Owners Vs. Suppliers Who’s Responsible For Compliance?

Many of my clients who are engineers complain that they are experts in their specific fields but might not necessarily be experts in machine or robot safety, or in areas such as flammable liquids.

Yet once your company becomes the owner or lessee of equipment with these concerns, it also becomes responsible for its compliance to the requirements of the Occupational Health and Safety Act (OHSA).

Owners and lessees of equipment or processes related to the storage and dispensing of flammable liquids, machine guarding, racks and racking systems, potentially explosive processes, dust collectors, molten metal and foundries, lifting devices, or occupational exposure to hazardous substances, are increasingly becoming responsible for making sure that the process, machine or device that will be used in their industrial establishments is in compliance with provincial OH&S regulations.

In Ontario, this is achieved through the so-called Pre-Start Health & Safety Review process or PSR, where a professional engineer must review the hazards of the above equipment or process and issue a report that the equipment is in compliance with the applicable standards.

A section of the OHSA dealing with PSRs was substantially changed on October 7, 2000. The amendment allows the parties in the workplace to become more self-reliant in preventing hazards to workers — and they are now a major part of the internal responsibility system in the workplace.

The task of developing guidelines for engineers providing PSRs was assigned to Professional Engineers Ontario (PEO). Engineers carrying out the PSR must be familiar with the equipment under review and must understand the principles of hazard analysis and issues related to occupational safety. He or she must have a thorough knowledge of the OHSA and codes and standards applicable to the equipment under review.

The professional engineers who sign and seal the PSR report are professionally and legally responsible for the statements made in the report. Engineers are held professionally accountable through the PEO’s discipline process, which may result in a reprimand, a suspension or revocation of their license to practice or other penalties if the PEO’s committee finds any wrongdoing on the part of the engineer.

Legal accountability may occur through a lawsuit brought by an injured party. OHSA allows for fines and/or imprisonment for contravention of the act. This liability is not insurable and cannot be transferred to the employer if charges are laid against an engineer. This risk of liability warrants the necessity for personal liability insurance for engineers required to sign and seal PSR documents.

Failure to comply with the requirements of the Industrial Establishments Regulation in Ontario could now result in prosecutions and penalties for officers, directors, owners, lessees and engineers.

A corporation that is convicted of noncompliance could face a maximum fine of $500,000 per count. For individuals, the maximum fine is $25,000 per count, plus a 20% victim surcharge levied on all fines imposed by the courts, and/or imprisonment for up to 12 months.

The federal government has recently introduced amendments to the criminal code in Bill C-45. Under Bill C-45, new criminal offences are created for corporations and individuals who fail to protect workers and the public. Those who undertake, or have the authority to direct how other people work or perform tasks, are required to take reasonable steps to prevent bodily harm to any person arising from the work.

To avoid unnecessary liability, many purchasers pass the responsibility for PSRs on to their suppliers by stating in their purchase orders that suppliers must obtain a PSR from a professional engineer, licensed by Professional Engineers Ontario, before a shipment is accepted.

This policy has proven to be an effective one in ensuring that equipment is compliant before it is shipped. It requires original equipment manufacturers to supply a product that will comply with the regulations in the OHSA to avoid extra costs and delays.

Simon Fridlyand, P. Eng., is president of S. A. F. E. Engineering Inc., a Torontobased company specializing in industrial health and safety issues and PSR compliance. He can be reached 416-447-9757 or simonf@safeengineering.ca.For more information, visit www.safeengineering.ca.

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