Comment Form: Proposed Board Regulation on Professional ... · PDF fileProposed Board Regulation on Professional Misconduct ... (hold a valid registered training agreement) ... Abide

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Comment Form:Proposed Board Regulation on ProfessionalMisconductIntroduction

The College is inviting public comments on a proposed Board regulation related to the followingmatter:

Defining professional misconduct for the purposes of the Ontario College of Trades’ complaintsand discipline process.

The deadline for the receipt of comments is December 3, 2012.

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Problem or question? Send us an email at [email protected] or give us a call at

(647) 847-3000 or toll free at 1-855-299-0028.

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Terms of Use

Please note that the feedback you provide as part of this Consultation, whether sent by postal mail,fax, email or through the Ontario College of Trades (the College) website, becomes part of a publiclyaccessible file and will be posted on the College website. This information will include your full name,city/town, province, occupation, and organizational affiliation (please refer below to Option 1).However, the College will not disclose information such as your email address, postal/street address,telephone and fax number(s). Upon your request, the College will withhold your name from thepublicly accessible file (please refer below to Option 2).

Documents received electronically or otherwise will be put on the College website in their entiretyexactly as you send them in the official language and format in which they are received. Documentsnot received electronically will be available in PDF format. The College reserves the right not to displayor use any feedback or other materials that is unlawful, defamatory, obscene, abusive, inflammatory,harmful, or otherwise objectionable, or that would violate the rights of any party.

You represent and warrant that you own or have all necessary licenses, rights, consents or permissionsrequired under applicable law, including copyright, trademark, patent, trade secret and privacy andpublicity rights, to authorize the College to display, copy and use all feedback or other materialsprovided by you to the College. The personal information you provide will be used for the purpose forwhich the information was obtained or compiled by the Ontario College of Trades including thedevelopment of regulations under the Ontario College of Trades and Apprenticeship Act.

Option 1: I agree to the Terms of Use

Option 2: I agree to the Terms of Use, but request that my name not be publicly accessible

Option 3: I do not agree to the Terms of Use

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We’re here to help!

Problem or question? Send us an email at [email protected] or give us a call at(647) 847-3000 or toll free at 1-855-299-0028.

mailto:[email protected]

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Individual Submissions

First Name

Last Name

Street Address

City / Town

Province

Postal Code

Telephone

Email Address (optional) s

Organizational Affiliation(if any)

Check this box to receive updates from the Ontario College of Trades

I am a/an (select all that apply):

Apprentice (hold a valid registered training agreement)

Journeyperson (hold a valid certificate of qualification)

Skilled Tradesworker (do not hold a certificate of qualification)

Student in a trades-related program (e.g. OYAP, vocational school, pre-apprenticeship program)

Parent / guardian of a student in a trades-related program

Other, please specify: Association

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Trade (s) – please list all that apply: Click here to enter text

Association / Organization / Company Submissions – You are authorized torepresent and make comments on behalf of an association or company

First Name Stephen

Last Name Hamilton

Job Title Manager, Government Relations

Association/Organization/Company Name Ontario Home Builders’ Association

Street Address

City / Town Toronto

Province Ontario

Postal Code

Telephone

Email Address

(shouldn't we be filling out this section for this submission)

Check this box to receive updates from the Ontario College of Trades

(Continued on next page)

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(Continued from previous page)

Please tell us more about your association / organization / company:

Number of individuals yourassociation/organization/companyemploys/sponsors/represents

(4000 member companies acrood 30 localassociation...)

Apprentice(s) Click here to enter text

Journeyperson(s) Click here to enter text

Skilled tradesworker (do not hold a certificate ofqualification)

Click here to enter text

Total number of employees/members yourassociation/company employs or represents(including the categories above)

400 companies

Trade (s) associated with your association / organization / company – please list all that apply:

Floor Covering Installer; Hoisting engineer: mobile crane operator - Br1; Hoisting engineer: mobilecrane operator - Br2; Hoisting engineer: tower crane operator; Precast concrete erector; precastconcrete finisher; Cement concrete finisher; Cement Mason; Roofer; Terrazzo, tile and marble setter;Architectual glass and metal technician; construction boilermaker; Heat and Frost insulator; Brick andstone mason; Restoration mason; construction millwright; Ironworker-generalist; Ironworker-structural& ornamental; ironworker- reinforcing rodworker; Painter and decorator BR 1- commercial andresidential; Plumber; Steamfitter; Refrigeration and air conditioning systems mechanic; residential airconditioning systems mechanic; Residential (low rise) sheet metal installer; Sheet metal worker;Drywall, acoustic & lathing applicator; Drywall finisher and plasterer; Electrician: construction andmaintenance; Electrician: domestic and rural; General carpenter; Powerline technician; Sprinkler & fireprotection installer

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Proposed Regulation: Definition of Professional MisconductSection 1. The following acts are defined as professional misconduct for the purposes of subsection46(2)(c) of the Act:

Q: What is professional misconduct?A: Professional misconduct is normally used to describe any acts or actions that may intentionallyviolate the ethical or practice standards of a trade, or that may discredit or damage the reputation of atrade.

Q: Why is this regulation being proposed?A: Once the College is fully operational, any person will be able to complain to the College about theconduct of any of its members. If a written complaint is filed, and the complaint is about “professionalmisconduct,” “incompetence” or “incapacity,” the College will have the responsibility to:

consider and investigate the allegations; determine if a hearing is required; make a decision; and/or discipline the member when appropriate (see section 44 of the Ontario College of Trades and

Apprenticeship Act, 2009 (OCTAA)).

However, because OCTAA does not have a complete definition of professional misconduct, theCollege’s Board of Governors (Board) must define professional misconduct in a regulation. Thisregulation will make it possible for members of the College to know what they are not allowed to do.Members of the public will know what to expect from a member of the College, and the College will beable to decide if a member is guilty of professional misconduct (see section 46(2)(c) of OCTAA).

The proposed Board regulation includes 16 acts or actions that would fall under the definition ofprofessional misconduct.

Q: Who would this proposed regulation apply to?A: It would apply to all members of the College in any one of the College’s membership classes.

Q: Why would the College receive and investigate complaints against its members?A: Section 10 of OCTAA states that the College has a duty to serve and protect the public interest. Thisis an important part of the College’s role as a self-regulating professional body for Ontario’s 157 trades.In order to do this, the College must have an effective complaints and discipline process in place that isaccessible to the public.

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Q: Is the College’s complaints and discipline process typical?A: Yes, it is. Almost every self-regulating professional body in Ontario has an obligation to have acomplaints and discipline process in place to make sure that the public interest is protected. Thisprocess (which requires having a professional misconduct regulation) allows members of the public tocomplain against members of the College, and makes it possible for the College to receive andinvestigate those complaints, and decide if the member did anything wrong (in which case disciplinewould be needed).

Q: How does the College intend to use the Proposed Regulation?

A: The proposed regulation will be used to communicate to the College’s members and to the publicat large what a tradesperson is not allowed to do when conducting business and doing work. Theproposed regulation will be used from beginning to end of the complaints and discipline process.

Q: What will the complaints and discipline process look like?A: Once the College is fully operational, if a person wishes to complain against a member, he or shemust file a complaint in writing with the College. If the complaint is about professional misconduct, itwill have to fall under any of the acts defined as professional misconduct in the proposed regulation orin OCTAA. In addition, the complaint must be serious (not “frivolous”), not meant to harass a member,and cannot be an abuse of process (this is outlined in section 44 of OCTAA).

If the complaint meets these requirements, the College’s Complaints Committee will then investigatethe complaint. As part of this investigation, the Complaints Committee has an obligation to notify themember of the complaint and inform him or her about the allegations so that the member can defendhim or herself. If the Complaints Committee finds that there may have been professional misconduct, itmay send the complaint to the Discipline Committee for a hearing and decision. The member canappeal the Discipline Committee’s decision to the College or to the courts (this is outlined in sections44 to 46, and 49 to 51 of OCTAA).

Please provide comments below, if any:

(maximum 250 words – only the first 250 words of this entry will be considered)

It is important that the regulatory scope of any disciplinary process be limited to only include egregiousforms of unprofessional conduct that compromises the health and safety of the public. Thisconsultation document is proposing professional misconduct regulations as though there is a completeabsence of regulations governing the trades. The Ministry of Labour already routinely levies fines andeven criminal prosecutions on individuals that are not following the Occupational Health and SafetyAct.

In the home building sector, it is important for the College to recognize the role of Tarion inadministering the Ontario New Home Warranty Act. New home builders are regulated under the Act

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and all new home builders' must be registered with Tarion to operate legally in Ontario. Tarion servesas a consumer protection agency and the College needs to be mindful that it is not infringing on therole of Tarion in the new home construction sector for fear on confusing consumers and ultimatelyfrustrating consumers and the general public on the appropriate consumer protection agency to seekappropriate remedies.

Tarion has an extensive warranty structure along with Tarion specific process and policies to deal withconsumer related issues including contractual and construction related items that a consumer maysuggest are examples of "professional misconduct". It is important for the College to inform itself ofthe 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 apurchaser.

Tarion already deals with professional misconduct cases and has an enforcement division that changes,convicts and fines builders for infractions, often related to workmanship. For instance, in 2009 Tarioninvestigated 419 home builders, charging 353 and convicted 241. There were also two criminalconvictions stemming from the enforcement activities that resulted in prison sentences.

Through our home building association network we also have a program for home renovators, calledRenoMark, that establishes criteria for membership including:

Be a member in good standing of the local Canadian Home Builders’ Association.

Abide by the Association’s Code of Ethics.

Provide a detailed, written contract (including scope of work) for all jobs.

Offer a minimum two year warranty on all work (excludes minor home repair).

Carry a minimum of $2 million liability insurance.

Have coverage for workplace safety and employers' liability and/or work only with subcontractorswho carry such coverage.

Carry applicable licenses and permits.

Have access to information, education, training and professional development through membershipin the Association.

Maintain a safe and organized worksite.

Return phone calls within two business day

The Ministry of Consumer Services recently recognized RenoMark as a valuable source of consumerinformation. http://news.ontario.ca/mcs/en/2012/09/avoid-home-renovation-headaches.html

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We provide this information because the College is entering an already well-established area ofconsumer protection and the tone and breadth of the proposals in the document suggest the Collegebelieves there is a scarcity of regulatory oversight. This is simply not true for residential construction.

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Proposed Regulation: Professional Misconduct –Act #11. Failing to take reasonable steps to safeguard the life, health or property of a personwho may be affected by the work of a member or any person for whom the member isresponsible, when the member knew or ought to have known that there was a risk to life,health or property.

Q: What does this act mean?

A: While doing their work, members of the College have an obligation to care for the life, health orproperty of others, and are required to take “reasonable steps” to prevent any accidents. Thisobligation also applies when a member is supervising the work of an employee/apprentice. Theobligation only applies if the member knew (or should have known) that there was a risk to the life,health or property of others.

Q: Why is this act being proposed under the definition of professional misconduct?

A: The College is proposing this act under the definition of professional misconduct to protect anyonewhose life, health or property may be affected by the work of a member of the College. As a self-regulating body, the College has a duty to ensure that its members are careful in their work and thatthey protect the public in a proactive way. Including this act will help the College deal with conduct onthe part of its members that threatens the life, health or property of a member/members of the public.



The portion of the regulation dealing with “risk to life, health” is reasonable component of misconduct.However, the Ontario Ministry of Labour already has legislative and regulatory oversight of themisconduct regulation proposed. It is unclear how this requirement should interact with the Ministryof 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 ofproperty. The inclusion of protection of property may just be another avenue individuals can use ifthey have been unsuccessful receiving a remedy through the court system.

The multiple regulatory layers may actually serve to confuse consumers, employees and the public ofthe appropriate remedies and process to deal with these issues.

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Proposed Regulation: Professional Misconduct –Act #2

2. Failure to act to correct or report a situation that the member believes may endangerthe safety or welfare of the public.


While working, a member of the College must try and fix or report a situation where they believe thesafety or well-being of a member/members of the public may be in danger.


A: The College is proposing this act under the definition of professional misconduct to protect thesafety and well-being of the public and make members of the College responsible for protecting them,in a proactive way, during the course of their work. A member only commits this act if he or she is ableto identify the dangerous situation (based on the member’s training, experience and competence), andbelieves (in good faith) that the situation is dangerous to the public, but does not do anything about it.

As a self-regulating body, the College has a duty to ensure that its members are careful in their workand that they protect the public in a proactive way. By defining this act, the College will be able to dealwith conduct on the part of its members that threatens the safety or well-being of amember/members of the public.



OHBA supports the objective of this proposed regulation however the role of the Ministry of Labourneeds to be understood with the context of the regulation. The Ministry of Labour does and shouldremain the responsible for enforcement around health and safety. The Ministry of Labour’s missionstatement includes: “occupational health and safety, employment rights and responsibilities, andlabour relations. The Ministry of Labour’s mandate is to set, communicate and enforce workplacestandards while encouraging greater workplace self-reliance.” The ministry develops, coordinates andimplements 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 overlappingregulatory agencies might actually confuse the public by increasing redundancies with the Ministry ofLabour.

Likewise, in a compulsory trade such as electrician, the Electrical Safety Authority is responsible foradministering regulations that enhance public electrical safety in Ontario as well as administeringspecific regulations related to the Ontario Electrical Safety Code (OESC), licensing Electrical Contractorsand Master Electricians. So it is unclear how the College will coordinate with already establishedlicensing agencies.

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Again, the College is entering the regulatory environment as though there is a complete absence ofoversight of the trades.

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3. Undertaking work that the member knows or ought to have known is not competentto perform by virtue of the member’s certification, training and experience, or that of themember’s employees.


A: Members of the College are not allowed to take on work that they know (or should have known)they or their employees are not competent to do because: (a) they are not certified to do the work, (b)they are not trained to do the work, and/or (c) they do not have enough experience to do the work. Amember is not competent when he or she does not have the necessary knowledge, skill or judgment todo the work of the trade.


A: Members are expected to only take on work of a trade that they can do because they have thenecessary certification, training and experience to do it, and to know when they are out of their depth.Defining this act as professional misconduct will help to ensure that a client is not paying for work thatthey believe the member can do when in fact the member is not qualified or competent to do it.Defining this act will also help to prevent accidents that could have been prevented if the member hadnot taken on work that he or she knew was not competent to do.



The scope of this regulation is too expansive. The regulation and Q&A suggests that certification ofvoluntary 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 framinga basement, installation of insulation and vapour barrier, installation of laminate flooring, placement ofdrywall and painting the room. The contractor hired by the homeowner had some background in all ofthe 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 thiscomplaint? How would an investigation occur? If it was found the contractor was not ‘competent’ inone of the trades he performed, how would the College remedy the situation? If the contractor wasunlicensed in all voluntary trades described, could he lose the ability to perform work in a voluntarytrade the College found he was not competent in?

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In order to verify consumer complaints related to professional misconduct, we believe that the Collegewould have some sort of judicial framework in place. If a contractor had to testify to a disciplinary bodyas to the legitimacy of a consumer complaint and the consumer complaint was deemed frivolous bythe College, who would compensate the contractor for lost-time at work? Would the College? Theconsumer?

OHBA is opposed to this regulation.

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4. Accepting fraudulent compensation in any form for a particular service.


A member of the College cannot accept fraudulent payment for a particular service. It does not matterif the fraudulent payment accepted is made in money or in kind.


A: The College is proposing this act under the definition of professional misconduct to preventsituations where clients may be paying for a service without knowing that the charges are fraudulent.



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 notsatisfy tax and reporting guidelines.

Does the term “fraudulent compensation” have any meaning in provincial jurisprudence? OHBA doesnot support this as a criteria because the terms used are confusing and not identifiable.

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5. Providing false information or documents to the College or any other person withrespect to a member’s trade qualifications.


Members of the College are not permitted to give false information or documents about theirqualifications in a trade, or about the qualifications of their employees and apprentices, to either theCollege or any other person. Lying or falsifying any documents about a member’s qualifications isstrictly prohibited.


A: A member of the College is expected to tell the truth and to act honestly and with integrity. Alldocuments and records about a member’s qualifications in a trade are to be completed honestly andaccurately and must not be falsified. This rule applies to all members of the College in all of itsmembership classes, and covers any interaction between contractors (employers) and members of thepublic, and between apprentices or journeypersons and members of the public.



OHBA disagrees with this regulation because it is too expansive. The terms identified “a member’strade qualifications” suggests more than a “certificate of qualification”. Qualifications might mean anindividual contractor’s experience and background in a voluntary trade. The College would not havethe 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 Certificateof Qualification in a regulated trade.

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6. Contravening a term, condition or limitation imposed on the member’s certificate ofqualification or statement of membership.


Members of the College must follow and respect any terms, conditions and limitations imposed by theCollege on their certificates of qualification or statements of membership. A member of the College isresponsible for ensuring that any work they do or any interactions they are part of do not go againstwhat they are permitted to do by the College.


A: The College will be able to impose terms, conditions and limitations on a member’s certificate ofqualification or statement of membership to protect the public. The College is proposing to define thisact as professional misconduct to help ensure that its members follow and respect these terms,conditions and limitations when they practice their trade(s).



OHBA requires more clarity on the regulation proposed as the proposal is referencing not yet definedterms 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.

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7. Permitting, counselling or assisting any person who is not a member of the College torepresent himself or herself as a member of the College.


A member may not allow, encourage or help any person who is not a registered member of the Collegeto hold him or herself out as a member of the College.


A: The College is proposing this act under the definition of professional misconduct to preventmembers of the College from allowing, encouraging or helping non-members to call themselvesmembers of the College when they are not in fact members. Membership in the College adds statusand legitimacy to the trades in Ontario. If a member of the public hears that an individual is a memberof the College, he or she will assume that that is true, that the individual is qualified/licensed, and thatthe work will be done legally by a person with the necessary qualifications. This act needs to beincluded in the definition of professional misconduct to ensure that members of the College do nothelp non-members mislead the public because doing so may result in unqualified or unsafe work, anddamage the reputation of the College and the trades.



OHBA has no comment on the proposed regulation.

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8. Using a name other than the member’s name as set out in the register, in the courseof his or her practice of a trade, or in the course of employment or sponsorship of a member.


A: When practicing his or her trade or sponsoring an apprentice, a member of the College must use thename he or she used to get registered with the College, which is the name that appears on the publicregister.

The public register is a database that will be available to the public on the College’s website and thatwill include, for example:

the name of each member of the College, whether the member has a certificate of qualification or a statement of membership and for

which trade(s), the class(es) of membership to which the member belongs, any terms, conditions and limitations to which the member is subject, and every revocation, cancellation and suspension of the member’s certificate of qualification or

statement of membership (see section 42 of OCTAA and section 23 of the College’s By-Laws).


A: Members of the public have a right to know with whom they are dealing. It is important for thepublic to be able to verify, through the public registry, the membership status of individuals holdingthemselves out as members of the College and see if they are ‘members in good standing’ of theCollege. This is only possible if the name given out by the member is the same name that appears onthe public register. If a member of the College uses another name in dealing with the public, a clientmay not be able to find out the class of membership and trade in which the member is qualified, or ifthe member is in good standing with the College (for example, a member’s certificate of qualificationor statement of membership may be revoked by the College if the member has been found guilty ofprofessional misconduct). It is also important that the College be able to identify a member if acomplaint or report is made to the College.




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9. Signing or issuing, in the member’s capacity as a member of the College, a documentthat the member knows, or ought to have known, contains a false, improper or misleadingstatement.


A: In practicing his or her trade, a member of the College will only sign, prepare or send outdocuments that contain true and correct information. If the member knows (or should have known)that the document contains false, improper or misleading information, then the member should nothave signed it, prepared it or sent it out.


A: The College is proposing this act under the definition of professional misconduct to ensure thatmembers of the College are truthful and accurate when they sign off on work that has been done orsupervised, or when they say that the work they performed meets particular standards orspecifications. This obligation also extends to contracts or documents stating that training has beenproperly completed, work has been properly done, and materials agreed upon have actually beenused.




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10. Contravening a law if the contravention is relevant to the member’s suitability tohold a certificate of qualification or statement of membership.


A: If a member is convicted in court for an offence that is related to his or her trade (for example, aconviction for unsafe work practices causing injury or death of another person), the member may notbe suitable anymore to hold a certificate of qualification or a statement of membership with theCollege.


A: Members of the College are subject to OCTAA, its regulations and by-laws, and any other laws thataffect their occupation. They should be familiar with these rules and comply with them. The Collegehas a responsibility to ensure that its members have not been convicted of offences that may put thepublic in danger.



OHBA agrees with the language “relevant to the member’s suitability” as it permits a worker topotentially continue working in a trade even though an offense has been levied against them. Webelieve this flexibility is necessary. We believe that the process of conviction needs to be described inmore detail. The College cannot levy a judgement of professional misconduct on an individual if theyhave not been convicted in a court. The College needs to respect due process (ie. presumption ofinnocence).

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11. Failing to maintain the standards that a reasonable member would maintain in thecircumstances.


A: Members of the College are expected to practice their trade(s) in accordance with the standardsthat any reasonable member would maintain in a similar situation.


A: Professional standards can be written or unwritten. When a standard is unwritten, there is ashared understanding of how a reasonable member would act in certain situations. Members areexpected to learn, through training and experience, the basic principles of practicing the trade safelyand effectively.



OHBA disagrees with this proposed regulation. Too vague and expansive and could be the source offrivolous complaints. The College is framing regulations with no background on enforcement oradministration of the law. The term “reasonable” referenced is enormously burdensome and could beused 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 couldcapture 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 suggestsscenarios not even considered yet. The regulation needs to be deleted.

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12. Conduct or an act or omission that, having regard to all the circumstances, wouldreasonably be regarded by members as disgraceful, dishonourable or unprofessional.


A: By defining this act as professional misconduct, the College would be prohibiting conduct, includingan ‘act’ (action) or an ‘omission’ (lack of action), which reasonable members of the College wouldconsider unacceptable because it is disgraceful, dishonourable or unprofessional.


A: The College is proposing this act under the definition of professional misconduct to cover a widerange of conducts in which a member of the College could engage when practicing a trade and whichreasonable members of the College would agree are unacceptable or would damage the reputation ofthe trade(s).



OHBA disagrees with this proposed regulation. The language is too ambiguous and could cover aninfinite 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 fromoffensive language used on a job site to personal grooming or demeanor. This regulatory proposal issomething 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 doctorsand physicians in Ontario, see Medicine Act, 1991 (Ontario Regulation 856/93).

Is the College suggesting the same enforcement standards here

OHBA suggests that this proposed regulation needs to be deleted entirely.

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13. Conduct unbecoming a member.


A: A member of the College should not behave in a way that reflects poorly on his or her integrity (forexample, being dishonest or breaching trust).


A: The College is proposing this act under the definition of professional misconduct to cover a widerange of conducts in which a member of the College could engage (including conduct outside thepractice of a trade) and which reasonable members of the College would agree are unacceptable orwould damage the reputation of the trade(s).



OHBA disagrees with this proposed regulation for the same reasons as stated in proposal #12. Thelanguage is too ambiguous and could cover an infinite amount of infractions. We believe the standardproposed falls way beyond an appropriate regulatory scope for the College.

The regulation of “conduct unbecoming” is currently applied to physicians and surgeons under theMedicine Act, 1991 (Ontario Regulation 856/93). In its application, the regulation is applied tomisconduct occurring both in the practice of that trade as well as activity outside the trade. Forinstance there was a case where a physician was in a physical altercation with a motorist. The incidentwas not related to the practice of his work, but the Discipline Committee still fined the physician asthey determined this behaviour was an example of “conduct unbecoming”. See:http://www.cpso.on.ca/uploadedfiles/Discipline_Decisions/E-G/FreemanJB200802.pdf?terms=conduct+unbecoming

In making the finding of professional misconduct, the Committee had particular regard for thefollowing: “The public has an expectation that physicians will behave as responsible members ofsociety and will respond in a reasonable and temperate manner, even when provoked. The publicinvests a great deal of trust in physicians and behaviour outside the clinical context must be worthy ofthat 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 bedeleted entirely.

http://www.cpso.on.ca/uploadedfiles/Discipline_Decisions/E-G/FreemanJB200802.pdf?terms=conduct+unbecoming

http://www.cpso.on.ca/uploadedfiles/Discipline_Decisions/E-G/FreemanJB200802.pdf?terms=conduct+unbecoming

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14. Practising a trade while the member is in a conflict of interest.


A: Members of the College should not practice their trade(s) if they are in a position where theirpersonal interests could influence or could be contrary to the professional duties they have towardtheir clients.


A: The College is proposing this act under the definition of professional misconduct to help preventconflicts of interest. There is a conflict of interest when a member’s own interest is contrary to theinterest of his or her client. In order to prevent members of the College from putting their owninterests first, the College would prohibit the member from practicing a trade in situations in which aconflict of interest exists.



OHBA disagrees with the proposed regulation as it does not provide enough clarity as to the potentialoffense which might be covered under this regulation. It is not entirely clear what situations a trade

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would be where there is a conflict this is applicable to. The College needs to provide a clear policyrelated to conflict of interest for members compulsory trades acting as contractors will need clearguidance as they are conducting and performing business duties and obligations outside theirmandated College of Trades membership.

Would a contractor that hires members of his family be in violation of the regulation? The Collegeneeds to provide a clear policy on what would count as a conflict.

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15. Misappropriating or otherwise dealing dishonestly with a client’s or a third party’s moneyor property, or otherwise engaging in fraudulent conduct.


A: Defrauding or stealing from a client or third party is prohibited and is considered professionalmisconduct even if there is no criminal conviction.


A: The College is proposing this act under the definition of professional misconduct to addressdishonest conduct involving a client’s or a third party’s money or property. Examples of this actinclude: defrauding clients through billing them for false charges, stealing from a client directly (forexample, stealing from a worksite), or defrauding an employer by submitting false time sheets.



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’smain mandate. Tarion is already involved in this area through disclosure requirements the builder mustsubmit to.

Would a renovator charging a consumer a percentage on materials be considered as “dealingdishonestly”?

Likewise, the College does not have the regulatory authority nor the bureaucratic capacity to be able toaudit a company’s transactions to make a fair judgment related to the regulation.

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16. Permitting, counselling, assisting, instructing or directing a member of the College toengage in any act defined as professional misconduct.


A: A member of the College should not encourage, assist or order other members of the College toengage in professional misconduct.


A: Members of the College should be the first ones to ensure that they and their fellow membersfollow the highest ethical and practice standards. Encouraging others to breach this regulation and/orOCTAA is just as bad as doing it yourself. Because it includes conducts that could take place eitherwithin or outside an employment relationship (between an employer and an employee) or asponsorship relationship (between a sponsor and an apprentice), this act is broad enough to cover allmembers of the College (including apprentices, journeypersons, employers and sponsors).



OHBA disagrees with this regulation as this proposed regulation is regarding setting a standard to bemeasured against a currently unknown of standards. Once the College defines what professionalmisconduct is a more comprehensive answer can be provided.

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Proposed Regulation: Professional Misconduct –Findings in Other Jurisdictions

Section 2. A finding of incompetence, professional misconduct or a similar finding against a memberby a regulatory authority or a professional association or other body that has self-regulatoryresponsibility for the trades in a jurisdiction other than Ontario that is based on facts that would, inthe 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.

Q: What does this provision mean?

A: The College’s Discipline Committee may consider a finding of professional misconduct orincompetence made by another self-regulatory body or by a government body outside Ontario to beequivalent to professional misconduct under this proposed regulation.

Q: Why is this provision being proposed?

A: Some members of the College are or have been regulated by another self-regulatory body or by agovernment body outside Ontario. If an out-of-province body has found a member of the College guiltyof professional misconduct or incompetence, the College may consider that the member’s actions inthe other jurisdiction also qualify as professional misconduct in Ontario if those actions fit one or moreof the acts defined as professional misconduct in the proposed regulation.



The finding by another self regulatory body alone is not enough, the College will need a policy andprocess to verify the charge and context and history - can not be automatic as jurisprudence isrequired. OHBA disagrees with the regulation because it will be impossible to execute in a fair manneras the College does not have the bureaucratic ability to verify, confirm and determine the legitimacy ofa past in fraction in a different jurisdiction.

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General Response and Comments:

Are there any other acts or types of conduct that you think the College should include in theprofessional misconduct regulation?

Please provide additional comments below, if any:


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It is important that the regulatory scope of any disciplinary process be limited to only include egregiousforms of unprofessional conduct that compromises the health and safety of the public. Thisconsultation document is proposing professional misconduct regulations as though there is a completeabsence of regulations governing the trades. The Ministry of Labour already routinely levies fines andeven criminal prosecutions on individuals that are not following the Occupational Health and SafetyAct.

In the home building sector, it is important for the College to recognize the role of Tarion inadministering the Ontario New Home Warranty Act. New home builders are regulated under the Actand all new home builders' must be registered with Tarion to operate legally in Ontario. Tarion servesas a consumer protection agency and the College needs to be mindful that it is not infringing on therole of Tarion in the new home construction sector for fear on confusing consumers and ultimatelyfrustrating consumers and the general public on the appropriate consumer protection agency to seekappropriate remedies.

Tarion has an extensive warranty structure along with Tarion specific process and policies to deal withconsumer related issues including contractual and construction related items that a consumer maysuggest are examples of "professional misconduct". It is important for the College to inform itself ofthe 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 apurchaser.

Tarion already deals with professional misconduct cases and has an enforcement division that changes,convicts and fines builders for infractions, often related to workmanship. For instance, in 2009 Tarioninvestigated 419 home builders, charging 353 and convicted 241. There were also two criminalconvictions stemming from the enforcement activities that resulted in prison sentences.

Through our home building association network we also have a program for home renovators, calledRenoMark, that establishes criteria for membership including:

Be a member in good standing of the local Canadian Home Builders’ Association.

Abide by the Association’s Code of Ethics.

Provide a detailed, written contract (including scope of work) for all jobs.

Offer a minimum two year warranty on all work (excludes minor home repair).

Carry a minimum of $2 million liability insurance.

Have coverage for workplace safety and employers' liability and/or work only with subcontractorswho carry such coverage.

Carry applicable licenses and permits.

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Have access to information, education, training and professional development through membershipin the Association.

Maintain a safe and organized worksite.

Return phone calls within two business day

The Ministry of Consumer Services recently recognized RenoMark as a valuable source of consumerinformation. http://news.ontario.ca/mcs/en/2012/09/avoid-home-renovation-headaches.html

We provide this information because the College is entering an already well-established area ofconsumer protection and the tone and breadth of the proposals in the document suggest the Collegebelieves there is a scarcity of regulatory oversight. This is simply not true for residential construction.

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We thank you for your feedback on the proposed Board Regulations

Please submit this form:

1. As an attachment to an email to: [email protected]

OR

2. By postal mail to:

Attn: Regulation Consultation, Ontario College of Trades

655 Bay Street, Suite 600

Toronto, ON M5G 2K4

OR

3. By fax to: 1-866-398-0368

If you have any questions or experience any technical difficulties, please contact us [email protected] or call 647-847-3000 or toll free at 1-855-299-0028.



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What happens next?

An email will be sent to all stakeholders in the College's database when the official regulations areposted to Ontario's e-Laws (www.e-laws.gov.on.ca) and the College's (www.collegeoftrades.ca)websites. If you would like to be added to the College's database, please [email protected] with your request to receive email updates. It is anticipated that thisregulation will be finalized and posted to e-Laws in the winter of 2012/13.

http://www.e-laws.gov.on.ca/

http://www.collegeoftrades.ca/
