Workplaces that are “factories” under the Ontario Occupational Health & Safety Act (OHSA), must comply with a complex and rather convoluted duty requiring expert review of the factory’s equipment and processes in specific circumstances. This Pre-Start Review (“PSR”) obligation has existed for close to 20 years and, simply put, requires owners of such workplaces to have a professional engineer review new or modified machinery or equipment for compliance with the Industrial Establishments Regulations (R.R.O. 1990, Reg. 851: the “Regulations”) and all applicable national or international standards.
There may be some hope for clarification and streamlining of these PSR requirements. In February, 2020, the Ontario Ministry of Labour, Training and Skills Development (as it is now known, MOLTSD) announced a review of the PSR process. Details of the PSR process and the review, which presents opportunities for input to the MOLTSD, are set out below.
Pre-Start Reviews and Their Complexities
PSR’s are an obligation found under section 7 of the Regulations. A “factory”, which is defined in the OHSA, will include virtually any manufacturing, repair, warehousing, assembling, retail or similar operation. Mines, construction projects, logging and other named operations are excluded from the “factory” definition.
The obligation seems straightforward. For every new factory, and for every new process or item, modification or alteration to machines, equipment or structure at the factory, a PSR could be required. It will be required if a circumstance, listed in the Regulation (which can include upgraded equipment, racking, lifting devices, processes involving risk of explosion, being a foundry, equipment that is moved, equipment that is modified for safety, and numerous other circumstances), exists. The list of triggering circumstances are set out in a table in section 7 of the Regulation. It is this section that must be consulted to determine whether a PSR must be done. Section 7 also sets out the exceptions (and there are many) to the PSR requirement. If the obligation to perform a PSR applies, a detailed engineering review, prescribed under the Regulation must be conducted, and corrections identified for compliance made before operation of the equipment or process.
The Regulation’s wording is quite daunting, full of circumstances and exceptions so complex that as OHS lawyers we have often advised that one has to virtually retain an engineering expert to conduct a review, in order to determine whether a PSRis required. Further, the Ministry created a detailed Guideline for the application of the PSR process for employers, owners, and any engineer in conducting such a review. The Guideline is amongst the most complex and detailed guides on the Ministry’s website. It appears to be largely oriented to engineers and not OHS, HR professionals, or business. For engineers, the Professional Engineers of Ontario has issued their own guideline for the conduct of such pre-start health and safety engineering reviews. The intent of that Guideline appears to be consistency and, ideally, accuracy.
The current provisions in s. 7 of the Regulation have been in force, unchanged, since October 7, 2000. Their purpose is inarguably laudable – the owners of facilities at which the types of equipment or processes listed exist must conduct an advance engineering review of the new or modified equipment, have the engineer identify any and all deficiencies which might exist, prepare a report which is kept at the workplace with the equipment, and other matters. This leads to the types of higher risk activities covered in the Regulation (such as foundries, locations with dust collectors, high levels of potential chemical exposure, or processes with risk of fire or ignition, or requiring certain guarding, again amongst other matters) being assessed carefully before operation. It leads to equipment and processes being reviewed for national codes, such as fire codes, CSA standards for devices and guarding, international or North American standards, various engineering data sheets, and perhaps other legislative requirements.
The Ontario Government’s Review
The MOLTSD is currently inviting submissions on whether these requirements continue to reflect “the realities of today’s workplace”, and specifically whether there are “opportunities to streamline existing requirements or reduce the burden on business”. They will be looking at ways to make the requirements clearer and easier to understand, and whether the equipment and processes triggering a PSR continue to be appropriate.
Our OHS and worker’s compensation group has had experience with employers facing OHS prosecutions involving the PSR provisions, both due to failure to comply, or cases raising questions as to whether a review was sufficiently thorough and provides a defence. We have also advised on numerous questions regarding these detailed provisions over the past two decades. Our experience and our views are, briefly, as follows, for the consideration of any party making submissions or recommendations:
Positives To Consider Respecting PSR’s
- Although complex, pre-start health and safety engineering review processes frequently identify concerns that are not readily apparent upon purchase or installation, even for equipment and processes sold and installed by highly capable and competent manufacturers. Such manufacturers often do not sufficiently understand Ontario or national, or international legislation and standards for the protection of workers and preservation of equipment and facilities from fire, explosion and collapse. Tragically, owners and employers frequently rely upon the assumed competence of the manufacturer or installer, and if conducted properly a PSR can identify risk and corrective action before an incident occurs;
- The PSR process, assuming a detailed review and implemented corrective actions (where required), provides one of the few virtually iron-clad assurances to an owner or employer that its processes and equipment, and modifications to same, are safe and compliant. Should an incident occur despite the engineering review, and again assuming all actions identified by the engineer have been taken, this ordinarily operates as a defence of taking “all reasonable care” in the circumstances. If necessary the PSR conducted can be “taken to court” should prosecution occur;
Areas for Improvement-For Potential Submissions
- PSR requirements are not well advertised by the Ministry, and are little known amongst smaller, and even some larger owners and employers in Ontario. In our view, ongoing communication of the requirements, and simplified descriptions respecting the types of processes and facilities requiring such review, to owners and employers, safe workplace associations and other similar organizations, small business associations, would be highly beneficial;
- PSR reports prepared by engineers vary widely in complexity and detail, and are often difficult for the layperson in an OHS or human resources, or management position, to read or understand. Many spend tens of pages on qualifying language, explanations of process, so much so that it can be difficult to find the bottom line opinion as to whether a particular piece of equipment or process is compliant or what needs to be done to comply. Further, a very wide range of engineering firms, some focusing exclusively on health and safety issues, and some engaged in broader engineering practices, conduct such reviews.
- Recommendations to the Ministry which could be considered, as potentially beneficial in this regard could include:
- a recommended Ministry approval process for engineering firms recognized as qualified to provide PSR’s, much like current process for recognizing approved providers of certification training;
- a recommended public listing of Ministry-approved engineering firms for the conduct of PSR’s;
- a standard simplified PSR report format for the essential content of the PSR – what was reviewed, whether the equipment or process is compliant, what needs to be done to comply (standard qualifiers and cautions could be part of standard language to be attached);
- a simplified guide for OHS, HR and other professionals to these complex PSR requirements, to allow them to identify circumstances where an engineer (ideally one approved and listed by the Ministry) should be called to further assess whether PSR is required, and as necessary to conduct this.
Submissions may be made to the Ontario Ministry until March 27, 2020. The link to the Pre-Start Health and Safety Review Project description, and how submissions may be made can be found here.
For any organization wishing assistance with these provisions, or potential submissions, please reach out to an Ontario member of our national OHS and Workers Compensation Practice Group, we would be most pleased to assist.