College enforcement

Under the umbrella of College enforcement, my terms of reference require me to make recommendations on:

1. Opportunities to clarify and improve the manner in which the College makes decisions related to Scopes of Practice of trades, including the enforcement of the prohibitions in Part II of OCTAA; and,
2. What consideration College enforcement should give, if any, to the decisions made by the Ontario Labour Relations Board (OLRB) in jurisdictional or work assignment disputes (between trade unions and/or employers) under the Labour Relations Act.

Like statutes for other self-regulatory colleges, OCTAA sets outs provisions for dealing with matters of complaints, discipline and fitness to practice of members of the College. These provisions are in Part V of OCTAA but were not in scope for this review. Rather, my terms of reference point me to a review of the offence provisions set out in section 86 of OCTAA; specifically, the College’s compliance and enforcement of the compulsory certification requirements (or unauthorized practice of compulsory work) in sections 2 and 4 of OCTAA.

In simple terms, the issues addressed in this part of my review are driven by concerns and complaints by some unions and employers in the construction industry. They say that the College’s approach to enforcement of compulsory certification requirements is inconsistent with the statutory obligations and jurisprudence of the OLRB. The case has been made to me that this is causing uncertainty and disruption on work sites. The College’s approach and the impact on the ground is, for the most part, uncontested, although there are divergent opinions about how to remedy it.

This section of the report is organized in the following way:

• Background: a short history of enforcement of compulsory certification requirements in Ontario
• The College’s Use of SoPs in Enforcement: a discussion of the degree to which the College has sufficient upstream discretion to enforce in ways that could/would be more accommodating of OLRB decision-making and jurisprudence, and of the rights of employers, trade unions and workers that flow from this. This is one of several places in this report where I point to upstream opportunities for the College to play a more active role in addressing issues that flow from overlapping work between trades
• Risk-based Enforcement: a discussion of risk-based approaches as an element of regulation
• The Clash between College Enforcement and OLRB Decision-making: including the origins and nature of this clash, which are already widely acknowledged by construction industry stakeholders. This is supported by cases, comments and concerns from consultation participants
• Approaches to Addressing the Clash between College Enforcement and OLRB Decision-making: including my confirmation of the concerns expressed by consultation stakeholders with the status quo. I also express discomfort with the view of a considerable number of stakeholders that the College’s dedicated enforcement function should be discontinued, on the basis that it duplicates resources in other agencies or inspection functions
• Recommendations Related to College Enforcement: In recommending a role for the OLRB in dealing with appeals arising from certain forms of enforcement activity, I am recommending that the College have formal standing in any such appeals and that any amending legislation arising from government decisions should require the OLRB to have regard, among other things, to the OCTAA

Background

Before the establishment of the College, the Ministry of Labour (MOL) had delegated authority for compliance with the compulsory certification requirements for all compulsory trades named under the TQAA and ACA, except the trade of hairstylist (21 out of 22 compulsory trades). At first, this was as part of a 1993 Order-in Council to MOL to enforce trades qualifications. Later, it was under OHSA’s Ontario Regulation 572/99 – Training Requirements for Certain Skill Sets and Trades, and dealing specifically with training requirements for certain skill sets and trades. Also, Regulation 950 – Proceedings Commenced by Certificate of Offence under the Provincial Offences Act (POA) authorized MOL to issue tickets for non-compliance of compulsory certification requirements: $195 for the worker; $295 for the employer.

In my discussions with MOL officials during this review, I learned that the vast majority of tickets under the POA for non-compliance with the compulsory certification requirements were issued by MOL’s Ottawa-based Jobs Protections Office. For other areas of the province, MOL inspectors used their powers under the Ontario Health and Safety Act (OHSA). The majority of enforcement action took the form of inspector’s compliance orders for contraventions of OHSA. Some trades held the view that this was not a consistent and comprehensive application of the TQAA and ACA requirements across the province. Under OHSA, appeals of an inspector’s order and adjudicative oversight rested with the OLRB. The OLRB already had considerable expertise in analyzing and interpreting appeals contextually and in light of its lengthy experience and responsibility in adjudicating jurisdictional disputes under section 99 of the Labour Relations Act (LRA). The written submissions I received and my discussions in the course of this review have led me to the understanding that the OLRB’s involvement worked very well. We can presume that there would be strong and broad opposition to any suggestion that this might be disrupted.

Furthermore, I understand that MOL inspectors, in carrying out routine inspections under OHSA, checked for Certificates of Qualification but were careful to distinguish these from complaints that were directly related to disagreements between parties about work jurisdiction. MOL policy advice guided inspectors. This advice cautioned inspectors to avoid being drawn into “economic or political” disputes such as those where “two trades are ‘squabbling’ because each wants to be awarded work on a contract” (i.e., a jurisdictional dispute). ^{footnote 24[24]} This leads me to the conclusion that efforts by trade unions to claim work through complaints processes, including under the TQAA and OHSA, pre-date the creation of the College. It is, therefore, not surprising that this matter re-emerged under OCTAA.

In his report and recommendations on the establishment of the Ontario College of Trades Armstrong envisioned a stronger, more collaborative approach to enforcement than what was happening at the time. This approach would involve MTCU field office staff and MOL inspectors identifying and targeting violations to the trades statutes and regulations in place, to ensure health and safety factors such as ratio requirements were being met on job sites.^{footnote 25[25]}

In his recommendation to establish an “Enhanced Enforcement Unit,” Armstrong envisioned it would work closely with MTCU and MOL field staff to enforce all violations of trade statutory/regulatory requirements. He wrote that this enforcement activity “would relate principally, although not exclusively, to the compulsory trades,” and that “statutory enforcement powers could be given to the [College of Trades enforcement team] members.”^{footnote 26[26]} Guiding Armstrong’s recommendations on enforcement was his assumption that the non-enforcement of ratios (which at the time, he noted, was common) could increase health and safety issues. To emphasize this, he recommended tightening ratio requirements — not changing the ratios per se, but the requirements employers had to meet and the penalties they could incur^{footnote 27[27]}. He noted that some stakeholders who called for stronger enforcement of trade provisions recommended issuing MTCU field staff (Employment and Training Consultants) with statutory enforcement powers. His final recommendation supported statutory powers for College of Trades enforcement officers to address the issues noted above. Therefore, it is reasonable to assume he envisioned these officers working in collaboration with other officials in the field to minimize health and safety issues on job sites. Further, Justice Whitaker, in his report, recommended a standing enforcement department, guided by an enforcement framework ^{footnote 28[28]}.

During the Standing Committee hearings for OCTAA (Bill 183), the Ontario government heard from some stakeholder groups who envisioned a stronger and more rigorous enforcement role for the College than had been previously assumed by government. These stakeholders emphasized enforcement to protect the public and the integrity of compulsory trades against persons practising without a licence and who violate work-site codes, regulations or standards. Some stakeholders emphasized that adequate enforcement was important for tradespeople, to ensure the meeting of training and ratio requirements.

In Spring 2013, the government transferred enforcement powers (Part I and Part III offences under the POA) from the Ministry of Labour to the College. The Registrar of the College appoints inspectors and investigators who are designated by the Minister of Training, Colleges and Universities as provincial offences officers, pursuant to subsection 1(3) of the POA. I understand that the enforcement function at the College currently has a complement of around 75 staff, with about 50 enforcement officers.

Since April 8, 2013, the College has been enforcing compulsory certification requirements in Ontario. MOL supported the College for one year while the College prepared to take on its own enforcement activities. The College has a duty under OCTAA to serve and protect the public interest — a duty that applies to the College as it carries out each of its objects and functions. One of these objects is “to address compliance issues in respect of matters within the jurisdiction of the College,” including sections 2 and 4 of OCTAA:

• Section 2 prohibits an unauthorized individual from engaging in the practice of a compulsory trade.
• Section 4 prohibits a person from employing or otherwise engaging an unauthorized individual to perform work or engage in the practice of a compulsory trade.

Enforcing these prohibitions can protect the public interest in a number of ways — for example, by ensuring that only professionals who have met a standard threshold with regard to training and competency perform potentially harmful acts or engage in the practice of the trade with a number of potentially harmful acts, thus reducing the risk of harm. Ensuring compliance with these prohibitions ensures more individuals are members of the College and, therefore, bound by a number of other professional standards and requirements. These would include being subject to public complaints — with potential disciplinary measures regarding professional misconduct, incompetence or incapacity, further to the provisions under V of OCTAA. These are core features of any professional college. The College is bound by its legislation to protect the public interest, even where other bodies mitigate or regulate the risks of harm or consumer protection.

The College’s use of SoPs in enforcement

The College’s Compliance and Enforcement Division has used SoPs as the primary basis for determining whether an individual or person is in violation of the prohibitions in sections 2 or 4, respectively, of OCTAA.

The College has adopted a practice of considering the performance of any act in the SoP of a compulsory trade, subject to applicable exemptions or SoP overlaps, as being equivalent to “engaging in the practice” of a compulsory trade and, therefore, a violation of the prohibitions under Part II of OCTAA. To support this, the College has developed a number of tools, including:

• An SoP Matrix, described by the College as “designed to break down the language in a SoP provision and identify the various possible activities or ‘work elements’ contained within it,” and
• “Overlapping Actions Matrices” and a “General Overlap Catalogue” which work together to identify overlaps in the language between SoPs for different trades.

Some stakeholders have expressed concern that the SoPs, in their current state, do not support such a practice. In the words of one stakeholder, “It is neither possible nor desirable to view every aspect of any trade’s SoP as compulsory and enforce it as such.” This same stakeholder said,

The SoPs are also outdated because they were drafted at a particular point in time and in many cases have been overtaken by technological and other changes. For these reasons, the [OLRB], which formerly had jurisdiction over the trades regulation regime, took a purposive and contextual approach to the SoPs. Rather than giving the terms their dictionary meanings and applying them in a vacuum, the OLRB would only uphold a compulsory trade order if the work in dispute, understood in its practical context, could not be performed safely without the specialized training available exclusively to members of the compulsory trade^{footnote 29[29]}.

This is an important statement. It raises a preliminary question about whether the College is required to defer to dictionary definitions of the SoPs to define what it means to engage in the practice of a compulsory trade for the purposes of the prohibitions under OCTAA. Richard Steinecke’s analysis of scopes of professional activities^{footnote 30[30]} and what it means to “engage in the practice” of a profession suggests that conduct does not necessarily have to be detailed in the (expansive) scope of a profession for it to be regulated. There is a common-law requirement that conduct from a scope of a profession is practised frequently, customarily or habitually to be considered “engaging in practice.” However, this requirement has been loosened when public interest or risk of harm are potential issues.

The point is that there is not a clear definition of what it means to “engage in the practice” of a compulsory trade. This is not necessarily as straightforward as referring to definitions of words in the SoPs. That is, such a rigid reading of the SoPs may not be appropriate for the purposes of defining what it means to engage in the practice of a compulsory trade. Instead, it is my view that the College has an opportunity to approach this within a clear and consistent policy framework to provide clarity on the subject, but now with a public-interest lens that should likely include risk-of-harm considerations.

Current college enforcement activity

Although the information is not on its public website, the College advises that it has established policy and operational procedures to support its enforcement officers in the field. The College describes its policy and operational guidelines as grounded in principles, such as the:

• promotion of compliance through information and education
• application of rigorous methodology exercise of discretion on whether or not to enforce on a case-by-case basis
• protection of the public interest

The College’s how to conduct an inspection procedure refers to enforcement officers’ use of their discretion:

[If] an individual/employer is not in compliance or if any violations are observed the Officer evaluates the situation and uses his/her discretion based on many factors (such as the individual knowingly not having a licence and therefore putting public safety at risk, attitude, contravention of SoP, result of previous encounters, complexity, etc.) to decide how to proceed.

These procedures refer to violations. The College has gone to great efforts to define “violations,” using various matrices breaking down and comparing the language contained within SoPs. It also includes an assertion that there is an automatic equation between “knowingly not having a licence” and “putting public safety at risk.” While it is important to provide enforcement staff with discretion, a more responsive, risk-based reading of the SoPs to define the violations themselves may provide more considered and consistent results.

The College provided me with a brief snapshot of its enforcement activity during the period of this review. For the period January to September 2015, the College reports about an even split for field inspections between the motive power and construction sectors, with 50% (3,916 field inspection visits) and 46% (3,565 field inspection visits), respectively. About 4%, or 281 field inspection visits, were in the service sector. Of the total number of field inspection visits during the same period, the enforcement officers issued 113 tickets to individuals or employers in the motive power sector and 136 tickets to individuals or employers in the construction sector. These included 69 in ICI construction and 67 in residential construction.

The total number of tickets issued in ICI construction was about 10% of the total enforcement action (69 tickets issued for 670 unauthorized individuals found). However, the use of provincial tickets and reportedly aggressive warnings has caught some employers by surprise. This is particularly so in circumstances where employers were working with the belief that other mechanisms (e.g., collective agreements of unions and employers, jurisprudence from OLRB decisions) were addressing matters of work assignment and where no such enforcement has occurred for decades.

Not all enforcement action against unauthorized people engaging in the practice of a trade results in tickets. The College uses a number of tactics to bring individuals and employers into compliance. These include providing information and education. For example, the College tells out-of-compliance individuals about apprenticeship options, the Trade Equivalency Assessment process ^{footnote 31[31]}, and College membership. This approach is commendable in its encouragement of College membership and, potentially, ensuring more people are subject to various standards under provisions in Part V of OCTAA.

However, rigid readings of SoPs continue to define out-of-compliance individuals — subject to various exceptions, exemptions and SoP overlaps. These rigid readings do not directly take into account risk of harms or jurisdictional overlaps that are not in SoPs. Also, they may not provide relief to individuals who should not be required to move into compliance from a risk-of-harms perspective.

The College has also developed an enforcement blitz protocol. This protocol is aimed at targeting enforcement efforts in specific sectors and geographic areas to ensure maximum impact, based on sectors with the highest complaints. The College carried out blitzes in the construction and motive power sectors in two regions in the first half of 2015, and is planning another two blitzes for 2015. The College has not provided any evidence that these enforcement activities focus on high-risk workplaces or the underground economy — in fact, complaints seem to be the driver.

Risk-based approach to enforcement

Risk-based approaches to regulation have been evolving for a number of decades, particularly as an element in efforts to modernize regu- lation. Risk-based and data-driven approaches and tools have enabled a broader range of policy choices, resolved conflicts between competing interest groups, and provided objectivity and transparency for defensibly explaining resource allocation^{footnote 32[32]}. For example, in the UK, the Professional Standards Authority oversees the work of nine health regulatory bodies, using an approach it calls “right touch regulation.” This works to identify an appropriate regulatory force for a quantified and qualified assessment of risk of harm.

The use of a risk-based approach to enforcement is also common among regulatory authorities in Ontario, including the Technical Standards and Safety Authority (TSSA) and Electrical Safety Authority (ESA). The TSSA has a broad mandate to ensure the safety of a wide number of diverse things. They include elevating devices, amusement park devices, stuffed articles, and the transportation, handling and storage of volatile gases. The TSSA uses a “Risk Informed Decision Making” process to manage its regulatory priorities^{footnote 33[33]} This process includes the World Health Organisation’s disability-adjusted life-years (DALY) metric. DALY provides a rational way to combine injuries of different severities into a single unit of measurement. The ESA has also undertaken extensive work to develop a risk assessment to deal with people who operate or hold themselves out as operating an electrical contracting business without valid licences.

The College also recognizes this. In 2014−2015, Michael Rothe^{footnote 34[34]} undertook a review of the College’s Compliance and Enforcement Complaints Process. The review concluded in March 2015. It included recommendations that the College adopt a risk-based enforcement approach to regulating the industry and consider the use of POA sparingly, and as a means to combat the underground economy. The review specifically recommended the College adopt an approach similar to the one that the TSSA uses:

Ontario College of Trades (OCTO)…would greatly benefit from a similar approach to enforcement. Instead of passively reacting to consumer complaints, like the majority of the regulated health professions, or sending out its limited cadre of EOs to conduct random inspections, as is currently the practice, the College would be able to identify and concentrate on those sectors of its regulated mandate which poses the most significant and systemic risks to the public and justify this both to the public and government alike on the occasion of a “tail risk” event^{footnote 35[35]}.

I understand that the College’s Board has adopted the recommendations of the review, with a view to strengthening enforcement practices by adopting a risk-based approach. I strongly support this. The Rothe report intersects in a timely way with some of the themes I am discussing. It relates directly to my discussion of the broader policy on interpreting what it means to engage in compulsory trades: supporting a transparent, defensible, and predictable approach — informed by risk of harms. The framework and specific interpretations should be publicly available to support this.

Many stakeholders also spoke to me about a perception of overlapping mandates between the College and other regulators. This is expected within a system as large and complex as the trades system. I understand a number of bodies, including the College, regulate many of the same tradespeople or the work they perform. Some of these other regulators, like the TSSA, have expressed a desire for greater collaboration with the College, specifically with regard to its enforcement practices and the way it uses SoPs to inform these practices.

I am advised that some College stakeholders, including employer and employee representatives, have offered to provide their expertise in the field to the College. The need for collaboration is important. I am recommending that the Board establish an advisory committee made up of its stakeholders. This draws on Armstrong’s recommendation that there should be resources for a joint employer/employee “Enhanced Enforcement Unit” to engage in both enforcement issues related to compulsory certification and broader public-policy priorities of protecting the public (e.g., the underground economy).

Like other regulatory colleges, the College’s Board has the authority to establish committees under OCTAA. Regulatory colleges typically establish standing or ad-hoc committees that serve important functions in the operation of the College’s programs and services. For example, the Royal College of Dental Surgeons of Ontario has a standing Professional Liability Program Committee made up of non-Board (Council) members. This committee brings all of its decisions as formal recommendations to the Board (Council) for approval.

The clash between college enforcement and decisions of the Ontario Labour Relations Board

The College’s decision to adopt the full scope of practice for trades as a benchmark for enforcement includes work on the “periphery” of the trades. There has been some reaction to this notion of the “periphery” of trades. It might be helpful to begin by referring to Armstrong’s comments on compulsory certification. Armstrong recognized and cautioned that “the contours of parts of the particular trade’s functional components sought to be included in the compulsory description of the trade that may give rise to undesirable and avoidable ‘overlap’ problems: e.g., the inclusion of non-hazardous, non-complex peripheral functions beyond the essential core components of the trade^{footnote 36[36]}.”

For clarity, this is the contextual meaning I give to “periphery.” The majority of construction tradespersons I engaged with during my consultations readily understood the concept in the same way.

It is uncontested, particularly in the construction sector, but also across other sectors, that overlapping work exists between trades. For decades, disputes about these areas of overlap (almost entirely in the construction industry) have been resolved between trade unions, or between unions and employers, and captured in various kinds of arrangements. In some cases, disputes about trade jurisdiction (which in most cases is synonymous with union jurisdiction) were referred to the OLRB as jurisdictional disputes. They were settled in that forum based on criteria that the Board established. Its decisions have been widely accepted. The OLRB’s expertise, experience and long-standing credibility in dealing with work jurisdiction and other labour-relations matters is regarded as being unparalleled in Ontario. I return to this later.

In the weeks following my appointment, it quickly became apparent to me that the question the minister asked me to address could be unpacked a little further: The core of the issue is that there is a clash between College enforcement practices and the OLRB’s jurisprudence in adjudicating jurisdictional disputes under section 99 of the LRA.

Inevitably, the College’s decision to adopt an approach to enforcement where the performance of any act in the “full scope of practice” for a compulsory trade is equivalent to “engaging in the practice” of a compulsory trade^{footnote 37[37]} (and, therefore, enforced against) will conflict with, and in some cases override, previous agreements between workplace parties and past decisions of the OLRB in resolving jurisdictional disputes.

This description of the core of the issue is widely recognized by College stakeholders in the construction industry. There was clearly a pre-existing consensus on the nature of this issue prior to my appointment as reviewer. This “clash” and its relationship with SoPs was set out in foundational briefing materials provided to me by Ministry and College staff ^{footnote 38[38]}. In response to my further requests, staff provided examples of how this clash was materializing on work sites (see below).

It is hardly surprising then that my characterization of this clash in discussions with stakeholders across the province has been, almost entirely, uncontested. Regardless of the magnitude of the College’s approach to enforcement (addressed below), it has been alleged that it has had a tangible impact on the pre-existing rights of trade unions, workers and employers — with the potential to have a far greater impact. I am inclined to agree. This needs to be addressed. I make recommendations that will do that without compromising any rights and agreements that pre-date the inception of the College. Not addressing this will cause disruption to the ability of the College to meet its mandate.

Evidence related to the college, work jurisdiction and the OLRB

A number of concerns have been raised with me about the negative impacts of the College’s approach to enforcement. This section of the report describes two major concerns along with some case studies and a representative sample of stakeholder comments on the issues raised. The first concern relates to the appeal mechanism under OCTAA:

Under this new regime the role of the [Ontario Labour Relations] Board has been eliminated. OCOT inspectors issue charges that are prosecuted under the Provincial Offences Act. These charges can only be challenged before the provincial court, which lacks both the expertise and the jurisdiction to interpret compulsory trades restrictions in their proper context, Trade unions have no standing to challenge charges or to participate in proceedings before the provincial court, even where the charges in question fundamentally affect the interest of the workers they represent. The provincial court also lacks jurisdiction to issue a stay, which unnecessarily threatens the stability of construction projects and opens the door to abuse. The result is a compulsory trades enforcement regime that lacks the required expertise, principled guidance and procedural safeguards necessary to ensure its fairness, rationality and overall legitimacy ^{footnote 39[39]}.

A second concern, raised by the Labourers’ International Union of North America Local 183, together with other unions, employers and employer associations is that the College’s enforcement staff are receiving a number of complaints about work jurisdiction that previously would have been the subject of consideration and adjudication at the OLRB. Further, there are suggestions that these complaints involve efforts, potentially on the part of competitor trade unions, to re-litigate jurisdictional disputes already settled by OLRB decisions or which were previously matters included in workplace agreements.

In my meetings across the province, those raising issues about the College’s enforcement activities expressed a parallel concern about the potential for the disruption of long-standing working arrangements on construction work sites. In my view, these are serious concerns that merit attention.

The College’s position to date has been to enforce to the full scope of practice. It has been suggested to me that some planned enforcement activity has been stayed, pending this report. If my recommendation in this area is approved, implementation would require the re-examination of some enforcement practices.

In some cases, the clash between College enforcement and OLRB jurisprudence has been predated by decades-old battles over work jurisdiction involving large and powerful unions in the construction industry. Common examples include the installation of electrical conduit to carry cables, trenching for the installation of drains and, more recently, activities involved in the installation of solar panels. The examples below show the re-emergence, in the context of College enforcement activity, of disputes involving some of the same work and the same trade unions.

The College provided me with briefing materials which included examples of “clashes between College enforcement and the OLRB’s jurisprudence.” I have included a representative sample of cases, comments and concerns from the briefing materials and from consultation participants, below. In each case, there has been a disruptive impact on the work site. As suggested earlier, there is no practical right of appeal for the trade unions negatively affected by the enforcement activity. These cases are well known in the construction industry. They have become a focal point for many stakeholders concerned about the mandate and operations of the College.

Also cited is a concern raised with me by the Ontario Sewer and Watermain Construction Association. Concerns raised by employers, employers associations and trade unions are also cited below.

Stacey electric — Windsor Herb Gray Parkway ^{footnote 40[40]}

Many stakeholders cited this landmark case. It triggered widespread concern on the part of some voluntary trades and their employers/employer associations. This case dealt with work involving the installation of street and tunnel lights on the Herb Gray Parkway in Windsor (the Windsor Parkway). The accounts of the work performed and the views on the appropriateness of the College’s enforcement action vary, depending on the source. However, there seems to be no dispute that, in April 2014, a College Inspector issued 11 provincial offences notices (tickets) to Stacey Electric, one of the primary electrical contractors involved in the Windsor Parkway Project. This was on the grounds that it had employed or engaged uncertified members of LIUNA Local 625 to perform work or engage in the practice of the compulsory trade of Electrician — Construction and Maintenance, in violation of section 4 of OCTAA. Each ticket carried a fine of $360. There was no ticketing of individual workers.

Given that the College Inspector threatened to issue more tickets, with higher fines, if the breach continued, Stacey Electric decided to stop assigning the work in question to the labourers ^{footnote 41[41]}. Instead, it assigned the work to certified electricians. Accounts diverge on the exact nature of the work being performed by LIUNA’s members. According to the College’s Enforcement arm, non-electrician construction labourers were found hooking up electrical wires. The College considers this work to be dangerous and part of the SoP for the Electrician — Construction and Maintenance trade. According to LIUNA, certified electricians carried out all electrical work. The labourers only performed “civil” (or non-electrical) work that “ did not involve installing electrical cables or working with live electricity^{footnote 42[42]}.” Specifically, the labourers were only installing conduit, cable tray and ground rods, which is “the kind of work that has been carried out by members of LIUNA for decades both in the Windsor area and across the province ^{footnote 43[43]},” apparently pursuant to a previous OLRB decision in the context of a different construction project.

LIUNA Locals 625, 1059 and 1089 used the Stacey Electric case to illustrate the shortcomings of the new enforcement regime under OCTAA. In their submission, while Stacey chose to defend itself by pleading not guilty to the charges, LIUNA Local 625 had no status or standing before the provincial court to contest the charges or participate in the proceedings.

The provincial court hearing was scheduled for five months after the charges were laid. Meanwhile, Stacey was placed into receivership and the charges were stayed. The LIUNA locals argued that, had the case made it to court, it is unlikely that the provincial court would have applied the Weinmann case (which found that non-electrician members of LIUNA had the experience to perform precisely this kind of work safely) — given its lack of expertise and express jurisdiction to analyze the charges purposively, contextually and consistently with the OLRB’s jurisprudence on jurisdictional disputes. The LIUNA locals submitted that the Stacey scenario threatens to repeat itself unless OCTAA’s enforcement regime is remedied on an urgent basis and that expanding compulsory certification would only increase the problem ^{footnote 44[44]}.

I have been advised that, as a result of the Stacey Electric charges, the Labourers and others raised strong objections with the Government of Ontario to the use of the College's enforcement power for jurisdictional purposes.

Greenfield energy centre in Sarnia ^{footnote 45[45]}

In 2012, the OLRB had issued a decision^{footnote 46[46]} confirming the assignment of the disputed work (i.e., taking off and putting back of heavy bore air and gas line piping, lube oil piping flanges and spools, and flanges and spools necessary to disconnect certain turbines, generators and other equipment) to the Millwrights over the Steamfitters. In 2014, the College received a complaint about this work assignment. The College carried out an inspection. It was provided with the 2012 OLRB decision as proof that the assignment of the work to the Millwrights had been correct, and that the College should not proceed to enforce.

The College considered the matter and concluded that, in spite of the OLRB decision, some of the disputed work (i.e., reconnecting the interconnected piping on the turbo generator) should be performed by Steamfitters only (not by Millwrights)^{footnote 47[47]}. Moreover, the College disagreed with the OLRB’s decision to assign the entirety of the disputed work to the Millwrights, because such finding was not supported by an analysis of the respective SoPs under OCTAA regulations. In particular, the College found:

• The OLRB should not have treated the skill and training factor as “neutral,” given that the two trades are not actually on equal footing from a training point of view with respect to the disputed work. (Construction Millwrights receive some optional training associated with systems that are pneumatic or hydraulic in nature, while the Steamfitters receive extensive training over a broad range of systems, including high-pressure systems which incorporate piping.)
• The OLRB appeared to have treated the SoPs in the TQAA regulations in a perfunctory manner, without defining or applying relevant terms, such as turbine.

In the final event, on or about October 22, 2014, College Enforcement exercised its discretion and decided not to enforce OCTAA prohibitions against the Millwrights. The College’s intervention was disruptive, nevertheless. This case provides clear evidence of the reality of the clash between OCOT enforcement and the OLRB.

Greely construction — Ottawa LRT

LIUNA’s Central & Eastern Canada Regional Office wrote to the Reviewer on May 7, 2015, to raise concerns about a Field Visit Inspection involving the consortium working on the Ottawa LRT.

According to LIUNA, a College Inspector has “threatened” to lay charges and possibly pursue an injunction if subcontractor Greely Construction continues to use LIUNA members to lay conduit. LIUNA asserted that, for several decades, its members have been laying conduit pipe pursuant to clear, decades-long jurisprudence from the OLRB ^{footnote 48[48]}.

Solar farm in Cochrane

LIUNA’s Central & Eastern Canada Regional Office wrote to me on March 27, 2015, to raise concerns about a warning that College Inspectors had given on March 19 to an electrical contractor performing work at a solar farm in Cochrane ^{footnote 49[49]}. According to the College’s Field Visit Inspection Report, College Inspectors attended at the site in response to a complaint to the College. After verifying the workers’ trade certification, the Enforcement Officer appears to have discussed the matter with representatives of the electrical contractor and subcontractor involved. The Enforcement Officer instructed them that Electricians must perform the installation of solar modules, specifically metal racks being used as raceways, as the work falls within the SoP for the Electrician trade. The inspectors also secured an agreement from the contractor and subcontractor “that this work must be done by Electricians as of March 19, 2015 ^{footnote 50[50]}.”

LIUNA claimed that College Enforcement had made a “jurisdictional determination” that interfered with its jurisdiction, relying on a 2014 OLRB decision which had previously gone in LIUNA’s favour (H.B. White)^{footnote 51[51]}.

The briefing material that the College provided to me suggests that the work in dispute in the H.B. White decision may be different from the work in dispute in the solar farm in Cochrane. I take the view later in this report that this sort of determination would be better made by an administrative tribunal such as the OLRB.

Concerns raised by large employer associations and small business

I heard myriad concerns about the College’s approach to enforcement in every region of the province. These came from both small and large employers, as well as industry associations. Here are four examples.

In its submission to me, the Sarnia Construction Association points to the tension between the realities of overlaps in the work of both compulsory and voluntary trades, and the College’s approach to enforcement. The association maintains that the creation of the College and its current approach to enforcement creates a greater possibility of jurisdictional disputes arising on job sites. It alleges that some compulsory trades are now attempting to use their Scope of Practice to support jurisdictional claims. The association states that, “These claims have been frivolous and raise the danger of OCOT’s involvement in labour relations matters. This will not only be disruptive but could also lead to increased costs to the industry. Jurisdictional claims should be resolved by the parties to the dispute and/or by the OLRB if necessary, and not by OCOT. (DR-8 – Sarnia Construction Association)

The Heavy Construction Association of Ontario’s submission argues that SoPs set out in Ontario Regulation 275/11 under OCTAA do not accurately reflect the way that work is actually assigned in the construction industry. The Association argues that, “when the TQAA was replaced by the OCTAA there was no reasonable justification for stripping the OLRB of jurisdiction over appeals of decisions regarding what does or does not constitute the exclusive work of a compulsory trade, and all such authority should be immediately restored to the OLRB.” The Association maintains that the OLRB has regularly adjudicated these matters for decades in the context of appeals of stop work orders issued under the TQAA, as well in the context of jurisdictional disputes between trade unions. A further concern raised by the Heavy Construction Association of Ontario is that OCTAA’s restrictions on employers’ ability to assign work that arguably falls within the SoP of a compulsory trade are not responsive to varying geographic or sectoral conditions in the construction industry. It contrasts this with the OLRB’s approach in resolving jurisdictional disputes between construction trade unions, under which local area practice is an important consideration. (DR-49 – Heavy Construction Association of Ontario)

Hydro One Networks Inc. reinforced the view that potential conflicts between decisions of OCOT and the OLRB are a major concern, stating that there should be a single authority for decision-making. Hydro One’s submission stated that “OCOT should not penalize an employer for following direction from the OLRB. An employer should not be left in the untenable situation of having to disregard one or the other.” (DR-30 – Hydro One Networks Inc.)

The Ontario Sewer and Watermain Construction Association (OSWCA) raised a concern with me about one of its smaller members receiving a warning and the threat of fines over the installation of electrical conduit piping. The OSWCA stated that, “This is the same jurisdictional issue that has arisen in other areas of the province, most notably on the Herb Grey Parkway, though in this instance it involves a much smaller contractor on a much lower profile job … we do sincerely hope that the recommendations from your review process clearly spell out how disputes between past practice, OLRB decisions, and Ontario Regulation 275/11 – Scope of Practice –Trades in the Construction Sectorg are to be dealt with, as the uncertainty with how to work through this is increasingly difficult ^{footnote 52[52]}.”

Concerns raised by Trade Unions

As well as the extensive submissions filed by LIUNA on enforcement concerns, other unions raised concerns about the College’s approach to enforcement:

The Carpenters’ District Council of Ontario’s submission makes the case that where the OLRB has already made a determination that certain work is shared, and can be properly performed by more than one trade, the College should defer to the OLRB and adopt the Board’s contextual approach to SoPs, The submission states that “To do otherwise would create a nightmare of conflicting rulings that would grind our industry to a halt. In addition, we would also assert that the College, in undertaking its enforcement activities, must vigilantly guard against parties trying to use it to win jurisdiction via the backdoor.” (DR-26 – Carpenters’ District Council of Ontario The Millwright Regional Council of Ontario takes the view that “the Scope of Practice in regulation in no way reflect the ways in which work is actually assigned in its trade or sector.” It further states that “assignments of work through mark ups have successfully survived for many decades in Ontario from past practice in board areas to past OLRB decisions, contractor assignment letters, along with the many trade agreements, allows all trades and the OLRB to conduct their business” (DR-25 – Millwright Regional Council of Ontario).

The Iron Workers District Council of Ontario takes a similar view, noting that SoPs “do not reflect the way that much work is actually assigned by employers” and that “the College ought to consider and defer to the Board’s role as an expert labour relations construction tribunal.” (DR-17 – Iron Workers District Council of Ontario).

Approaches to addressing the clash between college enforcement and OLRB decision-making

It is clear from the cases cited above and from my discussions with hundreds of College stakeholders, that there is a clash between College enforcement and the OLRB’s statutory obligation to adjudicate jurisdictional disputes, its jurisprudence and, in some cases, workplace-based agreements. College enforcement activity is disrupting stability on construction work sites in Ontario. It is further evident that there are disruptions in circumstances in which employers, workers, and trade unions believe their rights have been crystallized by OLRB decisions, workplace agreements or past practice.

Additionally, all of this appears to be well known and understood by the College enforcement function which, arguably, has the opportunity and flexibility to change its approach. On the evidence in front of me, these are my findings on this issue.

That being said, there are different views on how to resolve the matter. I now arrive at the heart of what the minister asked me to consider. In response to the question raised in my terms of reference, the College and the compulsory trades expressed concern about any role for the OLRB or consideration of its jurisprudence in the administration of College enforcement. A minority of the submissions providing advice on this question support this position; for example, the Ontario Glazier Apprenticeship and Training Committee (DR-46).

On the other side of the minister’s question, there are large swaths of stakeholders who would like to see the College enforcement function returned to the Ministry of Labour. They include: The Skilled Trades Alliance, trade unions such as LIUNA Locals 625, 1059 and 1089, LIUNA Local 183, LIUNA Canadian Tri-Fund, the Carpenters’ District Council of Ontario, and the Iron Workers District Council of Ontario and its Locals 700, 721, 736, 765, 759, and 786; and employers such as the five contractor associations represented by the law firm of Filion Wakely: Ontario Formwork Association (DR-72); Residential Low-Rise Forming Contractors of Metropolitan Toronto and Vicinity (DR-73); RESCON (DR-74); Utility Contractor Association of Ontario (DR-75); and, Ontario Concrete and Drain Contractors Association (DR-76).

Among these are employers and unions which, based on correspondence and discussions during my review period, would be more accepting of College enforcement if it included a bridge back towards the OLRB for the adjudication of appeals filed against College enforcement action. In my view, this approach finds sensible middle ground between the contested status quo and the contentious proposal from a number of vocal stakeholders that the College’s enforcement function should be eliminated.

In addition to the virtues of middle ground, there are very good substantive policy and labour-relations reasons to consider a role for the OLRB in enforcement appeals. I discuss this below. I am not inclined to recommend the return of College enforcement to MOL. At the same time, I have a strong sense that the “clash” between College enforcement and OLRB jurisprudence will recur and likely intensify. I have seen no evidence that would convince me otherwise.

The Ontario Labour Relations Board

The Ontario Labour Relations Board (OLRB) is an administrative tribunal. It decides, among other matters, jurisdictional or work assignment disputes between trade unions and/or employers under the Labour Relations Act (LRA). “The purpose of vesting this power in the Board is to substitute an effective legal process for labour relations strife ^{footnote 53[53]}.” Since 1966, the OLRB has provided legal certainty and labour relations stability. The OLRB is an accepted, expert forum for the resolution of jurisdictional disputes where trade unions and employers alike are comfortable litigating and can expect fair, independent and impartial decision-making.

The purpose of a work assignment or jurisdictional dispute is to have the OLRB determine whether an employer’s assignment of particular work to the members of a particular trade union in a particular work site or geographic area is correct, and consistent with past practice, relevant collective and jurisdictional agreements, and understandings between specific trade unions and employers.

Collective agreements may have their own descriptions of the work of a particular trade at a work site, and these descriptions may or may not be consistent with the SoPs in regulation.

Prior to the creation of the College, the OLRB was used to adjudicate TQAA compulsory trade restrictions under OHSA. This is demonstrated in the case of PCL Constructors. It involved the labourers and sheet metal worker unions. PCL and the Labourers appealed to the OLRB a stop-work order enforced under OHSA’s health-and-safety violations. In addition to interpreting regulations under TQAA and OHSA and reviewing jurisdictional dispute jurisprudence, the OLRB made determinations to suspend the order (thereby allowing work to continue), based on a number of considerations:

1. that prima facie, the disputed work in question did not meet the description of work under the sheet metal workers’ Regulation 572/99
2. whether worker safety was endangered by stopping the work
3. the relative prejudice to the parties if the order was or was not suspended and the motives of the party making the complaint (i.e., whether it was for jurisdictional reasons, or health and safety ones, which the inspector was required to enforce)^{footnote 54[54]}.

Following suspension of the work order, the OLRB made a more lengthy analysis using a contextual approach and adjudicated in favour of the contractor and the Labourers. It did so based on the OLRB’s interpretation of the purpose of the TQAA (to provide appropriate training), the nature of work being performed and other factors.

Through its decisions, the OLRB either confirms an employer’s assignment of work to members of a particular trade union or overturns an existing work assignment and directs that the assignment be made to members of a different trade union.

Unlike the College’s enforcement action, the jurisdictional disputes that the OLRB adjudicates are not about the work of a trade under the applicable SoP in regulation but about which union has a better claim to particular work in a specific work site or geographic area, based primarily on past practice.

The OLRB has developed a large body of jurisprudence, setting out the factors to be considered in deciding a jurisdictional dispute. The standard factors the OLRB considers are:

• collective bargaining relationships
• trade agreements between the competing unions
• tribunal decisions
• employer practice
• area practice
• safety, skills and training
• economy and efficiency
• any other relevant factor^{footnote 55[55]}

The premise of that approach is the interpretation of the SoPs in regulation, without reference to the OLRB’s jurisprudence.

The OLRB does not always consider the SoPs established in regulation for the trades involved.^{footnote 56[56]} When the OLRB does consider SoPs, they usually fall under the “safety, skills and training” factor, and as only one element of this factor.

It appears that a main consideration in applying the “safety, skills and training” factor is not whether the work falls within the SoP of a compulsory or a voluntary trade, but rather whether the trades involved have been trained in the work and are able to perform it safely^{footnote 57[57]}. It is notable, however, that the OLRB has given weight to SoPs for trades in cases in which the disputed work is closer to the core (or potentially more harmful) work of compulsory trades. College officials advised me that the College is concerned that the OLRB, in making jurisdictional decisions, is not required to give precedence to the College’s SoPs. This, of course, would be the flip-side of arguments made by others that College enforcement decisions should be deferential to OLRB jurisprudence. Upon careful consideration, I am disinclined to recommend either of these approaches.

However, I do see a role for the OLRB in adjudicating appeals of College enforcement. Together with that, it seems to me that my recommendations should allow for some porosity or reflexivity to emerge over time between the College’s approach to enforcement and the OLRB’s jurisprudence. In that light, I have considered a requirement that, in adjudicating appeals, the OLRB’s considerations should have regard to OCTAA. Together with the College having standing at such appeals, this would provide a forum in which the College could speak to the objects of its legislation and thus open up the possibility of an emerging bridge between the two, albeit independent, institutions.

Unforeseen consequences of the college’s approach to enforcement

During my review, I spoke with a large number of people involved in the formation of the College, government officials involved in policy development associated with the College and a broad range of stakeholders. The College’s approach to enforcement has caught them off guard. It flows from this that the policy development process did not involve an assessment of the consequences of this approach to enforcement and the resulting implications for the trades and OLRB decisions.

Armstrong offered some important guidance about unintended policy and operational outcomes associated with the College in his report. Armstrong commented on the relationship between any future trades legislation and the jurisdictional rights of trade unions. He said that “[it] should also be made clear, in any legislative redrafting, that nothing in the training legislation or in the Regulations under any Act (such as Ontario Regulation 572/99 under the Occupational Health and Safety Act) is to be construed as dealing with the jurisdictional rights of trade unions^{footnote 58[58]}.”

It seems that exactly the reverse has happened.

As noted above, at the root of this issue are decades-old overlaps between the work of trades. This is endemic in the construction industry and has been for years. In view of competitive pressures, employers’ constant search for flexibility and competitive advantage, and practical realities on work sites, this is unlikely to change. Where this results in circumstances where untrained and/or uncertified workers are performing work that attracts a risk of harm to themselves, co-workers or the public, the availability of strong enforcement is an important tool for regulatory agencies. The College has, in collaboration with others where necessary, put some focus in this area.

On the face of it, though, at least some of the peripheral work in dispute here may not attract a risk of harm, particularly in view of the fact that we are talking about some well-established unions with world-class training facilities, such as those representing carpenters and labourers. Additionally, it is evident that Ministry of Labour officials and enforcement staff are aware of these overlap issues and have seldom found cause to intervene on health and safety grounds.

In responding to complaints about (at least in some instances) overlapping work between trades, the College might well be diverting its enforcement resources from a focus on the burgeoning underground economy or from demonstrably high-risk sectors or activities. I understand that this must be placed in the context of the overall distribution of College enforcement resources, in all sectors, but I remain concerned.

Bridging the worlds of the college and the OLRB

As I have discussed above, the main issue at hand is the clash between the long-standing decision-making framework of the OLRB and the College’s approach to enforcement. However, a long-standing lack of clarity around the SoPs and the definitions and interpretations of compulsory trades has given rise to and compounded the issue. I deal with these issues separately under the sections in my report dealing with Scopes of Practice and the Trade Classification Reviews. These are connected and interwoven matters.

Within the unionized sector, it seems to me that the trades themselves, through their respective trade unions, can and should have dealt with these overlap issues. These are mature, sophisticated and well resourced organizations. They are well practised in making deals. The fact that they have not done so is perhaps (and not surprisingly) indicative of the private interests at play. This is not conjecture. It is broadly known and much discussed in the construction sector and beyond. This is understandable in view of the history, interests and tensions within the trades system. I would like to see the College acknowledge this more openly and develop strategies that might better address or accommodate it. I believe this would be in the public interest.

To be fair to the College and the OLRB, both operate under very different mandates. As legislatively driven silos, they make decisions on some of the same facts but with reference to different criteria:

• The College gives predominance to the “full scope” of SoPs.
• The OLRB is more concerned with bargaining relationships, employer and area practices, skills, training and safety and economy and efficiency.

There is an opportunity for trades involved in disputes related to overlaps to discuss the issues and attempt to work them out. I am recommending that there should be readiness to do this as part of the SoP review process. There is also a need to find approaches that bring the worlds of the College and OLRB together in some way — particularly as they deal with disputed overlapping work.

It is important that the College develop a framework to govern enforcement, with clarity on enforcing Scopes of Practice. This must go beyond its current unpublished operational enforcement policy. There is an argument that this framework should be based on circumstances where there is demonstrable harm to the public or worker safety, and consideration that an uncertified individual is performing the work.

Previous OLRB decisions and established industry practices should not be re-litigated through the College’s enforcement processes. The OLRB should continue to be available to those who wish to clarify their jurisdictional rights.

I am therefore recommending that the OLRB is the appropriate body to adjudicate appeals of College enforcement practices, since it has expertise and history in labour relations, knowledge of issues of jurisdictional disputes within the skilled trades system and respect and trust from stakeholders with divergent interests. It would divert appeals away from the courts and into a dedicated and experienced administrative tribunal with decades of experience in dealing with these issues.

What stakeholders told me about college enforcement

The main picture presented to me about College enforcement in both written submissions and at in-person meetings was that the College exists within a complex system in Ontario. About one-sixth of responses highlighted potential overlaps in mandate with other agencies and regulatory bodies. I heard more about this during my in-person meetings, including concern about potential clashes and a desire for greater co-ordination and communication between the College and these other bodies.

College enforcement activities illustrate a lack of regard for existing regulatory agencies and the duplication and/or a waste of resources this results in. (DR-67 – Ontario Skilled Trades Alliance)

In advancing the purposes described above, the College should not be attempting to expand its authority by purporting to serve certain interests which are already covered by other legislation or regulatory regimes. In other words, the public in the public interest the College should be serving does not include public interests that are already covered by other legislation, regulatory regimes and/or government agencies. For example, the College should not be expanding its jurisdiction by purporting to regulate the following areas — all of which would fall under a broad, dictionary definition of “public interest” but fall outside the narrow scope of public interests falling within the specific mandate of the College. (DR-49 – Heavy Construction Association of Toronto)

Many groups acknowledged that enforcement is a difficult task for the College, as the SoPs upon which enforcement is based often do not reflect current work practices. I also heard a wide range of opinions on whether enforcement is necessary on regional issues that some parties would like to be considered, and a perception of broad enforcement as a barrier for some tradespeople in Ontario.

There is a split opinion in the written submissions between those in favour of and those opposed to enforcing the entire SoP for a compulsory trade with “to-the-letter enforcement.” During the in-person meetings, I heard more nuanced responses to this. Most people who spoke about this expressed a desire for a more policy-based enforcement approach, focusing on specific groups of people — untrained people and members of the underground economy — along with specific types of work with the potential to cause the greatest risk of harm if not performed by skilled tradespeople.

Often, this was expressed as being in direct opposition to enforcement involved in jurisdictional dispute matters.

The College should not serve the interests of any particular group or groups, but should focus on its safety purpose, especially in the area of enforcement. (DR-54 – LIUNA Locals 625, 1059, and 1089)

Those who argue against enforcement or regulatory oversight of the skilled trades are advocating, either by design or inadvertently, for an environment that would allow individuals to participate in the underground economy. (DR-33 – International Union of Painters and Allied Trades, District Council 46)

OCOT enforcement officers should not be enforcing jurisdictional issues, as these concerns are unique to unionized sectors and should be left with the OLRB in the event of a dispute. The OCOT’s enforcement officers should instead be concerning themselves with ensuring the safety and protection of workers and the public through enforcing the need for appropriate qualifications. Similar to previous recommendations regarding overlap of SoPs, we should anticipate a degree of overlap between peripheral elements of specific trades and these overlaps should be not be considered as evidence which negates the need for compulsory trade status, but rather as strong evidence to support the need for a classification change for those current voluntary trades which have significant and identifiable overlap with trades which have already been deemed to require compulsory certification. Standards should be raised which protect the public, tradespeople, and other workers on the job, and not lowered for convenience or to merely accommodate shared elements that some consider to be peripheral to a trade. (DR-14 – Boilermakers National Training Trust Fund)

With regard to a consultation question on jurisdictional matters and which body should defer to which in clashes between the OLRB and College enforcement, 29 of the 40 submissions responding to this question said that the College should (at the very least) consider OLRB jurisprudence, compared with those who felt that OLRB jurisprudence should not be considered at all.^{footnote 59[59]}.

I heard the same at the in-person meetings: that at the very least the College should ensure the consideration of OLRB jurisprudence in its enforcement policy in order to maintain the stability of the trades system in the province and to reduce its involvement with jurisdictional disputes. The following statements are representative of those who lean towards recognition of a role for the OLRB and/ or its jurisprudence:

Generally, the College ought to consider and defer to the [Ontario Labour Relations] Board’s role as an expert labour relations construction tribunal … It is in the interests of the Province of Ontario that the College — which has a far narrower mandate — is not used as a vehicle to perform an end-run around the Board or to undermine the work of the Board. (DR-17 – Iron Workers District Council of Ontario and its Locals 700, 721, 736, 759, 765 and 786)

In our view, the OLRB’s existing jurisprudence provides a wealth of information and experience in terms of how work in the construction industry is assigned. While the OLRB’s jurisdictional dispute decisions are limited to work in the unionized sector, the decisions are an important source of information for employers, as they provide guidance and certainty on how work ought to be assigned. In particular, concrete and drain contractors have organized their work assignments and approach based on the OLRB’s case law in jurisdictional disputes. The OLRB has always served the public interest and has been mindful of public and worker safety in determining work-jurisdiction disputes.

It is our submission that the College must defer to the OLRB’s expertise on work-jurisdiction issues. There is no basis for the College’s enforcement regime to interfere with the Board’s expertise and its five decades of refined approach to dealing with these issues. The jurisdictional decisions made by the OLRB are based on the unique nature and requirements of the construction industry. The ability to involve stakeholders is a fundamental tenet of any consideration of work assignment disputes, including with respect to SoPs. The OLRB’s half century of expertise in managing these multi-party inquires is another reason to defer to the OLRB and its jurisprudence.

Deferring to the OLRB ensures that the consistency of work assignments remains in place. This certainty would ensure the construction industry does not devolve into chaos, and will allow the industry to continue to thrive, which is an important public interest.

If the College defers to the OLRB and/or adopts the OLRB’s decisions, it would allow contractors to continue to operate in the manner that they have always operated, avoiding the uncertainty and potential for significantly increased labour costs and/or construction delays. (DR-76 – Ontario Concrete and Drain Contractors Association)

It is the view of Local 736 that the College should give a significant amount of weight and deference to the experience and decisions of the Ontario Labour Relations Board. SoPs do not drive work assignments in the real world. Rather, in the field, work assignments are driven by past practice, trade agreements, economy and efficiency concerns, skills and training issues, and collective agreement obligations. Increasingly, they are driven by the desire of employers to benefit from the skills of multiple trades performing work assignments in composite crews with members of multiple trades performing the very same work.

The OLRB deals with jurisdictional disputes between trades on a regular basis and its decisions ought to be factored into the scope of the SoPs. The College ought to use OLRB decisions in a number of ways and not simply with reference to exercising discretion in its enforcement matters.

The College ought to: include work found by the OLRB to be within the representational rights of a trade union that represents workers in a specific recognized trade classification to be part of the elements of the SoP for that trade classification; consider the existing body of Board jurisprudence when considering trade classification reviews (in fact, the OLRB’s jurisdictional dispute decisions should be an express factor to consider when determining whether to make a voluntary trade a compulsory trade (and vice versa)); and consider the existing body of Board jurisprudence in considering enforcement.” (DR103 – International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 736)

College enforcement recommendations

Prior to the creation of the College of Trades, there was no dedicated enforcement of trades legislation and regulations. The job of enforcement was previously an adjunct responsibility of occupational health and safety inspectors working for the Ministry of Labour (MOL) who, perhaps understandably, focused on worker health and safety and conducting spot-checks for trade certificates. I am informed that MOL inspectors did not respond to complaints related to overlaps in the work of trades unless there was a demonstrable health-and-safety-risk issue. The reason for this was that there was (and still is) a dispute-resolution process designed to address these issues, which are largely between trade unions, at the Ontario Labour Relations Board (OLRB).

Originally, the Minister of Training, Colleges and Universities at the time of the establishment of the College did not plan for the College to adopt an enforcement function, beyond investigating complaints relating to professional misconduct, incompetence or incapacity (the functions now described in part V of OCTAA). This changed late in the process of government policy-making. Governing legislation mandated an enforcement function, under which offences are prosecuted under the Provincial Offences Act. Notwithstanding that both Armstrong and Whitaker spoke about enforcement in detail, the legislated mandated enforcement function caught some stakeholders off guard. It appears to have been made without much consideration as to how the prohibitions in OCTAA should be defined and how enforcement activity would be conducted and for what purpose. For example, there was no government policy guidance on the degree to which enforcement activity should focus on high-risk activities or the underground economy which, due to concerns about the exploitation of workers, health and safety issues and significant revenue loss, has been identified as a provincial economic priority.

In the absence of government policy guidance, the College’s enforcement activities have been directed, in part, towards enforcing the prohibitions in OCTAA based on a to-the-letter reading of each trade’s full SoP on a provincial basis. This has included work that commonly overlaps with the work of other trades. This is being done without regard to the presence or absence of risk of harms. I am concerned about this for two reasons:

• This enforcement activity is inconsistent with pre-existing OLRB decisions in respect of disputes between trade unions about work assignments and with existing workplace-based agreements on the same matters. This has led to some disruption and a great deal of concern on the part of some trade unions and employers in the construction industry.
• I am inclined to ask whose interests this form of enforcement activity serving. I understand the rationale for this approach.
to enforcement, which is based on the view that “engaging in the practice” of a compulsory trade should be defined for the purposes of Part II (Prohibitions) of OCTAA based on a to-the-letter reading of the SoPs. In other words, performing any act described in the SoPs is considered equal to “engaging in the practice” of that trade and enforced, regardless of the risks associated with them. I can see the benefits of this for compulsory trades from the perspective of enforcing work falling within their jurisdiction, but I am not persuaded that a public interest is being served. The College’s resources may be better focused on ensuring training and certification for high-risk activities. Some voluntary trades and other College stakeholders take the view that this is another area in which the advocacy and regulatory roles of the College are perceived as being in tension.

My recommendations in this area call for the creation of an external advisory committee convened by the Board of the College to provide advice on enforcement policy and to identify emerging issues associated with enforcement practices. In his recommendations to government, Armstrong, too, emphasized the importance of involving industry, labour and management, in carrying out the College’s enforcement activities. He also envisioned collaboration at the level of College governance, suggesting that the representatives from MTCU, and possibly MOL, MGCS, ESA and TSSA, would be ex-officio and non-voting members of the Board of Governors. I am also recommending a mechanism of appeal to the OLRB where a worker or employer challenges College enforcement actions that are inconsistent with previous OLRB decisions or workplace agreements, or which otherwise should properly be dealt with as a jurisdictional dispute. The College would have standing in these proceedings, and the challenged enforcement activity would be stayed until the matter is resolved.

Desired outcomes

• The College works to prevent unlicensed workers from practising compulsory trades through enforcement activities that target high-risk activities and the underground economy
• The College has a policy framework for compliance and enforcement that considers risk of harms and consumer protection
• There is improved collaboration with the stakeholder community and others
• Ongoing inconsistencies between OCOT enforcement and work assignment and previously addressed jurisdictional disputes are backstopped.

College enforcement recommendation 1

The College should develop a policy-based approach to compliance and enforcement that considers risk of harms and consumer protection. The College Registrar could operationalize this through the issuance of directives, guidelines or other interpretive documents made publicly available on the College’s website and through any other means the College deems appropriate.

College enforcement recommendation 2

The College should establish a compliance and enforcement committee of the Board to assist with the development of a policy-based framework for compliance and enforcement. The majority of the membership of this committee should be representatives from employer and employee groups with knowledge of the trades or trade sectors and who are not members of the College’s governance structure. The Board may also consider the need for representatives of other regulators and the public.

College enforcement and Ontario Labour Relations Board decisions recommendations

OLRB decision recommendation 1

Develop a mechanism that would allow individuals or their representatives or employers to appeal to the OLRB on the basis that the OLRB previously addressed the College enforcement action or it is the subject of an existing agreement.

In developing the mechanism for appeals, it is recommended that:

• The OLRB would first determine on a prima facie basis whether there are grounds for an appeal.
• Where the OLRB proceeds with an appeal, it would be directed to have regard to, among other things, the Ontario College of Trades and Apprenticeship Act and the College would have standing before the OLRB. Where an appeal is upheld, the matter would be nullified.
• Where the OLRB finds that an existing decision or agreement is relevant in an appeal but not determinative, it may designate the matter as a jurisdictional dispute, and it would be processed accordingly. In this case, the College would have standing before the OLRB. If the OLRB finds on behalf of the appellant, the matter would be nullified.
• The action of the College would be stayed until the OLRB releases a decision.