Scopes of practice

My terms of reference require me to provide analysis, advice and recommendations on scopes of practice (SoPs). I believe that there are opportunities to clarify and improve the ways in which the College makes decisions about scopes of practice and how SoPs are used to support the performance of objects and functions under the Ontario College of Trades and Apprenticeship Act (OCTAA).

At present, the SoP is a description of the work of a trade. Many different self-regulated occupations in Ontario — from Registered Early Childhood Educators to Certified Engineering Technologists — use SoPs in their training, professional and regulatory activities. Within the Ontario College of Trades system, each trade has its own SoP. The current SoP provisions for Ontario’s 156 trades are set out in four regulations made under OCTAA — one regulation for each of the Construction, Industrial, Motive Power, and Service sectors. These SoPs were essentially carry-overs from the previous system, adopted from regulations and training documents under the Trades Qualification and Apprenticeship Act (TQAA) or the Apprenticeship and Certification Act (ACA).

SoPs are central to Ontario’s current trades system, supporting many of the College’s objects and functions. Apprenticeship training and curriculum standards should flow from the SoP for the trade. Training for apprentices in that trade should cover the full scope of the trade. Also, the SoP for a trade is one of multiple criteria that review panels must now consider in determining the classification of a trade as compulsory or voluntary and determining the appropriate journeyperson-to-apprentice ratio for a trade that is subject to ratios. Finally, SoPs are currently used as the primary basis for determining compliance with the prohibitions against the unauthorized practice of compulsory trades (sections 2 and 4 of OCTAA).

In my consultations with College stakeholders, a common theme was that SoPs are outdated and inconsistent, making their application across the different College functions a significant challenge.

The college’s use of SoPs under OCTAA

The College’s job has been challenging due to the merging of different pre-OCTAA regulatory and non-regulatory concepts. Prior to OCTAA, there were no SoPs for all trades in Ontario in legislation. There were:

• trade definitions or scopes of trades in TQAA regulations;
• trade definitions in ACA for restricted skill sets; and,
• training and curriculum standards for ACA trades, which were not in regulations.

These concepts for trades under both pieces of legislation had limited scope. Their primary intent was to guide apprenticeship training standards. Increasingly, the standards of provincial trade descriptions and the National Occupational Analyses steered their use. For enforcement purposes, the Ministry of Labour had the authority to determine whether persons performing work in compulsory trades under TQAA or restricted skill sets under ACA were properly qualified.

OCTAA incorporated the TQAA and ACA descriptions and standards into its current provisions and used them for different purposes; namely, trade descriptions for the purposes of enforcing right-to-practice in a compulsory trade, developing training and curriculum standards and determining a trade’s classification or reclassification as either compulsory or voluntary. This blend of concepts and their operationalization has given rise to some problems, some of which are encompassed by my terms of reference.

In particular, the scopes of practice for particular trades have given rise to challenges and questions about the use of SoPs in guiding College enforcement. These challenges were raised in briefing materials prepared by the College for this review and informed some of the questions raised in my consultation guide questionnaire.

The College uses SoPs to enforce the prohibitions against the unauthorized practice of a compulsory trade under OCTAA and determine what “engage in the practice of a compulsory trade” means (OCTAA, sections 2 and 4). I understand that the College, in carrying out its compliance and enforcement function, is using what some may describe as a to-the-letter reading of the SoP for compulsory trades to determine what it means to engage in the practice of a compulsory trade, including the isolated performance of any part or work element of the SoP being deemed to constitute engaging in the practice of a compulsory trade, subject to exclusions, exemptions and SoP overlaps. For example, the College had developed a variety of tools to provide the interpretation of SoPs to support its enforcement officers in the field, including:

• the SoP matrix, described by the College as a tool to break down the language in a SoP provision and identify the various possible activities or ‘work elements’ contained within it,^{footnote 12[12]} and,
• Overlapping Actions Matrices^{footnote 13[13]} and General Overlap Catalogue,^{footnote 14[14]} which work together to identify overlaps in the language between SoPs for different trades

However, in my view this raises a question about whether any SoP could, or should, be used in isolation of other factors on a job site or within the broader context of training and oversight for work performed on the job. This is particularly worrisome when it comes to enforcement in a world where the practice of trades is rarely performed in isolation of other trades and where there is bound to be overlapping work with other trades.

It appears reasonable that the College is not required to maintain a strict reading of the SoPs in every instance to support its enforcement of the prohibitions under OCTAA, and may benefit from further examination of how SoPs can inform enforcement through a public interest lens.

As they are used today, an entire SoP is also aligned with the trade’s classification status; that is, the work reflected in a compulsory trade’s entire SoP is restricted to that trade. However, in many cases overlaps in work will occur between two or more trades. This is a product of history, practices on work sites, previous agreements and competitive pressures. It is realistic to assume that these overlaps will continue in one form or another. Indeed, the College’s own legal interpretation on overlapping compulsory and voluntary scopes of practice (although inherited) confirms these assumptions about the ongoing reality of overlaps.

• Where overlaps exist between compulsory and voluntary trades’ SoPs, the College adopts the legal interpretation that, if a task is in the SoP for a voluntary trade, anyone can do the task — even if it’s contained in a compulsory trade’s SoP.^{footnote 15[15]} This interpretation has created difficulties, because it’s not clear that applying it will always pass a public-interest test.
• College enforcement managers have made a decision to enforce activity on work sites with reference to the entire SoP for compulsory trades. This is even the case where, in Armstrong’s words, a complaint involves non-hazardous, non-complex peripheral functions beyond the essential core components of the trades.

Some trade descriptions imported from previous versions were very general and not particularly useful for demarcating the scope of a trade’s work. This may be due to the idea that trades should exist as whole trades, with exclusive areas of practice which cannot encroach upon other trades. In practice, tradespeople often focus on specific areas within their trade, and trades often share overlapping elements between them. Therefore, it’s reasonable to expect a certain amount of specialization (of tasks, responsibilities and other work elements) in a SoP. However, often this is not the case.

An overly general formulation of a trade’s SoP is challenging to work with because it obscures the tasks that overlap between trades. This creates confusion when SoPs are used for other purposes. Given that the initial design of SoPs did not apply a public interest lens or take into account using a trade’s SoP for multiple functions, there is obviously room for review and greater clarity. The College and its stakeholders know a lot of this already. However, as with many other complex and thorny issues in any organization, these SoP issues stay mostly beneath the surface (although highlighted in Armstrong’s Report). As a post-College reviewer compelled to look at these issues through a public interest lens, it is my responsibility to raise and discuss these matters.

The current approach to Scopes of Practice did not take into account Armstrong’s caution 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. A clearer regulatory concept will inform decision-making at the College, and help it serve the public more effectively. Without such clarity, the College will:

• struggle to define roles and responsibilities in the uses of SoPs.
• have difficulty implementing an impartial and credible process for reviewing SoPs while reflecting the public interest and balancing private interests.

As the College works to develop a clearer concept of the SoP, it will have to design a SoP that:

• has appropriate breadth of scope: neither too broad — which can lead to scope creep and specific trades using the SoP to capture more work — nor too narrow — where a trade’s description lacks enough detail to be useful for training or other purposes (or reflexive enough to accommodate changes in technology and work processes);
• takes into account the potential for harm and whether it is in the public interest to restrict non-harmful activities to a particular trade.

Since the establishment of the College, many Trade Boards have recognized the need to review the SoPs for their trades. They have made requests to:

• amend them to reflect the trade’s current practices;
• remove tasks or items that are no longer relevant to the trade;
• recognize new technologies, processes and/or equipment;
• align their SoPs with those of equivalent trades in other provinces and territories for labour mobility and Red Seal purposes.

It is not a straightforward process to make these changes.

SoPs: What other Canadian jurisdictions do

The review’s research found variations in the design and use of SoPs:

• SoPs in the skilled trades exist in all Canadian provinces except British Columbia.
• Many Canadian jurisdictions grapple with similar issues related to overlaps, enforcement and the compulsory status of trades.
• The degree of restrictiveness of SoPs varies across jurisdictions — from very restrictive to expansive.
• The SoPs for all trades are set out at the provincial level. In case of Red Seal trades, provincial SoPs are often based on the national standards, as set out in the National Occupational Analyses for those trades.
• For some provinces, SoP reviews take place on a regular basis to address technological or process changes. For other jurisdictions, such as Saskatchewan and Quebec (construction), the process is industry-initiated.
• More than one province acknowledged the issue of overlapping scope:
  • When addressing overlaps between trades, the Saskatchewan Apprenticeship and Trade Certification Commission first seeks clarification from the industry representative or subject matter expert on the board. The province has developed an operational manual to clarify which specific tasks or work processes are restricted to compulsory trades, and to illustrate exceptions found in the regulations. Giving context to the tasks in a trade’s SoP helps to clarify whether an offence has occurred.
  • In Quebec, if overlap issues cannot be resolved in the construction sector, a conflict-resolution committee is established to make determinations.

SoPs: Ontario’s regulated health professions

The controlled acts model, also known as the reserved activities model, is commonly used in the regulation of the health professions. Examples of this model include Ontario’s Regulated Health Professions Act (RHPA),^{footnote 16[16]} Alberta’s Health Professions Act^{footnote 17[17]} and Quebec’s Professional Code.^{footnote 18[18]}

The RHPA contains a list of controlled acts, which by their nature can be harmful if performed by unqualified individuals. An example of a controlled act is managing labour or conducting the delivery of a baby. There are some exceptions to performing those acts (e.g., in the event of an emergency), and in some cases the ability to delegate tasks has been provided to regulated health professions, however this is dependent on regulations being made by professional colleges to permit this delegation to occur.

In addition to the RHPA, each of Ontario’s self-regulatory health professions has its own legislation. The profession-specific legislation outlines the profession’s scope of practice statement and any controlled acts which that profession can perform (either independently or on the order of another regulated health professional). These controlled acts can be further broken down such that a profession, under its applicable legislation, may be allowed only to do part of a controlled act. In other words, the profession-specific legislation outlines the conditions under which the controlled act can be performed, detailing the where and how. Unlike the assumption made under OCTAA, health professions’ scopes of practice, including the controlled acts, are not exclusive to the professions: they are overlapping in nature. This concept reflects one of the tenets of the legislation, which is that patients, clients and consumers should have access to the profession of their choice.

The health professions take a broad approach to scopes of practice for the regulated health professions. A scope of practice statement within each health profession’s act briefly defines what the profession does and how the professional does it (i.e., the activities undertaken to perform the profession). Separate from the scope of practice, are authorized acts (if any) and title protections. A “harm clause” found within the RHPA, Section 30 (1), states:

No person, other than a member treating or advising within the scope of practice of his or her profession, shall treat or advise a person with respect to his or her health in circumstances in which it is reasonably foreseeable that serious bodily harm may result from the treatment or advice or from an omission from them.

This clause covers all health professions, and helps to cover acts that are not prohibited already by controlled acts.

In addition, the following elements are also taken into consideration when examining a regulated health profession’s scope of practice:

• Exemptions or exceptions under the RHPA that may apply to the profession;
• Other legislation that may affect the profession;
• Relevant regulations developed under the profession’s own profession-specific act; and
• Standards of practice, guidelines, policies and by-laws developed by the regulatory college for the profession.

All of these elements are understood to determine the profession’s scope of practice.

Ontario’s health professions work on addressing overlaps to improve patient care. Overlaps are considered to be a positive feature in the delivery of care. The Federation of Health Regulatory Colleges of Ontario (which is made up of the province’s 26 health regulatory colleges,^{footnote 19[19]} some of which regulate more than one profession) has developed an e-Tool. It helps patient-care teams of multiple health professions to coordinate care within their overlapping scopes and authorities established by the Regulated Health Professions Statute Law Amendment Act. The e-tool is used as a customizable, point of care, decision-making tool that will enable teams to optimize roles, responsibilities and services for fulfilling patient/client needs.^{footnote 20[20]}

In summary, the health professions use a model of collaboration, built around a risk-of-harm framework. This seems to be very sensible and responsive to a broader public interest. I raise the health professions’ regulatory framework and the use of a “controlled acts” model to illustrate a successful regulatory approach for the regulated health professions in Ontario. Despite the obvious risk of harms in the context of many areas of health care delivery this scheme is far more flexible (for patients/consumers and health professionals) than that created under OCTAA. Although I am not recommending adopting the use of “controlled acts” in this report, it is worth considering elements of this model as the legislation in Ontario evolves.

What stakeholders told me about SoPs

I heard from many in this review that the Scopes of Practice for trades are outdated, not fit for their purpose and should be revised. About a third of respondents to the consultation questionnaire offered this opinion.

With the outdated SoP and non-standardized format as well as the compulsory vs voluntary trade debate, it is our belief that the college is not protecting the public interest. (DR-71 – Ontario College of Trades Heavy Duty Equipment Technician Trade Board)

SoPs in regulation are overbroad and out of date and accordingly have little impact on the daily work of our members, except as training standards for on-the-job training for apprentices. (DR-54 – LIUNA Locals 625, 1059 and 1089)

SoPs are outdated and do not accurately reflect today’s auto-body trade. (DR-21 – International Association of Machinists and Aerospace Workers)

During regional meetings, I heard that today’s trades’ environment is a complex system made up of individual workers who may be specialists or generalists. In some cases work is being carried out through the use of composite crews — workers from different trades working together — and this has become commonplace in large scale industrial, commercial, and construction projects, as well as in residential construction. These arrangements are sometimes enshrined in collective agreements and driven by regional economic and workforce realities.

I heard about rapidly changing work practices, systems and new technologies requiring continuous learning and skill development in the construction and motive power sectors. The importance of a trades system that allows for individual tradespeople to practise a wide range of tasks was discussed, and many raised concerns about current SoPs in regulation lagging behind the complex and diverse environment of today’s skilled trades in Ontario.

“In the construction industry, the efficient utilization of trades people particularly includes the ability to cross-craft and supplement skilled voluntary trades with others having similar skills when trade shortages arise. (DR-8 – Sarnia Construction Association)

[The journeyperson] and apprentices perform a wide range of skilled work, including carpentry, drywall, resilient flooring, framing, concrete formwork, underwater construction, welding, scaffolding, and a long list of other construction-related work. Most of our members receive training through the various training centres owned and operated by local unions across the province. In fact, many non-union members also take specified training in our facilities as well. Our members provide their employers with their skills and commitment to mutual success — qualities that are needed to complete projects on time and on budget. (DR-26 – Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America)

Some stakeholders hold the belief the College should be responsible only for what some refer to as authentic or real trades. Others suggested that Ontario has too many trades, and the College should seek to reduce the number of trades through consolidation of like-trades or removal of a trade where industry may no longer support it.

The consultation questionnaire asked about overlaps between SoPs for trades and many respondents confirmed the necessary existence of overlaps between trades. Some respondents also expressed concern that overlaps should be managed with the public interest and safety in mind. I heard more about this in the regional meetings and from Trade Boards.

The entire SoP for a compulsory trade should not be subject to enforcement. A compulsory trade’s SoP will always overlap with the SoPs of certain voluntary trades. Similarly, a compulsory trade’s SoP will always cover certain work which can also be safely performed by members of certain voluntary trades. (DR-49 – Heavy Construction Association of Toronto)

Only after completing a review of the Scopes of Practice for all construction trades will the College be able to take account of the many overlaps that are common in the 21^st century construction industry, where flexibility and productivity are driven by an multi-skilled workforce and which often are not reflected in the current Scopes of Practice. (DR-94 – Progressive Contractors Association of Canada)

For instance, millwrights place equipment, and are trained and qualified to run air and waterlines, as well as duct work to that equipment. This is a part of the trade. It is also a part of sheet metal and of a plumber. (DR-24 – Tri-Mach Group)

It poses a risk if the tasks that overlap between compulsory and voluntary trades open the door to anyone, competent or not, who performs potentially dangerous tasks. The way to address this is to ensure that all tasks associated with risk are limited to the SoPs of compulsory trades. The current situation is backwards. In instances where a mandatory trade shares an element of its SoP with a voluntary trade, the third legal interpretation holds that the element essentially becomes voluntary as the tradesperson performing the task is not required to be licensed. In the interest of public and worker safety, elements that pose a risk of harm should default to compulsory trades, ensuring the work is completed by people certified in that trade. (DR-36 – Electrical Contractors Association of Ontario, International Brotherhood of Electrical Workers)

Nearly two-thirds of respondents to the consultation questionnaire provided an opinion on the key elements that should be contained in a trade’s SoP. Some suggested a brief and concise SoP outlined in regulation, whereas others suggested that the SoP contain an expansive or even exhaustive list of everything someone might do in that trade. It became clear at the regional meetings that stakeholders, regardless of their opinion on what should be contained in the SoP, share the desire to discuss overlaps and reduce jurisdictional clashes between trades.

In asking about the process for updating the SoPs, few respondents thought it should be led by an external body, whereas most (about two-thirds of respondents) said the process should include the College’s Trade Boards and broad stakeholder outreach.

The relevant industry Board should first review the SoP internally with trade specific resource staff [followed by distribution] to various stakeholders who would have to respond to their suggestions to the relevance of the SoP in relation to the feedback. (DR-100 – Peter Wynnyczuk)

SoP reviews should be driven by the trades. A review or change should start at the trade board with input from the divisional boards. (DR-38 – Ontario Pipe Trades Council)

Any change in an SoP would need broad consultation with all industry stakeholders, not just individuals sitting on Ontario College of Trades(OCOT) Trade Boards, Divisional Boards or the Board of Governors. In order for the diversity of Ontario’s construction industry to have buy-in to any changes to a SoP, there needs to be outreach more inclusive than the ratio review or compulsory certification review process and regional roundtables should be established with a cross section of industry representatives to provide input into any SoP change. Ontario Home Builders' Association (OHBA) members in Toronto may allocate workers to perform tasks much differently than our members organize a jobsite in Stratford. Therefore broad-based consultation will be required. (DR-77 – Ontario Home Builders’ Association)

During the regional meetings I was able to obtain more clarification on this, and most people who spoke about this said the process should involve industry, should be well communicated and should be open to input from across the Ontario trades system.

SoP recommendations

Scopes of Practice (SoP) associated with skilled trades have evolved over decades in a variety of circumstances and to serve many different purposes. Prior to this review, the College of Trades had commenced an internal discussion on the importance of reviewing and, to the extent possible, standardizing and modernizing SoPs. The College’s Board sees this initiative going hand-in-hand with an opportunity to consolidate and potentially trim some of the 156 trades for which it is responsible, some of which are no longer operable, for example where there are little to no apprenticeship registrations (OCOT’s Program Evaluation exercise). I was asked to provide advice on how the SoP review might work.

Consultations across the province and with Trade Boards confirmed that a review of SoPs is timely. I have proposed some desired outcomes and potential inputs that would allow for the development of more standardized SoPs. I have heard, for example, that the attempt at an exhaustive list of tasks, activities and functions in some SoPs cause the SoP versions to constantly lag behind current practices in those trades. In view of this, it might be better to reference training standards in SoPs, making it clear that the SoP will always reflect the most current standard/s.

Beyond the question of the content of SoPs, I believe that the SoP review process would create an opportunity for trades to discuss overlaps in the work, especially where this has been an irritant. A discussion would be important in itself and it might well go no further than that, but there might also be an opportunity to at least resolve some of the more minor irritants. This report identifies risk of harms as a key indicator of the public interest in future classification reviews and it might also be helpful as a point of reference in discussions of overlapping work. Disagreements over relatively safe work, for which workers have received appropriate levels of training, do not appear to me to be in the broader public interest. That being said, I recognize that these issues are long-standing and that the trades, and in some cases employers, involved are all responding in part to competitive pressures as well as institutional interests. It remains the case, however, that both the College, and myself as reviewer, are now required to examine these issues with a public interest lens.

Desired outcomes

• Common framework in place for a comprehensive review of scopes of practice for trades, leveraging the capacity of Trade Boards and including broad and inclusive consultations with trades and other stakeholders
• Updated SoPs by modernizing Board regulations respecting the scopes of practice for trades including the acknowledgement of overlaps between trades, both explicit (in regulation) and tacit (in practice in real-world settings). This should involve resolving disagreements of overlaps between trades and contribute to the stability of the trades system. SoPs support and inform various functions of the College, including apprenticeship and certification, promotion of the trades, ratio reviews, standards of practice and compliance.

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.