Can the Ontario College of Trades storm your work site without pretext?
A look at the legislative details suggests that, “Yes, they can!”
September 27, 2018 by John Bleasby
Is there an organization more reviled in Ontario than the Ontario College of Trades (OCOT)? There’s lots of reasons, but if there’s one thing that angers contractors and subcontractors alike, it’s the unpremeditated storming of work sites by OCOT inspectors. Demanding paperwork and membership cards on the spot, these spot invasions have, in many cases, resulted in fines and notices.
What are the rules controlling OCOT? Is this pure intimidation, or do they have the right?
We’re not lawyers or construction legal experts, but we had a close look at sections within the Ontario College of Trades and Apprenticeship Act, 2009 that outline compliance, inspections and investigations, and came up with possible answers.
The difference between an “inspection” and an “investigation”
According to Section 53 (1) of the Act outlining the OCOT mandate, an investigation results, “If the Registrar believes on reasonable and probable ground [our italics], (a) that a member of the College has committed an act of professional misconduct or is incompetent or incapacitated; (b) that there is cause to refuse to issue a certificate of qualification or statement of membership applied for under this Act; (c) that there is cause to suspend or revoke a certificate of qualification or statement of membership issued under this Act; or(d) that there is cause to impose terms, conditions or limitations on a certificate of qualification or statement of membership applied for or issued under this Act.
The key is the phrase, “reasonable and probable grounds.” That means pretext. In fact, Section 53 goes on to explain that, “the Registrar may appoint one or more investigators to investigate whether such act has occurred, such incompetence or incapacity exists or there is such cause.” It goes on to say in Part 3 that the Executive Committee (presumably of OCOT) must first approve the appointment of any investigators prior to the start of any investigation.
In other words, in terms of an investigation, it would appear that OCOT must first be aware of a violation and then is required to jump through some bureaucratic hoops before they can send out investigators to the work site or the contractor’s office. At that point, they can demand pretty much whatever they feel is relevant, although their entry onto to any premises or site must be at a “reasonable time.”
Inspections are different and have a very low threshold
However, most of the concerns expressed by contractors are the spot inspections. They are a different kettle of fish entirely. Under Section 53 of the Act, OCOT inspectors are permitted to, “enter any premises and may examine any documents or other things on the premises for the purpose referred to in subsection (1). “ Issues they might look into include a wide range of things. They can question the trade membership of anyone employed or “engaged” on the site, ask for their documentation, check to see if they are correctly describing themselves under the correct trade, and whether any apprentices are correctly employed and overseen by the appropriate licensed tradesperson.
Their entry appears to be unrestricted. No prior pretext or warning is described. “An inspector may enter any premises and may examine any documents or other things on the premises.”
What can you do? Not a whole lot!
There are only limited protections offered to contractors and tradespeople under the Act.
First, in the case of a “dwelling”, neither investigators nor inspectors can enter without the consent of the occupier. That’s a limited defense in practice, however. Most times the building doesn’t fully exist so there is no occupant or, in the case of a renovation, the “occupier” simply isn’t there at the time.
Second, OCOT investigators and inspectors must identify themselves upon request. In other words, if OCOT comes calling, you have every right to ask for their OCOT identification and, in the case of an investigator, to ask for the authorization to conduct an investigation issued by the Registrar.
Breaking down the door? Really? Yes, really!
Then there is the issue of legal warrants and entry by force. “An investigator or an inspector entering and searching a place under the authority of a warrant issued under section 55 or 56, as the case may be, may be assisted by a peace officer and may enter a place by force. 2009, c. 22, s. 57 (2).” Hopefully things never get to this stage!
In the meantime, Ontario contractors and tradespeople can only hope the new Ontario government will do its part and abolish the Ontario College of Trades. That cannot come soon enough.
PLEASE NOTE: These comments and interpretations are meant for general discussion only, and do not represent any legal opinion or guidance. You are strongly advised to consult with your legal advisers before coming to any conclusions as to how to deal with OCOT storm troopers at your doorstep.
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