Government to Strengthen the Ontario College of Trades
In October 2014, the Government of Ontario appointed Tony Dean (former Secretary of Cabinet and head of the Ontario Public Service) to review a number of issues related to the regulation of the skilled trades in Ontario.
The Dean review was conducted after several construction trade unions, including various locals and affiliates of the Labourers’ International Union of North America (LIUNA), raised concerns about the objects and functions of the newly-established Ontario College of Trades (OCT).
In particular, on several occasions, the OCT’s enforcement officers had charged or threatened to charge companies for permitting labourers represented by LIUNA to engage in the “Scope of Practice” (SoP) of various trades designated as “compulsory” under the Ontario College of Trades and Apprenticeship Act (OCTAA). The charges in question were apparently based on a strict and rigid interpretation of the SoPs, with the result that the labourers in question were prevented from carrying out work they had been performing safely and skillfully for decades, that was assigned to them under collective agreements, and that in some cases had already been the subject of jurisdictional dispute decisions by the Ontario Labour Relations Board (OLRB).
To make matters worse, the appeal mechanism under the OCTAA regime is not effective. Disputed charges can only be tried as a quasi-criminal matter before the Ontario Court of Justice (OCJ). Unlike the Ontario Labour Relations Board (OLRB), which had dealt with these kinds of challenges in the past, the OCJ does not have jurisdiction to grant interim relief while the charges were being adjudicated, has no obvious jurisdiction to interpret the compulsory trade restrictions in light of their safety purpose, is not required or even permitted to consider workplace agreements or jurisdictional dispute awards, and lacks the expertise necessary to understand and resolve these disputes in their proper labour relations context. Furthermore, trade unions have no standing to participate in appeals involving their members, as they did before the OLRB.
The above leaves the OCTAA enforcement regime vulnerable to abuse by competitor trade unions seeking to challenge jurisdictional agreements or decisions through the back door. The regime simply lacks the tools necessary to identify and deal appropriately with jurisdictionally-motivated complaints.
These and other concerns were brought to Mr. Dean’s attention by dozens of construction industry groups, including a coalition of LIUNA Locals 625, 1059 and 1089 (“the LIUNA Coalition”), represented by Lorne Richmond and Charlene Wiseman. Richmond and Wiseman also prepared an extensive background paper, submitted on behalf of Local 183, on lessons to be learned from the OLRB’s historical approach to trade and jurisdictional issues.
In his report released on November 20, 2015, Mr. Dean addresses many of the issues and concerns outlined in the LIUNA Coalition’s submissions and the Local 183 background paper. Indeed, Mr. Dean relied heavily on those materials, often quoting them directly or citing them in support of the findings made.
In particular, Mr. Dean agreed with the LIUNA Coalition that “[i]t is neither possible nor desirable to view every aspect of any trade’s SoP as compulsory and enforce it as such,” and that a purposive, harm-based approach approach to compulsory trades enforcement was required. He was also persuaded that the appeal mechanism in the new regime was inadequate and vulnerable to jurisdictional abuse, quoting from Local 183’s background paper as follows:
Under this new regime the role of the [Ontario Labour Relations] Board has been eliminated. OCOT inspectors issue charges that are prosecuted under the Provincial Offences Act. These charges can only be challenged before the provincial court, which lacks both the expertise and the jurisdiction to interpret compulsory trades restrictions in their proper context, Trade unions have no standing to challenge charges or to participate in proceedings before the provincial court, even where the charges in question fundamentally affect the interest of the workers they represent. The provincial court also lacks jurisdiction to issue a stay, which unnecessarily threatens the stability of construction projects and opens the door to abuse. The result is a compulsory trades enforcement regime that lacks the required expertise, principled guidance and procedural safeguards necessary to ensure its fairness, rationality and overall legitimacy.”
Mr. Dean’s recommendations, if implemented effectively, will go a long way toward solving the problems with the OCTAA regime. Such recommendations include the following:
- The SoPs should be updated and standardized on the basis of discussions with Trade Boards and other stakeholders.
- A review panel should be established to make decisions about the classification or reclassification of trades as compulsory or voluntary. The key factor to be considered by the review panel is risk of harm, and the panel should undertake public consultations.
- The OCT should establish a compliance and enforcement committee to assist in the development of a policy-based approach to compliance and enforcement that considers risk of harms and consumer protection. The majority of this committee’s membership should be representatives of employer or employee groups who are not members of the College’s governing boards.
- A mechanism should be developed that would allow individuals, their representatives or their employers to appeal to the OLRB on the basis that the OLRB previously addressed the enforcement action or is the subject of an existing agreement. If satisfied on a prima facie basis that there are grounds for an appeal, the OCT’s action would be stayed until the OLRB releases a decision. The OLRB would have the discretion to designate a matter as a jurisdictional dispute (where it finds that an existing decision or agreement is relevant but not determinative). Where an appeal is upheld, the matter would be nullified.
On November 20, 2015, the Government of Ontario announced that it will implement all of the recommendations. Thus, it can be expected that new processes will established to carry out SoP and classification reviews, to develop a policy-based approach to compliance and enforcement, and for appeals of enforcement actions to the OLRB.
This process will require close attention by interested unions.
For more information about the Dean Review, the processes that will follow, or about trades regulation in general, contact Lorne Richmond or Charlene Wiseman.