SHERRARD KUZZ, LLP: OVERVIEW OF COMPULSORY CERTIFICATION REVIEW PROCESS

• By: admin
• On: 05/12/2014 11:46:48
• In: May 2014

Published on: 12/05/2014

On April 23, 2014, the Ontario College of Trades (“College”) released the very first of potentially many trade classification decisions. In a split 2-1 decision, the majority of the Review Panel recommended that the Sprinkler and Fire Protection Installer trade (“Sprinkler Fitters”) be reclassified as a compulsory trade. Once the Review Panel's recommendation is adopted into regulation, it will likely be unlawful for anyone other than a holder of a College approved Certificate of Qualification (“Certificate”) or a registered apprentice to perform the Sprinkler Fitter trade in Ontario.1

The result and underlying reasoning of the Review Panel gives rise to concern among many members of Ontario's construction industry. In particular, it is unclear on what basis – factual and legal – these decisions will be made in the future; and whether this decision signals a shift toward a universal compulsory trades model similar to the one in Québec. Let's review the decision a little closer…

THE PROCESS – A BRIEF OVERVIEW
The Ontario College of Trades and Apprenticeship Act (the “Act”) authorizes the College to determine whether a trade in Ontario will be compulsory or voluntary. The determination is made by a three member Review Panel appointed from the College's Roster of Adjudicators. In determining whether a trade should be classified or reclassified as compulsory or voluntary, the Review Panel is mandated, by regulation under the Act, to review the written and oral submissions of the parties as against seven criteria: i) the scope of the trade; ii) health and safety; iii) the effect on the environment; iv) economic impact; v) the classification of similar trades in other jurisdictions; vi) supply and demand of tradespeople in the labour market; and vii) the attraction and retention of tradespeople. The Sprinkler Fitter case marks the first time a Review Panel has considered the application of these criteria in the context of a compulsory trade application.

THE SPRINKLER FITTER DECISION
The Review Panel decided the Sprinkler Fitters ought to be reclassified as a compulsory trade. Whether or not the decision is correct in fact remains a matter of debate. More critical at this time is the manner and basis in and on which this decision was reached, and what it may mean for future applications and for the future of Ontario's construction industry.

From the very start, the case was fraught with controversy; and the end result seems to have made matters worse. Here are the issues in our view:

Allegation of Panel Bias: At the outset of the proceedings, certain of the parties asked the Panel to consider whether it should hear the matter in light of an allegation of reasonable apprehension of bias. In particular it was argued the Chair should not hear this trade classification review because he had previously represented one of parties making submissions to Panel. Oral hearings were temporarily adjourned so the Panel could hear a preliminary motion. The motion was ultimately dismissed and Panel proceeded to hear the case.

Lack of Evidence in Support of Reclassification: The Review Panel itself acknowledged and was troubled by the lack of evidence demonstrating a clear or direct connection between the seven criteria noted above and the impact of ordering the trade compulsory, and yet despite this the majority of the Panel ordered classification:

As noted before, the adequacy or sufficiency of evidence is a problem and a theme that recurs throughout this trade classification review. It was the thrust of the objections of the Skilled Trades Alliance, CLAC, the Home Builders Association throughout – that the reviews were intended to be evidence-based, and the proponents of change have failed (miserably in their view) to place adequate evidence before us to justify any change. …. Quite bluntly, there is much to be said for these arguments. It may be that future trade classification review panels will reject requests where the evidence is insufficient and does not adequately meet these standards.

Decision Based on “Intuitive Logic”: Admittedly, the majority of the Panel allowed themselves to be strongly influenced by what they referred to as “intuitive logic”. Namely this: If sprinkler systems are important to the prevention of fires, then their installation should be completed by those with mandatory certification. To this end, the Panel was influenced by the fact, as a matter of health and safety, the Fire Chiefs, Fire Prevention Officers and Firefighters all supported making Sprinkler Fitters a compulsory trade.

Decision Creates a Reverse Onus Inconsistent with the Act: By hanging its hat exclusively on a single criteria - health and safety - the Review Panel ignored its mandate to appropriately consider all seven of the Regulation's criteria and to require the Proponents of classification to lead sufficient evidence. Instead, the Panel chastised the responding parties for not having led sufficient evidence in opposition to classification; in so doing creating a reverse onus inconsistent with the Act. In the words of the Panel: “… other than observing that the proponents had not produced as much evidence as they say should have been produced, opponents provided no evidence of any harm either…..” And further, “None of the other criteria appear to provide any obstacle to finding sprinkler fitters mandatory.”

Strong Dissenting Opinion: The strong dissent of Panelist Robert Bradford suggests there may be a lack of clarity – even at the Panel level - in respect of the evidence required to support classification or reclassification. According to Panelist Bradford, in these trade classification reviews the onus is on the proponents of the change to demonstrate factually and objectively that a change is necessary based on the seven criteria. Unlike the majority, Panelist Bradford was unwilling to rely solely on ‘intuitive logic' as the basis to reclassify the Sprinkler Fitters. Time will tell whether future review panels adopt Panelist Bradford's reasoned approach.

THE FUTURE OF TRADE CLASSIFICATION REVIEW

The Sprinkler Fitters decision raises more questions than it provides answers. By deciding this case in the absence of sufficient evidence, basing its decision on ‘intuitive logic' and a single criteria – health and safety, failing to adequately consider all seven of the Regulation's criteria, and reversing the onus of proof, the majority of the Review Panel seems not to have complied with its mandate under the Act. Whether this approach is a sign of decisions to come remains to be seen.

1 The Review Panel stayed the implementation of its decision until the College “develop[s] and promulgate[s]” regulations for grandfathering experienced Sprinkler Fitters who do not hold a Certificate. The Review Panel gave the College 120 days to pass those regulations.

Sherrard Kuzz LLP will continue to closely monitor this process and report back. To learn more or for assistance, please contact a member of the Sherrard Kuzz LLP team.

The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Reading this article does not create a lawyer-client relationship. Readers are advised to seek specific legal advice from Sherrard Kuzz LLP (or other legal counsel) in relation to any decision or course of action contemplated.

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