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See
Bill 110
Scope of Practice – Interpretation
Approved by Council June 5, 2002
INTRODUCTION
The March edition of the Professional Forester featured
an article entitled “Scope of Practice Interpretation”. The purpose
of the article was to seek members’ comments on the draft “interpretation”
prior to the draft going to Council for approval. All comments were
forwarded to the Blue Ribbon Panel in May of 2002 and the panel
was asked to review the comments and make recommendations. The resulting
document was approved by Council on June 5, 2002.
We now have an official, Council approved, Scope of
Practice Interpretation. The main purpose of this document is to
provide guidance to professional foresters, individuals in related
professions and occupations, consumers, the public, employers and
policy makers in interpreting the scope of practice of the profession
of forestry in Ontario outlined in the Professional Foresters Act,
2000 (“the Act”) and related by-laws, policies and guidelines of
the Association.
In addition, the document identifies the steps that
will be followed by the Association in the event that the Association
decides to make an interpretation as to whether an activity, in
a particular situation, is within the scope of practice of professional
forestry or not. Members are encouraged to download this document
for their personal reference.
DEFINITION – SCOPE OF PRACTICE
Forestry is a broad-based activity that crosses many
boundaries of other professions, trades and occupations. Defining
a scope of practice requires a flexible, "living" approach that
can accommodate current practices and adapt to changes in techniques,
education and management practices. The definition of the practice
of professional forestry in the Act, together with the exemptions,
has the flexibility to permit a multidisciplinary approach to continue.
It also enables the core practice of a professional forester to
evolve over time without necessarily amending the definition. This
evolution will occur in conjunction with changes in the practice
of forestry and forestry education which affect the interpretation
of the definition.
The legislative aspect of the scope of practice of
the profession of forestry in Ontario is set out in Sections 3 and
13 of the Act. The Act is professional licensing legislation, which
requires individuals to obtain a certificate of registration before
they can practice professional forestry. As a result, these sections
do not define the full range of practices of professional foresters.
They define the types of activities, the performance of which requires
a certificate of registration.
Subsection 3(1) defines scope of practice:
The practice of professional forestry is the provision
of services in relation to the development, management, conservation
and sustainability of forests and urban forests where those services
require knowledge, training and experience equivalent to that
required to become a member under this Act and includes:
(a) the designing, specifying or approving of silvicultural
prescriptions and treatments, including timber harvesting;
(b) the appraisal, evaluation and certification
of forests and urban forests;
(c) the auditing of forest management practices;
(d) the assessment of impacts from planned activities
on forests and urban forests;
(e) the classification, inventory and mapping of
forests and urban forests; and
(f) the planning and locating of forest transportation
systems, including forest roads.
The key word in the definition is the word “includes”.
This means that the examples (a) through (f) in subsection 3(1)
below do not represent an exhaustive list of what constitutes the
practice of professional forestry but are merely examples. There
may be many other activities which fall within the definition. In
the event an activity in question falls within one of the examples,
it must still meet the tests which follow. In particular, it must
require the knowledge, training and experience equivalent to that
required to become a member under the Act before the person performing
the activity will be required to obtain a certificate of registration.
FACTORS IN DECISION MAKING
Legislative Authority to Make Scope of Practice
Decisions
The authority is derived from the fact that the legislation
provides the opportunity for the OPFA to bring court action in instances
where an individual is perceived to be in violation of sections
of the Act dealing with the practice of professional forestry. This
requires the OPFA to interpret and take a position on what is included
within the scope of practice of professional forestry.
The principal object of the OPFA, as set out in subsection
5(1) of the Professional Foresters Act, 2000 (the Act), is to regulate
the practice of professional forestry and to govern its members
in accordance with the Act, the regulations and the bylaws in order
that the public interest may be served and protected.
Professional Judgement
The determination of whether an action or activity
is within the scope of practice of professional forestry is a matter
of professional judgement and must be exercised on a case by case
basis. In making this judgement it is useful to compare the activity
in question against some general principles or criteria that will
assist in identifying the extent to which “professional judgement”
is required in carrying out the activity.
The first is whether the activity requires the knowledge,
training and experience equivalent to that required for membership
in the Ontario Professional Foresters Association. Knowledge includes
the subjects of silviculture, forest ecology, silvics, forest soils,
tree morphology and physiology and other related scientific subjects
together with the ability to understand their interrelationships
and interactions in different site and management conditions. These
are all common knowledge requirements of an RPF. In addition,
RPFs require an understanding of this detailed subject matter to
properly consider and analyze possible outcomes and impacts of management
alternatives from scientific, economic, ecological, social and cultural
perspectives. Finally, the ability to understand the implications
of the management and operational actions in the forest and the
possible impacts that may occur and the potential to achieve the
identified objectives is acquired as a result of the combination
of an RPFs’ knowledge, training and experience.
The second involves the degree of professional judgement
required in order to carry out the activity. As a general rule,
the greater the degree of professional judgement required, the more
likely that the activity is within the scope of practice of professional
forestry. The less professional judgement required, the more likely
that the activity could be performed by a member of another trade
occupation or profession e.g. forest technician.
The third principle involves a determination of whether
an activity is harmful if it is not done properly. Generally it
can be said that if there is the potential for harm a Registered
Professional Forester is required. However it is the likelihood
of harm and the significance of it that will ultimately cause a
judgement to be made in this matter. Issues that need to be considered
include sustainability, the natural environment, and possible negative
effects on biodiversity. Each of these areas needs to be examined
in the context of the potential harmful impact of an activity if
improperly carried out. Given that the primary determinant of whether
an activity falls within the scope of practice of professional forestry
is whether the activity (in a given situation) requires the “knowledge,
training and experience equivalent to that required to become a
member of the OPFA”; it can be expected that in some situations
an activity will fall within the scope of practice and in other
situations it will not.
A fact driven analysis is required for each situation.
Land Ownership
On Crown land, the Crown Forest Sustainability Act
(CFSA) requires that a Forest Management Plan be prepared and signed
by a Registered Professional Forester. In addition, the Forest Management
Planning Manual identifies a number of specific activities that
require the involvement of a Registered Professional Forester (see
Appendix I for a general description of these activities).
That fact that the CFSA requires Registered Professional
Foresters to be involved in certain activities in the preparation
of a Forest Management Plan, does NOT mean that these activities
automatically fall within the scope of practice of professional
forestry. That determination is the responsibility of the OPFA and
is made under a different set of circumstances.
The preparation of a Forest Management Plan on private
land follows essentially the same process as used for Crown forests.
Whether a plan is being developed for a 25 ha. property or for a
1,225,000 ha. property, the basic steps of plan preparation are
the same. However, the determination of whether the preparation
of the plan and/or the carrying out of any specific planning activities
fall within the scope of practice of professional forestry is the
responsibility of the OPFA.
The issue of forest ownership has no bearing on
whether a particular activity is considered to be within or outside
of the scope of practice of professional forestry.
OPFA as Regulator
As the regulator of the practice of professional forestry,
the OPFA must be careful not to compromise its role by making predetermined
judgements. As the regulator, the OPFA is entitled to determine
the circumstances under which it will initiate legal proceedings
to halt what it considers is the unauthorized practice of professional
forestry. When asked, the OPFA can provide the principles developed
to make this determination and can advise, using hypothetical examples,
when it would consider taking action against an unauthorized practitioner.
However, the OPFA should stop short of providing opinions
as to whether
a proposed activity is within or outside of the scope of practice.
The only exceptions to this rule are when the OPFA or a court of
law has already made a determination regarding the proposed activity,
or when the proposed activity is obviously and apparently within
or outside of the scope of practice of professional forestry.
Exclusions
Section 13 of the Act states that:
“No person shall engage in or hold himself, herself
or itself out as able to engage in the practice of professional
forestry unless the person holds a certificate of registration
issued by the Association.”
However, there are some exclusions and Subsection
3(2) outlines who is excluded from the application of the Act:
“The practice of professional forestry does not
include acts performed in relation to the management or manipulation
of forests if they are performed:
(a) personally by individuals on land which they
own;
(b) by a person acting within the scope of practice
of a profession, trade or occupation that is listed in the by-laws;
(c) by persons responding to an emergency situation
such as a forest fire;
(d) by persons acting under the supervision of a
member;
(e) by students enrolled in a forestry education
program and under the supervision of the course instructor in
the program;
(f) by a member of the armed forces while on duty;
and
(g) by a person engaged in scientific research.”
(see Appendix II for a detailed analysis of the
contents of Section 3(2)).
DECISION-MAKING PROCESS RE: SCOPE OF PRACTICE
This section outlines the sequence of steps that would
be followed in the event that the OPFA was requested or decided
to make an interpretation as to whether an activity in a particular
situation was considered to be within the scope of practice of professional
forestry or not. This is different from a situation where the Association
is attempting to prevent non-members from engaging in the practice
of professional forestry.
Step1- legislative Authority
The authority is derived from the fact that the legislation
provides the opportunity for the OPFA to bring court action in instances
where an individual is perceived to be in violation of sections
of the Act dealing with the practice of professional forestry. This
requires the OPFA to interpret and take a position on what is included
in the scope of practice of professional forestry.
The principal object of the OPFA, as set out in subsection
5(1) of the Professional Foresters Act, 2000 (the Act), is to regulate
the practice of professional forestry and to govern its members
in accordance with the Act, the regulations and the bylaws in order
that the public interest may be served and protected.
Step 2 – The Three Tests
The OPFA interprets the Act as applying only to those
activities which, by virtue of their specialised nature, require
the involvement of an R.P.F. For activities which are not at a professional
level and do not require the involvement of an R.P.F., or which
fall within the exclusions, it will not be necessary for an individual
to obtain a certificate of registration in order to continue to
perform them. Taken as a whole, the legislation should only impact
on foresters and situations where foresters should be involved by
virtue of the specialized nature of the activity.
There are three tests flowing from the definition
and exclusions to determine whether an activity falls within the
ambit of the Act and whether the person performing the activity
requires a certificate of registration:
1. Does the person performing the activity fall
within the exclusions?
Yes: the person performing the activity does not
require a certificate of registration under the Act.
No: Proceed to question 2.
2. Is the activity a service which relates to the
development, management, conservation and sustainability of forests
or urban forests, or is it included in one of the listed activities?
Yes: proceed to question 3.
No: the person performing the activity does not
require a certificate of registration under the Act.
3. Does the activity require "knowledge, training
and experience equivalent to that required to become a member"
under the Act?
No: the person performing the activity does not
require a certificate of registration under the Act.
Yes: the person performing the activity
must apply for a certificate of registration under the Act as
the activity is considered to fall within the Scope of Practice
as defined in the Act.
Therefore, it is ultimately the “knowledge, training
and experience equivalent to that required to become a member of
the OPFA” that determines if a specific activity is within the scope
of practice of professional forestry.
It is not necessarily the activity itself.
(see Appendix III for a discussion of the phraseology
within the definition of the practice of professional forestry –
Section 3(1))
Step 3 – Detailed Analysis
In the event that the 3 step test does not resolve,
to the satisfaction of the OPFA, whether an activity falls within
the scope of practice or not, the OPFA may undertake a detailed
analysis of the activity in question in order to make an interpretation.
In undertaking this analysis, it is assumed (for the purposes of
this paper), that any evidence obtained by the OPFA must be from
willing people. If cooperation is not forthcoming, there are search
warrant provisions under the Provincial Offences Act.
The steps to be followed in undertaking the analysis
would be as follows:
-
the OPFA would engage 3 to 5 R.P.F.s (with competency
in the activity in question), each of whom would be asked for
a professional opinion as to whether the activity in question
in the particular situation in question was within the scope
of practice of professional forestry or not
-
each R.P.F. would examine the situation and determine
if the activity in question required the “knowledge, training
and experience equivalent to that required to become a member
in the OPFA”
-
each opinion would have to identify the specific
“knowledge, training and experience” that was required and be
supported by:
-
an identification of the academic subject areas
(at the university level) required for the “knowledge component”
of the opinion
-
an identification of the type of training required
to support the “training component” of the opinion
-
an identification of the experience required
to support the “experience component” of the opinion
-
once the opinions were received by the OPFA they
would be passed to the Blue Ribbon Panel for advice
-
once the advice was received from the Blue Ribbon
Panel, that advice plus the original opinions would be placed
before Council for an opinion
-
the opinion of Council would then be communicated
as appropriate
-
this opinion would represent the interpretation
of the Association (while the opinion is not legally binding,
it would provide the basis for the OPFA to determine if a violation
of the Act has occurred and if legal action is required).
Step 4 – Next Steps
Once Council has made an interpretation, the OPFA
will advise the person or organization requesting the interpretation.
While the interpretation is not legally binding, (this would only
occur as a result of a court decision), it does represent the view
of the OPFA. It serves to indicate to the public how the OPFA would
respond to the same set of facts in deciding whether to pursue
prosecution or other legal action to prevent unauthorized practice.
Appendix I
A general description of the activities requiring
the involvement of a Registered Professional Forester is as follows:
a) Organizing for Planning
b) Planning Process and Plan Content Requirements
c) Strategic Direction and Determination of Sustainability
-
Describing the current condition of the forest
-
Determining the silvicultural and timber objectives
-
Determining the strategies to be followed to
achieve the identified silvicultural and timber objectives
-
Determining the need for and describing forest
units
-
Determining all silvicultural strategies
-
Developing the management alternatives that will
achieve the identified silvicultural and timber objectives
-
Determining the available harvest area and/or
level of harvest
-
Determining the eligibility of stands for harvesting
-
Determining primary road corridors with respect
to long term wood supply
d) Operational Planning
-
Establishing the selection criteria to be used
in determining areas in which forest operations are to be carried
out
-
Determining areas selected for forest operations
-
Identifying contingency areas for operations
-
Developing forest operating prescriptions for
all operating areas including input into operating prescriptions
for areas of concern
-
Developing forecasts and reporting for all harvesting,
renewal and tending operations including:
-
Depletion
-
Access roads
-
Monitoring and Assessment
-
Documentation including summaries
e) Plan Review and Approval
f) Plan Amendments, Plan Renewal and Contingency
Plans
g) Annual Operations
-
The development of silvicultural prescriptions
and forest operations prescriptions must be certified by a Registered
Professional Forester or some other person if elements of the
prescription are beyond the standard expertise of a forester
-
Preparing the annual work schedule
-
Signing the title and approval page of the annual
work schedule
-
Developing the silvicultural assessment system
-
Keeping the annual work schedule up to date
h) Monitoring and Reporting
Appendix II
Section 3. (2) deals with those who are is excluded
from the Act. An analysis of sub-sections (a) through (g) follows:
Exclusion (a): Acts performed personally by
individuals on land which they own.
This is designed to exclude woodlot owners from the
application of the Act. As a result, the rights of land owners with
respect to their properties are unaffected by the Act, so long as
activities are performed personally by owners on their own land.
However, persons other than the landowner who perform activities
on a property are potentially covered by the Act. This could include,
for example, logging contractors performing activities which fall
within the definition of the practice of professional forestry.
Exclusion (b): Acts performed by a person acting
within the scope of practice of a profession, trade or occupation
that is listed in the by-laws.
A regulation attached to the Act lists a number of
professions, trades and occupations that are excluded from the Act,
including forest technician, arborist, and biologist. These are
excluded because their scopes of practice potentially overlap that
of the profession of forestry. For example, an activity being performed
by a forest technician may fall within the definition of the practice
of professional forestry, but it is also an activity that is normally
carried out by forest technicians and is one for which they are
normally trained and educated. In this case, the person carrying
out the activity need not obtain a certificate of registration.
However, if the activity falls within the definition of the practice
of professional forestry, but is outside the scope of practice of
the profession, trade or occupation in question, then the person
performing the activity must obtain a certificate of registration.
The scope of practice of these professions, trades
or occupations may or may not be codified. To determine whether
or not an activity falls within their generally accepted scope of
practice, representatives or members of the professions, trades
or occupations in question may have to be consulted. The regulation
reads as follows:
1. For the purposes of section 3(2)(b) of the Act,
the Act does not apply to persons engaged in another established
profession, trade or occupation provided that the person is acting
within its generally accepted scope of practice, including the following
professions, trades or occupations:
- Natural Resource Technician
and Technologist
- Certified Forest Management
Plan Approver
- Certified Tree Marker
- Biologist
- Certified Arborist
- Landscape Architect
- Professional Planner
- Certified Ontario or Canadian
Land Surveyor
- Botanist
- Zoologist
- Professional Engineer
- Certified Property Appraisers
- Agronomist
- Ecologist
Exclusions (c), (e), (f) and (g): These are
self-explanatory. It must simply be determined whether the facts
of the situation meet the requirements of the exclusion. For example,
in (c), was the situation in fact an emergency or reasonably perceived
as such?
Exclusion (d): Acts performed by persons acting
under the supervision of a member.
Whether a person is acting under the supervision of
a member should be determined based on the circumstances of each
case. A member can delegate responsibilities to a non-member but
it must be reasonable delegation, subject to proper supervision
and control. The test to be applied is whether the proximity of
supervision is such that the member can reasonably monitor and accept
responsibility for work of the person being supervised. A constant
presence is not necessarily required (see, for example, R. v. Smith
[1996] N.S.J. No. 449, paragraphs 26 and 28). A member should also
distinguish between situations where it is reasonable to rely on
the special knowledge of the person being supervised and situations
that require their own special judgement.
It must also be determined whether the member in question
holds a certificate of registration enabling him/her to supervise
the activity in question. For example, a certificate of registration
may restrict a member from performing certain activities, or may
limit a member from performing a limited number of activities in
a particular geographic area.
Appendix III
Section 3. (1) is the definition of the practice of
professional forestry. In applying the three tests it is important
to have a clear understanding of the phraseology within that definition.
There are two distinct components to the definition.
Component 1 “Provision of services which relate
to the development, management, conservation and sustainability
of forests or urban forests”
1. “Provision of services”. The OPFA interprets
this to include prescribing, developing, directing, undertaking,
supervising, investigating, evaluating, approving, planning, reporting
on or advising on services.
2. “Services”. The Canadian Oxford Dictionary
(Oxford University Press, 1998) includes the following definitions
of “service”: “the act of helping or doing work for another or
for a community etc.”; “work done in this way”; and, “assistance
or benefit given to someone”.
3. “Development, management, conservation and sustainability”.
These terms, not defined in the Act, should be interpreted according
to their generally accepted meanings in the profession of forestry.
4. “Forests”. The term “forest” is not defined in
the Act, nor is it defined in other Ontario legislation. A definition
considered as acceptable by the Association in earlier versions
of draft legislation defines forest to mean a plant community
predominantly of trees and other woody vegetation, growing more
or less closely together, its related fauna and flora and the
values attributed to it. However, “forest ecosystem” is defined
in the Crown Forest Sustainability Act (S.O. 1994, c. 25) to mean
an ecosystem in which trees are or are capable of being a major
biological component. Each of these appear to be reasonable
interpretations of “forest”.
5. “Urban forests”. This term is defined in subsection
3(3) of the Act to mean tree-dominated vegetation and related
features within an urban area and includes woodlots, plantations,
shade trees, fields in various stages of succession, wetland and
riparian areas.
Component 2 “Knowledge, training and experience
equivalent to that required to become a member”
This is the key phrase in the definition. The effect
of this restriction is that anyone can perform the activities
covered by the definition unless to do so requires the knowledge,
training and experience equivalent to that required to become
a member under the Act. Membership requirements are contained
in the bylaws of the Association. For example, Full Membership
requirements include a degree in forestry or its equivalent.
Interpretation of the above phrase, as with other
aspects of the scope of practice provisions, depends on the circumstances
and facts of each situation. For this phrase, situations must
be examined in relation to the current state of forestry education
and training, the requirements to become a member of the Association,
and the current state of forestry practice.
During the Class Environmental Assessment Hearings
for Timber Management on Crown Land, the Association took the
position that the core practice, education and training of a professional
forester relates to the manipulation of forest cover. Forest cover
is considered to mean trees and other woody vegetation in a forest.
In an increasingly multidisciplinary working environment, foresters
are the only professionals trained in principles and practices
which relate to the manipulation of the forest cover, and who
can be held accountable. This interpretation should be borne in
mind when applying the definition to a given situation.
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