Submission regarding Proposed Board Regulations on Professional Misconduct

Transcription

1 Date of Submission Are you submitting on behalf of an organization or association? Terms of Use First Name Last Name Job Title Organization / Association Name City / Town Province Trade (s) associated with your association / organization 3-Dec-12 Yes I agree to the Terms of Use Stephen Hamilton Manager, Government Relations Ontario Home Builders' Association North York Ontario Floor Covering Installer; Hoisting engineer: mobile crane operator - Br1; Hoisting engineer: mobile crane operator - Br2; Hoisting engineer: tower crane operator; Precast concrete erector; precast concrete finisher; Cement concrete finisher; Cement Mason; Roofer; Terrazzo, tile and marble setter; Architectual glass and metal technician; construction boilermaker; Heat and Frost insulator; Brick and stone mason; Restoration mason; construction millwright; Ironworkergeneralist; Ironworker-structural & ornamental; ironworker- reinforcing rodworker; Painter and decorator BR 1- commercial and residential; Plumber; Steamfitter; Refrigeration and air conditioning systems mechanic; residential air conditioning systems mechanic; Residential (low rise) sheet metal installer; Sheet metal worker; Drywall, acoustic & lathing applicator; Drywall finisher and plasterer; Electrician: construction and maintenance; Electrician: domestic and rural; General carpenter; Powerline technician; Sprinkler & fire protection installer Page 1 of 12

2 Comments regarding Professional Misconduct Qs & As It is important that the regulatory scope of any disciplinary process be limited to only include egregious forms of unprofessional conduct that compromises the health and safety of the public. The Ministry of Labour already routinely levies fines and even criminal prosecutions on individuals that are not following the OHSA. In the home building sector, it is important for the College to recognize the role of Tarion in administering the Ontario New Home Warranty Act. New home builders are regulated under the Act and all new home builders' must be registered with Tarion to operate legally in Ontario. Tarion serves as a consumer protection agency and the College needs to be mindful that it is not infringing on the role of Tarion in the new home construction sector for fear on confusing consumers and ultimately frustrating consumers and the general public on the appropriate consumer protection agency to seek appropriate remedies. Through our home building association network we also have a program for home renovators, called RenoMark, that establishes criteria for membership including: Provide a detailed, written contract (including scope of work) for all jobs. Offer a minimum two year warranty on all work. Carry a minimum of $2 million liability insurance. Have coverage for workplace safety and employers' liability and/or work only with subcontractors who carry such coverage. Carry applicable licenses and permits. Have access to information, education, training and professional development through membership in Association. Maintain a safe and organized worksite. Page 2 of 12

3 Proposed Regulation: Professional Misconduct Act #1 Failing to take reasonable steps to safeguard the life, health or property of a person who may be affected by the work of a member or any person for whom the member is responsible, when the member knew or ought to have known that there was a risk to life, health or property. The portion of the regulation dealing with risk to life, health is a reasonable component of misconduct. However, the Ontario Ministry of Labour already has legislative and regulatory oversight of the misconduct regulation proposed. It is unclear how this requirement should interact with the Ministry of Labour and WSIB. Likewise, the protection of property is too broad and vague and could lead to frivolous disputes. The College cannot be used to replace small claims courts or other legal remedies for damage of property. The inclusion of protection of property may just be another avenue individuals can use if they have been unsuccessful receiving a remedy through the court system. The multiple regulatory layers may actually serve to confuse consumers, employees and the public of the appropriate remedies and process to deal with these issues. Page 3 of 12

4 Proposed Regulation: Professional Misconduct Act #2 Failure to act to correct or report a situation that the member believes may endanger the safety or welfare of the public. The role of the Ministry of Labour needs to be understood with the context of the regulation. The Ministry of Labour does and should remain the responsible for enforcement around health and safety. The Ministry of Labour s mission statement includes: occupational health and safety, employment rights and responsibilities, and labour relations. The Ministry of Labour s mandate is to set, communicate and enforce workplace standards while encouraging greater workplace self-reliance. The ministry develops, coordinates and implements strategies and is responsibility s and is ultimately responsible for prevention. If the College of Trades enters the space currently occupied by the Ministry of Labour, the overlapping regulatory agencies might actually confuse the public by increasing redundancies with the Ministry of Labour. Likewise, in a compulsory trade such as electrician, the Electrical Safety Authority is responsible for administering regulations that enhance public electrical safety in Ontario as well as administering specific regulations related to the Ontario Electrical Safety Code (OESC), licensing Electrical Contractors and Master Electricians. So it is unclear how the College will coordinate with already established licensing agencies. Page 4 of 12

5 Proposed Regulation: Professional Misconduct Act #3 Undertaking work that the member knows or ought to have known is not competent to perform by virtue of the member s certification, training and experience, or that of the member s employees. The scope of this regulation is too expansive. The regulation and Q&A suggests that certification of voluntary trades might be a pre-requisite before performing that work. Suppose a homeowner hires a contractor to finish their basement. The scope of work includes framing a basement, installation of insulation and vapour barrier, installation of laminate flooring, placement of drywall and painting the room. The contractor hired by the homeowner had some background in all of the above trades but does not hold a Certificate of Qualification in any. After the work was completed the homeowner was not satisfied because they believed there were deficiencies and makes a formal complaint to the College. How would the College address this complaint? How would an investigation occur? If it was found the contractor was not competent in one of the trades he performed, how would the College remedy the situation? If the contractor was unlicensed in all voluntary trades described, could he lose the ability to perform work in a voluntary trade the College found he was not competent in? In order to verify consumer complaints related to professional misconduct, we believe that the College would have some sort of judicial framework in place. If a contractor had to testify to a disciplinary body as to the legitimacy of a consumer complaint and the consumer complaint was deemed frivolous by the College, who would compensate the contractor for lost-time at work? Would the College? The consumer? OHBA is opposed to this regulation. Page 5 of 12

6 Proposed Regulation: Professional Misconduct Act #4 Accepting fraudulent compensation in any form for a particular service. Proposed Regulation: Professional Misconduct Act #5 Providing false information or documents to the College or any other person with respect to a member s trade qualifications. Proposed Regulation: Professional Misconduct Act #6 Contravening a term, condition or limitation imposed on the member s certificate of qualification or statement of membership. Proposed Regulation: Professional Misconduct Act #7 Permitting, counselling or assisting any person who is not a member of the College to represent himself or herself as a member of the College. Proposed Regulation: Professional Misconduct Act #8 Using a name other than the member s name as set out in the register, in the course of his or her practice of a trade, or in the course of employment or sponsorship of a member. The proposed regulation needs to be more clear as to what type of activity is being captured. Presumably this regulation is making reference to referring to cash deals or transactions that do not satisfy tax and reporting guidelines. Does the term fraudulent compensation have any meaning in provincial jurisprudence? OHBA does not support this as a criteria because the terms used are confusing and not identifiable. OHBA disagrees with this regulation because it is too expansive. The terms identified a member s trade qualifications suggests more than a certificate of qualification. Qualifications might mean an individual contractor s experience and background in a voluntary trade. The College would not have the capacity or authority to begin to regulate voluntary trades in such a manner. The proposed regulation needs to deal strictly with providing false information related to a Certificate of Qualification in a regulated trade. OHBA requires more clarity on the regulation proposed as the proposal is referencing not yet defined terms and conditions. OHBA would need to view the process for how the College would define a term, condition, or limitation on a certain trade before commenting on this proposed regulation. OHBA has no comment on this regulation. OHBA has no comment to the proposed regulation. Page 6 of 12

7 Proposed Regulation: Professional Misconduct Act #9 Signing or issuing, in the member s capacity as a member of the College, a document that the member knows, or ought to have known, contains a false, improper or misleading statement. Proposed Regulation: Professional Misconduct Act #10 Contravening a law if the contravention is relevant to the member s suitability to hold a certificate of qualification or statement of membership. Proposed Regulation: Professional Misconduct Act #11 Failing to maintain the standards that a reasonable member would maintain in the circumstances. OHBA has no comments on the proposed regulation OHBA agrees with the language relevant to the member s suitability as it permits a worker to potentially continue working in a trade even though an offense has been levied against them. We believe this flexibility is necessary. We believe that the process of conviction needs to be described in more detail. The College cannot levy a judgement of professional misconduct on an individual if they have not been convicted in a court. The College needs to respect due process (ie. presumption of innocence). OHBA disagrees with this proposed regulation. Too vague and expansive and could be the source of frivolous complaints. The College is framing regulations with no background on enforcement or administration of the law. The term reasonable referenced is enormously burdensome and could be used in an infinite amount of circumstances. For instance would this include minor issues such as a contractor s ability to keep a clean worksite? Potential misconduct in this case, again, falls outside the mandate of the College of Trades and could capture activities and behaviour that are not directly related to the performance of a trade. Similarly, the regulation needs to make the distinction between compulsory and voluntary trades. Especially concerning is that the second Q&A citing standards written or unwritten which suggests scenarios not even considered yet. The regulation needs to be deleted. Page 7 of 12

8 Proposed Regulation: Professional Misconduct Act #12 Conduct or an act or omission that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. OHBA disagrees with this proposed regulation. The language is too ambiguous and could cover an infinite amount of infractions. This ambiguity may lead to inconsistent judgments against individuals. Likewise, the Q&A explanation that damage the reputation of a trade could cover anything from offensive language used on a job site to personal grooming or demeanor. This regulatory proposal is something that goes well beyond the scope or intent of the College of Trades. The College of Trades appears to be lifting this regulation from a standard currently applied to doctors and physicians in Ontario, see Medicine Act, 1991 (Ontario Regulation 856/93). Is the College suggesting the same enforcement standards here? Page 8 of 12

9 Proposed Regulation: Professional Misconduct Act #13 Conduct unbecoming a member. OHBA disagrees with this proposed regulation for the same reasons as stated in proposal #12. The language is too ambiguous and could cover an infinite amount of infractions. We believe the standard proposed falls way beyond an appropriate regulatory scope for the College. The regulation of conduct unbecoming is currently applied to physicians and surgeons under the Medicine Act, 1991 (Ontario Regulation 856/93). In its application, the regulation is applied to misconduct occurring both in the practice of that trade as well as activity outside the trade. For instance there was a case where a physician was in a physical altercation with a motorist. The incident was not related to the practice of his work, but the Discipline Committee still fined the physician as they determined this behaviour was an example of conduct unbecoming. See: G/FreemanJB pdf?terms=conduct+unbecoming In making the finding of professional misconduct, the Committee had particular regard for the following: The public has an expectation that physicians will behave as responsible members of society and will respond in a reasonable and temperate manner, even when provoked. The public invests a great deal of trust in physicians and behaviour outside the clinical context must be worthy of that trust. Assault is never acceptable. Will the College find similar misconduct findings for the tens of thousands working in the trades? OHBA suggests that this is creating an outrageous regulatory scope for the College and needs to be deleted entirely. Page 9 of 12

10 Proposed Regulation: Professional Misconduct Act #14 Practising a trade while the member is in a conflict of interest. Proposed Regulation: Professional Misconduct Act #15 Misappropriating or otherwise dealing dishonestly with a client s or a third party s money or property, or otherwise engaging in fraudulent conduct. OHBA disagrees with the proposed regulation as it does not provide enough clarity as to the potential offense which might be covered under this regulation. It is not entirely clear what situations a trade would be where there is a conflict this is applicable to. The College needs to provide a clear policy related to conflict of interest for members compulsory trades acting as contractors will need clear guidance as they are conducting and performing business duties and obligations outside their mandated College of Trades membership. The College needs to establish a clear policy around conflict of interest. For instance, would a general contractor hiring a family member to perform renovation work count as a conflict of interest? OHBA disagrees with this proposed regulation. The fraudulent conduct portion is appropriate. However, it is not clear when a tradesperson would be dealing dishonestly and not breaking the law. If the regulation was clarified to only include fraudulent activity as defined by the criminal code; otherwise regular business practice could be scrutinized in a manner that falls outside the College s main mandate. For home renovation contractors, the RenoMark Program provides the standard that ensures fairness when consumers are dealing with contractors. Industry has been pro-active in providing solutions for consumers. Likewise, the College does not have the regulatory authority nor the bureaucratic capacity to be able to audit a company s transactions to make a fair judgment related to the regulation. Proposed Regulation: Professional Misconduct Act #16 Permitting, counselling, assisting, instructing or directing a member of the College to engage in any act defined as professional misconduct. OHBA disagrees with this regulation as this proposed regulation is regarding setting a standard to be measured against a currently unknown of standards. Once the College defines what professional misconduct is a more comprehensive answer can be provided. Page 10 of 12

11 Proposed Regulation: Professional Misconduct Findings in Other Jurisdictions Section 2. A finding of incompetence, professional misconduct or a similar finding against a member by a regulatory authority or a professional association or other body that has self-regulatory responsibility for the trades in a jurisdiction other than Ontario that is based on facts that would, in the opinion of the Discipline Committee, constitute professional misconduct as defined in section 1, is defined as professional misconduct for the purposes of subsection 46(2)(c) of the Act. The finding by another self regulatory body alone is not enough, the College will need a policy and process to verify the charge and context and history - can not be automatic as jurisprudence is required. OHBA disagrees with the regulation because it will be impossible to execute in a fair manner as the College does not have the bureaucratic ability to verify, confirm and determine the legitimacy of a past in fraction in a different jurisdiction. Page 11 of 12

12 General Response and Comments: Although the College of Trades maintains it is a representative industry-driven framework to address apprenticeship and training issues, we approach this consultation with an enormous amount of skepticism. The College of Trades continues to operate with minimal representation from the residential construction sector, which is the largest economic sector in the province. It's important that the regulatory scope of any disciplinary process be limited to only include egregious forms of unprofessional conduct that compromises the health and safety of the public. This consultation document is proposing professional misconduct regulations as though there is a complete absence of regulations governing the trades. The Ministry of Labour already routinely levies fines and even criminal prosecutions on individuals that are not following the Occupational Health and Safety Act. It is important for the College to recognize the role of Tarion in administering the Ontario New Home Warranty Act. New home builders are regulated under the Act and all new home builders' must be registered with Tarion to operate legally in Ontario. Tarion serves as a consumer protection agency and the College needs to be mindful that it is not infringing on the role of Tarion in the new home construction sector for fear on confusing consumers and ultimately frustrating consumers and the general public on the appropriate consumer protection agency to seek appropriate remedies. Tarion has an extensive warranty structure along with Tarion specific process and policies to deal with consumer related issues including contractual and construction related items that a consumer may suggest are examples of "professional misconduct". It is important for the College to inform itself of the legislative role, structure and policies of Tarion as it relates to the new home building sector - including the impact on builders and trades contracted to the builder to deliver a new home to a purchaser. Through our home building association network we also have a program for home renovators, called RenoMark, that establishes criteria for membership Page 12 of 12