Bill 69, Regulatory Modernization Act, 2006
Information Sharing
Section 4 of the Act, Types of Information, lists the types of information that may be collected, used and disclosed for the purposes of regulatory compliance. The intent is to allow ministries to work together and reduce duplication, which would result in more efficient use of government resources, and ease the regulatory burden faced by Ontario's businesses. However, RCC is concerned that the scope of information that can be collected, used and disclosed is too broadly defined in the Act.
Much of the information that can be collected, used and disclosed under this section is of a non-statistical nature. We are particularly concerned about the inclusion of complaints in this section. There is insufficient protection against the publication of frivolous complaints which may cause damage to a company's reputation and brand, a concern which is especially acute in a highly competitive industry such as retail.
If a complaint has been validated by judicial process it becomes a matter of public record and thus may be appropriately included under section 4 (9) regarding information related to an organization's compliance with designated legislation. Complaints that have not been validated by judicial process may prove to have no merit. However, once collected, used and disclosed the damage to the organization may prove irreparable. Thus, we recommend that this section be deleted.
RCC is also concerned about section 4 (8) regarding the collection, use and disclosure of information related to an organization's test, audit, inspection, investigation or other inquiry and particularly about the collection, use and disclosure of information regarding forms, notes or reports generated by the inquiry. Invalidated, subjective information of this nature is neither constructive nor conducive to meaningful inspection and analysis of any company, chronic violator or otherwise. Thus, we recommend that this section be deleted.
"Heads Up" Authority
Section 9 of the Act, Observing and Disclosing, proposes to allow field staff acting under the authority of one statute to disclose observations that are likely to be relevant to another statute to a person who administers or enforces the other statute. That is, field staff would be authorized to provide their colleagues with a "heads up".
RCC appreciates that the intent of this section is to better protect the public against potentially serious violations by allowing inspectors to share field observations. However, RCC is concerned that the provision, as currently drafted, allows for potential abuse to the detriment of the respective business. In particular, RCC is concerned that authorizing field officers to make observations — visual or otherwise — for potential contraventions of a statute under which they have no training is irresponsible and unfair. Without proper training, inspection officers do not have the expertise to determine what is relevant to another statute or ministry.
While it is clear, as the government has stated, that section 9 does not authorize "fishing expeditions", the section does not provide adequate protection against them. For example, if a PST officer from the Ministry of Finance is conducting an audit of a retail establishment and does not observe an Employment Standards Act (ESA) poster, they may choose to provide their colleague at the Ministry of Labour with a "heads up". When the Labour inspector visits the same establishment, he may find that indeed the proper version 3.0 of the ESA poster is posted, as required by law. The Labour inspector may have had no reason to be in the establishment other than to follow-up on the "heads up" from their ministry colleague. Not finding what they came for, it is not unlikely that the inspector may choose to undertake a "fishing expedition" to make the trip worthwhile.
As the government's intent in drafting this section is to focus on chronic violators with potentially serious infractions, RCC recommends that the heads-up provision be limited to violations that may result in danger to human health or the environment. Further, that specific violations that field staff are authorized to provide a "heads up" on be communicated to the business community. Employers have a right to know what staff are investigating, whether or not it is a result of an inspection or simply an observation. This section, as currently drafted, places too much power in the hands of inspectors, which must be balanced by, at a minimum, proper disclosure.
Multiple Authorizations
Section 13 of the Act, Multiple Authorizations, proposes to allow Ministers to create special teams of compliance officers to act on behalf of multiple ministries. That is, the section allows for the creation of "super inspectors."
The intent is to provide opportunities for staff to work together in areas that require special levels of co-operation, such as assisting small business in understanding and achieving their regulatory compliance responsibilities. However, this lofty goal is not achievable without a significant investment in training.
Increasing the enforcement responsibilities of inspectors under multiple designations would require large added functional training requirements and still could not guarantee an effective level of enforcement competency. This would result in significant issues for the regulated business community.
Further, RCC recommends that the "super inspector" not only be trained, but also be certified to inspect under the multitude of designated statutes. Employers are expected to be knowledgeable on every statute that may affect them - despite that not being their primary line of work — thus, it is fair and reasonable to expect that inspectors be trained and certified to carry out the inspections under the multitude of statutes they are assigned.
Assisting small business in understanding and achieving their regulatory compliance responsibilities — as opposed to regulatory enforcement — is a departure from current inspection activities. This shift of focus would be welcome to small business. However, in the absence of proper training, the "super inspectors" will only intimidate small businesses further, frustrating the intent of the government.
Publication of Compliance Information
Section 10 (4) of the Act, Publication of Information, proposes to authorize Ministers or their delegates to publish a range of compliance information about organizations, and conviction information about individuals.
For the reasons described above under "Information Sharing", this section is of great concern to RCC and our members, particularly the publication of information about complaints and the publication of information compiled in connection with an examination, test, audit, investigation or inspection including any related forms, notes or reports generated by the inquiry.
We recommend that only the publication of information related to convictions or contraventions under designated legislation that have be validated by judicial process be permitted. RCC appreciates that the government has included this provision in the proposed Act as a deterrent to non-compliance. However, if the scope of information that can be published is not limited, the provision may have the opposite effect of damaging the reputation of compliant businesses.
Retroactivity
The Act proposes to allow for the collection, use and disclosure of information that was originally collected before the Act comes into force. Further, the Act proposes to allow for the publication of information about compliance activity and convictions that occurred before the Act comes into force. While RCC appreciates that the government's intent is to target chronic violators, we fear that this significant authority may inadvertently penalize compliant companies, particularly those with a long history of business operations in the province. In order to avoid the appearance of a "witch hunt", we recommend that the government limit the types of information from the past that may be considered to ensure their relevance.