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 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
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
"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.
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