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4. Application

Disclaimer: This resource has been prepared to help the workplace parties understand some of their obligations under the Occupational Health and Safety Act (OHSA) and regulations. It is not legal advice. It is not intended to replace the OHSA or the regulations. FOR FURTHER INFORMATION PLEASE SEE FULL DISCLAIMER

When does the Regulation apply?

The Regulation applies to:

  • every project and its owner [ * ];
  • every constructor, employer and worker engaged in or on the project;
  • the repair, alteration or maintenance of a building;
  • every employer and worker involved in the repair, alteration or maintenance of the building and the owner of the building;
  • every building in which material that may be ACM has been used and the owner of the building;
  • the repair, alteration, or maintenance of machinery, equipment, aircraft, ships, locomotives, railway cars and vehicles and work on a building that is necessarily incidental to the repair, alteration or maintenance of machinery or equipment where it is likely that ACM may be handled, dealt with, removed or disturbed, and every employer and worker engaged in this work to which the requirements for asbestos under Ontario Regulation 490/09 do not apply;
  • the demolition of machinery, equipment, aircraft, ships, locomotives, railway cars and vehicles; and
  • every employer and every worker engaged in the demolition. This includes contractors and subcontractors who perform work for or supply services to the employer.

[ * ] Note: An owner is defined in the Act and includes a trustee, receiver, mortgagee in possession, tenant, lessee, or occupier of any lands or premises used or to be used as a workplace, as well as a person who acts for or on behalf of an owner as an agent or delegate.

When does the Regulation not apply?

The exemptions from the Regulation are set out in subsections 2(3) and 2(4).

The Regulation does not apply:

  • to the owner of a private home that is occupied by the owner or the owner's family;
  • to the owner of a residential building that contains no more than four units, one of which is occupied by the registered owner or family of the registered owner;

However, the Regulation does apply to constructors, employers and workers engaged in private construction projects and repair or maintenance of such buildings.

The Regulation does not apply to an employer whose workers are engaged in the activities specified in the Regulation if the employers put into effect a control program for asbestos on or before December 16, 1985 and has maintained that program in accordance with the regulations. A control program is a comprehensive program that actively manages and controls exposure to asbestos.

Does the Regulation apply whether or not it is known or suspected that ACM will be encountered?

Yes. The Regulation applies whether or not it is known or suspected that ACM will be encountered during a project, repair, alteration or maintenance of a building, or demolition of machinery, equipment, aircraft, ships, locomotives, railway cars and vehicles. This ensures that material that may be handled, disturbed or removed will be examined to determine whether it is ACM or will be treated as though it is ACM.

The Regulation also applies to specified operations if ACM is likely to be handled, dealt with, disturbed or removed during the course of the work.

What type of operations does this include?

These operations include:
  • the repair, alteration or maintenance of machinery, equipment, aircraft, ships, locomotives, railway cars, and vehicles, and
  • work on a building that is necessarily incidental to the repair, alteration or maintenance of machinery or equipment.

The Regulation also applies to owners and to employers and workers engaged in these operations. This is spelled out in detail in subsections 2(1) and 2(2) of the Regulation.

How is the Regulation applied to projects?

The Regulation applies to the owner of a project, and to every constructor, employer and worker who works in or on the project. An employer includes all contractors and subcontractors.

Construction projects at which ACM may be handled include new construction, demolition projects and renovation and repair work on a building.

In new construction, ACMs will be handled for the most part only when manufactured products, such as asbestos-cement pipes and panels, are installed.

On demolition projects, products meeting the definition of ACM that are no longer used in new construction will be found. These include sprayed-on insulation and fireproofing, pipe and boiler insulation, ceiling and floor tiles, and drywall compound. Section 6 of the Regulation requires that all friable and non-friable ACM that may be disturbed during demolition be removed to the extent practicable before work may start or be continued.

How is the Regulation applied to buildings?

The Regulation applies to every employer and worker in a building engaged in a project, repair, alteration, maintenance or demolition and work incidental to such activity. It is important to note that the term "owner", as defined by the Act, includes tenants. Depending upon the circumstances a tenant may be considered to be an "owner" or may be considered to be an "occupier". Once notified by an owner of the presence, in the area he or she occupies, of ACM or material being treated as ACM, the occupier takes on the responsibilities set out in the Regulation for notifying and training his or her own workers.

Section 30 of the Act requires the owner of a project to prepare a list of designated substances on the project, including asbestos, before tendering the project. The owner must then give this list to all persons submitting tenders for the project. This section of the Act applies to the owners of residential properties who undertake projects, and helps to ensure that constructors or employers who carry out these projects are aware of the presence of asbestos in these buildings.

Buildings that contain material that may be ACM are covered by the Regulation even when no work is being done on them. The owners of these buildings are required to maintain an asbestos management program even when no work is being done on them.

What is the definition of a "building"?

Section 1 of the Regulation defines "building" very broadly to include any structure, its services, and any vault, chamber, or tunnel. This includes residential, office, factory and mine buildings and their plumbing, electrical, heating and ventilation systems. This means that if work is being done on the electrical system, such as the re-lamping of all or part of a building, it would be interpreted as an alteration to the building and the Regulation would likely apply.

Would O. Reg. 278/05 apply to an owner even if the workplace/building is no longer occupied by workers?

The Regulation applies to every building in which material that may be ACM has been used and to the owner of the building regardless of whether or not the building is occupied by workers. The Regulation would apply to an owner of a building that is no longer occupied and would require, among other things, an asbestos management program.

Who assumes responsibility if the property is sold?

Once the property is sold, the new owner assumes all duties and obligations prescribed by the Regulation.

Does the Regulation apply to the owner of a single residential unit if the unit is rented out to someone other than a member of the owner's family?

Yes. The Regulation applies to the owner if the tenant occupying the unit is not related to the owner.

If, however, the owner or the owner's family occupies the unit, the exemption under subsection 2(4) would apply to the owner of the single residential unit.

Does a MOL inspector have the authority to inspect the unit?

Subsection 54(2) of the Act states "an inspector may only enter a dwelling or that part of a dwelling actually being used as a workplace with the consent of the occupier or under the authority of a warrant issued under this Act or the Provincial Offences Act."

What work is covered by the Regulation respecting Designated Substances, O. Reg. 490/09?

The requirements for asbestos under Ontario Regulation 490/09 apply to:

  • mining workplaces engaged in mining, crushing, grinding or sifting asbestos,
  • workplaces which adapt or use asbestos for manufacturing or assembling of goods or products,
  • every employer and their workers engaged in activities such as repair, alteration or maintenance of machinery, equipment, aircraft, ships, locomotives, railway cars and vehicles, and
  • every employer and their workers engaged in work on a building that is necessarily incidental to the repair, alteration or maintenance of machinery or equipment,

if an employer had an asbestos control program developed on or before December 16, 1985 and has maintained that program in accordance with the regulations. A control program is a comprehensive program that actively manages and controls exposure to asbestos.

Where the employer had a control program in place on or before December 16, 1985, and then sold the business, decisions concerning the application of the Regulation must be made on a case-by-case basis.

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