Making sense of the Hullabaloo

Hullabaloo

Definition:

noun [ S ] UK /ˌhʌl.ə.bəˈluː/ US /ˌhʌl.ə.bəˈluː/ old-fashioned

  • a loud noise made by people who are angry or annoyed; a lot of angry comments made in public about someone or something
  • public disapproval or complaints

Which way to turn? This way or that? Inspectors are asking, who’s right and who’s wrong? Should I stay or should I go?

What are we talking about?

The ping-pong match begins

It’s mine – no it’s mine

The recent series of letters that have been released from the two presidents of the Canadian Association of Home and Property Inspectors (CAHPI) and the Ontario Association of Home Inspectors (OAHI) that address who owns what, and who can use what in the way of designations.

We are going to try and provide an unbiased view of the situation so that Home Inspectors in Ontario can work out what they want to do with their futures and their finances. So let’s get started.

In August of last year, the President of OAHI announced that CAHPI was no longer an Association of Associations (something CAHPI had already told everyone earlier in July) and that OAHI had been slighted by the restructuring changes. The President of CAHPI responded in kind in September, setting the record straight that OAHI had ample opportunity to invest in the restructuring decision but chose not to. The email from CAHPI went on to explain that those inspectors who had the RHI and NCH designations through the relationship with the provincial association but awarded by CAHPI would continue to be entitled to use them.

It appears a large number of Inspectors chose to leave OAHI and move across to CAHPI as a directly joined member. Fast forward to this year, and the profession received another email, tit-for-tat about the use of the Registered Home Inspector RHI designation.

The One from OAHI had the following to say:

The restructuring of CAHPI National into a provincial, member-funded association has lead <led> to a recent email indicating you need to be a CAHPI member to be an RHI or use the designation of Registered Home Inspector (RHI). This is false; the Act, Bill Pr158 (An Act respecting the Ontario Association of Home Inspectors) is clear on this, only qualified OAHI members can use the designation of Registered Home Inspector (RHI). OAHI has begun the necessary process to enforce the Act and non-OAHI members claiming the Registered Home Inspector (RHI) designation listed on other websites will receive notice in the near future.

OAHI and its members are not allowed to use the CAHPI-Ontario logo per the AGM discussion.

Meanwhile, the retort from CAHPI came back:

“We are sending this communication in response to inquiries that we received following the email/letter sent by the OAHI office May 7th. Please see the answers below:

  1. The recent communication that you received from OAHI is wrong.
  2. CAHPI alone is the registered owner of the Canadian trademarks “Registered Home Inspectors (RHI)” and “RHI”. Any use of the trademarks without <the> approval of CAHPI is prohibited by federal law
  3. The 1994 provincial legislation relied upon by OAHI for its threatening remarks to home inspectors is in the final stage of being repealed and struck from the laws of Ontario. The new successor legislation (Home Inspectors Act, 2017) does not provide to OAHI any of the rights to which OAHI refers. “

Deuce

So, both are claiming the right to use the RHI, both are claiming the other one doesn’t have the right.

OAHI is threatening to sue any inspector that uses the RHI that in their opinion isn’t entitled to it.

So let’s take a step back and look at what’s a fact, and what’s not.

First, who owns the Intellectual Property Rights to the R.H.I.?

 

Who owns what?

If you go to the Canadian Trademarks Database and search for “Registered Home Inspector” you will be presented with a list of applications and their status.  There were six entries in the database when we ran the latest search (May 25th, 2018).  They looked like this.

  • Choosing the links that take you to the INACTIVATED ones (0914614 and 0914615 respectively) you’ll see that they were both applications by OAHI and they were both inactivated in 2002 due to both “Registered Home Inspector” (0914614) and R.H.I. (0914615) being Prohibited Marks because they are both “Official Marks”.
  • In 2016, CAHPI performed an official Search on “Registered Home Inspector” (1785716)
  • In 2017 OAHI registered “Registered Home Inspector-OAHI” (1853142) and “OAHI Registered Home Inspector” (1853144) and these were formalised.  This just means they have been examined by a trademark examiner, but not yet approved.  Following formalisation, the trademark has to be published in the Trade-marks Journal.   We have searched every journal since the application date and have not seen either of these trademarks advertised.  Nor do we expect to.  The reasons we’ll give later.
  • The final application in the list of six (1854316) was again formalised and was made by CAHPI for the trademark “Registered Home Inspector”.   Again, this has not yet appeared in the Trade-Marks Journal, so has as yet and according to public records, not been approved.
  • We checked the patents and copyrights database too and couldn’t find any entry for RHI, R.H.I. or Registered Home Inspector.

CLARIFICATION:

What makes things really confusing is the fact that in the communication going back and forth, the terms “Registered Home Inspector“, “Registered Home Inspector (RHI)“, “RHI” and “R.H.I.” are used.
Following a communication from the President of CAHPI we would like to add the following inline and advise readers to also read the clarification notice we have published on this matter. 
“Registered Home Inspector (RHI)” and “RHI” are both Canadian trademarks registered by the Canadian Association of Home & Property Inspectors (CAHPI) and are valid for use across Canada.

Registered Home Inspector” and “R.H.I.” are both official marks in Ontario and are restricted for use and authorisation solely by the Ontario Association of Certified Home Inspectors (OAHI).   

The term “Registered Home Inspector” has been filed by CAHPI but has been delayed in examination.

Why can’t the trademark be registered, yet? (in our opinion)

CLARIFICATION:  The title of this section was changed from “Why can’t the trademark be registered (in our opinion)”, following a communication from CAHPI, in order to better clarify our understanding.  We have made additional commentary changes to provide better clarification.

We do not believe that the trademark “Registered Home Inspector” (as opposed to “Registered Home Inspector (RHI)” which is already registered and owned by CAHPI) will be approved as yet because the Ontario Association of Home Inspectors Act, 1994 is still in force. 

In this Act it clearly states
Any person in Ontario who, not being a registered member of the Association, takes or uses the designation ‘Registered Home Inspector’ or ‘R.H.I.’, alone or in combination with any other word, name, title, initial or description, or implies, suggests or holds out that that person is a registered home inspector is guilty of an offence

The fact that “Registered Home Inspector” and “R.H.I.” are in a piece of legal legislation, means that they automatically become Official Marks, and therefore Prohibited Marks. 

Because Federal regulation cannot remove rights awarded at Provincial Level (as long as those rights are not in contradiction of already enacted Federal legislation) the Trade-Marks examiner cannot approve the Trademarks, even to OAHI which has the sole right to use these in Ontario.  In addition, because the 1994 Act states that the terms used “alone or in combination with any other word, name, title, initial or description” it automatically disallows, for the time being, OAHI-Registered Home Inspector and Registered Home Inspector-OAHI.    In our opinion, OAHI wasted money even applying for these.

So who owns the trade-marks “Registered Home Inspector” and “R.H.I.“?   The simple and elegant answer is the crown and on her behalf the Assembly of Ontario, and on their behalf OAHI.   But………

That’s only in Ontario.   Outside of Ontario, and until such time as the Registered Home Inspector and R.H.I. word marks become non-official marks, anyone can call themselves a “Registered Home Inspector” or use the designation “R.H.I.”   If they cross the provincial boundary into Ontario with stationary with either mark or advertise services in Ontario using either mark to advertise their services, without approval from the Ontario Association of Home Inspectors, then they are guilty of a Provincial offence.

CLARIFICATION:   While someone can, at this point in time, outside of Ontario call themselves a “Registered Home Inspector” or an “R.H.I.” they cannot use the terms “Registered Home Inspector (RHI)” or use the designation RHI as these are trademarks of the Canadian Association of Home & Property Inspectors.

Confused yet?

A real(ish) world example

OK, let’s put it into perspective.

If Jon Inspector was originally a member of OAHI, entitled to use the “R.H.I.” designation and call himself “Registered Home Inspector” choose to leave OAHI and join CAHPI he can no longer advertise his services by those terms.   Nor can he call himself a CAHPI-RHI or CAHPI-Registered Home Inspector. 

CLARIFICATION:  If he has the stringent pre-requisites laid down by CAHPI, and has applied for and been approved by CAHPI to use the terms he can, outside of Ontario call himself a “Registered Home Inspector (RHI)” or an RHI.

However, if Jon was to move, advertise and work out of Ontario, he is quite within his rights to call himself, at this time, either “Registered Home Inspector ”  or “R.H.I. ” with CAHPI qualifications. 

(This would go for Jane Inspector too, but we couldn’t work out how to make the post genderless and still readable.)

Notice also we were very careful how we worded the above paragraph when we said ‘If Jon Inspector was originally a member of OAHI, entitled to use the R.H.I. designation and call himself “Registered Home Inspector”‘ because this brings us onto another point that seems to be of particular concern to consumers, realtors and inspectors alike.

What does Registered Home Inspector and “R.H.I.” mean?

What exactly is a “Registered Home Inspector”?  Again we fall back to the Act that created this instance of OAHI.

Every member of the Association Designation whose name appears in the register may use the designations “Registered Home Inspector” and “R.H.I.”.

So what sort of member is “on the register”  again the Act set’s out the basic criteria.

The Association shall grant membership Membership to every person who applies for it in accordance with the by-laws of the Association if the person,
(a) is at least 1 8 years old;
(b) has complied with the academic and experience requirements specified in the by-laws of the Association for the issuance of membership;
(c) has passed such examinations as the board of directors may set or approve by by-law; and
(d) in the opinion of the board of directors, is likely to carry on the practice of home inspection in accordance with the law and with integrity and honesty.

The act goes on to say…

The registrar of the Association shall Register keep a register which shall show the names of all members of the Association in good standing, their status and their category of membership.

OK, so far so good.   It seems as though members who are in categories recognised by OAHI must be on the register, and that each category will have specific requirements, as per the act, to identify what category the Inspector falls into.

So let us look at the membership criteria.

In the OAHI By-laws (dated March 3, 2018) it clearly states:

3.3 The Association shall have the membership categories described in Paragraphs 3.3.1 through 3.3.9.

These sub-paragraphs go on to establish the membership requirements, as required by the Act for RHI Members, Associate Members, Candidate Members, Applicant Members, Student Members, Retired Members, Friends of the OAHI members and International Membership.

Smoke and Mirrors

This alludes to the fact that all these membership categories should be on the register (as required by the Act) and members of these categories are also required by the Act to be included in the Register.  Following this logic, then everyone who is a member of one of these categories can call themselves a “Registered Home Inspector” and use the designation R.H.I.

This was raised at a meeting within OAHI and the response from their board of directors (actually it was their president) was that the spirit of the Act was that OAHI should be able to control who uses “Registered Home Inspector” and “R.H.I.” within Ontario and the changes to the by-laws enables them to do just that.

Ahem.   Here’s how it works in Canada folks.

Federal Law —–>   Provincial Law  ——>   Municipal By-Law ——>   Corporate by-law.

No law or by-law is allowed to change the fundamental rights given by another law to it’s left.

As we see it (as do a number of lawyers we’ve spoken to), if an Inspector is in any of the membership categories of OAHI, pay their membership fees, abide with the OAHI code of Ethics and Standards of Practice, then there is nothing OAHI can do to stop them calling themselves a “Registered Home Inspector” or use the designation “R.H.I.”

Are you liable if you use “R.H.I.” as a member of CAHPI in Ontario?

Back to our example (we’ll use Jane this time).

If Jane Inspector chooses to join CAHPI, and downgrade her membership of OAHI to anything other than the top, highest fee-paying tier, as long as she adheres to the OAHI Code of Ethics, and performed her inspections in accordance with the OAHI Standards of Practice, then OAHI cannot accuse her of a provincial offence.

Who cares?

Well, obviously OAHI cares.  After all the rights to permit the use of Registered Home Inspector and R.H.I. in Ontario was given to them by the Queen(ish).  But facing the fact that someone who is a member of OAHI and has not yet achieved the lofty goals the Board and various committees would like them to have is still entitled, in law, to use the R.H.I. designation and call themselves a Registered Home Inspector, why would anyone want to use it as a designation?  In fact, how does it make an OAHI awarded RHI and more relevant than an InterNACHI awarded CPI?

At least with a designation such as the CAHPI National Certificate Holder (NCH), (and outside of Ontario a CAHPI Registered Home Inspector (RHI)), or an NHICC awarded National Home Inspector (NHI) or indeed our own Canadian-Certified Home Inspector (CCHI) there is a single path to achievement and an audit trail that backs that achievement up.  All you have to do, in-law, to get the R.H.I. is to join OAHI.

Of course, you could equally opt for the American Society of Home Inspectors (ASHI) Certified Inspector (ACI) designation, but according to OAHI “OAHI/ASHI® Members cannot practice home inspections in Canada” which is, of course, poppycock.

So back to the infighting.

Here’s how we see it.

  1. CAHPI, contrary to the statements made by the President of OAHI, is not a Provincial Association.  It’s a National Association of Home Inspectors from across Canada. 
  2. According to the President of CAHPI they want to work with the Provincial Associations and not compete with them. This they have proved to do.
  3. If you are a member of multiple associations, anything from any of them that informs you that you can’t use the logo of another that you are a member of on the same advertising material is, in our opinion a breach of your rights.  You’ve paid your membership for the right to say you are a member of the association, you should be able to advertise that.
  4. If you are ONLY a member of CAHPI you cannot, in Ontario, use “Registered Home Inspector” or “R.H.I.” or any combination, augmentation or fuzzy-assed tailoring of those terms to hold yourself out as a registered member of OAHI.
  5. If you only provide inspection and advertise your services outside of Ontario, OAHI cannot stop you, sue you or otherwise penalise you for calling yourself an R.H.I. or Registered Home Inspector. 
    CLARIFICATION:  CAHPI can as you would be passing yourself off as using their Trademark.  You must be a qualified member of CAHPI to use these terms of similar terms outside of Ontario.
  6. If you only provide inspection and advertise your services outside of Ontario, CAHPI cannot stop you, sue you or otherwise penalise you for calling yourself an “R.H.I.” or “Registered Home Inspector”
    CLARIFICATION:  Assuming you are entitled to use those terms under the Ontario Association of Home Inspectors Act, 1994.
  7. If you want a designation, in Ontario, that w believe can be fully audited and has a single path to achievement, then you should be looking at (in alphabetical order) the CCHI, NCH or NHI. (From OntarioACHI, CAHPI or the NHICC respectively)
    CLARIFICATION: Other fully audited designations that we think are worth putting the effort into achieving are “Registered Home Inspector (RHI)” from CAHPI, even though until the OAHI Act is repealed you could be in trouble using it in Ontario without OAHI approval, and the “ASHI Certified Inspector” or “ACI” form the American Society of Home Inspectors.

For those who want more than one designation, go for it.   In agreement with paragraph 2 above, we can firmly say that CAHPI does not want to compete with the Provincial Associations.  They do, however, operate in the Federal space and as such, they can do many things at the Federal level a Provincial Association, such as OntarioACHI and the OAHI cannot.

We have no qualms about members of OntarioACHI also joining CAHPI, or OAHI, or PHPIC or ASHI or InterNACHI or get certified by the NHICC, and if one of our inspectors chooses to do so, we recommend they fly every associations’ flag as proudly as they fly ours.    In fact, we encourage members to also join CAHPI and apply for the NCH designation and also apply for the NHI from the NHICC. 

If you are such an Inspector, you’ve worked for it, you’ve paid for it, you’ve earned it be proud of your achievements.  But go in with your eyes wide open.

When it comes to licensing, ensure you have a designation that really can stand up to the scrutiny of the Ontario regulators.  Make sure you are not just being bullied into becoming a member of an association because of your rights to a designation that no association “owns”.

And remember, a fact made quite clear by the President of CAHPI, when the Home Inspection Act, 2017 if pronounced, the Ontario Association of Home Inspectors Act, 1994 will be repealed. 

  • OAHI will be transmuted to a Letters Patent not-for-profit association and all rights to the “Registered Home Inspector” and “R.H.I.” marks will be rescinded. 
  • “Registered Home Inspector” and “R.H.I.” will no longer be official marks.
  • The terms will not be prohibited from registration as a Trademark

Just watch the bun fight then!  As the Act currently says “The Ontario Association of Home Inspectors … represents that it is an unincorporated association that is a division of The Canadian Association of Home Inspectors.” and their own documents from 2017 state “The OAHI is the Ontario representative of the Canadian Association of Home & Property Inspectors (CAHPI)”

If we were to bet on which side of the fence the Trade-mark examiner would come down on, we would guess it would be with the Federal Association.

What to do?

If you are a member of an Association and are concerned about licensing of the Home Inspection Profession here in Ontario you have a number of choices. 

You should ask your association board, in writing, to explain their comments and ask for evidence to back up their claims.   If you are a member of OAHI and are not in the R.H.I. membership category, but because of your membership in another category think your R.H.I. will automatically get you a license, think again. 

So far there are only 3 Associations (that we are aware of) in Canada that offer designations that have a full audit trail for all designates.    CAHPI, NHICC and OntarioACHI.  While we understand OAHI has an audit trail for its R.H.I. category of members, we are led to believe (and we could be wrong) that some R.H.I. members of OAHI do not have a full audit trail that establishes their credentials.

Of course, you could choose to trust the press, where a well-known opposer of anything ending in the word ACHI fails to provide impartial information to the profession or the public.   For example in Cam Allen’s post of February this year he stated that “Based upon” his “review of the CLHIO, there are only two organizations right now that fit the expected standard. They are the NHICC top certification NHI and the Ontario Association of Home Inspectors RHI.”   Strange, because the recommendations and the requirements for the CCHI go hand-in-hand 100% and have right from the get-go.  As usual, we attempted to have the Postmedia publication corrected, and again (for the fourth time) our comments fell on deaf ears.  So much for the impartiality of the press.

Of course if you look at Mr Allen’s posted credentials in his more recent publication of May 2018, you can see he holds himself out to be an ASHI Certified Inspector (ACI), National Home Inspector (NHI), a Registered Home Inspector (RHI), and a National Certificate Holder (NCH).  As Mr Allen practices in Ontario, and is not a current member (as of writing) in any way or form of the OAHI, he is, according to the lawyers we spoke to anyway, breaking the law and publishing false credentials, unless of course, he knows something we don’t.

We believe that holding a CCHI from OntarioACHI,  the NCH from CAHPI or the NHI from the NHICC are the only ways to prove to Ontario Consumers that you have completed the full requirements for your designation.  If you are a member of ASHI, then the ACI is equally audited.

Anything else is a marketing tool providing a greater or lesser extent of a real audit of the Inspectors skills.   Newly introduced licensing has rarely taken a marketing emblem as proof of skills and educational achievement, and Ontario has, in the past, shown reluctance to use a designation solely available outside of the country for the same purposes.

You have been warned!

You can join OntarioACHI here:  https://ontarioachi.ca/join-up

You can join CAHPI here

You can sign-up for the NHICC certification here