Introduction

In October 2014, the Ontario Minister of Training, Colleges and Universities appointed me to undertake a review of Issues Related to the Scopes of Practice and the Classification/ Reclassification of Trades. My Terms of Reference directed me, in consultation with the Ontario College of Trades, to provide the Minister with advice and recommendations on opportunities to clarify and improve the College’s policies, processes and/or criteria which support the objects and functions under Ontario College of Trades and Apprenticeship Act, 2009 (OCTAA), including:

  • scopes of practice (SoPs) for trades;
  • the classification or reclassification of trades;
  • the review of journeyperson to apprentice ratios for trades subject to ratios; and,
  • enforcement, including what consideration, if any, the College should give to the decisions made by the Ontario Labour Relations Board in jurisdictional or work assignment disputes under the Labour Relations Act

This review has been a complex and sensitive undertaking. The issues are in some cases quite technical and also have a long and complex history involving deeply entrenched interests. At the outset of the review opinions were somewhat polarized but, to the credit of stakeholders involved in the process, there has been some convergence of positions, at least in some areas.

In all of the areas under consideration, I have made an effort to find a balance between the College’s mandate and interests, the interests of College stakeholders, and the public interest. The report recognizes the progress made by the College Board and its Registrar in challenging circumstances. At the same time, my recommendations address some issues and elements of the College’s mandate that have attracted significant concerns and controversy. The recommendations are designed to put the College on a more solid footing in order that it can better achieve its core mandate of improving training and apprenticeship and elevating the status of the trades.

During my review, I met with many individuals and organizations with interests or concerns in the matters I was examining. I also met with Mr. Tim Armstrong and Justice Kevin Whitaker. Both wrote instrumental, government-commissioned reports that led to the establishment of the Ontario College of Trades.

Individuals and organizations who wanted to share with me their views or raise questions could do so in a variety of ways: through the review website, by completing the Consultation Questionnaire, making a written submission, participating in one of the many meetings I held around the province, emailing or calling me directly.

I received 109 submissions and held meetings that over 300 individuals and organizations, representing the trades, large and small employers, training organizations, trade unions and associations, attended. There were meetings in eight Ontario centres. I also had telephone meetings with individuals in other locations. Everyone had the opportunity to offer their advice and perspectives on areas both inside and outside my terms of reference.

I also met with the College Board of Governors, including its Executive Committee, held regular meetings with the Chair of the Board and Registrar, and met with 35 College trade boards representing over 70 trades in the four sectors that the College’s mandate covers. In addition, I had the opportunity to meet with the College’s Service and Motive Power Divisional Boards. These discussions were positive and informative and helped guide my work.

My findings and recommendations are better for the thoughtful insights and ideas that I received during my consultations.

In addition to my consultations, research also supported my review. The research looked at the history of apprenticeship and trades in Ontario; how other Ontario regulatory colleges operate; relevant Ontario legislation, regulations and policies; and approaches to apprenticeship and trades in Canadian jurisdictions and abroad.

Key themes captured during this review

Self-Regulation and the College’s Duty to Serve and Protect the Public Interest
The duty to serve and protect the public interest is a well-established pillar of self-regulation – a duty the College shares with other self-regulatory colleges and an important area for continuous action by the College.
Promotion of the Skilled Trades and Apprenticeship
The College has an important role to play in promoting and elevating the skilled trades, streamlining access and providing guidance for those interested in apprenticeship and supporting apprenticeship completions and certification.
Balancing modernization and stability within the Skilled Trades and Apprenticeship system
The College has the opportunity to help modernize the apprenticeship and skilled trades system in Ontario. During the review, I heard about a great number of system improvements that stakeholders are eager for the College to make, and of work that the College has already done towards this. However, I also heard about a complex system of many moving and interconnected parts that have evolved and developed over a number of decades and a concern that changes which do not consider the entire system may create instability.
Governance
There is a need for greater clarity and communication about the application and appointments process to the College’s governing structure. It is also important that decisions regarding the regulation of trades are in the public interest.
Communications
Tradespeople, employers/sponsors and apprentices would like the College to be more pro-active with its communications, especially during consultations on regulatory matters. There is a preference to see more information pushed outward to members and stakeholders.
Collaborative Approaches
During the review I heard about an interconnected system where a large number of other parties are involved in aspects of regulating skilled trades and apprenticeship training, alongside the College. This includes various government ministries, departments and agencies, other Ontario regulatory bodies, Ontario colleges, and apprentice training institutions. I heard a desire for a collaborative approach to ensure the best 9 possible user experience, reduction of unnecessary duplication of efforts, and for consistent considered decisions.
Regional Concerns
The College has an opportunity and a responsibility to understand the complexities of regional variation in its decision-making processes and in developing its service offerings.
Trades and Apprenticeship Systems in Canada and Other Jurisdictions
Ontario shares common challenges with other Canadian provinces, the U.K. and Germany. In considering the adoption/adaption of best practices from other jurisdictions, it is important to note that some systems have evolved over a long time within unique cultural contexts and relationships between parties such as government, industry and workers, including organized labour. It becomes impossible to make wholesale adoption of their successful elements.

Recommendations

Scopes of practice

Currently, the Scope of Practice (SoP) is a description of the work of a trade. The SoPs for Ontario’s 156 trades are in four regulations made under the Ontario College of Trades and Apprenticeship Act — one each for the Construction, Industrial, Motive Power and Service sectors. SoPs are central to Ontario’s current trades system, supporting many of the College’s objects and functions. A common theme raised during my consultations was that SoPs are outdated and inconsistent and this may limit their usefulness as a regulatory tool.

SoP recommendation 1

In consultation with the ministry, the College should proceed with its Program Evaluation Process in order to recommend any amendments to the Minister of Training, Colleges and Universities regarding the consolidation or reduction of the number of trades named under the Ontario College of Trades and Apprenticeship Act.

SoP recommendation 2

The College should be mindful of its duty to serve and protect the public interest in carrying out SoP reviews and for the various uses of SoPs. It will be important that the College consider how SoPs are used within its policy framework for compliance and enforcement and, specifically, how they contribute to defining what it means to “engage in the practice” of each compulsory trade.

SoP recommendation 3

The College should update and standardize the SoPs for trades using a common framework and template. The review process should be consistent for all trades with overlaps in work between trades being discussed as part of the SoP review process in order that they are acknowledged and recognized for the purpose of training and apprenticeship. The College would be responsible for scheduling and grouping trades for the SoP review. Once the SoPs are updated and standardized, the College should periodically review them to capture any changes or advancements in technology, processes and equipment for a trade.

SoP recommendation 4

The College should determine which features of a trade’s SoP may be in Board regulations and which features may be in College guidelines or other operational policy documents.

In establishing updated and standardized SoPs for trades, the College should consider a broad set of inputs for the review of SoPs. This could include:

  • the general description or statements in regulation
  • advice of industry, subject matter experts and the public
  • common overlaps with other trades
  • exemptions and exclusions that may apply to the trade and are within the Board’s purview
  • existing training documents used by the College, including the National Occupational Analysis for Red Seal trades and College apprenticeship training and curriculum standards
  • other legislation and regulations that reference the trade
  • any standards of practice, guidelines, policies and/or by-laws that may apply to members of the College practising the trade

SoP recommendation 5

The College should leverage the Trade Boards to facilitate the process for reviewing and updating SoPs for trades. SoP reviews should include discussions with other trades with overlapping work, which should include discussions between Trade Boards and other stakeholders. Trades should come to consensus on proposed amendments to a trade’s SoP.

SoP recommendation 6

The College may need to establish a non-binding conciliation process to help build consensus between trades, including discussions between Trade Boards, especially on areas of overlap.

Trade classification/reclassification reviews

I found broad agreement about the improved transparency of the current process for the classification or reclassification of trades as compulsory or voluntary. However, there was less agreement on whether decisions are made using the best possible decision-making structure, criteria and process.

Trade classification/reclassification reviews recommendation 1

The Minister of Training, Colleges and Universities should appoint a roster of experts who would serve on review panels for decisions about the classification or reclassification of trades, and be advisory to the Minister on matters of apprenticeship and training.

Trade classification/reclassification reviews recommendation 2

In naming a new trade under the Ontario College of Trades and Apprenticeship Act, the Minister should have the option to classify a new trade as voluntary or to refer the matter to a review panel.

Trade classification/reclassification reviews recommendation 3

After an initial consultation with the College, the Minister should determine the skills and competencies that would inform the initial appointment of individuals to a roster of experts. The roster of experts would be individuals without an affiliation with a trade or a particular trade sector. They could include individuals with expertise in areas such as public administration, facilitation and decision-making, health and safety, labour market development and the economy, and consumer protection.

Trade classification/reclassification reviews recommendation 4

One member of the roster of experts should be appointed Chair, with responsibility to appoint the panels for applications for the classification or reclassification of trades named under the Ontario College of Trades and Apprenticeship Act.

Trade classification/reclassification reviews recommendation 5

Each panel should be composed of five or seven members, including a chairperson that the Chair selects from the roster of experts. Decisions of review panels would be by majority decision.

Trade classification/reclassification reviews recommendation 6

The College Board should have the authority to appoint up to two individuals with trades experience who would be advisory only to the review panel and not participate in the decision-making process of the review panel.

Trade classification/reclassification reviews recommendation 7

Crown Employees from the Ontario Public Service should support the review panels, in a secretariat. One employee could be appointed the executive coordinator and be responsible for staff and day-to-day operations of the secretariat.

Trade classification/reclassification reviews recommendation 8

The Minister should establish the following criteria for the purpose of review panel decisions on the classification or reclassification of a trade as voluntary or compulsory:

  1. The key factor for the classification or reclassification of a trade as voluntary or compulsory is risk of harm to one or more of (a) individuals working in the trade, (b) other workers on the job and/or (c) the public.
  2. The secondary factors take into account the public interest assessed in light of the following criteria:
    • economic impact, including the impact on employers, apprentices, tradespeople, training institutions and government,
    • the impact on access to the trade and labour mobility,
    • there is a demonstrated public need (e.g., additional regulation is warranted, enhanced environmental protections, etc.),
    • implementation considerations (e.g., education and training, strategy for individuals currently practising the trade [grand-parenting], impact on training ratios, etc.).
  3. A review panel is permitted to address other secondary factors that it considers to be in the public interest.
  4. In its decision-making, the review panel should weigh the criteria with deference to the key factor compared with the secondary factors and may weigh each of the secondary factors, as it considers appropriate within this framework.

The expert panel, with assistance from its staff, would develop application and policy guidelines and other relevant materials to support the application process for the panel and trade applicants. This material would be available to the public.

Trade classification/reclassification reviews recommendation 9

A College Trade Board should initiate an application for the reclassification of a trade in consultation with industry. The Trade Board could also consider applications submitted to the Trade Board from the industry. The Trade Board for the trade and the Divisional Board for the trade’s sector would endorse applications.

Trade classification/reclassification reviews recommendation 10

The onus would be on the applicant to provide sufficient supporting evidence for the classification they are seeking or the reclassification of a trade.

Trade classification/reclassification reviews recommendation 11

An applicant may choose to pursue classification or reclassification on the basis of either the trade’s full SoP or the features of a trade’s SoP that it considers appropriate in view of the characteristics of the trade (e.g., elements that pose risk to one or more individuals working in the trade, other workers on the job and/or the public), but leaving intact the training and certification requirements for the full scope of the trade.

Trade classification/reclassification reviews recommendation 12

All applications should be subject to an initial screen by the Chair of the roster of experts, plus any other roster members at the discretion of the Chair. The Chair would be permitted to seek clarity on the application and would have sole discretion on the progress of the application.

Trade classification/reclassification reviews recommendation 13

Review panels for trade classification reviews should:

  • Undertake public consultation with extensive and active public and stakeholder notice,
  • Call their own evidence so that they do not have to rely only on submitted evidence,
  • Provide implementation advice in making decisions.

Trade classification/reclassification reviews recommendation 14

There should be a timeframe of 180 days from the appointment of a panel to the rendering of its decision. The possibility of extension would be at the sole discretion of the chairperson of the review panel, based on the specific circumstances of an application to the Board.

Journeyperson-to-apprentice ratio reviews

Like the trade classification or reclassification process, there was broad stakeholder agreement about the improved transparency for the cyclical review of journeyperson-to-apprentice ratios. During the review, I heard a desire to ensure more open and broad consultations; clear criteria linked to the purpose of journeyperson- to-apprentice ratios; and for making appropriate research and data publicly available.

Journeyperson-to-apprentice ratio reviews recommendation 1

The roster of adjudicators for review panels and selection of review panels should continue as outlined under the Ontario College of Trades and Apprenticeship Act. Professional and administrative staff of the College should support the ratio review panels.

Journeyperson-to-apprentice ratio reviews recommendation 2

The College should make sufficient efforts to communicate information about ratio reviews to ensure broad stakeholder participation from across Ontario.

Journeyperson-to-apprentice ratio reviews recommendation 3

The College’s Board should consider establishing new criteria under Ontario Regulation 458/11 – Reviews Under Part IX of the Act. Review panels would evaluate submissions against these criteria to decide the 15 appropriate ratio for a trade prescribed with a ratio. The following criteria are recommended:

  • quality of on-the-job training, the impact of journeyperson-to-apprentice ratio on the training and performance of the apprenticeship and certification in the trade,
  • the potential for risk of harm for an apprentice and others,
  • the demographic and labour market information for the trade, including the age and availability of journeypersons, the number of prospective and registered apprentices, and the rate of apprenticeship completions and certification,
  • economic impact, including impact on consumers, employers, apprentices, tradespeople, training institutions and government,
  • the demand for skilled trades in different regional/geographic areas of the province and any trade sector realities,
  • the experience of ratios for a similar trade or trade sector in other jurisdictions,
  • other factors relevant to the public interest.

The review panel may weigh the criteria, as it considers appropriate.

Journeyperson-to-apprentice ratio reviews recommendation 4

There may be a need to provide the Board with the authority to consider a short delay for the next cycle, due to begin in 2016, to allow for public consultation on any proposed regulatory amendments and other implementation activities.

Journeyperson-to-apprentice ratio reviews recommendation 5

The review panel for ratios should have the ability to call its own evidence. It should not be limited to evidence contained in participant written and oral submissions.

Journeyperson-to-apprentice ratio reviews recommendation 6

The College should accelerate the collection of, monitoring of and research about ratios and make this information available as part of its public data.

Journeyperson-to-apprentice ratio reviews recommendation 7

The Board should revisit the timeframe required for a review panel to render its decision following its appointment. The current 120-day timeframe could be extended 16 to 180 days, with any further extension being at the discretion of the Board. Alternatively, the Chair of the review panel could determine the time required for this part of the process, based on the specific circumstances of the application. There should be clear communication of the timeframe.

Journeyperson-to-apprentice ratio reviews recommendation 8

The College should develop a policy and evaluation framework to clarify the broader public-policy goals, including the purpose and implementation considerations for journeyperson-to-apprentice ratios for trades prescribed with ratios. This framework should be informed by College stakeholders and the findings made publicly available.

College enforcement

The College’s current approach to compliance and enforcement of the prohibitions under OCTAA could benefit from a framework to provide clarity on enforcement that aligns with the public interest to protect workers and the public from harms.

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 governing boards. The Board may also consider the need for representatives of other regulators and the public.

College enforcement and Ontario Labour Relations Board decisions

The College’s current approach to enforcement applies to the full scope of practice for a compulsory trade, and it regards this as equivalent to “engaging in the practice” of a compulsory trade. This approach is inconsistent with and, in some cases, is disruptive of previous agreements between workplace parties and past decisions of the Ontario Labour Relations Board (OLRB) in resolving jurisdictional disputes. This is an issue because of the many factors in sectors and workplaces which have given rise to overlapping work between trades.

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.

Conclusion

It is my hope that a review early in the life of a new organization is helpful in taking stock of progress and identifying challenges and opportunities. It can also be disruptive. I recognize that significant policy work, program development and regulatory activity are on hold, pending the outcome of this report.

While many of these activities can now get back up to speed, the College and the Ministry of Training, Colleges and Universities (MTCU) will now also be involved in the implementation of any of my recommendations accepted by government and/or the College’s Board of Governors. Implementing change in busy and complex environments is challenging, particularly where there is a distribution of responsibility across two or more organizations. Ideas and plans for change are only as good as an organization’s capacity to implement them. I see seven factors as key to successful implementation of any of my recommendations. They are:

  • Establishing clear accountability and leadership.
  • A governance structure that supports collaboration.
  • Assigning dedicated resources.
  • Identifying key levers for change.
  • Providing more and timely information.
  • Establishing a timeline and target dates.
  • Identifying risks and constraints and developing strategies to manage them.

The role and accountability of the College and MTCU will vary based on each of the recommendations. The nature of each recommendation, its fit with College and ministry priorities and the depth of stakeholder interest and impact will drive the degree to which it is prioritized and resourced.

The College carries out its broad and complex mandate within an already multifaceted system, and with a long history of practices adopted by the trades in conducting their work. It is understandable that there are tensions around the College’s structure and questions about its governance. My review hopefully provides the opportunity to improve College processes and clarify its mandate before these tensions become further entrenched. It is time for the College to grow further and to mature in delivering on its mandate.