The Ontario Labour Relations Board has held that an engineer’s report that did not use the words, ”not likely to endanger a worker”, did not satisfy a compliance order.
A Ministry of Labour inspector had ordered four companies, after accidents at various job sites that involved the operation of tower cranes, to provide a “section 54(1)(k)” professional engineer’s report stating that the cranes were not likely to endanger a worker. The companies unsuccessfully tried to work out an “industry solution” with the MOL.
All four companies retained the same engineering firm, Burrell & Associates. An engineer with that firm provided four reports. One of the reports stated that the tower crane was now operating normally and could be placed back into service; another report stated that “turntable bolts are still suitable for the operation of the crane until new bolts are installed”; and a third report stated that “the crane capacity in third gear is adequate for the intended loads on this project . . .” None of the reports stated that the cranes were “not likely to endanger a worker”, the language used in s. 54(1)(k) of the OHSA.
The MOL refused to accept that the engineer’s reports satisfied the obligation under s. 54(1)(k) to produce a report that the tower cranes were “not likely to endanger a worker”. The companies appealed to the Ontario Labour Relations Board.
The companies argued that by requiring the precise words “not likely to endanger” in the engineer’s report, the MOL was superseding the judgment of a professional engineer and may discourage engineers from providing reports. The companies also argued that under section 54(1)(k), the professional engineer – not the MOL inspector – should make the decision as to whether the equipment could be used safely.
The OLRB disagreed. It held that section 54(1)(k) required the professional engineer to expressly state in his report whether the equipment is or is not likely to endanger a worker. The OLRB 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.”
Employers and professional engineers should take note. The practical effect of this decision is that when ordered to obtain a section 54(1)(k) report, an employer should seek out a professional engineer with significant expertise in the equipment or machinery to which the order relates, so that the engineer feels comfortable writing that it is “not likely to endanger a worker”.
Hardwall Construction Ltd. et. al: http://www.canlii.org/en/on/onlrb/doc/2011/2011canlii34961/2011canlii34961.html