Human Resources Legislative Update

Ontario Consults on OHSA Regulations Relating to Notice of Project and Head Protection Requirements

Human Resources Legislative Update

Ontario Consults on OHSA Regulations Relating to Notice of Project and Head Protection Requirements

Date: July 14, 2021

The Ontario Ministry of Labour, Training and Skills Development (Ministry) is seeking input from interested parties in respect of regulatory proposals to modernize the Notice of Project and worker head protection requirements for workplaces in Ontario that fall under the Occupational Health and Safety Act (OHSA).

Proposed Changes to Notice of Project Requirements

The intention behind the requirement to file a Notice of Project is to identify potentially high-hazard construction activities for possible inspections by the Ministry. Under the current regulation (O. Reg. 213/91 – Construction Projects), a Notice of Project must be filed with the Ministry if a construction project is expected to cost more than $50,000 in materials and labour. A higher threshold of $250,000 exists for projects at automotive manufacturers and assemblers. In addition to the monetary thresholds, the current regulation also outlines a number of activities that will trigger the requirement to file a Notice of Project.

The Ministry has posted a Proposal to Amend Ontario Regulation 213/91 – Construction Projects to Modernize the Notice of Project Requirements. The Ministry states that the proposed amendments aim to reduce regulatory burden in Ontario’s construction industry without compromising workplace health and safety. It would change the notice requirement provisions under the OHSA in three ways.

First, the $50,000 monetary threshold triggering a requirement to file a Notice of Project would be removed and replaced by an expanded list of hazard-based triggers. According to the Ministry, this change would more closely meet the intention of the notice because the cost of a project may not indicate how hazardous it actually may be, and the threshold itself may be out of touch with the current costs of construction projects. Set out below are examples of hazard-based triggers that may be included in the proposed amendments:

  • prior to installing a tower crane
  • prior to erecting a scaffold that will be 15 metres in height above its base support, or 10 metres in height above its base support if the scaffold is constructed of a tube and clamp system
  • where work involves an excavation or trench more than 1.2 meters deep which a worker is required or permitted to enter including all underpinning work
  • prior to erecting formwork that is designed (in whole or part) by a professional engineer
  • where work is performed on or near energized electrical equipment or installations, regardless of voltage including but not limited to light poles, hydro poles, transmission towers
  • where work is above or near water involving dredging or the generation of hydro-electric power
  • prior to any operations involving externally-loaded helicopter hoisting of materials.

It is important to note that the above is not a full list of the hazard-based triggers under consideration, and more may be added following the consultation.

The second change proposed by the Ministry would move various other notice requirements that exist throughout the construction regulation into a single section for easier reference. 

Finally, the Ministry proposes modernizing communications for all notices set out in the regulation by replacing the fax option with email, a welcome change for many in the construction industry.

Proposed Changes to Head Protection Requirements

In it proposal titled Harmonization of Head Protection Requirements under the Occupational Health and Safety Act, the Ministry is seeking to modernize head protection requirements and provide workplaces with greater flexibility in addressing injury hazards. Under the current OHSA regulations, head protection requirements can be found in six regulations:

  • section 22 in the Construction Projects regulation (O. Reg. 213/91)
  • section 11 in the Health Care and Residential Facilities regulation (O. Reg. 67/93)
  • section 4 in the Fire Fighters – Protective Equipment regulation (O. Reg. 714/94)
  • section 80 in the Industrial Establishments regulation (Reg. 851)
  • section 12 in the Mines and Mining Plants regulation (Reg. 854)
  • section 22 in the Oil and Gas – Offshore regulation (Reg. 855)

For workplaces that do not fall under one of the above regulations, employers may be required to provide protective headwear under the general duty to take every precaution reasonable in the circumstances where there is a hazard of head injury to a worker.

The Ministry is proposing moving to a general performance-based requirement for head protection, similar to the current requirements in the Health Care and Residential Facilities, Fire Fighter – Protective Equipment, Industrial Establishments and Oil and Gas – Offshore regulations. The overarching requirement would also be supported by provisions addressing important worker safety issues, as well as the general provisions for care, use and training that currently exist for personal protective equipment.

The Ministry is also considering publishing a guideline or an approved code of practice to accompany the proposed amendments to assist employers in meeting their obligations to protect workers from head injuries. 

Both consultations request that any interested party provide their comments by no later than September 10, 2021. 

Should you wish to make submissions on these proposals and require assistance, please contact your regular Hicks Morley lawyer.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©