In A Flash

Ontario OHSA Pre-Start Health and Safety Engineering Reviews Clarified

After a period of extensive consultation with stakeholders (reviewed in a prior In A Flash available here) about the current complex requirements for advance engineering review of specified equipment, processes and industrial risks, Ontario has enacted changes to clarify pre-start health and safety engineering review (“PSR”) requirements. Changes are effective January 1, 2022.

These amendments, made in O. Reg. 434/21, were passed in June 2021, but are just now taking effect. The PSR requirements can be found in the Industrial Establishments Regulation (Reg. 851 – the “Regulations”), section 7, and require “factories” to carry out a detailed PSR for certain machinery, protective elements, structures, and processes that can pose a serious hazard to worker health and safety, before they are operated for the first time or because modifications have been made. A “factory”, as defined in the Ontario Occupational Health and Safety Act (“OHSA”), includes virtually any manufacturing, repair, warehousing, assembling, retail or similar operation. Mines, construction projects, logging and other named operations are excluded from the definition of “factory”.

To be clear, these are not new requirements. Since 2000, owners of factories have been expressly obligated to ensure that this form of engineering risk assessment has been conducted in specified circumstances to determine if equipment and conditions meet the Regulations and applicable Canadian and International Standards. Some language has existed to also impose obligations relating to the review on employers and lessees of premises. A MOLTSD Guideline (see the latest Guideline available here) for these complex requirements has been in place for decades.

Due to their complexity, these requirements are often misunderstood. Sometimes, the PSR is carried out but no follow-up assessment is conducted and hazards, unfortunately, remain outstanding, largely negating the review process. PSRs are however an effective tool for advance assessment of the specified systems and equipment against legislation and standards to reduce workplace risk.

So what is changing with the start of 2022? Not the eight major triggering circumstances.  A PSR is still required for:

  • storage and dispensing of flammable liquids;
  • safeguarding devices such as light curtains, two-hand control systems or interlocked barrier guards that prevent worker access to a hazard;
  • racks and stacking structures;
  • processes and dust collectors that pose a risk of fire or explosion;
  • processes that involve molten metals;
  • cranes and other lifting devices that are suspended from or supported by a structure; and
  • ventilation systems used to control worker exposure where processes use or produce a hazardous biological or chemical agent.

Where the obligation to perform a PSR applies, a detailed engineering review, prescribed under section 7 of the Regulations must be conducted, and corrections identified for compliance made before operation of the equipment or process. Numerous exemptions have historically applied and were set out in complex wording. The process of determining the circumstances in which a PSR is required and exemptions from the same, using a Table in the Regulations and the pre-existing language, has been daunting. The language and Table have now been significantly simplified.

The Table to section 7 (setting out the list of triggering circumstances) has been modified to remove all language related to exemptions in the body of the Regulations and include a new column, to more clearly set out the exemptions to the PSR requirement previously described at length in the body of section 7.

Some of the circumstances and exemptions in the Table have been modified to clarify their meaning, and there are two areas of new exemptions as follows:

ItemCircumstancesExemptions
1.Either of the following applies with respect to flammable liquids:
  1. More than 235 litres of flammable liquids are located in a building or room.
  2. Flammable liquids are dispensed in a building, room or area.
All of the following requirements are met:
  1. No more than 235 litres of flammable liquids are stored per adequate cabinet.
  2. No more than three cabinets containing flammable liquids are in a group of cabinets.
  3. There is a minimum distance of 30 metres between groups of cabinets containing flammable liquids.
ItemCircumstancesExemptions
8.A process uses or produces a hazardous biological or chemical agent and uses a ventilation system to limit the exposure of a worker in accordance with any exposure limit set out in Regulation 833 of the Revised Regulations of Ontario, 1990 (Control of Exposure to Biological or Chemical Agents) made under the Act.A portable device that extracts smoke, fumes or other substances and that does not exhaust to the outdoors is used.

Interestingly, the language of s. 7(2) of the Regulations has been amended to more clearly create a positive obligation for either the owner, lessee or employer to conduct a PSR in the specified circumstances. Previously, this obligation was not as clear or express for the employer (as opposed to the owner of a factory, who of course could be an employer under the OHSA). There have been few OHSA prosecutions against employers for failure to conduct or ensure compliance with recommendations in a PSR – this amendment may change that and more clearly pave the avenue for employer prosecutions for violations of section 7 of the Regulations.

The full amended Regulations, including section 7 and the amended Table, is available here.

Other Recent and Pending Changes

(a) Industrial Establishments Regulation

Readers should be aware of other changes to the Regulations include amendments to remove references to the “Ministry of Training, Colleges and Universities” and substituting “Ministry” (referring to the Ministry of Labour, Training and Skills Development) to clarify that the MOLTSD will have oversight of certain prescribed training programs in the logging sector.  These changes took effect on July 1, 2021.

(b) Definition of Engineer in OHSA

Further, on December 2, 2021, Bill 13, the Supporting People and Businesses Act, 2021 amended the OHSA to introduce a new definition for “engineer” that will take effect upon a date to be proclaimed. The new definition provides:

“engineer” means, subject to any prescribed requirements or restrictions, a person who is licensed as a professional engineer or who holds a limited licence under the Professional Engineers Act.

The Ministry is currently engaged in consultation (see the notice here) proposing to update all references to “professional engineer” in all regulations made under the OHSA and replace them with the word “engineer” to reflect the new definition. Amending the references in the regulations would authorize “engineers”, as defined, to provide certain reports, advice and certification required under those regulations. When passed, this will impact various sector-specific regulationssuch as Mining, Oil and Gas, Window Cleaning, Health Care, as well as more general regulations relating to Notices of Critical and Fatal Injuries. Consultation on these proposed regulation-specific language changes is open to stakeholders until February 16, 2022.

The stated aim of the updated definition of “engineer” appears to be to permit a broader group of qualified engineers to provide advice and certification as required under the OHSA and its regulations, making it easier for employers/businesses to comply with the legislation. 

The authors gratefully acknowledge the assistance of Anthony Kwong, an Articling Student in the firm’s Toronto office.

For any organization wishing assistance with these provisions, please reach out to an Ontario member of our national OHS and Workers Compensation Practice Group, we would be most pleased to assist.

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