report that only 20 percent of employers are providing apprenticeship opportunities. If OCOT was working to modernize Ontario’s Apprenticeship and training system, employers are ready willing and able to provide hands-on experience for new apprentices. Clearly there is capacity that the current system is not taking advantage of. Even if an additional 20 percent of employers enter into the apprenticeship system this would double the number of opportunities for workers in the skilled trades. OCOT needs to consider how to provide better outcomes beyond this narrow question as it relates to certification. vii.) The attraction and retention of apprentices and journeypersons in the trade. There is no way of estimating this as we do not know the number of workers performing this type of work without a Certificate of Qualification. More importantly, this question misses the point when a voluntary trade is considered being made compulsory. There is no way of estimating how many people are performing this task without being certified. Of course moving towards compulsory status would increase apprenticeships and CofQs in a given trade as workers would be compelled to go into an apprenticeship in order to comply with the law. But we fail to see how that would be a positive public policy rationale in itself. Any ‘gains’ in apprenticeship needs to be heavily weighted besides the broader implications – both economic consequences in terms of labour costs as well as the practical training consequences – for all individuals who are working within the sphere of this trade or not. OHBA members under the current structure want to provide more apprenticeship opportunities in both compulsory trades such as plumbing and voluntary trades that include general carpentry. This remains a critical question for both certification reviews and voluntary reviews. OCOT continues to report that only 20 percent of employers that can offer apprenticeships are actually doing so. While ratios are a component of this there is a significant untapped potential in the current system. OCOT should be examining ways to strengthen outcomes by identifying labour market challenges across Ontario. Employers across Ontario would welcome OCOT as a partner in creating solutions to the skilled trades gap. OHBA is pleased that employer membership to OCOT is not mandatory. The then Parliamentary Assistant to the Ministry of Training, Colleges and Universities, Hon. Kevin Flynn, announced at an OHBA Board Meeting in 2013 that employer membership at OCOT would be optional. This was the right approach to take. OCOT needs to demonstrate value for the services it provides employers across Ontario. As a voluntary membership-based association, OHBA looks forward to educating OCOT on ways to successfully demonstrate value to the employer community.

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?

This submission will address this question under question 27.

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

This submission will address this question under question 27.

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.

While consideration of the OLRB is certainly an important factor that needs to be addressed more thoroughly in future reviews than it has in the past. OHBA is concerned that an over-reliance on OLRB jurisprudence may impose bargaining decisions on broader public policy in regions of the province that have nothing to do with those initial OLRB decisions. Workplace assignment in rural and northern Ontario and non-unionized construction generally are not engaged or part of those OLRB decisions on jurisdictional and therefore OLRB decisions are likely incompatible with workplace realities outside those organized sectors. Conflicts between enforcement’s interpretation of the SoP and over 100 years of labour practices, negotiations and collective agreements has already come into conflict during the short life of OCOT’s enforcement division. This conflict was well documented in the media last spring. These conflicts are inevitable and likely to escalate if additional certified trades become a reality.

Section E - General Response and Comments

28. Please provide additional comments below, if any.

The Ontario Home Builders’ Association (OHBA) is the voice of the new housing, land development and professional renovation industry in Ontario. OHBA represents over 4,000 member companies, organized through a network of 31 local associations across the province. Our membership is made up of all disciplines involved in development and residential construction including: builders, land developers, professional renovators, trade contractors, manufacturers, consultants, services professionals and suppliers. The residential construction industry employed over 322,000 people and contributed over $44 billion to the province’s economy in 2013. OHBA appreciates the opportunity to respond to this important review and we look forward to working with Tony Dean and other stakeholders through this consultative process in order to build a modern apprenticeship and training system in Ontario. We are pleased that Mr. Dean respects the views of areas outside of Toronto and has committed to visiting Kingston, Ottawa, Hamilton, London, Sarnia, Thunder Bay and Sudbury. We look forward to engaging our local association network in these locations to provide Tony Dean with regional perspectives across Ontario. OHBA is pleased that the Government of Ontario has recognized the need for further study into OCOT through this review. By launching this review Ontario has an incredible opportunity to modernize Ontario’s training and apprenticeship system. Every day OHBA members create apprenticeship opportunities from Windsor to Ottawa, Toronto to Thunder Bay. OHBA members want to be even more actively involved in the apprenticeship system, but the current journeyperson-to-apprentice ratio prevents our members from training more workers. This solution is not compulsory certification as this only creates new obstacles for workers and employers. Home builders and renovators need a partner with government and a regulator through OCOT that recognizes the untapped potential of residential construction industry. OCOT reports that only 20 percent of employers are utilizing apprentices. We must do better than this in order to train the next generation of skilled workers that build homes, neighbourhoods, and communities across Ontario. OHBA and our 31 local associations look forward to being partners with OCOT to make this happen.