“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?ing?nieur?) [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; (?ing?nieur?)

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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