Ontario One Call Compliance and Investigations Manual

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1 Ontario One Call Compliance and Investigations Manual

2 Tab 1: Table of Contents Tab 1: Table of Contents 2 Tab 2: Introduction 3 Tab 2A: Purpose 3 Tab 2B: Principles of Investigation and Enforcement 4 Tab 2C: Principles of Regulatory Professional Behaviour 6 Tab 2D: Scope of Compliance and Enforcement 7 Tab 2E: Definitions 8 Tab 2F: High Level Business Process Investigations and Compliance 10 Tab 3: Complaints 11 Tab 3A: Complaint Process 11 Tab 3B: Complaints against a Member: Policy and Procedures 12 Tab 3C: Complaint against an Excavator: Policies and Procedures 15 Tab 3D: Complaints Tools and Templates 19 Tab 4: Investigations 25 Tab 4A: Investigations Process 25 Tab 4B: Investigation of a Member 26 Tab 4C: Investigation of an Excavator 34 Tab 4D: Investigation Tools and Templates 39 Tab 5: Compliance Committee 48 Tab 5A: Compliance Committee Process 48 Tab 5B: Compliance Committee Policy and Process 49 Tab 5C: Compliance Committee Tools and Templates 55 Tab 6: Appeals Committee 58 Tab 6A: Appeals Committee Process 58 Tab 6B: Appeals Committee Policy and Procedure 59 Tab 6C: Appeals Committee Tools and Templates 61 Tab 7: Appendix A: Ontario Underground Infrastructure Notification System Act, 2012, Sections 5, 6 and

3 Tab 2: Introduction Tab 2A: Purpose Ontario One Call (ON1Call) is responsible for implementation of the Ontario Underground Infrastructure Notification System Act, 2012 (the Act ). Any person(s) or entity(ies) that own(s) or operate(s) underground infrastructure that crosses a public right of way or is in the vicinity of a public right of way is subject to the requirements of the Act, its regulations and appropriate ON1Call By-laws. The four responsibilities of ON1Call, as defined under the Act, are: a. To operate a call system to receive excavator requests for the location of underground infrastructure within Ontario. [S.3(1)] b. To identify for excavators whether underground infrastructure is located in the vicinity of a proposed excavation or dig site. [S.3 (2)] c. To notify a Member of the Corporation of proposed excavations or digs that may affect the underground infrastructure of the Member. d. To raise public awareness of the Corporation and the need for safe digging. ( inform and educate ) [inform excavator --S. 3 (1) 4, inform Member S. 5.(1)] Section 8 of the Act states that A person or entity who does not comply with section 5, 6, or 7 is guilty of an offence and on conviction is liable for the fine set out in the regulations made under this Act. The ON1Call Operations Manual documents the policies, procedures, tools and templates to be used by ON1Call for enforcement of its Act. This manual may be updated at any time to reflect necessary changes to operations: Investigation of Complaints Investigation of non-compliance with Section 5, 6, or 7 of the Act and ON1Call By-Laws Referral to Compliance and Appeals Committees Use of tools and templates

4 Tab 2B: Principles of Investigation and Enforcement 1 The following principles were developed by ON1Call to guide investigation and enforcement function: 1. Investigation and regulatory enforcement should be evidence-based and measurementbased. Deciding what to inspect and how to inspect should be grounded on data and evidence, and results should be evaluated regularly. 2. The potential of market forces, private sector and legal actions to support compliance and enforcement will be explored wherever possible: investigations and enforcement cannot be made everywhere and address everything, and there are many other ways to achieve regulatory objectives, including engagement with other stakeholders. 3. Enforcement needs to be risk-based and proportionate: the frequency of investigations and the resources employed should be proportional to the level of non-compliance and enforcement actions should be aiming at reducing the frequency and extent of noncompliance posed by infractions. 4. Enforcement should be based on responsive regulation principles: investigations enforcement actions should be modulated depending on the profile and behaviour of specific entities. 5. Investigation functions should be co-ordinated and, where needed, consolidated with other regulators, as less duplication and overlaps will ensure better use of resources, minimize burdens on regulated entities and individuals and maximize effectiveness. 6. Governance structures and human resources policies for regulatory enforcement should support transparency, professionalism, and focus on outcomes. Execution of regulatory enforcement should be independent from political or other influence, and compliance promotion efforts should be rewarded. 7. Information and communication technologies should be used to maximise risk-focus, coordination and information-sharing as well as optimal use of resources. 8. The Corporation should ensure clarity of rules and process for enforcement and investigations: coherent policies to organize inspections and enforcement will be adopted and published and clearly articulate rights and obligations of officials and of regulated entities. 9. Transparency and compliance should be promoted through the use of appropriate instruments such as guidance, toolkits and checklists. 10. Work with other organizations including the Technical Standards and Safety Authority (TSSA), the Electrical Safety Authority (ESA), the Ministry of Labour and the Ministry of Consumer Services should be organized to ensure co-ordination of efforts in dealing with enforcement issues. 1 Schedules 2 and 3 to By-law No. 2 of ONTARIO ONE CALL 4

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6 Tab 2C: Principles of Regulatory Professional Behaviour 2 The inspections, investigations and enforcement staff of Ontario government and its organizations have adopted a Code of Professionalism to guide its enforcement staff in the conduct of compliance activities; the Code includes elements such as: Honesty and Integrity Confidentiality Respect Timeliness Objectivity 6

7 Tab 2D: Scope of Compliance and Enforcement Several documents outline the legal requirements of compliance for excavators and for Members. These documents also guide the activities of the investigations and enforcement function of ON1Call: The Ontario Underground Infrastructure Notification System Act, 2012 (the Act ) Schedule 2 to By-Law No.2 of Ontario One Call Schedule 3 to By-Law No.2 of Ontario One Call Generally, any person or entity that owns underground infrastructure a defined in the Act, is required to be a member of ON1Call, and comply with all the requirements of membership. Generally, the Act requires any person or entity who is commencing an excavation or dig to contact ON1Call and receive locates prior to digging or excavating. The requirements of Members and excavators are contained in Sections 5, 6 and 7 of the Act (attached in Appendix A of this manual for ease of reference). However, the reader is encouraged to consult the Ontario government website for the latest version of the Act: and to ensure they have the latest versions of ON1Call By-laws. This manual includes the policies and procedures that ON1Call will undertake to ensure compliance with Sections 5, 6, 7 of the Act and the associated By-Laws. 7

8 Tab 2E: Definitions The following definitions are taken from ON1Call Schedule 2 and Schedule 3 to By-Law 2, or where indicated, have been developed in draft for use by ON1Call. These definitions are used through-out this manual: Excavator means any individual, partnership, corporation, public agency or other person or entity that digs, bores, trenches, grades, excavates, moves or breaks earth, rock or the materials in the ground, and excavation has a corresponding meaning; Excavator Locate Request means notification by an Excavator of Proposed Work to the Call Centre, to be by way of telephone, electronic transmission by computer, or such other means as the Corporation and the Member may agree upon from time to time; locate means one of a Standard Locate Request, Priority Locate Request or Emergency Locate Request; IC means investigations and compliance; "investigation" of a matter means to consider the available information relating to the matter that has entered the investigations and compliance process and to determine whether a disposition other than a referral to the Compliance Committee is appropriate in the public interest; "Investigator" means a person appointed to conduct an inquiry into the actions or inactions of one of more Excavators or Members "Manager of IC" means the Manager of Investigations and Compliance appointed by the Board and includes the person's designate and shall act as secretary at all meetings of the Compliance Committee. Member means any person or entity described in section 5 of the Act and admitted as a Member pursuant to the By-laws and includes anyone otherwise admitted as a Member; Reasonable probable grounds 3 - enforcement of Membership: The Manager of IC has information and believes that a Member has breached terms or conditions of Membership, for example, because: o a person or entity (as described in S. 5 of the Act) who owns or operates underground infrastructure has not become a Member of ON1Call; o a person or entity has not provided the information necessary to ON1Call as described in Schedule 2 to By-Law 2 of ON1Call; o a Member of ON1Call has not marked on the ground the location of its underground infrastructure (S. 6 (1)a. of the Act) o a Member of ON1Call has not provided a written document containing information respecting the location of the underground infrastructure (S. 6. (1) a. of the Act) o a Member of ON1Call has not stated in writing that none of its underground infrastructure will be affected by the dig (S. 6.(1) b. of the Act) o a Member of ON1Call has not responded within 5 business days or within a time as agreed in advance with ON1Call or within a time defined in regulation (S. 6 (2) of the Act) 8

9 o any, all or other specific requirements of Members as listed in ON1Call Schedule 2 to By-Law No 2. Reasonable probable grounds 4 The Manager of IC has information and believes that an excavator has breached sections of the Act,, for example, because: o the excavator has not contacted ON1Call to request a locate prior to digging (S. 7 (2) a. of the Act) o the excavator commenced digging prior to proper locates being provided by the infrastructure owner(s. 7 (2) b. of the Act) o the excavator did not ensure that the locate markings on the ground were consistent with the written information provided respecting the underground infrastructure (S. 7 (2) c. of the Act) o any, all or other specific requirements of Excavators as listed in ON1Call Schedule 2 to By-Law No 3. Risk 5 is defined as the possibility of suffering harm, loss or damage 9

10 Tab 2F: High Level Business Process Investigations and Compliance The following is a diagram of the overall business process for investigation and compliance. More detailed business processes are provided in the following sections for each component of the business process. Complaint Unfounded No Further Action Complaint Received Member Complied No Further Action Grounds for Further Investigation Investigation by IC Manager or IC Manager Appoints Investigator Member Did not Comply IC Manager Assesses Penalty Member Complies with Penalty Member Appeals No Further Action Appeal Committee Hearing No Further Action Complaint Unfounded No Further Action IC Manger Refers to Compliance Committee Compliance Committee Hearing Member Complies with Penalty No Further Action Compliance Committee Assesses Penalty Member Appeals Appeal Committee Hearing No Further Action 10

11 Tab 3: Complaints Tab 3A: Complaint Process ON1Call has developed a policy whereby ON1Call does not conduct proactive inspections of Members. ON1Call responds to complaints and undertakes investigations where reasonable probable cause of non-compliance with the Ontario Underground Infrastructure Notification System Act, 2012, its regulations or the By-laws of ON1Call. Reasonable probable cause is defined in definitions above. This Section of the manual includes the policies guiding ON1Call when it undertakes to address a complaint against a member, includes the procedures that ON1Call will follow when investigating such a complaint, and draft templates and tools aligned with and in support of the policies and procedures. Complaints Process Complainant Files Complaint Online, by Telephone or /mail Receives Letter re: Grounds or No Grounds IC Manager Acknowledges Complaint and Advise Member Grounds or No Grounds Advises Complainant and Member of Decision Initiates Investigation Proceed to Investigation Member Responds in Writing within 15 days Receives Letter re: Grounds or No Grounds 11

12 Tab 3B: Complaints against a Member: Policy and Procedures Complaints Policy Prioritize based on risk: complaints must be prioritized to determine whether it is an immediate risk or danger to public or to workers according to the ON1Call MOU with Technical Standards and Safety Authority (TSSA), Ministry of Labour (MoL) and Electrical Safety Authority (ESA). Levels of risk are: Complaints Procedures ON1Call has developed a form which is made available on the ON1Call website. ON1Call Complaints Form includes all the information necessary for ON1Call to assess the complaint and should be used as the basis for complaints received by telephone or regular mail. (see draft template below) o o o o o Level 1: no risk to workers or public (no chance of a strike) Level 2: minimal risk to workers or public, property or infrastructure (minimal chance of a strike, impact of a strike minimal) Level 3: moderate risk to workers or public, property or infrastructure (chance of strike, impact of strike moderate) Level 4: significant risk to workers or public, property or infrastructure (strike likely, impact of strike localized, but could risk life or property) Level 5: extremely significant risk to workers or public, property or infrastructure (strike highly likely, impact of strike widespread and risk to life and property) A complaint can be received by ON1Call: 1. through using the ON1Call on-line form 2. through regular mail 3. through a telephone call When a complaint is received, it is important to: Collect accurate information regarding the complaint using the ON1Call Complaint Form including perceived risk; Evaluate as to whether this complaint is better served through the terms and conditions as outlined in the MOU with TSSA, MoL or ESA. Assess the validity of the complaint, consistent with the policy. All complaints must be logged in ON1Call data base The following sections outline the process to be followed for a complaint which falls under ON1Call roles and responsibilities. Asses validity of complaint 6 : a complaint is considered valid if: o there is an apparent violation of a policy provision, contract provision, rule or statute, or o there is a valid concern that a prudent layperson would regard as a practice or service that is below customary business practice. 12

13 o Complaints Policy The source of the complaint should also be taken into account. A complaint by another regulator (level 3) may take a higher priority than a complaint by an individual (level 2) or an anonymous complaint (level 1). Complaints Procedures Conduct monthly review: The Investigations and Compliance (IC) manager will review complaints on a monthly basis with respect to data (accuracy, completeness, resolution of complaint, time and cost) and against performance metrics as established by ON1Call in its strategic plan. Complaint through ON1Call On-Line Form Complete information: Every attempt must be made to ensure that ON1Call has complete information regarding the complaint. Log all complaints: All complaints must be logged into the ON1Call database. Complete information: Every attempt must be made to ensure that ON1Call has complete information regarding the complaint Log all complaints: All complaints must be logged into the ON1Call database. Complete information: Every attempt must be made to ensure that ON1Call has complete information regarding the complaint Log all complaints: All complaints must be logged into the ON1Call database Complaint through Regular Mail Complaint through Telephone Call Check that all sections in the ON1Call Complaints Form have been filled out. If sections have not been completed, contact the complainant by telephone or to complete the form. Log the complaint into the ON1Call database system, subsection complaint tracking. Check that all information as required in the ON1Call Complaints Form have been included in the letter received through regular mail. If sections have not been completed, contact the complainant by telephone or to complete the form. Log the complaint into the ON1Call database system, subsection complaint tracking Through the telephone conversation, ensure that all sections of the ON1Call Complaints Form are filled out. If all sections cannot be completed during the telephone call, request that the complainant call ON1Call back with the necessary information, ON1Call or send a letter to ON1Call. 13

14 Complaints Policy Justifiable reasons exist for no action: There was no violation of a policy provision, contract provision, rule or statute, or Investigation of a Complaint Complaints Procedures A written version of the complaint form should be provided to the complainant to confirm accuracy Log the complaint into the ON1Call database system, subsection complaint tracking The Manager of IC will inform the Complainant that no further action will be taken. There was no valid concern that a prudent layperson would regard as a practice or service that is below customary business practice. Undertake an investigation: The Manager of IC may appoint one or more investigators to inquire into the conduct of a Member where a complaint in writing has been made about a Member. Response to complainant: the complainant will be informed of the decision by ON1Call regarding the actions taken Response to Complainant Procedures followed in the investigation of a complaint are outlined in the section on investigations which follows. Once an assessment and/or investigation has been completed of the complaint, IC Manager or designate must: Respond to complainant using template below either through or regular mail as was preferred by complainant Respond within timeframe established by performance metrics/strategic plan 14

15 Tab 3C: Complaint against an Excavator: Policies and Procedures ON1Call has developed a policy whereby ON1Call does not conduct proactive inspections of excavators ON1Call responds to complaints and undertakes investigations where reasonable probable cause of non-compliance with the Ontario Underground Infrastructure Notification System Act, 2012, its regulations or the By-laws of ON1Call. Reasonable probable cause is defined in definitions above. This Section of the manual includes the policies guiding ON1Call when it undertakes to address a complaint against an excavator, and includes the procedures that ON1Call will follow when investigating such a complaint. Complaints Policy Prioritize based on risk: complaints must be prioritized to determine whether it is an immediate risk or danger to public or to workers according to the ON1Call MOU with Technical Standards and Safety Authority (TSSA), Ministry of Labour (MoL) and Electrical Safety Authority (ESA). Levels of risk are: o o o o o Level 1: no risk to workers or public (no chance of a strike) Level 2: minimal risk to workers or public (minimal chance of a strike, impact of a strike minimal) Level 3: moderate risk to workers or public (chance of strike, impact of strike moderate) Level 4: significant risk to workers or public (strike likely, impact of strike localized, but could risk life or property) Level 5: extremely significant risk to workers or public (strike highly likely, impact of strike widespread and risk to life and property) Complaints Procedures ON1Call has developed a form which is made available on the ON1Call website. ON1Call Complaints Form includes all the information necessary for ON1Call to assess the complaint and should be used as the basis for complaints received by telephone or regular mail. A complaint can be received by ON1Call: 1. through using the ON1Call on-line form 2. through regular mail 3. through a telephone call When a complaint is received, it is important to: Collect accurate information regarding the complaint using the ON1Call Complaint Form including perceived risk; Evaluate as to whether this complaint is better served through the terms and conditions as outlined in the MOU with TSSA, MoL or ESA. Assess the validity of the complaint, consistent with the policy. The following sections outline the process to be followed for a complaint which falls under ON1Call roles and responsibilities. 15

16 Complaints Policy Asses validity of complaint 7 : a complaint is considered valid if there is an apparent violation of: o a Section of the Act, o o an ON1Call policy or procedure a condition of membership as defined under the By-laws Schedule 2 o a condition defined under Schedule 3 guiding activities of excavators, o The source of the complaint should also be taken into account. A complaint by another regulator (level 3) may take a higher priority than a complaint by an individual (level 2) or an anonymous complaint (level 1). Complaints Procedures Conduct monthly review: The Investigations and Compliance (IC) manager will review complaints on a monthly basis with respect to data (accuracy, completeness, resolution of complaint, time and cost) and against performance metrics as established by ON1Call in its strategic plan. Complaint through ON1Call On-Line Form Complete information: Every attempt must be made to ensure that ON1Call has complete information regarding the complaint Log all complaints: All complaints must be logged into the ON1Call database Complete information: Every attempt must be made to ensure that ON1Call has complete information regarding the complaint Log all complaints: All complaints must be logged into the ON1Call database Complaint through Regular Mail Check that all sections in the ON1Call Complaints Form have been filled out. If sections have not been completed, contact the complainant by telephone or to complete the form. Log the complaint into the ON1Call database system, subsection complaint tracking a. Check that all information as required in the ON1Call Complaints Form have been included in the letter received through regular mail. b. If sections have not been completed, contact the complainant by telephone or to complete the form. c. Log the complaint into the ON1Call database system, subsection complaint tracking 16

17 Complaints Policy Complaints Procedures Complaint through a Telephone Call Complete information: Every attempt must be made to ensure that ON1Call has complete information regarding the complaint Log all complaints: All complaints must be logged into the ON1Call database a. Through the telephone conversation, ensure that all sections of the ON1Call Complaints Form are filled out. b. If all sections cannot be completed during the telephone call, request that the complainant call ON1Call back with the necessary information, ON1Call or send a letter to ON1Call. c. A written version of the complaint form should be provided to the complainant to confirm accuracy d. Log the complaint into the ON1Call database system, subsection complaint tracking Justifiable reasons exist for no action: there was no violation of: 8 o a Section of the Act, o an ON1Call policy or procedure o a condition of membership as defined under the By-laws Schedule 2 o a condition defined under Schedule 3 guiding activities of excavators, Undertake an investigation: The Manager of IC may appoint one or more investigators to inquire into the conduct of a Member where a complaint in writing has been made about a Member. Investigation of a Complaint Response to Complainant The Manager of IC will inform the Complainant that no further action will be taken. Procedures followed in the investigation of a complaint are outlined in the section on investigations which follows. Response to complainant: the complainant will be informed of the decision by ON1Call regarding the actions taken Once an assessment and/or investigation has been completed of the complaint, the IC Manager or designate must: Respond to complainant using either through or regular mail as was preferred by complainant, 17

18 Complaints Policy Complaints Procedures Respond within timeframe established by performance metrics/strategic plan 18

19 Tab 3D: Complaints Tools and Templates On-Line Complaint Form to be designed as a web form see new format. ON1Call Complaints Form Instructions: This form is to be completed by anyone who wants to make a complaint against a member of ON1Call if they reasonable probable cause to believe there has been non-compliance with the Ontario Underground Infrastructure Notification System Act, 2012, its regulations or the By-laws of ON1Call. The definition of reasonable probable cause is shown below. Grounds for Complaint Date of Complaint: Name of Complainant: Address of the Complainant Business of Complainant (if applicable) Contact Information of Phone Number Mobile Number address Complainant This complaint pertains to: Member Excavator Grounds for Complaint (check all that are applicable) a person or entity (as described in S. 5 of the Act) who owns or operates underground infrastructure has not become a Member of ON1Call; a person or entity has not provided the information necessary to ON1Call as described in Schedule 2 to By-Law 2 of ON1Call; a Member of ON1Call has not marked on the ground the location of its underground infrastructure (S. 6 (1)a. of the Act) a Member of ON1Call has not provided a written document containing information respecting the location of the underground infrastructure (S. 6. (1) a. of the Act) a Member of ON1Call has not stated in writing that none of its underground infrastructure will be affected by the dig (S. 6.(1) b. of the Act) a Member of ON1Call has not responded within 5 business days or within a time as agreed in advance with ON1Call or within a time defined in regulation (S. 6 (2) of the Act) the excavator has not contacted ON1Call to request a locate prior to digging (S. 7 (2) a. of the Act) the excavator commenced digging prior to proper locates being provided by the infrastructure owner(s. 7 (2) b. of the Act) the excavator did not ensure that the locate markings on the ground were consistent with the written information provided respecting the underground infrastructure (S. 7 (2) c. of the Act) any, all or other specific requirements of Members 19

20 any, all or other specific requirements of Members as listed in ON1Call Schedule 2 to By- Law No 2. as listed in ON1Call Schedule 2 to By-Law No 3. Complaint Made Against (Name of Company): Responsible Individual (if Known): Date (s) of the Infraction: Description of the Infraction (provide as much detail as possible): Impact of the Infraction: (Describe the harm or potential risk created by the infraction) Additional Information Signature of Complainant: Date: Complaint Response Letter 20

21 Date: ON 1 Call Address Address of the Complainant Dear [Name of Complainant] Re: Complaint # XX, Date This letter is to acknowledge that ON 1 Call received your complaint dated [add date] regarding a failure of XXX to comply with [The Ontario Underground Infrastructure Notification System Act, 2012 (the Act ); or Schedule 2 to By-Law No.2 of Ontario One Call; or Schedule 3 to By- Law No.2 of Ontario One Call]. Specifically, your complaint alleged that [Name of Member or Excavator] did not meet its obligation to [name the grounds of the complaint]. We will review this complaint and advise you of the outcome. Yours sincerely, Steve Waugh Investigation and Compliance Manager P: (519) ext 8808 C: (519) F: (519) swaugh@on1call.com Complaints Database suggested fields/drop down elements All complaints should be logged into a complaints database. Suggested fields for the complaints database include: Receipt of Complaint Complaint Number Date complaint received Complainant o Name o Address o Business (if applicable) o Phone number o Mobile number o address 21

22 Complaint Type/Grounds o Member a person or entity (as described in S. 5 of the Act) who owns or operates underground infrastructure has not become a Member of ON1Call; a person or entity has not provided the information necessary to ON1Call as described in Schedule 2 to By-Law 2 of ON1Call; a Member of ON1Call has not marked on the ground the location of its underground infrastructure (S. 6 (1)a. of the Act) a Member of ON1Call has not provided a written document containing information respecting the location of the underground infrastructure (S. 6. (1) a. of the Act) a Member of ON1Call has not stated in writing that none of its underground infrastructure will be affected by the dig (S. 6.(1) b. of the Act) a Member of ON1Call has not responded within 5 business days or within a time as agreed in advance with ON1Call or within a time defined in regulation (S. 6 (2) of the Act) o any, all or other specific requirements of Members as listed in ON1Call Schedule 2 to By-Law No 2. Excavator the excavator has not contacted ON1Call to request a locate prior to digging (S. 7 (2) a. of the Act) the excavator commenced digging prior to proper locates being provided by the infrastructure owner(s. 7 (2) b. of the Act) the excavator did not ensure that the locate markings on the ground were consistent with the written information provided respecting the underground infrastructure (S. 7 (2) c. of the Act) any, all or other specific requirements of Members as listed in ON1Call Schedule 2 to By-Law No 3. Complaint Details Complaint made against [Company Name] o Member number o Address o Responsible individual 22

23 Date of infraction Description of infraction Impact of infraction Other information Disposition of Complaint Letter to complainant acknowledging complaint [date] Complaint unfounded o Letter to complainant [date] o Letter to subject of complaint [date] o Date file closed Review by IC Manager o Letter to subject of complaint [date] advising of complaint o Letter to subject of complaint [date] advising of outcome o Subject complies with IC manager requirements [date] o Date file closed o Subject does not comply [date letter sent advising of forwarding to compliance committee] IC Manager initiates investigation o Letter to subject of complaint [date] advising of complaint and intention to investigate o Letter appointing investigator [date] o Letter to subject on outcome of investigation [date] o Subject complies with requirements [date] o Date file closed o Subject does not comply [date letter sent advising of forwarding to compliance committee] Compliance committee o Date compliance committee receives file o Notice of hearing [date sent] o Date of hearing o Letter on outcome of compliance committee hearing [date] o Subject of complaint complies [date] o Date file closed o Date of letter from subject on intention to appeal Appeals committee o Date of appeal o Date of letter on outcome of appeal o Date file closed 23

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25 Tab 4: Investigations Tab 4A: Investigations Process From Complaints Investigations Process Member Investigator IC Manager Direct Investigation or Investigator Appoints Investigator Conducts Investigation and Develops Findings Conducts Investigation and Provides Findings Assists in Investigation Reviews Findings Member Complies Complied Did Not Comply No Further Action Member Does Not Comply Refer to Compliance Committee Assess Penalty Member Appeals within 30 Days To Compliance Committee To Appeals Committee No Further Action 25

26 Tab 4B: Investigation of a Member ON1Call undertakes investigations where reasonable probable cause of non-compliance with the Ontario Underground Infrastructure Notification System Act, 2012, its regulations or the Bylaws of ON1Call. Reasonable probable cause is defined in Definitions above. This Section of the manual provides information and instruction for the consistent application in cases where the Act or its regulations have been contravened. It includes the policies guiding ON1Call when it undertakes an investigation, and includes the procedures that ON1Call will follow when investigating reasonable probable cause. According to the provisions of the Act, during the course of an investigation, or upon completion of an investigation, the Manager of IC can take one or more of the following actions: Make written recommendations to the Member Require the Member to successfully complete education or other activity at the Member s expense Advise or caution the Member Require the Member to appear before the Manager of IC or a person designated by the Manager of IC Refer the matter to another organization Refer the matter to the Compliance Committee Take such action that the Manager of IC considers appropriate Engage a mediator. Investigation Policy Issue is outside mandate of ON1Call: Manager of IC will: Investigation Procedure Where the Manager of Investigation and Compliance (IC) believes that the matter falls within the parameters of the MOU with either Electrical Safety Authority (ESA), the Technical Standards and Safety Authority (TSSA) or the Ministry of Labour (MoL), the Manager of IC will inform them in writing. If there is a probability of risk to the public or workers, Manager of IC will make every reasonable effort to contact the appropriate organization as soon as possible. Assess whether the issue is outside of the mandate of ON1Call according to the parameters of the MOU Communicate (or contact as soon as possible in the case of a high risk) through writing to ESA, TSSA or MoL informing them of his/her decision to refer the matter to that organization If the matter is urgent, and has been identified as high-risk to the public or workers, the Manager of IC shall contact the organizations in the fastest means possible and will document the communication as part of the investigations database and record keeping protocol. 26

27 Investigation Policy Investigation Procedure Notify the Member that the issue has been transferred to another organization, stating the reasons for this decision Reasonable probable grounds criteria: Where the Manager of IC believes that there are reasonable and probable grounds to believe that a Member has breached a term or condition of Membership, the Manager of IC will undertake the investigation procedure in the order as described. Reasonable and probable cause is defined in the definitions section in Tab 2. Best Investigative Practices 9 : The following constitute best investigative practices which can guide the ON1Call. These can be revised, amended at any time. Independent and Objective: Before assuming responsibility for an investigation or before appointing an investigator, the Manager of IC must ask the question: Is it possible to be, and to appear to be, independent and objective in conducting this investigation and reporting the results? Notifying the Member The Manager of IC will: Acknowledge receipt of complaint about the Member in writing or Inform the Member in writing ( or regular mail) that an investigation will be conducted, by: Describing the matter, o Citing the grounds under which the Manager of IC believes that the Member has breached the specific term or condition of Membership (citing specific reasonable and probable grounds ) o Outlining the generic process to be used to conduct the investigation; o Requesting a reply within 15 days Appointment of an Investigator Manager of IC: Consults ON1Call Conflict of Interest policies prior to appointing an investigator Is the investigator of record, or Appoints an investigator in writing based on the ON1Call job specifications for investigators which include the principles, practices and techniques for conducting ON1Call investigations, describing in detail reason for investigation to be conducted, outlining expectations of professional behaviour, and expectation that the investigation be conducted in a fair manner without bias. 27

28 Investigation Policy Apply ON1Call Professional Code of Conduct while undertaking investigations Investigation Procedure Conduct a fair and balanced investigation process without bias. Complete documentation: Ensure all investigation plans, files, documents are through and complete according to advice from ON1Call regarding future legal action An investigator appointed under Schedule 2, By-law 2 will gather such information as the investigator considers relevant and useful for the disposition of the matter. Member will assist an investigator appointed by ON1Call whether or not the Member is the subject of the inquiry (Schedule 2 of ON1Call By-Law 2.0). Details of the level of assistance to be provided is in Section 4, Schedule 2, By-law 2. Investigation support: It is recommended that wherever possible, the interviews should not be conducted by a lone interviewer. Conducting an Investigation of a Member The appointed investigator: o Develops draft scope/investigation plan based on Manager of IC documentation of reasonable-probable grounds for approval by IC Manager o Seeks approval by the IC manager of scope/plan of investigation Develops an investigation file (using the ON1Call investigation filing system) and places all background s, other correspondence into the file (electronic and or paper file) and continues to update throughout the process of the investigation. Waits to conduct interviews until all relevant s and other documents have been collected and analyzed. Investigator may ask for assistance from a Member in writing citing the reason for the assistance and what the assistance will comprise of. Investigator may interview complainant and others in order to collect additional information. The investigator(s) may: Conduct his /her investigation by telephone Visit the Member's premises (agreed with Member prior to the visit) Require the Member to attend a meeting at ON1Call premises. Thorough documentation: Each interviewer should take through notes, using a format advised and supported by ON1Call legal counsel should litigation be necessary, and The investigator will document using the ON1Call record keeping system, and with the agreed upon method with ON1Call legal counsel, all nature of contact with the Member, all conversations and materials exchanged and/or provided. 28

29 Investigation Policy should be complete and accurate in their note-taking. Investigation Procedure Warning: Investigation interview process to start with a warning 10 regarding the process and information gathered during the investigation. Open and fair process: At the beginning of the investigation interview, the investigator should open with the following remarks (providing a written copy if appropriate) consistent with the ON1Call policy regarding disclosure 7, e.g. The investigator represents ON1Call; As the appointed investigator may not be an ON1Call employee, it is important that ON1Call retain control over the information collected through this investigation. Information provided in the interview is protected by ON1Call attorney-client privilege, which is controlled by ON1Call, not the investigator Information shared during the course of the interview may be used by ON1Call against the Member being interviewed; ON1Call may decide whether to waive the privilege and disclose information from the interview to third parties, including the government During an investigation, both parties have the opportunity to present the facts and arguments they believe are important to their case. 10 It is recommended that ON1Call legal counsel review the draft warning and advise changes where necessary 29

30 Investigation Policy Best available information: Investigation Procedure The investigator will make a decision based on the best available evidence provided to the investigator. If the information as requested by the investigator is not provided in a timely manner, a decision may be made without consideration of those materials. Decision: After investigating, the investigator will make a decision about whether the Member has or has not followed the Act, regulations and the Schedules of the Corporations By-Laws Mediation: The Manager of IC may engage a mediator to attempt to resolve a compliance matter involving a Member If the investigator finds that the Member has complied with the Act, the investigator notifies the Manager of IC in writing of this decision stating reasons for this decision. If the investigator finds that the Member has not complied with the Act, the investigator notifies the Manager of IC in writing of this decision, stating reasons and recommendations for further action to rectify the problem. If the investigator is not able to resolve the situation of non-compliance through the tools available, or cannot obtain sufficient information to have a finding, the Manager of IC may contract with a professional mediator in writing, laying out the issue, actions taken to date, and requesting specifics of the assistance required to mediate a solution within the requirements of the Act Communicating the Results of the Investigation of a Member Response to Member: The Member will be informed of the decision by ON1Call regarding the actions taken The Manager of IC will send a letter to the Member informing the Member of the results of the investigation: A decision not to take any further action Request that the Member undertake further actions e.g.: complete education, change internal processes, at Member s expense 30

31 Investigation Policy Investigation Procedure Advise or caution the Member in writing Request that the Member to appear before the Manager of IC at a specific time and place to be cautioned in person Response to complainant: The complainant will be informed of the decision by ON1Call regarding the actions taken The Manager of IC will send a letter informing the complainant, and any other person the Manager of IC believes has a legitimate interest in the matter and in the results of the investigation Referral of the matter to the Compliance Committee for a hearing If the Manager of IC is unable to resolve the non-compliance matter, through use of several or all of the compliance tools available as listed in Section 8, Schedule 2, By-law 2, the Manager of IC will refer the matter to the Compliance Committee The Manager of IC may refer the complaint to the compliance committee for resolution based on the nature and severity of non-compliance or if the IC manager is not able to arrive at a conclusion based on the evidence of the investigation. The compliance committee has powers beyond that of the IC manager including: Direction to pay an administrative monetary amount (AMA) Direction to place the member under probation for a period of up to two years Suspend the Member s membership for a stated period of time If the IC manager believes that these measures are appropriate for resolution of the matter, the IC manager will refer the matter to the compliance committee. The IC Manager may make recommendations 31

32 Investigation Policy to the Compliance Committee based on the findings of the investigation. Non-compliance with Act, regulations or By-laws: a. Failure to attend appear at a meeting before the Manager of IC, when directed to do so under Section 8, Schedule 2, By-law 2 will result in a breach of ON1Call Schedule 2. The Manager of IC will refer such breach, together with the original matter, to the Compliance Committee for a Hearing. b. Failure to attend at any meeting or telephone conference requested by the Manager of IC, employee or agent or facilitator or mediator, will result in the breach of Schedule 2, By-law 2. Investigation Procedure The Manager of IC will: Inform the Member in writing that the Member has breached Section 8, Schedule 2, By-law 2 Inform the Member that the issue will be referred to the Compliance Committee. The Manager of IC will: Inform the Member in writing that the Member has breached Schedule 2 Inform the Member that the issue will be referred to the Compliance Committee c. The Manager of IC will refer such breach, together with the original matter, to the Compliance Committee for a Hearing. Requirements for further action: A Member must comply with a decision or action taken by the Manager of IC. Where a Member disputes the appropriateness of a requirement under clause 8 (c) or 8 (h) of Schedule 2, By-Law 2, the Member must file with the Manager of IC a written notice of dispute within fifteen (15) days of the requirement being made. The Manager of IC must refer the matter to the Compliance Committee for a hearing. Manager of IC will: Respond in writing that he/she has received such a letter Add a copy of this letter into the investigation file. Refer the matter to the Compliance Committee for a hearing. Record such actions in the investigations files 32

33 33

34 Tab 4C: Investigation of an Excavator ON1Call undertakes investigations where reasonable probable cause of non-compliance with the Ontario Underground Infrastructure Notification System Act, 2012, its regulations or the Bylaws of ON1Call. Reasonable probable cause is defined in definitions above. This Section of the manual provides information and instruction for the consistent application in cases where the Act or its regulations have been contravened by an excavator. It includes the policies guiding ON1Call when it undertakes an investigation, and includes the procedures that ON1Call will follow when investigating reasonable probable cause. According to the provisions of the Act, during the course of an investigation, or upon completion of an investigation, the Manager of IC can take one or more of the following actions: make written recommendations to the excavator; require the excavator to successfully complete education or other activity at the excavator s expense; advise or caution the excavator; require the excavator to appear before the Manager of IC or a person designated by the Manager of IC; refer the matter to another organization; take such action that the Manager of IC considers appropriate; engage a mediator; prosecute the excavator under the Provincial Offences Act for breach of Sections 7 and 8 of the Act Investigation Policy Issue is outside mandate of ON1Call: Where the Manager of Investigation and Compliance (IC) believes that the matter falls within the parameters of the MOU with either Electrical Safety Authority (ESA), the Technical Standards and Safety Authority (TSSA) or the Ministry of Labour (MoL), the Manager of IC will inform them in writing. If there is a probability of risk to the public or workers, Manager of IC will make every reasonable effort to contact the appropriate organization as soon as possible. Investigation Procedure Manager of IC will: Assess whether the issue is outside of the mandate of ON1Call according to the parameters of the MOU Communicate (or contact as soon as possible in the case of a high risk) through writing to ESA, TSSA or MoL informing them of his/her decision to refer the matter to that organization, If the matter is urgent, and has been identified as high-risk to the public or workers, the Manager of IC shall contact the organizations in the fastest means possible and will document the communication as part of the investigations database and record keeping protocol. Notify the Member that the issue has been transferred to another organization, stating the reasons for this decision Notifying the Excavator 34

35 Best Investigative Practices 11 : The following constitute best investigative practices which can guide the ON1Call. These can be revised, amended at any time. i. Independent and Objective: Before assuming responsibility for an investigation or before appointing an investigator, the Manager of IC must ask the question: Is it possible to be, and to appear to be, independent and objective in conducting this investigation and reporting the results? ii. Apply ON1Call Professional Code of Conduct while undertaking investigations iii. Conduct a fair and balanced investigation process without bias. The Manager of IC will: acknowledge receipt of complaint of the excavator in writing or inform the excavator in writing ( or regular mail) that an investigation of the excavator will be undertaken, by: o describing the matter, o citing the grounds under which the Manager of IC believes that the excavator has breached the specific Sections of the Act or the By-laws (citing specific reasonable and probable grounds ) o outlining the generic process to be used to conduct the investigation; Appointment of an Investigator Manager of IC: consults ON1Call Conflict of Interest policies prior to appointing an investigator. is the investigator of record appoints an investigator(s) in writing describing in detail reason for investigation to be conducted, outlining expectations of professional behaviour, and expectation that the investigation be conducted in a fair manner without bias. Conducting an Investigation of an Excavator Complete documentation: Ensure all investigation plans, files, documents are through and complete according to The appointed investigator: 35

36 advice from ON1Call regarding future legal action An investigator appointed under Schedule 3, By-law 2 will gather such information as the investigator considers relevant and useful for the disposition of the matter. Develops scope/investigation plan based on Manager of IC documentation of reasonableprobable grounds Develops an investigation file (using the ON1Call investigation filing system) and places all background s, other correspondence into the file (electronic and or paper file) and continues to update throughout the process of the investigation. Investigation support: It is recommended that wherever possible, the interviews should not be conducted by a lone interviewer. Thorough documentation: Each interviewer should take through notes, using a format advised and supported by ON1Call legal counsel should litigation be necessary, and should be complete and accurate in their notetaking. Waits to conduct interviews until all relevant s and other documents have been collected and analyzed. The investigator(s) may: conduct his /her investigation by telephone visit the excavator s premises (agreed prior to the visit) require the excavator to attend a meeting at ON1Call premises. The investigator will document using the ON1Call record keeping system, and with the agreed upon method with ON1Call legal counsel, all nature of contact with the excavator, all conversations and materials exchanged and/or provided. Warning: Investigation interview process to start with a warning 12 regarding the process and information gathered during the investigation. At the beginning of the investigation interview, the investigator should open with the following remarks (providing a written copy if appropriate) consistent with the ON1Call policy regarding disclosure 7, e.g. the investigator represents ON1Call; 36

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