Ontario College of Trades review panel bias issue heading to court

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    First compulsory trade review delayed to allow for input into conflict-of-interest concerns

    Ontario Construction Report staff writer

    The Ontario College of Trades (OCOT) is facing litigation relating to potential bias and conflict of interest in its review panel decisions for apprenticeship ratio reviews and compulsory trade classifications.

    Powerseve, “a company providing electrical services to home and business owners in and around Windsor and Kitchener Ontario” filed the application for a judicial review about the electricians’ apprenticeship ratio decision with the Ontario divisional court on Dec. 19. Concerns about conflicts of interest and the then-impending court filing caused a delay in the first compulsory trade review, for sprinkler and fire protection installers.

    Bernard Fishbein, chair of the sprinkler and fire protection trades review panel, said in an interim decision filed on Dec. 2 that, shortly before the scheduled consultation date for the trade classification review on Nov. 28, “I was advised that the college had received a letter suggesting that an application for judicial review would be made of a ratio review panel decision that I had chaired (which had issued over six months ago) on the basis of  ‘a reasonable apprehension of bias’.”

    Fishbein, who is also chair of the Ontario Labour Relations Board (OLRB), said in his decision that the OCOT and the OLRB “have entered into a memorandum of agreement by which the OLRB supplies certain agreed-upon vice-chairs of the OLRB to chair such review panels when selected and called upon to do so by the college.”

    He observed that in his previous career, before being appointed to the OLRB, he had represented the plumbing and pipefitter’s union local 853, “one of the parties who was participating in the consultation and making submissions in support of the trade being reclassified as a compulsory trade.”

    Fishbein wrote that he cannot recall when he last represented the union (“although it was a long time ago”); however, his former law firm still works with the union.

    This disclosure resulted in expressions of concern from representatives of the Ontario Home Builders’ Association (OHBA) and the Ontario Skilled Trades Alliance (OSTA), who “requested an adjournment of the consultation in order for them to obtain counsel and advise on whether to object to my continuing of the consultation or not.”

    As a result, the OCOT invited written submissions, and received responses from the OHBA, the OSTA, the Ontario Association of Fire Chiefs, the Canadian Association of Fire Chiefs and the Municipal Fire Protection Officer Association.

    The fire organizations had previously submitted briefs in favour of compulsory certification and reiterated their desire for the process to move forward without further delay.

    In a Dec. 13 brief, Stephen Hamilton, the OHBA’s manager of government relations, wrote that “upon reflection and internal discussion with industry leadership OHBA has concluded that to the best of our knowledge Mr. Fishbein has no ‘reasonable apprehension of bias’.

    “We have confidence in the professionalism of the chair and his position at the (OLRB) demonstrates he routinely separates his previous professional history with the task at hand,” Hamilton wrote. “However, we do have concerns that the process afforded at the (OCOT) may not provide a precedential or procedural process to insulate individuals serving as chair in this forum.”

    This leaves only the OSTA in opposition to the review panel proceeding with Fishbein as chair.

    In her brief, OSTA chair Karen Renkema, who is also senior manager of public affairs for the Progressive Contractors Association of Canada (PCA), wrote that “it is our position that Mr. Fishbein’s prior professional association with Local 853 constitutes a very real and significant potential for bias.

    “Notwithstanding his prior professional associations and activities, we believe that a more important issue relates to how Mr. Fishbein has been or could be influenced under the review panel process set out under the Act,” Renkema wrote. “It is our position that this process does not allow Mr. Fishbein the tools to insulate himself from bias.  There is no procedural process in place under the Act and as a review panel of the first instance there is no historical jurisprudence or precedence on which Mr. Fishbein can rely in order (to) base his decisions.  As a result, the review panel process does not allow for him to be insulated from bias, unlike the more rigid process and precedential context under which he normally functions at the OLRB.”

    Renkema also noted that as Fishbein is also the OLRB chair, and this could cause further conflict challenges later, as the OLRB is “the body which will make any subsequent jurisdictional decisions which arise out of the determination of this review panel.”

    “This fact further raises questions regarding the likelihood of the reasonable apprehension of bias,” she wrote.  “Given the distinct possibility that Mr. Fishbein will be involved in substantive decisions regarding the jurisdiction of members of the sprinkler and fire protection installer trade going forward, he should no be placed in a position to make a binding determination for this review panel.”

    Renkema said the OSTA represents 32 trade associations, including “8,000 companies who employ in excess of 130,000 workers across the province.”  In an interview, she said the OSTA replaced the Ontario Construction Trades Coalition because it now represents some non-construction trades and businesses.  OSTA members include the Ontario General Contractors Association (OGCA) and the Ontario Sewer and Watermain Construction Association, as well as the PCA and other groups.

    Renkema expressed concern that the organizations representing fire chiefs and officials, in favouring compulsory certification, are expressing concern about issues that should be handled in the building code.  “Reviewing all of those submissions, everybody’s argument is about safety and in having sprinkler systems, not about the tradespeople themselves,” she said.  “This isn’t a labour issue.  It’s a building code issue.”

    In adjourning the original decision, Fishbein, along with panelists Larry Lineham and Robert Bradford, set out a multi-stage process, including:

    • Dec. 20 at 5:00 p.m. – replies to objections sent on 13th December due
    • Dec. 30 at noon – objections from original objectors regarding the 20th December replies due
    • Jan. 6,  9:30 – 5:00 p.m. – consultation: objections regarding the composition of the panel, if any, will be dealt with. Oral submissions regarding the trade classification will proceed if possible.

    The sprinkler and fire installer trade classification review, the first in the college’s history, may be followed by more contentious and controversial trade, especially carpentry.

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