Engineer’s Report Must Use “Not Likely to Endanger” Language of OHSA: OLRB

An engineer’s inspection report must use the specific language “not likely to endanger a worker” in order to comply with the Occupational Health and Safety Act, an Ontario Labour Relations Board decision suggests.

Following receipt of Ministry of Labour compliance orders, a construction company retained an engineering firm to examine a tower crane.  The engineering firm reported to the inspector that there were no defects in the structure of the crane and that it can be put back into service.  The Ministry of Labour inspector essentially refused to accept the engineer’s report as it did not use the “not likely to endanger a worker” language.  The inspector ordered the construction company to have a professional engineer inspect the tower crane and provide a report that it was “not likely to endanger a worker”, wording found in s. 54(1)(k) of the OHSA.  The construction company appealed those orders.

The construction company then moved to suspend the operation of the orders.  The OLRB, relying on a 2011 decision called Hardwall Construction, held that because the engineer’s report did not specifically state that the tower crane is not likely to endanger a worker, the OLRB could not be satisfied that workers would not be endangered if the compliance orders were suspended.

In the Hardwall Construction case, the OLRB had stated,

“Specific reference to the precise words used in the statutory provision facilitates consistency of assessment and minimizes the opportunity for confusion or debate by an Inspector as to what conclusion should be reached based on the content of a report.  Having a certain level of consistency in the content of reports, by requiring all professional engineers to use the precise words envisioned by the Legislature, helps create a common benchmark of evaluation, which enhances and, in all likelihood, may even expedite the Inspector’s ultimate determination as to the safety of the workplace.”

While some professional engineers may be uncomfortable, for professional liability reasons, with certifying that machinery or equipment is “not likely to endanger a worker”, the OLRB has confirmed that those words are required in any engineering report under section 54(1)(k) of the OHSA.

Drewlo Construction Limited v. A Director under the Occupational Health and Safety Act, 2012 CanLII 66865 (ON LRB)

Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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