Reviews under the Ontario College of Trades Apprenticeship Act

Process and Criteria for Reviews under Ontario Regulation 458/11 –  Reviews Under Part IX of the Act

My terms of reference require me to provide analysis, advice and recommendations on opportunities to clarify and improve how the College makes decisions on the classification or reclassification of trades as compulsory or voluntary and for the reviews of journeyperson-to-apprentice ratios for trades subject to ratios.

Within this context, I have examined:

• the current process and criteria for trade classification or reclassification and journeyperson-to-apprentice ratio reviews
• whether these processes or criteria for reviews can be improved in the future
• the makeup and mandate of the review panels in making decisions for reviews

Part I. Compulsory certification

Compulsory certification requires an individual be a member of the College in good standing in a compulsory trade in order to be able to practise that trade. Under the Ontario College of Trades and Apprenticeship Act, the ability to engage in the practise of a compulsory trade is restricted to:

• individuals holding a valid Certificate of Qualification in that trade in the College’s Journeypersons Class, or
• an apprentice in that trade with a valid registered training agreement, or
• individuals holding a valid statement of membership in the College’s Journeyperson Candidates Class.

The College regulates different aspects of a trade depending on its classification as compulsory or voluntary. Moreover, the work of the compulsory trades is restricted to College members in good standing.

In the current system, classifying or reclassifying a trade as compulsory makes the entire Scopes of Practice compulsory. The College regulates specific areas exclusively for compulsory trades, including:

• prohibitions against the unauthorized practice of a compulsory trade
• employing or engaging unauthorized individuals to practise a compulsory trade
• prohibition against holding oneself out as able to engage in the practice of a compulsory trade

However, individuals (who may not have to be members of the College) may be able to practise all or part of a compulsory trade by virtue of an overlap between Scopes of Practice in regulation or an exemption in regulation. The College has carried over legal interpretation principles from the Ministry of Training Colleges and Universities (MTCU) system for how SoP overlaps are addressed (see Appendix 4).

There have been questions about whether every single activity in a compulsory trade should be compulsory when a trade is reclassified. This is at the centre of some of the policy considerations of my review.

I have been asked to look at the new classification process and the criteria the College established and managed. I have done this, having listened carefully to the advice of the participants in my review.

Trade classification or reclassification reviews in Ontario

In Ontario, the majority of compulsory trade designations took place before 1968 (seven in 1946 and nine in 1967). Until the compulsory designation of the Sprinkler and Fire Protection Installer trade, which will take effect in February 2017, the previous designation in Ontario occurred in the 1980s-90s for the Hoisting Engineer trades.

The current classification of 22 trades as compulsory or voluntary is a carry-over from previous trades’ legislation. The TQAA classified trades as compulsory or voluntary. The ACA classified them as “restricted” and “unrestricted.” Prior to Ontario Regulation 458/11 – Reviews Under Part IX of the Act under OCTAA and the creation of the Ontario College of Trades, there was no open and deliberative process for trades seeking compulsory status of trades — until then, ministers in the relevant Ontario government departments made the decisions. There is broad agreement that the transparency of the current process is an important and positive development, but there is less agreement on whether it is the best possible process and decision-making structure.

In 2010–11, members of the College of Trades Appointments Council, acting as the Transition Board, developed and consulted on a proposed process and criteria for trade classification (and ratio) reviews, to be prescribed in a regulation (Ontario Regulation 458/11) under OCTAA. The proposed criteria for classification reviews were closely aligned with Armstrong’s recommended criteria in his report. However, not all process and criteria elements proposed by Armstrong were adopted in regulation, for example, that panels be advisory to the Minister and should specifically take into account the public interest. Furthermore, Armstrong devoted considerable attention to data and evidence that could inform decision-making about compulsory certification, in particular, health and safety outcomes, apprenticeship registrations and completions, economic impact, and consumer protection. In all of these areas he found a dearth of information and concluded that, even if it were abundant, it might not be helpful in comparing the benefits and downsides of change in classification and recommended that the review panels have the ability to request research support from the College. My recommendations seek to address these gaps to help better inform decisions about trade classifications going forward.

In 2013, the College launched its first (and, so far, its only) trade reclassification review by a review panel for the trade of Sprinkler and Fire Protection Installer. Completed in 2014, this review was an important learning experience for the College, including its Trade Boards, for stakeholders and for the review panel involved. The College’s stakeholders carefully watched the process. It was contentious, not only because of the myriad interests involved in this first pass, but also because many of the participants in the process chose to use it as a venue to voice various forms of opposition to the College itself.

In April 2014, the review panel rendered its decision to change the classification of the trade from voluntary to compulsory. At that time, the College started receiving calls from interest groups calling for a halt to all classification reviews, pending changes to the process. The review panel decision and dissenting opinion also raised questions about some aspects of the process. A large number of stakeholders subsequently called for changes to the process with a focus on procedural fairness, including: the rules of procedure (whether the onus for proving the efficacy of an application falls on the proponent or respondent); the sufficiency of notice provided to stakeholders through the requirement on the College to simply post the application on its website; and the time permitted for stakeholders to respond to applicants. Concerns were also raised about the nature of evidence expected and required in the process, including the inability of the panel to call its own evidence and whether the College (the Board and Divisional Boards) could and should present its own evidence. Additionally, there are strongly held and differing views about the degree and nature to which compulsory certification is informed by, or is reflective of, the public interest.

Proponents of compulsory certification say it:

• ensures rigour in training, skills development and competence
• promotes safe and high-quality work
• elevates the status of trades and the mobility of the trades
• provides for a predictable supply of dependable and highly trained workers
• is an incentive to both the entry of apprentices to trades and to apprenticeship completions

Generally, the main proponents of compulsory certification are found in the construction sector. It is common, across Canada, for construction industry employers, trade unions, and trades training and apprenticeship programs to be actively involved in the sector. This has been beneficial for the apprenticeship system. At the same time, there are suggestions of close relationships between the breadth of trades training, the sometimes rigid boundaries between trades, and the jurisdictional interests of trades unions and their employer counterparts. These tensions are understandable, predictable and undeniable. They have been apparent in the course of my work — as I expected.

Opponents of compulsory certification say:

• A strong association with a public interest would have resulted in more uniform and predictable approaches to trade classifications
• The risk of harms and consumer protection aspects of the work of trades are addressed through myriad and “overlapping” regulatory regimes, including consumer protection, health and safety laws, building codes and warranty requirements

At the centre of some of the policy considerations of my review is the tension between, on the one hand, the role of the College as an advocate for the trades and for trades training, and, on the other, its role in managing the regulatory process through which compulsory classification might be available. For example, many stakeholders point out that in some cases, a finding of compulsory status for one trade might result in a loss of work for another trade and employers of that trade. Others point out that since members of compulsory trades are obligated to pay annual membership fees to the College, any additional compulsory classifications will result in additional income for the College. Arising from this are perceptions that self- interest might motivate the College to design its processes, make decisions on the process, or make appointments that would result in compulsory certification outcomes.

There is an obvious public interest in fair, inclusive and transparent decision-making procedures and the rigour of processes and their ability to meet this test. This was also at the heart of Armstrong’s report. These concerns need to be addressed. In this area, we can learn from the work of Health Professions Legislation Review. It concluded that professional regulation should take into consideration:

• the history and evolution of the profession
• evidence of its benefit to the public
• whether or not regulatory mechanisms are in place to oversee professional activities and competence

Trade classification: What other Canadian jurisdictions do

Coming into this review, it quickly became clear to me that the evolution of decision-making about compulsory certification in Canada and Ontario has been long-standing, episodic, contentious and mostly opaque. There is very little information on the previous evidence and criteria that ministries and agencies used to make these determinations over the past 80 years.

Not surprisingly, the degree and nature of compulsory certification varies considerably across the country. Most of the designations still in place date back to the mid-20^th century.

As mentioned earlier in this report, the policy secretariat supporting this review reached out to all Canadian jurisdictions to learn about their trades systems, and engaged with officials in four provinces. The examples cited below reflect this engagement. In the provinces studied, there has been a decline in the number of compulsory designations over the past few decades. For example:

• Compared to the 22 compulsory trades in Ontario, there are only five compulsory trades in Saskatchewan.
• In British Columbia the government has moved towards having no compulsory trades.

In contrast, the Quebec skilled trades system varies greatly from other provinces. All 25 unionized construction trades and 30 unionized occupations are designated compulsory. The Commission de la construction du Québec (CCQ) regulates the construction trades, delivers apprenticeship training to construction trades and manages the pension plan and collective agreements of employers (unions) in these trades.

In this report, I am not recommending a shift towards designating greater or fewer numbers of compulsory trades, as this is a broader policy question that falls outside my terms of reference. Rather, I am focused on improving the processes through which the College engages relevant parties and makes decisions on a trade’s classification.

The Armstrong Report emphasized the importance and weight of a decision to restrict access to certain types of work by classifying a trade as compulsory. Armstrong said, “The power to restrict access to an occupation is an extremely important legal concept and one that should be reserved for ministerial discretion.”^{footnote 21[21]} This approach is reflected in other provinces where governments have retained the power to determine trade classifications. The processes and policies guiding the classification of trades vary considerably. For example:

• In British Columbia, the current government has not been open to proposed mandatory designations
• In Saskatchewan, there is a defined process and criteria for determining trade classification and a designation officer who supports the applicant through the process
• In Quebec, construction trades automatically have a compulsory designation
• In Nova Scotia, the newly created agency, the Nova Scotia Apprenticeship Agency (NSAA), evaluates a number of factors to determine whether compulsory certification is warranted, including:
  • health and safety of the public and worker
  • impact on consumers
  • impact on environmental protection
  • other regulatory authorities with purview over the trade
  • whether other trades’ scope of work may be affected
  • impact on training and certification

Trade classification reviews: What stakeholders told me

In my consultation questionnaire I asked “what makes a compulsory trade compulsory?” and nearly half of respondents who answered this question said compulsory status is based on risk of harms. This was also the predominant response when I raised this question at the regional meetings and with Trade Boards. Some focused on the complexity of the trade as the purpose for required training and compulsory status. Participants were also quick to add economic impact, environmental impact, interprovincial labour mobility and consumer protection as important factors for decisions about compulsory status.

Generally, an inherent risk of harm to public or worker health and safety, the complexity of the work in a trade, the economic impact on employers, apprentices, journeypersons, and the industry in general should be the primary considerations in classifying a trade as compulsory. That is not to say that these should be the only determinations. Other provinces give weight to industry support, consumer protection, and environmental impact. In most provinces, the overwhelmingly dominant criteria or consideration seems to be that of preserving public safety. (DR-19 – Interior Systems Contractors Association of Ontario)

It [compulsory status] really comes down to the First Principles:

In response to the question — what makes a compulsory trade compulsory?

1. Protection of the public.
2. Health and safety of the worker.
3. Environmental protection.
   If the work of a trade has any impact on these three criteria, it should be compulsory. However, we also recognize that there are other factors to be considered, but the criteria used to determine whether a trade is compulsory should be weighted in favour of these First Principles. We would also like to add that the criteria should be clear and attainable, and applied consistently by the College. (DR-36 – International Union of Painters and Allied Trades, District Council 46)

The level of knowledge needed to perform the work. (DR-66 – Automotive Aftermarket Retailers of Ontario)

A compulsory trade should be one that requires diligent regulatory oversight due to the risk it poses to the public interest and the College’s mandate to serve and protect it. Voluntary trade qualification should consist of trades that do not pose a serious risk of harm to the general public, but its practitioners should be encouraged to seek certification with the College. (DR-35 – Ontario Hairstylists Association).

We believe that compulsory certification should not be limited to any specific “tasks” or “elements” as they may be arbitrarily set and misinterpreted by the current bureaucratic structure and governance of the College. We do not want the system in Ontario to change with regards to what is included in our trade, i.e., No “core/peripheral” job functions. The fact remains that Plumbers have learned the work of a Sprinkler Fitter and are able to do that work as part of their Scope of Practice. The College’s job is not to reinvent the wheel when it comes to the Construction Industry and the job functions of those involved. Again, the intention which we supported at the onset is a system of self-regulation in which the tradespeople themselves determine whether there is an issue that needs to be addressed, and how the issues should be resolved, with the College and its employees acting only as a resource for facilitation. (Emphasis in submission) (DR-5 – Name withheld at submitter’s request)

A trade should be deemed compulsory when there is sufficient reason to believe that there may be a risk of harm to the public, tradespeople or other workers or the environment either while performing work within the trade’s entire SoP, or after the work is performed. The risk of harm can be different for different trades. For example, work in the Hoisting Engineer trade is inherently risky throughout the crane set-up and tear-down process, as well as during actual hoisting operations. There is no risk to the public, tradespeople or other workers on the job once the crane is removed from the jobsite. For other trades, the risk to the public may be just as great after the work is finished if the work is not carried out correctly. (DR-87 – Ontario College of Trades Hoisting Engineer Trade Board)

The questionnaire respondents were evenly split on the question of who should make the decision on the classification or reclassification of trades. About half of respondents feel that that the College should continue to facilitate this process through the current model of three-person adjudicative panels selected by the College Boards. The other half of respondents focused on the need for clear independence from the College and raised significant concerns about an internal process having the potential for inherent or perceived bias, given that decisions to classify trades as compulsory support the sustainability of the College.

The determination of what is a compulsory trade needs to be made by the people in that trade, and it should be a fair process that will establish the principles of worker and public safety and environmental protection. (DR-38 – Ontario Pipe Trades Council)

In general, we submit that the current process as set out in legislation is effective, acceptable and not in any significant need of change (certainly not deserving of stopping activity in this area). (DR-46 – Ontario Glazier Apprenticeship and Training Committee)

In our view, the adjudicative model should be replaced by a public inquiry model more akin to the model used by the [Health Professions Regulatory Advisory Council]. (DR-73 – Residential Low Rise Forming Contractors of Metropolitan Toronto and Vicinity)

There is a lot of work that needs to be done to fix this process. From our perspective, the College has self-serving bureaucratic and financial interests when it comes to expanding the number of trades that are classified as compulsory, and therefore subject to membership fees. We note, with trepidation, that one of the College’s strategic objectives is to promote the College of Trades and build its membership. (DR-78 – Ontario Chamber of Commerce)

On both sides, however, I heard a common desire to see decisions made in the public interest, with no perceived bias, and with clear industry involvement.

I also heard that the onus of proof for a change in classification should be on the applicant for the classification review, and that the body considering the classification of a trade should also be able to pro actively gather information instead of relying on the submissions it receives.

We are adamant that the responsibility must be on the party requesting a classification review to prove it is warranted prior to it going ahead. (DR-16 – Garwin Pitman)

The party/parties asserting that the trade’s status should be changed to “compulsory” bear a significant onus of demonstrating, by reference to relevant objective evidence, that there is a need (not just a desire) for a change to the status quo. (DR-49 – Heavy Construction Association of Toronto)

[To refine and improve the process] allow the panel to engage in an independent review rather than rely only on the information it is provided by the parties providing evidence and testimony. (DR-36 – Electrical Contractors Association of Ontario, International Brotherhood of Electrical Workers)

Over the course of the review, there was growing comfort with the idea that an applicant for a trade classification review should be able to select certain features of the trade (or the entire trade, if desired) for consideration in the trade classification review.

The consultation questionnaire asked whether an entire SoP should be enforced, and whether the enforcement of a compulsory trade could be limited to those that have been identified as posing a risk of harm. The responses to these questions were split, with about equal numbers agreeing and disagreeing.

The entire scope of practice for every compulsory trade should be enforced. To allow grey areas or overlap between trades will invite jurisdictional challenges particularly in the organized sector. (DR-33 – International Union of Painters and Allied Trades, District Council 46)

[In response to the question: should the entire SoP for a compulsory trade be enforceable or be subject to enforcement?] Yes. Particularly for the electrical trades. Working with electricity is a hazardous job that carries significant risk. It is extremely important, for the protection of both the public and the workers, that it is conducted by people who are trained and certified. (DR-36 – Electrical Contractors Association of Ontario, International Brotherhood of Electrical Workers)

Whether to enforce an SoP in its entirety depends on the trade. In the case of the three Hoisting Engineer trades, these are essentially a coherent set of skills that cannot be parcelled out, because they are all linked to the operation and maintenance of particular types of equipment. It would be exceedingly dangerous for an unqualified worker to perform any of the tasks listed in the SoP. For Hoisting Engineers, therefore, the entire SoP should be enforced and should be enforced in all circumstances, without exception. This may or may not apply to other compulsory trades. (DR-87 – Ontario College of Trades Hoisting Engineer Trade Board)

If the SoP is structured [so that] both core and peripheral elements are included, but identified and listed separately, then only the core elements could be subject to enforcement. If the SoP does not distinguish between core and peripheral tasks, then the entire SoP cannot be subject to enforcement. (DR-82 – Christian Labour Association of Canada)

If an SoP contains all of the tasks customarily performed by members of a particular trade (and not simply those that are core to the trade and may create the risk of harm to the public that cannot be mitigated by another existing regulatory regime) then no, the entire SoP of a trade should not be subject to enforcement. (DR-67 – Ontario Skilled Trades Alliance)

Yes. With the provision of allowing some activities to be done by several trades, e.g., automotive (310S), truck (310T), or trailer (310J). Given a fundamental change to the SoP model, the enforcement function should also potentially be revised. [For example], changing an air hose on a vehicle such as a truck, trailer, car, motor home […], etc., requires the same core ability, but current SoPs pigeon-hole this work (DR-22 – Rolf VanderSwaag)

I also heard about the current legislative requirement for trade classification review when naming a new trade and the development of an apprenticeship program. This has created an unintended disincentive for some industry stakeholders, and I offer a recommendation on this below.

Trade classification reviews: Recommendations

Prior to the creation of the College of Trades, the granting of compulsory status lay in the hands of government, specifically under the authority of the provincial minister responsible for training and apprenticeship (currently the Ministry of Training, College and Universities). This was an opaque process without publicly available criteria and no formal mechanisms for involvement. The government recognized the need for transparency and criteria in making these important decisions. This led to Tim Armstrong’s appointment. It is not surprising then that Tim Armstrong’s recommended shift to a more transparent and policy-based process, with a key role for expert panels, was initially met with fairly broad acceptance by the trades and the College’s current stakeholders. In retrospect, Armstrong’s advice was well-reasoned and insightful. If that advice had been followed more precisely, I suspect that this review would not have been necessary.

Importantly, Tim Armstrong noted that the granting of compulsory status to a trade is an important legal step, and one that should be made with careful consideration of the public interest. This is particularly so because it effectively grants to a trade monopoly over a considerable range of work. The decision thus has a broad impact on workers, employers and consumers. It is a decision that should not be taken lightly, and the process through which decisions are made must be capable of withstanding public scrutiny. It must be accessible, transparent, evidence-informed and even-handed. It is for this reason that, in Ontario, final decisions about whether unregulated health professions should be regulated are made at the ministerial level, with approval from the legislature.

In the final event, the decision-making process at the College of Trades varied from Armstrong’s recommendations. The College was given a more hands-on role in managing the classification review process, and its boards have a significant role in the appointment of decision-makers. This approach carried some risk from the outset in view of the inherent tension in the College between its role as both advocate and regulator. Given the impact of granting a monopoly over work, the College was always going to be held to a high degree of external scrutiny, and an equally high standard of propriety. This was a very high bar and perhaps too high for any professional college to take on itself, despite the best efforts of the College and its board. Much of the frailty built into the process was revealed in the first application processed under the new system, and some of its shortcomings were recorded by the decision-making panel. To be fair to the College, that process was not helped by the large number of participants who used the process as an opportunity to voice concerns about the College itself. I am persuaded neither by those who like things as they are nor those who would like me to recommend turning the clock back to the pre-College classification framework.

Rather, my view is that, from a public interest perspective, the interests of trades and the long-term stability of the College, this decision-making process must be revisited in a way that will build more predictability and confidence in classification reviews — and broader commitment to the College of Trades. In some respects, this can be accomplished by revisiting Armstrong’s advice about the importance of independent experts. The recommendations are also responsive to opportunities for improvement offered in our consultations, including: timelines, inclusiveness, transparency, and providing access to more information and research.

In addition, I am raising a question about the long-standing approach under which a trade seeking compulsory classification is either granted compulsory status for its full scope of practice, or remains entirely voluntary and unregulated. Upon careful analysis of the broader system, it seems to me that an applicant trade should have some degree of choice about the range of work for which it is seeking compulsory status, without compromising the requirement for training and certification for the full scope of the trade.

Desired outcomes

• The decisions about the classification of a trade as compulsory would be made by independent expert panels on the basis of stipulated criteria
• The key factor for decisions about the classification of a trade as compulsory is risk of harm
• Voluntary trades may continue to pursue compulsory status for their full scope of practice. They may also elect to pursue compulsory status on the basis of the features of a trade’s SoP they consider appropriate in view of the characteristics of the trade. Decisions in this area could be used to help inform the College’s policy framework for compliance
• Applicant onus and confidence in an evidence-informed, transparent and inclusive process
• Review panels for trade classification or reclassification reviews continue to look to a trade’s SoP and other supporting information for trades
• College emphasis on training and certification for the full scope of trades, regulating the practice of compulsory trades and governing its members.

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:

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.

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 practicing 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.

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.

Those trades currently in the queue for a trade reclassification review

The recommendations above would apply to trades on a going forward basis who wish to seek an application for a trade classification or reclassification review. During my consultations, I was also asked about the status of the application for trades who are currently in the lineup for reclassification review after submitting an application prior to the start of this review. Several voluntary trades filed applications for a reclassification review prior to the launch of this review in October 2014. Those reclassification reviews were placed on hold pending the outcome of this review. In view of my recommendations on SoP reviews, revised decision-making criteria and the decision-making process itself, a question arises as to what now happens to those in the queue following implementation of any changes arising from this review.

First, if my recommendations in these areas are implemented, the revised classification review process should apply uniformly going forward and include those voluntary trades already in the queue. However, in view of the degree of change contemplated in these recommendations, including the decision-making criteria, some trades might wish to revise their applications, and this should be permissible without a trade losing its place in the queue, subject to the divisional board endorsing any revised application.

Preferably, those trades already in the queue would participate in a SoP review before proceeding with their reclassification review. In such cases, I would recommend that these trades retain their place in the queue and be “fast-tracked” through the SoP review process. Notwithstanding this, any trade that elects to maintain its current reclassification application and to complete that prior to entering a SoP review should have the opportunity to do that.

Implicit in these recommendations is that trades currently classified as compulsory would not be required to confirm their compulsory status through the revised going-forward process. While the original policy basis for the classification of these trades as compulsory is in some cases unclear or unrecorded, they have enjoyed this status in an uninterrupted way for a considerable period of time, and successive governments have not chosen to revisit this. While I am not inclined to revisit the classification of these trades, I will offer some observations in my discussion of enforcement about the important question of what is, practically and reasonably, compulsory about compulsory trades.

Part II. Journeyperson-to-apprentice ratio reviews

There are 33 construction trades with prescribed ratios under Ontario College of Trades and Apprenticeship Act, 2009 (OCTAA). Section 60(1) of OCTAA describes these ratios as: “the number of apprentices who may be sponsored or employed by a person in that trade in relation to the number of journeypersons employed or otherwise engaged by the person.”

The College initiated the first cycle of ratio reviews in 2012, with completion in summer 2013. There was positive feedback that the review process was more transparent than previously. However, participants in the reviews, members of the independent panels making the review decisions and members of the wider College community asked questions and made suggestions on how to further improve the process.

These questions focused on the lack of available data to inform participants’ submissions, whether the College was in a position to provide this data, whether the panels should be able to make a decision on ratios in the absence of evidence, whether the process could follow a more consultative approach and whether the panel could consider material not contained in written submissions. There were also questions about the purpose of journeyperson-to-apprentice ratios and an absence of consensus regarding this on the part of participants and a lack of clarity provided by the College. Participants in two separate reviews also suggested in that members of the independent panels may have had a potential conflict of interest, and that the process must be free from a reasonable apprehension of bias if it is to be taken seriously.

The independent panels often commented in their decisions on the questions and suggestions made in the written submissions to them, and, in some cases made observations.

As these written decisions remain publicly available on the College website, I have taken the liberty of quoting from a selection of these which provide a background to some of the issues and limitations that have already been formally identified.

Both parties made submissions, primarily in their oral remarks that we have not considered. These submissions were with respect to the many tasks that the parties thought that the College should undertake: gathering and publicising more data, taking steps to promote the completion of an apprenticeship program, promoting the trades in high schools and so on. We do not mean to diminish the significance of those submissions. It is simply that we have no authority to consider them or to make recommendations on them. Access to data is a common submission from parties before Review Panels, and the view that the College should be doing more to collect and make available relevant data. The College does in fact connect on its website to some of the publicly available data from the MTCU, and no doubt will welcome any constructive suggestions in this regard.
— (Ratio Review Panel RR7-2012 for Architectural Glass and Metal Technician)

All of these parties addressed the relevant issues, and both provided some thoughtful input. However, as will be seen below, none of them had any significant amount of data to provide the review panel. We accept as legitimate, and no doubt informed, the perceptions and concerns expressed by both of the parties. However, it is very difficult to make a decision unless these concerns are backed up by objective data that provide a rationale for the conclusions that the parties urge on this panel. The OHBA makes this point directly a number of times in its brief, suggesting that it is the duty of the College to provide that information. As a Review Panel, it is not within our mandate to comment on that submission at all. This Panel, like any review panel is faced with the task of making a decision based on the material before us. Indeed, we may not look beyond those submissions.
— (Ratio Review Panel RR4-2012 for Cement (Concrete) Finisher)

As has become the trend in many of these ratio reviews, there is little hard data yet collected to definitively answer most of the criteria we are directed to by the Regulation. As well, even if the data were more fulsome, as many pointed out, we are dealing with projections and forecasts into the future which even at the best of times are not foolproof. As a result, many of the parties are left to advance what is essentially their own reasonable speculation about both the present and the future. Although we question the bona fides of no one, it should equally surprise no one that such speculation is frequently shaped by the parties’ own perceived interests and agendas.
— (Ratio Review Panel RR18-2012 for Electrician – Construction and Maintenance and Electrician – Domestic and Rural)

I heard that the ratios are established to achieve a number of different, and potentially unaligned, objectives, including:

• maintaining training standards
• promoting health and safety on worksites
• helping to ensure a balanced labour supply in the province

Historically, there have been journeyperson-to-apprentice ratios since medieval Europe. Ontario first used ratios as a concept in legislation in the Apprenticeship and Tradesmen’s Qualification Act (ATQA). The TQAA replaced the ATQA in 1990. Under both pieces of legislation, Provincial Advisory Committees (experts appointed by the Minister) provided recommendations to the relevant Minister on issues related to the skilled trades, including ratios. This process of making recommendations to the Minister about the ratios was not widely known, did not invite participation from any parties beyond the Provincial Advisory Committees, and decisions made were not based on a consistent set of publicly known criteria.

Following the Armstrong and Whitaker Reports, one of the core functions under the College’s mandate was managing an independent and cyclical review of the journeyperson-to-apprentice ratios. Both Armstrong and Whitaker widely discussed the potential process and criteria for these reviews, and the members of the College of Trades Appointments Council, acting as the Transition Board of the College, set out the process and criteria for ratio reviews in Ontario Regulation 458/11 – Reviews Under Part IX of the Act.

History of journeyperson-to-apprentice ratio setting in Ontario

Training ratios can significantly affect the core aspects of some businesses and, in some cases, the broader communities to which they belong. The concerns about ratios long predate the establishment of the College. In my meetings with stakeholders, I heard about the contending arguments for and against ratios, including those that elected officials have raised through ongoing legislative debate.

The following summary describes the historical developments that have led to today’s approach.

In the simplest terms, the debate about apprenticeship training ratios splits into two opposing arguments. In his 2008 report on compulsory certification, Tim Armstrong summarized the opposing sides:

Those in favour of the existing ratio system pointed to the necessity of ensuring that employers had a sufficient number of journeypersons to provide quality training to apprentices [and those] critical of the existing [ratio] system said that too often it operates to artificially limit the supply of labour.^{footnote 22[22]}

Under the Trades Qualification and Apprenticeship Act (TQAA), ratios were ostensibly established for reasons of safety, quality workmanship and effective training. Ratio stipulations were legislated within general regulations or specific trade regulations. However, many employers maintain that the inflexibility of ratios has proven to be a challenge.

The Apprenticeship and Certification Act (ACA) was the result of the extensive feedback received during a two-year apprenticeship reform engagement process. The ACA did not require ratios for training in the workplace, nor did it legislate hours or wage rates for trades. Rather, industry committees established policy guidelines for trades governed by the ACA. Adhering to these guidelines was at the discretion of individual employers, giving them flexibility to hire apprentices where the quality and safety of training would not be undermined.

The journeyperson-to-apprentice ratios trades were carried forward from TQAA to OCTAA and the College was given the responsibility to initiate cyclical reviews of ratios, including the establishment of the criteria and process. The creation of the College enabled a systematic and transparent process to review ratios. It also provided the opportunity for the College to establish a public-policy framework to guide the development of ratios.

Such a policy framework would help industry, and provide a public lens to balance the private interests implicit in the use and monitoring of ratios. Without a clear framework that includes public policy goals, it is difficult to gauge the purpose and effectiveness of ratios. As Tim Armstrong noted, the understanding that ratios can have an effect on labour supply and demand, wages, and the economy, have been debated going back to at least the 1973 Dymond Report. As I have heard during the course of my review, ratios can have an impact – either positive or negative, depending on the perspective and implementation factors – on a number of important aspects of the labour market, worker safety, wages, and training (e.g., adequate skill development, training delivery flexibility), and the resource impact on employers. This list is not exhaustive, showing the complexity of implementing ratios and the important impacts they can have on industry and the broader economy.

During my consultations, some stakeholders said the current criteria used to determine ratios did not clearly align with a public benefit — a problem compounded by the lack of relevant data to inform decision-making. I heard that, in the first round of ratio reviews, trades advocated their positions without always relying upon data, either due to omission or a lack of reliable data. Evidence that was presented was often inconclusive, pointing to the need for better data presented in a context and format that would allow a review panel to understand whether the evidence was directly relevant or peripheral to an argument. There were concerns about the timeframe provided to present evidence to a review panel, and the panel’s ability to ask for additional evidence to provide greater context. Given these concerns, and the confusion surrounding the unclear public-policy goals of using ratios, it is no surprise the first round of ratio reviews created and exacerbated tensions. In order to gauge the effectiveness of using ratios, in terms of their impacts and outcomes, better evidence, guided by a clearer policy objective and supported by a more rigorous process, should help to drive better decisions.

Ratios in other jurisdictions

In Canada’s federal system of government, responsibility for the regulation of trades has been devolved to the provinces. Consequently, processes used to determine journeyperson-to-apprentice ratios vary across the country in terms of:

• the number of trades to which ratios apply
• the method of determining which trades have ratios
• the use of a ratio itself

The approach to using and developing ratios, like the development of regulations in the trade, developed as governments’ relationships with industry evolved. Some governments have opted to allow employers great flexibility in delivering apprentice training, either not using ratios at all or allowing fewer journeypersons to train more apprentices. For example:

• British Columbia has never had mandatory ratios. Since 2011, all trades in Alberta now have a journeyperson-to-apprentice ratio of 1: 2, or greater, varying by trade (i.e., one journeyperson can train at least two apprentices in all trades).
• In Saskatchewan, too, most trade ratios in regulations^{footnote 23[23]} permit a journeyperson to train multiple apprentices. A few trades (boilermaker, insulator, plasterer, steamfitter-pipefitter) have ratios permitting 1:1 for the first apprentice hired; then, they require multiple journeypersons to train additional apprentices. Ratio reviews are opened at the government’s request, but this rarely happens, following organized input from stakeholders. Government policymakers develop recommendations after looking at safety factors, giving primary consideration to economic factors.
• In Nova Scotia, all trades have a default ratio of 1:1, though there are trades with higher ratios (which allow a journeyperson to train several apprentices). For every compulsory trade, the ratio is 1:1 and the process for changing a ratio is industry-led through the Trade Advisory Committee. If an employer cannot meet the ratio, it may apply for a ratio adjustment to the Nova Scotia Apprenticeship Agency. The employer needs to demonstrate there is a limited capability to locate and employ journeypersons; detail the steps taken to hire more journeypersons; outline the availability of senior-level apprentices; and meet other criteria.
• Quebec’s use of training ratios is perhaps the closest to Ontario’s. In contrast to Saskatchewan and Nova Scotia, the ratio calculations in Ontario and Quebec defer to a higher number of journeypersons to supervise apprentices. The number is calculated based on a sliding scale for worksites employing more than one apprentice (e.g., roofer, journeyperson-to-apprentice, 1:1, 2:1). All of Quebec’s construction trades have enforced ratios. There are no ratios in non-construction trades.

Ontario will continue to use ratios in the near future. Therefore, it is important to maintain a transparent, defensible process for determining them, and provide decision-makers with the best criteria to do so. It is also important for training ratios to meet public-policy goals based on the best information available to decision-makers.

Journeyperson-to-apprentice ratios: What stakeholders told me

I was asked to provide recommendations on the process and criteria prescribed in Ontario Regulation 458/11, made under OCTAA. This includes the process and criteria for ratio reviews for journeyperson-to-apprentice ratios for trades prescribed with a ratio.

While outside my mandate, many participants raised positions for and against the existence of ratios in Ontario. Some discussed the specific merits of the current ratios for trades. I heard that ratios are the highest in Ontario when compared to other Canadian jurisdictions and should be relaxed in order to provide the flexibility for employers to hire apprentices. Others claimed that ratios have little impact on hiring, because employers are just not hiring apprentices in some trades, sectors and/or regions.

In both written submissions and during in-person meetings, most stakeholders appeared comfortable with the ratio review function remaining with the College, provided that improvements are made to the criteria and process in time for the next cycle. I heard a desire to ensure more open and broader consultations, clear criteria linked to the purpose of journeyperson-to-apprentice ratios, including a link to risk of harms, and for appropriate research and data to be made available to the participants in the process.

The adjudicative review panel approach worked well in the consideration of ratio changes. A large number of ratio cases were considered within a relatively compressed period of time. The decisions of the review panels rigorously applied the criteria specified in Ontario Regulation 458/11 and weighed the evidence that was presented. All proponents had an opportunity to make oral representations. The limits that the panels imposed on the length and format of written submissions and the duration of oral argument were not unreasonable. All of the requirements of due process and fairness were met. (DR-85 – Ontario College of Trades Heavy Equipment Operator Trade Board)

There is a concern with the lack of representation from employers in ratio and trade classification review processes, particularly the limited voices coming out of the SME sector. Without broad representation of views, stakeholders and regions, the review processes will fail to produce an outcome that is the best for the whole of Ontario and for the public interest. (DR-53 – Greater Sudbury Chamber of Commerce)

The OLRB model prevents participation from non-experts. The ratio reviews in particular demonstrated how individuals with legitimate concerns regarding the regulatory process were not able to access the onerous and formal requirements to engage the review. (DR-77 – Ontario Home Builders’ Association)

As we experienced when we entered ratio reviews, too much of the process has become politicized. In some instances, it became a ‘contest’ to see which dissenting union or organization could generate the most form letters. That is not a good way to make decisions when you are dealing with trades in high-risk situations. Furthermore, it does not protect the public interest to give, for example, labour mobility the same weighting in the decision-making process as environmental protection or public safety. Clearly, the latter two are significantly more important and should be treated as such when rendering a decision. All decisions in these instances should err on the side of public and worker safety. (DR-36 – Electrical Contractors Association of Ontario, International Brotherhood of Electrical Workers)

There are ongoing challenges with College consultation processes, including this one, where it requires special expertise to properly respond to the questions asked. This limits the opportunity for meaningful feedback from the entire sector, i.e., journeypersons, apprentices, contractors, and the general public who are ultimately affected by the outcome of the consultation processes. (DR-45 – Ontario Electrical League)

Journeyperson-to-apprentice ratios: Recommendations

The journeyperson-to-apprentice ratio prescribes the number of apprentices who may be sponsored or employed in that trade in relation to the number of journeypersons employed or otherwise engaged. Over time, ratios appear to have been set to achieve a number of different, and potentially unaligned, objectives, including: maintaining training-led standards; promoting health and safety on worksites; and helping to ensure a balanced labour supply in the province. These are all important outcomes.

Ratios were first established under the Apprenticeship and Tradesmen’s Qualification Act (ATQA). The TQAA replaced the ATQA in 1990, and under both pieces of legislation Provincial Advisory Committees (advisors appointed by the Minister) provided recommendations to the relevant Minister on issues related to the skilled trades, including ratios. This process of making recommendations to the Minister regarding the ratios was not widely known and did not invite participation from any parties beyond the Provincial Advisory Committees, and decisions were not made based on a consistent set of publicly known criteria.

Following the Armstrong and Whitaker Reports, the College was mandated to establish and manage an independent and cyclical review of the journeyperson-to-apprentice ratio. Both the trades, employers and other College stakeholders have been generally satisfied with the first round of these reviews in 2012–13, and especially their transparency and cyclical nature. This is to the credit of the designers of the decision-making architecture and the College of Trades. Some questions were nevertheless raised about the degree of inclusiveness, perceived short timelines for decisions, and the large number and general nature of criteria established to guide decision-makers.

I make a number of recommendations dealing with opportunities to improve a process that has been well-managed by the College. These replicate some of the proposed changes designed to embed more rigour in the classification review process, although they fall short of recommending a change to the structure or location of decision-making. It seems to me that the current College-led “tripartite” panel model is relevant to the core role of the College, in training and apprenticeship, as well as the interests of employers, trade unions and tradespersons. In this context a public interest lens is brought into play through a recommendation that would see a shorter and much more focused set of criteria to guide decision-makers.

Desired outcomes

• Improved College monitoring and reporting on journeyperson-to-apprentice ratios
• Panels sufficiently supported by College staff
• Understanding about the purpose of ratios (i.e., quality of training and supply) and criteria
• Confidence in an evidence-informed, transparent and inclusive process

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. Review panels would evaluate submissions against these criteria to decide the 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 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 ought to be informed by College stakeholders and the findings made publicly available.