Machinery Safety 101

Industrial Exception” Becomes Permanent in Ontario

The “Industrial Exception”

The “Indus­tri­al Excep­tion” is a clause in the Ontario Pro­fes­sion­al Engin­eer­’s Act that per­mits unli­censed people to do work nor­mally reserved for licenced engin­eers. Ontario is the only Cana­dian Province or Ter­rit­ory to have this kind of excep­tion.

Ontario Fall Economic Outlook

The Ontario Gov­ern­ment com­mit­ted to main­tain­ing the “indus­tri­al excep­tion” in the Pro­fes­sion­al Engin­eers Act in their Fall Eco­nom­ic Out­look and Fisc­al Review (p.17), released on the 27th of Novem­ber, 2015. This state­ment put an end, at least for the moment, to the dis­cus­sions that star­ted in Septem­ber of 2010 when Pro­fes­sion­al Engin­eers Ontario (PEO) formed the “Repeal of Indus­tri­al Excep­tion Task Force (RIETF)” and res­ul­ted in the announce­ment of the repeal in Janu­ary of 2013. The trans­ition peri­od giv­en to busi­ness was 90 days, in which time busi­nesses were expec­ted to con­duct an intern­al audit and vol­un­tar­ily report any viol­a­tions to PEO. They would then be giv­en anoth­er 12 months to rec­ti­fy their situ­ation, after which time they would be sub­ject to pen­al­ties under the Pro­fes­sion­al Engin­eers Act.

Pro­fes­sion­al Engin­eers Ontario claimed to have involved more than 100 industry groups in the con­sulta­tion pro­cess pri­or to pro­pos­ing the repeal, and yet 25 groups, among them Canada’s largest indus­tri­al asso­ci­ation the Cana­dian Man­u­fac­tur­ers & Export­ers, seem­ingly had no know­ledge of the pro­pos­al until the repeal was quietly announced.

The back­lash from industry groups and indi­vidu­al busi­nesses res­ul­ted in the gov­ern­ment decid­ing to aban­don the repeal, which res­ul­ted in a press release from PEO express­ing their shock and indig­na­tion in June of 2013. Noth­ing more was pub­licly announced until Novem­ber of 2015, a two-year silence.

Engineers Canada Press Release

On the 30th of Novem­ber 2015, Engin­eers Canada put out a press release regard­ing the “indus­tri­al excep­tion” [1], spin­ning this decision as one that will neg­at­ively influ­ence the safety of work­ers in Ontario, and some­how neg­at­ively impact licensed engin­eers in the Province. This is simply spin by Pro­fes­sion­al Engin­eers Ontario and Engin­eers Canada. Both organ­iz­a­tions are com­pletely ignor­ing the huge poten­tial impact revok­ing the excep­tion could have on Ontari­o’s man­u­fac­tur­ing sec­tor while mak­ing over­blown claims about the poten­tial neg­at­ive effects of mak­ing the excep­tion per­man­ent. I want to explore this a bit in this art­icle, as it has a dir­ect bear­ing on machinery safety in the Province.

Professional Engineers

In the Province of Ontario, Canada, where I live and where my prac­tice is based, the engin­eer­ing pro­fes­sion is reg­u­lated by the “Pro­fes­sion­al Engin­eers Act” (PEA) [2]. This act aims to reg­u­late the pro­fes­sion and provides the author­ity needed for Pro­fes­sion­al Engin­eers Ontario to license prac­ti­tion­ers. Only licenced engin­eers are author­ized to prac­tice pro­fes­sion­al engin­eer­ing as defined in the PEA.

Certified Engineering Technologists and Technicians

If you are a tech­no­lo­gist or a tech­ni­cian, you may choose to cer­ti­fy through the Ontario Asso­ci­ation of Cer­ti­fied Engin­eer­ing Tech­ni­cians and Tech­no­lo­gists (OACETT), how­ever, this does not per­mit you to do any work defined as the “prac­tice of pro­fes­sion­al engin­eer­ing”. Cer­ti­fied Engin­eer­ing Tech­no­lo­gists and Tech­ni­cians gain no leg­al bene­fit from cer­ti­fic­a­tion, bey­ond the use of titles pro­tec­ted under the OACETT Act, 1998 [3].

Who is an “engineer”?

The PEA defines the “prac­tice of pro­fes­sion­al engin­eer­ing” as fol­lows:

prac­tice of pro­fes­sion­al engin­eer­ing” means any act of plan­ning, design­ing, com­pos­ing, eval­u­at­ing, advising, report­ing, dir­ect­ing or super­vising that requires the applic­a­tion of engin­eer­ing prin­ciples and con­cerns the safe­guard­ing of life, health, prop­erty, eco­nom­ic interests, the pub­lic wel­fare or the envir­on­ment, or the man­aging of any such act; (“exer­cice de la pro­fes­sion d’ingénieur”) [2]

This is a tre­mend­ously broad defin­i­tion, espe­cially in that it includes the man­age­ment of the prac­tice, as well as the oth­er activ­it­ies involved, and the safe­guard­ing of “eco­nom­ic interests”, health, prop­erty, the pub­lic wel­fare, and the envir­on­ment. It’s also worth­while not­ing that there is no defin­i­tion of “engin­eer­ing prin­ciples”, so the lynch­pin for the defin­i­tion is itself undefined. If strictly applied, this defin­i­tion would res­ult in vir­tu­ally every busi­ness in the province that designs or man­u­fac­tures a product being leg­ally required to employ a licensed pro­fes­sion­al engin­eer and hold a Cer­ti­fic­ate of Author­iz­a­tion!

It’s also import­ant to know that the title “engin­eer” is pro­tec­ted in the Province [2]:

pro­fes­sion­al engin­eer” means a per­son who holds a licence or a tem­por­ary licence; (“ingénieur”)

12. (1) No per­son shall engage in the prac­tice of pro­fes­sion­al engin­eer­ing or hold him­self, her­self or itself out as enga­ging in the prac­tice of pro­fes­sion­al engin­eer­ing unless the per­son is the hold­er of a licence, a tem­por­ary licence, a pro­vi­sion­al licence or a lim­ited licence.  R.S.O. 1990, c. P.28, s. 12 (1); 2001, c. 9, Sched. B, s. 11 (16).

12. (2) No per­son shall offer to the pub­lic or engage in the busi­ness of provid­ing to the pub­lic ser­vices that are with­in the prac­tice of pro­fes­sion­al engin­eer­ing except under and in accord­ance with a cer­ti­fic­ate of author­iz­a­tion.  R.S.O. 1990, c. P.28, s. 12 (2).

12. (3) Sub­sec­tions (1) and (2) do not apply to pre­vent a per­son,
(f) from using the title “engin­eer” or an abbre­vi­ation of that title in a man­ner that is author­ized or required by an Act or reg­u­la­tion.  R.S.O. 1990, c. P.28, s. 12 (3); 2001, c. 9, Sched. B, s. 11 (17); 2010, c. 16, Sched. 2, s. 5 (18).

Regard­less of your qual­i­fic­a­tions or exper­i­ence, or your job respons­ib­il­it­ies, you can­not use the term “engin­eer” without risk­ing the wrath of PEO. PEO has sig­ni­fic­ant powers under the PEA and can take you to court or impose oth­er pen­al­ties as described in the PEA.

I believe that a sig­ni­fic­ant part of the prob­lem with the PEA is the breadth of the defin­i­tion of pro­fes­sion­al engin­eer­ing, and the lack of clar­ity cre­ated by the undefined “applic­a­tion of engin­eer­ing prin­ciples”. We could debate the defin­i­tions for hours, but instead, I want to focus on the impact that engin­eer­ing has on man­u­fac­tur­ing.

Industrial Exception

Ontario has an inter­est­ing excep­tion built into the Pro­fes­sion­al Engin­eers Act, unof­fi­cially called the “indus­tri­al excep­tion”. So, what is the “indus­tri­al excep­tion”? This excep­tion is laid out in clause 12.(3)(a) [2]:

(3) Sub­sec­tions (1) and (2) do not apply to pre­vent a per­son,

(a) from doing an act that is with­in the prac­tice of pro­fes­sion­al engin­eer­ing in rela­tion to machinery or equip­ment, oth­er than equip­ment of a struc­tur­al nature, for use in the facil­it­ies of the person’s employ­er in the pro­duc­tion of products by the person’s employ­er;

The exemp­tion per­mits unli­censed per­sons to do work covered by the defin­i­tion of pro­fes­sion­al engin­eer­ing if they are doing it for their employ­er on equip­ment owned and used by their employ­er for the work that employ­er does.

This situ­ation allows employ­ers to save money on wages by allow­ing lower paid work­ers to do work nor­mally reserved for high­er paid licenced pro­fes­sion­als. The down­side to this for employ­ers is that you have no guar­an­tee that the per­son doing the work is adequately qual­i­fied, and if any­thing goes wrong, they will be unlikely to carry insur­ance that could reduce the impact of any loss cre­ated.

The Indus­tri­al Excep­tion does not per­mit unli­censed per­sons to con­duct Pre-Start Health and Safety Reviews.

Based on this, a per­son can under­take any act gov­erned by the PEA related to machinery or equip­ment, oth­er than struc­tur­al engin­eer­ing, on behalf of their employ­er, as long as the equip­ment is owned by their employ­er and will be used in pro­duc­tion by their employ­er. This opens up modi­fic­a­tions and design of machinery and equip­ment to unli­censed per­sons, as long as the machinery or equip­ment is inten­ded for pro­duc­tion use by their employ­er. It does not per­mit unli­censed per­sons to design machinery or equip­ment and then sell that equip­ment to oth­ers. It also does not per­mit unli­censed per­sons to con­duct Pre-Start Health and Safety Reviews. The exist­ence of the indus­tri­al exemp­tion is, in part, respons­ible for the exist­ence of Ontari­o’s Pre-Start Health and Safety Review [4, Sec­tion 7].

Is there a problem?

Con­sider that the exemp­tion has been part of the PEA since 1984. In that time, the work­place acci­dent rates in Ontario have declined. Six­teen years later, in 2000, the “Pre-Start Health and Safety Review” was cre­ated, and a whole new line of busi­ness for engin­eers was cre­ated. Acci­dent rates have con­tin­ued to decline at about the same rate as they did pri­or to 2000. There is little evid­ence to show that the indus­tri­al excep­tion had any sig­ni­fic­ant effect on work­place safety in the time since its incep­tion.

The excep­tion cre­ates NO bar­ri­ers for licenced engin­eers.

The excep­tion cre­ates NO bar­ri­ers for licenced engin­eers. The claims that the con­tinu­ation of the excep­tion cre­ates a bar­ri­er to licenced engin­eers who want to move to Ontario and con­tin­ue their prac­tice is com­pletely unsup­por­ted. The kinds of work that licenced engin­eers do are com­pletely unaf­fected by the excep­tion. The claim that the excep­tion cre­ates bar­ri­ers for licenced engin­eers mov­ing from Ontario to oth­er Provinces and Ter­rit­or­ies is also unfoun­ded, since Cana­dian engin­eer­ing licences are trans­fer­able, and there may be MORE work in oth­er provinces because the work done in Ontario under the exemp­tion must be done by licenced engin­eers in oth­er Provinces or Ter­rit­or­ies.

Elim­in­at­ing the exemp­tion would force hun­dreds of small and medi­um-sized employ­ers to hire licenced pro­fes­sion­al engin­eers to con­duct work that they may have been doing suc­cess­fully for years. This would increase labour costs for these employ­ers, assum­ing that they could actu­ally find an engin­eer to hire. This would also dis­place all of the work­ers already doing the work. Employ­ers might have to halt pro­jects part way com­pleted until they could hire a licenced pro­fes­sion­al engin­eer to over­see the com­ple­tion of the pro­ject. In a let­ter dated 22-Feb-2013, Ian How­croft, Vice Pres­id­ent of Cana­dian Man­u­fac­tur­ers and Export­ers Ontario, said “…busi­nesses that gen­er­ate $270 bil­lion in GDP and employ over 700,000 Ontari­ans, are writ­ing to request that the imple­ment­a­tion of the “Repeal of the Indus­tri­al Excep­tion”, cur­rently sched­uled to be in force March 1st, 2013, be dis­con­tin­ued until a full reg­u­lat­ory impact ana­lys­is can be con­duc­ted.” This request was made because “…busi­nesses have iden­ti­fied a num­ber of issues that could have sig­ni­fic­ant cost implic­a­tions for busi­nesses and neg­at­ive con­sequences for the Ontario Eco­nomy.” This let­ter was under­signed by 24 oth­er trade and busi­ness asso­ci­ations. Clearly, elim­in­at­ing the “indus­tri­al excep­tion” could have sig­ni­fic­ant impacts on Ontari­o’s eco­nomy and work­force.

Unfor­tu­nately, both Engin­eers Canada and Pro­fes­sion­al Engin­eers Ontario are attempt­ing to use fear, uncer­tainty, and doubt to per­suade the gen­er­al pub­lic that an immin­ent risk to life and health is being cre­ated by this 32-year-old legis­la­tion. If it was going to hap­pen, the prob­lem would have shown itself years ago. Claim­ing any­thing else is ridicu­lous.

References

[1]     Engin­eers Canada, “Engin­eers Canada con­cerned Ontario gov­ern­ment decision will neg­at­ively impact work­place health and safety”, (online). 2015. Avail­able: https://engineerscanada.ca/news-and-events/news/engineers-canada-concerned-ontario-government-decision-will-negatively-impact-workplace-health. Accessed: 2018-01-10.

[2]     Ontario. Legis­lat­ive Assembly of Ontario, Pro­fes­sion­al Engin­eers Act, (R.S.O. 1990, c. P.28). Toronto. 1990. Avail­able: https://www.ontario.ca/laws/statute/90p28.  Accessed: 25-Feb-16.

[3]     Ontario. Legis­lat­ive Assembly of Ontario, An Act respect­ing the Ontario Asso­ci­ation of Cer­ti­fied Engin­eer­ing Tech­ni­cians and Tech­no­lo­gists, Mr. Baird. (36:2 Bill PR25) Toronto. 1998. Avail­able: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=1800&isCurrent=false&ParlSessionID=36%3A2. Accessed: 25-Feb-16.

[4]    Ontario. Legis­lat­ive Assembly of Ontario, Indus­tri­al Estab­lish­ments. Ontario Reg­u­la­tion 851. Toronto. 1990. Avail­able: https://www.ontario.ca/laws/regulation/900851. Accessed: 8‑Mar-16.

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