Comment Form:
Proposed Board Regulation on Professional Misconduct
Introduction
The College is inviting public comments on a proposed Board regulation related to the following matter:
- Defining professional misconduct for the purposes of the Ontario College of Trades’ complaints and discipline process.
The deadline for the receipt of comments is December 3, 2012.
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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 publicly accessible 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 the publicly accessible file (please refer below to Option 2).
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Proposed Regulation: Definition of Professional Misconduct
Section 1. The following acts are defined as professional misconduct for the purposes of subsection 46(2)(c) of the Act:
Q: What is professional misconduct?
A: Professional misconduct is normally used to describe any acts or actions that may intentionally violate the ethical or practice standards of a trade, or that may discredit or damage the reputation ofatrade.
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 the conduct of any of its members. If a written complaint is filed, and the complaint is about “professional misconduct,”“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, the College’s Board of Governors (Board) must define professional misconduct in a regulation. This regulation 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 be able 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 of professional 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. This is 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 is accessible to the public.
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 a complaints and discipline process in place to make sure that the public interest is protected. This process (which requires having a professional misconduct regulation) allows members of the public to complain against members of the College, and makes it possible for the College to receive and investigate those complaints, and decide if the member did anything wrong (in which case discipline would 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 public at large what a tradesperson is not allowed to do when conducting business and doing work. The proposed 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 she must file a complaint in writing with the College. If the complaint is about professional misconduct, it will have to fall under any of the acts defined as professional misconduct inthe proposed regulation or in 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 investigate the complaint. As part of this investigation, the Complaints Committee has an obligation to notify the member of the complaint and inform him or her about the allegations so that the member can defend him or herself. If the Complaints Committee finds that there may have been professional misconduct, it may send the complaint to the Discipline Committee for a hearing and decision. The member can appeal the Discipline Committee’s decision to the College or to the courts (this is outlined in sections 44 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)
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Proposed Regulation: Professional Misconduct –Act #1
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.
Q: What does this act mean?
A: While doing their work, members of the College have an obligation to care for the life, health or property of others, and are required to take “reasonable steps” to prevent any accidents. This obligation also applies when a member is supervising the work of an employee/apprentice. The obligation 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 proposedunder the definition of professional misconduct?
A: The College is proposing this act under the definition of professional misconduct to protect anyone whose 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 that they protect the public in a proactive way. Including this act will help the College deal with conduct on the part of its members that threatens the life, health or property of a member/members of the public.
Please provide comments below, if any:
(maximum 250 words – only the first 250 words of this entry will be considered)
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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 endanger the safety or welfare of the public.
Q: What does this act mean?
While working, a member of the College must try and fix or report a situation where they believe the safety or well-being of a member/members of the public may be in danger.
Q: Why is this actbeing proposed under the definition of professional misconduct?
A:The College is proposing this act under the definition of professional misconduct to protect the safety 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 able to identify the dangerous situation (based on the member’s training, experience and competence), and believes (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 work and that they protect the public in a proactive way. By defining this act,the College will be able to deal with conduct on the part of its members that threatens the safety or well-being of a member/members of the public.
Please provide comments below, if any:
(maximum 250 words – only the first 250 words of this entry will be considered)
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Proposed Regulation: Professional Misconduct –Act#3
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.
Q: What does this act mean?
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. A member is not competent when he or she does not have the necessary knowledge, skill or judgment to do the work of the trade.
Q: Why is this actbeing proposed under the definition of professional misconduct?
A: Members are expected to only take on work of a trade that they can do because they have the necessary 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 that they 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 had not taken on work that he or she knew was not competent to do.
Please provide comments below, if any:
(maximum 250 words – only the first 250 words of this entry will be considered)
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Proposed Regulation: Professional Misconduct –Act #4
4.Accepting fraudulent compensation in any form for a particular service.
Q: What does this act mean?
A member of the College cannot accept fraudulent payment for a particular service. It does not matter if the fraudulent payment accepted is made in money or in kind.
Q: Why is this actbeing proposed under the definition of professional misconduct?
A:The College is proposing this act under the definition of professional misconduct to prevent situations where clients may be paying for a service without knowing that the charges are fraudulent.
Please provide comments below, if any:
(maximum 250 words – only the first 250 words of this entry will be considered)
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Proposed Regulation: Professional Misconduct –Act #5
5.Providing false information or documents to the College or any other person with respect to a member’s trade qualifications.
Q: What does this act mean?
Members of the College are not permitted to give false information or documents about their qualifications in a trade, or about the qualifications of their employees and apprentices, to either the College or any other person.Lying or falsifying any documents about a member’s qualifications is strictly prohibited.
Q: Why is this actbeing proposed under the definition of professional misconduct?
A: A member of the College is expected to tell the truth and to act honestly and with integrity. All documents and records about a member’s qualifications in a trade are to be completed honestly and accurately and must not be falsified. This rule applies to all members of the College in all of its membership classes, and covers any interaction between contractors (employers) and members of the public, and between apprenticesor journeypersons and members of the public.
Please provide comments below, if any:
(maximum 250 words – only the first 250 words of this entry will be considered)
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Proposed Regulation: Professional Misconduct –Act #6
6.Contravening a term, condition or limitation imposed on the member’s certificate of qualification or statement of membership.
Q: What does this act mean?
Members of the College must follow and respect any terms, conditions and limitations imposed by the College on their certificates of qualification or statements of membership. A member of the College is responsible for ensuring that any work they do or any interactions they are part of do not go against what they are permitted to do by the College.
Q: Why is this actbeing proposed under the definition of professional misconduct?
A: The College will be able to impose terms, conditions and limitations on a member’s certificate of qualification or statement of membership to protect the public. The College is proposing to define this act as professional misconduct to help ensure that its members follow and respect these terms, conditions and limitations when they practice their trade(s).
Please provide comments below, if any:
(maximum 250 words – only the first 250 words of this entry will be considered)
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Proposed Regulation: Professional Misconduct –Act #7