PLC Responds to Member Questions (via webinar and submission)

September, 2018

The following questions were submitted to the Practice Legislation Committee via email submission as well as the Webinar on March 15, 2018. 

Section A: (OALA WEBINAR QUESTIONS)

1. On page 3 of the current draft, the clauses for exemption for architects, planners, foresters, and engineers seems to reinforce the attorney general’s feeling that the practice does not need to be limited to Landscape Architects. Is there a review process currently in place to reword the exemption clause to be more in line with what is in the OAA Act, providing strict parameters on how much Landscape Architecture scope can be undertaken by these related professions?

Answer…

Yes, the Practice Legislation Committee has a review process in place. The PLC is reviewing this text with legal counsel and has already engaged in several rounds of discussions with the OAA on a proposed draft scope of practice. The Architects Act carves out specific exemptions for engineers (and vice-versa) and both acts use language similar to the OALA draft act, allowing exemptions for certain classes of professionals and for certain specific projects. The architects and the engineers worked together to develop their overlapping scopes of practice, and it is likely that the landscape architects would also need to work with the sister professions to develop something similar. This draft is not finalized, and the consultation will continue. 

2. When in this process was the OALA made aware of the minister’s position?

Answer…

The Minister’s position was shared in a meeting with senior staff and officials at the Ministry of the Attorney General on October 30, 2017 and confirmed in a letter dated November 3, 2017. Membership was notified in the November 2018 edition of the Progress Post e-newsletter.

3. What other Canadian provinces have practice acts?

Answer…

No other Province has a Practice Act. 

4. Is there any evidence that the Ontario Government is reluctant to support Practice acts for other professions within Ontario? Is their notion of “monopolies” applied to other professions and industries?

Answer…

Yes. The Government of Ontario has traditionally not supported new Practice Acts. Since the 2003 there have been some exceptions, including Traditional Chinese Medicine and Acupuncture, Psychotherapy, Kinesiology, Homeopathy and Naturopathy. Further, based upon meetings with senior staff at the AG office, we understood the AG (Liberal Government) was interested in helping OALA to achieve their goals and was supportive of our approach. The AG office guided us to make required additional supporting submissions. However, upon further reflection, the AG decided that he preferred OALA to modify and work within our current legislation rather than introduce new legislation. 

5. I agree with Eha that the AG office would somehow have us prove that Ontario is at less risk than similar U.S. states that have an Act. What facts from the U.S. can help our case?

Answer…

We have documentation from the US that indicates limited risk of harm. The Ministry of the Attorney General would like to see a more comprehensive case. It would explain what cannot be handled within the current Title Act and outline the risk of harm related to not introducing a Practice Act. In simple terms, there are limited case examples in Ontario to demonstrate risk of harm. The best examples are in USA. 

6. Do you have examples of revisions that can be made to our current Title Act and advance our profession?

Answer…

The OALA has not been advised to, nor are we looking to revise the Title Act. Rather, we would work within our existing mandate, which may include revising our governing documents (bylaws, policies, etc.)

OALA is consulting with other professional organizations to learn more about best practices. For example, Chartered Professional Accountants Ontario (CPAO) operates under a Title Act and exercises oversight over that profession. In late 2017 OALA held a meeting with CPAO to learn of the extent of text revisions made to their governing documents, and how they use updated policies and regulations to govern their membership. 

7. Can you share some details of the information provided by the Attorney General’s staff regarding ‘systemic harm’?

Answer…

The November 3, 2017 letter from Attorney General Yasir Naqvi said the following:

“The materials provided for my consideration did not provide systematic evidence that restricting the practice of landscape architecture to members of the Ontario Landscape Architects Association (OALA) is necessary to protect the public from harm.”

The Ministry of the Attorney General wants to hear about risks to the public and how they can be better addressed by a Practice Act, rather than a Title Act. 

8. Has the team looked at other approaches, such as wait until there is a different Attorney General, try to have the portfolio moved to another minister, or a private members bill?

Answer…

Regardless of which party wins the next election (post question now a known entity as PC government), a new cabinet will be appointed in June and OALA will continue to work with the Attorney General, regardless of which individual will hold the position. We expect that many of the senior staff positions (non-appointed) who remain are the same individuals OALA has been meeting with to date. OALA and PLC will continue building a strong relationship with those remaining staff, as well as new incoming staff.

OALA has made a formal decision to pursue a government motion rather a private member’s bill. A government motion would be preferable, given that legislation backed by a Minister gets passed much more frequently. As well, a private member’s bill would limit the OALA’s options when it comes to shaping legislation, as the process would not have the sort of broad consultation that comes with government bills. 

9. What specific information should we share with our MPP’s and election candidates?

Answer…

It’s important to ensure that your candidates know these three Points:

  1. Landscape architects help Ontario to manage the impacts of climate change, with techniques for low impact development (LID), storm water and flooding.
  2. This important work must be performed by qualified professionals who are licenced in the public interest. OALA has a plan to further protect the public with an enhanced system of self-regulation under a Practice Act. New language would be written to enhance our current legislation.
  3. OALA believe that a Practice Act would put landscape architects on a level playing field with other professions. 

10. I’m applying for a job position with “landscape architect” as the role title, but I’m not yet a full member of the OALA. I know other non-members are applying for the position as well. What is the advice of the association, with regard to the title of the role and the protected professional title?

Answer…

The HR department of the hiring organization should be made aware of the OALA’s mandate to regulate the title. The OALA Registrar is available to assist with this step. It is OALA’s responsibility to regulate the title and ensure its accurate use. The OALA is aware that making job title changes may take time on the HR’s side, but it is something that must be addressed. Either the job title is amended, or they only seek to fill the job with an OALA full member.

The OALA continues to work with municipalities to increase their understanding of the title. The Registrar is also available to work with our members to determine what titles they can or should use. 

 

Section B: (Implications of a Practice Act)

This section answers members’ questions that have been raised about some of the potential implications of a proposed Practice Act.

What is a practice act and how is that different from what we already have?

A practice act would offer more rights and protections to the already self-governing profession of landscape architecture. A self-governing profession is a profession where members of the profession organize and govern themselves; including setting the requirements and guidelines for practice. The government, by way of legislation and/or regulation, helps establish the bodies that govern these professions and accords the professions certain rights. The profession of landscape architecture is governed by An Act Respecting the Ontario Association of Landscape Architects (the “OALA Act”), 1984. The OALA Act establishes the OALA as the governing body of the profession, and also provides title restriction, meaning that only those professionals who are licenced by the OALA can call themselves “landscape architects”. Some professions however, including lawyers, engineers, and architects, have protection both for the professional title and for their scope of practice, meaning that only those professionals who are licenced by their professional governing body can practise in that professional area. The proposed practice act that the OALA is advocating for would bring increased protection to the profession of landscape architecture. Currently, the OALA Act prohibits anyone except those individuals licensed by the OALA to use the term “landscape architect”. A practice act would prohibit both the use of the title and any of the activities that are included in the scope of practice, restricting the practice of landscape architecture to licensed individuals or firms. This is often a difficult decision for any government to make because they must balance the need to protect the public from unlicensed practitioners, on the one hand, with a desire not to restrict unnecessarily individuals’ ability to make a living on the other.

Even without a practice act, the OALA is still a self-regulating profession, and the OALA has the ability to govern its membership. It can establish the educational requirements and ongoing licencing requirements for all members of the OALA, meaning that anyone who calls himself or herself a “landscape architect” must adhere to the OALA’s requirements. The governance of the membership is already within the mandate of the OALA, and it would be advisable for the OALA to review and strengthen its internal governance of its members, whether or not it is ultimately successful in getting a practice act.

Our long term goal remains to strive for a practice act for landscape architecture in Ontario, but for the ‘near-term’ we plan to work on enhancing the opportunities we have within our existing bylaws to regulate OALA members.

Member questions, while varied in their nature, fall distinctly into four (4) themes:

  1. Practitioners supervising the landscape architectural work of others;
  2. Practitioners working under the supervision of others who are not members of the association;
  3. Responsibility of practitioners for their landscape architectural work that is done as part of projects conducted in collaboration with those in other professions;
  4. Potential restrictions, if any, on practitioners preparing planting designs in the public realm.

THEME 1- Practitioners supervising

The following questions are internally-focused within the practice of individual offices. These revolve around the theme of providing supervision for those who are not members of the association.

1.1  “I’ve alerted senior management at (employer confidential) that the OALA is pursuing a Practice Act and that this will have an impact on the organization as we have staff working on landscape designs who are not registered landscape architects.  I was asked to prepare a briefing note for discussion internally and am wondering if the OALA can help support me with the wording. Key issues for them will be planning for staff resources as well as legal and financial impacts if we don’t comply.”

Answer…

The staff member(s) would not be restricted from preparing this work if under the supervision of, or the assistance of an OALA full member. The person would not be able to practice nor call themselves a “Landscape Architect” (at least with that title), unless they are a full member. However, this does not prevent them from preparing work for a member to review and sign off. If the work is being prepared for use in the public realm, the services provided or prepared cannot be marketed as the services of a Landscape Architect, unless they were in fact prepared by, or reviewed by, a full member. While there is flexibility about who and how work is prepared, the end work must still be reviewed by a full OALA member.  

1.2 “I’ve recommended that (employer confidential) compensate staff who will require training to prepare for the LARE exams, as well as the costs of the exams themselves. Do you have an idea of the typical arrangements that companies or organizations have, in terms of supporting staff to prepare for and write these exams?”

Answer…

The practice of employers varies widely across the Province. For example, some employers offer support to staff with items such as: time off to study, paying for exams when an employee passes, paying part or all for their membership, study groups internal or external. 

1.3 “What if a staff member is called a ‘landscape architectural technician’ and I, as a registered LA,  review and approve her work, even though she is the one actually ‘practicing’?

Answer…

No the staff member would not be restricted from preparing this work if under the supervision of, or the assistance of a full member, in this case yourself. The person would not be able to practice as a “Landscape Architect” (at least with that title), however, this does not prevent them from preparing work for a member to review and sign off. Their current title does not need to be changed. 

1.4  “A member of my staff is not a registered LA but does the design work for a lot of trails and parks, including construction drawings, and I review and approve this work. My questions:

  1. Would he be restricted in ‘practicing’, and must become more of a CAD technician that just drafts the designs that I produce (as the registered LA)? and
  2. Will he be able to practice as an LA, given that I would be signing off on the designs?”

Answer…

No the staff member would not be restricted from preparing this work if under the supervision of, or the assistance of a full member, in this case yourself. Many plans, details and contracts are prepared in collaboration with others or on their own, using their continuing professional development and accumulated experience. The person would not be able to practice as a “Landscape Architect” (at least with that title), however, this does not prevent them from preparing work for a member to review and sign off. 

THEME 2- working under the supervision

Like the first theme, these questions are internally-focused and revolve around the theme of working under the supervision of others, non-members of the association.

2.1 “At the City of Toronto, managers are hired that manage LA staff (who are not registered as LAs) and they themselves are not registered LAs – yet they are ultimately responsible for approving the final designs. My questions:

  1. Would the staff who are doing this work be restricted in practicing as LAs?
  2. Say the staff become registered LAs, does it matter that the manager – who is acting as ‘Project Manager’ for projects, is not an LA?”

Answer…

On a practical basis, the situation described above has rarely been reported to the association.  There are numerous precedents available as reference of professionals dealing with trade unions, governments and their agencies.

Further, this matter has been addressed by allied professions such as architecture and engineering as well as other professions with profession protection or title protection. In the case that an OALA member with seal, seals work or drawings, they are certifying that the work represented in the sealed documents reflects the current best practices, including compliance with applicable codes, statutory regulations and municipal guidelines. The OALA member may have prepared this work directly, or supervised preparation of the work. 

2.2 “In my experience, the municipalities and also employers feel that as long as the manager is a registered LA, the people doing the work do not have to be landscape architects.”

Answer…

That is correct. In the case that an OALA member with seal, seals work or drawings, they are certifying that the work represented in the sealed documents reflects the current best practices, including compliance with applicable codes, statutory regulations and municipal guidelines.

Further, if the supervisor or project manager for example were to ask the member to alter sealed documents in a manner that in the opinion of the practitioner, does not conform to current best management practices, the member has a legal right to refuse. The member that asked for documents to be altered would also face dealing with any outcomes that arise from such an action. In other words, being a member of an occupation that has either professional protection or title protection does not afford the member the legal basis for disobedience without repercussion. 

THEME 3- Responsibility of practitioners

Questions about working with ecologists and grading designers.

3.1 “A member of my staff does landscape designs for wetlands / restoration work with cut/fill calculations and guided with advice from ecologists: Would she be restricted in continuing to do this work, if she is not a landscape architect?

  1. The preparation of landscape restoration plans,
    Answer…

    No the staff member would not be restricted from preparing this work if under the supervision of, or the assistance of a full member. With respect to landscape restoration plans many OALA members work on these initiatives. Some plans are done in collaboration with ecologists; others on their own using their continuing professional development and accumulated experience. In fact, some are qualified as expert witnesses at administrative tribunals such as the Ontario Municipal Board (OMB), Consolidated Board Hearings, Niagara Escarpment Hearings and the Mining and Lands Commission.

    Ecologists have neither profession protection, nor title protection so there is no statutory basis for our practice being restricted by their work, provided the landscape architectural practitioner is a member of the association or is working under the supervision of a member.   

  2. The preparation of landscape grading plans.
    Answer…
    No the staff member would not be restricted from preparing this work if under the supervision of, or assistance of a full member. Smaller scale landscapes, including those implemented under site plan approvals within Section 41 of the Planning Act, can be prepared by practitioners who are members of the association with seal. Regardless, certain municipalities prefer, or require civil engineers to seal grading plans. This makes sense when the certification is for, or conformity to, a master drainage plan which may be prepared as part of the sub-watershed planning process by a Civil Engineer. In this circumstance, many Municipalities require a Civil Engineering stamp.

    More extensive grading schemes such as subdivisions and cemeteries with extensive cut and fill may also require submission of detailed calculations generated by specialized software. In these situations, some municipalities may require a Civil Engineer to seal the submission whether or not this is prepared by an OALA member or Civil Engineer. 

THEME 4- Potential restrictions

“I was wondering recently if planting designs for public realm / park projects (in areas with community use) is something that would be restricted by the Practice Act.”

Answer…

The draft Practice Act includes the following exclusion (excerpt):

(2) The practice of professional landscape architecture does not include acts performed for the purpose of landscape preservation, development, or enhancement, if they are performed,

(a)        by a landscape designer who engages in design for the selection and placement of plants and ancillary landscape materials;

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