Health Committee on Oct. 19th, 2010

[Colin Carrie, Conservative, Oshawa, ON]

We all heard of these independent review boards that act as procedural safeguards when reviewing an inspector's orders. This legislation has Health Canada officials who are not part of the original investigation reviewing decisions that other Health Canada officials have made. This seems to be a concern with some stakeholders, so I was wondering about this. Do you think this legislation goes far enough? Or could you comment, and again in plain language that I could explain to a constituent of mine in regard to independent boards? If there's a decision being made, how do we go about looking after somebody who has a problem with the process?

[Athana Mentzelopoulos]

The legislation provides for considerable oversight. In fact, every order has a mechanism for review. In addition, for those individuals who might not be happy with the review, there is recourse as well to the Federal Court. As well, in the broader context the process for regulation-making and the requirement for foundational regulations to bring them before the House are other layers. The provision for an advisory committee is another important consideration in terms of the oversight.

Diane, would you like to add on the review mechanisms?

[Diane Labelle]

Yes, if I may, Madam Chair.

[The Chair, Conservative, Joy Smith]

Madame Labelle.

[Diane Labelle]

The procedural safeguards that are implied in that question are dealt with in the legislation and in the legal system.

Officials, including the Minister of Health, who exercise powers granted to them in a statute enacted by Parliament--and in this case it would be Bill C-36--are compelled by law to act reasonably. That is to say, they must make decisions with impartiality and fairness. Fairness requires them to act reasonably and to afford procedural protection to the person who is affected by their decision. Officials, including the minister, cannot act in an arbitrary manner. And as I've mentioned, under Bill C-36 this protection is afforded to a person requesting a review of an order.

I would like to add that the legal requirements--the principles of administrative law--do not require that every appeal or review mechanism be structured like courts or quasi-judicial tribunals in order to ensure procedural fairness. And while the minister designates the review officer, once the officer is designated he or she makes the decision and cannot be dictated to, although they can take into account guidelines and departmental policies in making a decision.

[The Chair, Conservative, Joy Smith]

Thank you, Ms. Labelle.

We're about to go into our five-minute second round, but I'm going to make an announcement now. Because members of Parliament start their day early and we have to bring in lunch for the members only, I'm going to encourage members, as they're questioning, to go to the back and grab their lunch. This might be the only opportunity to do that until late this evening, so I wanted to remind you that lunch is for the members only, at the back.

We will now go into the second round, five minutes. That means two and a half minutes each for question and answer, and I'm going to be very strict.

We'll start with Dr. Duncan. Go ahead.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Thank you, Madam Chair.

Thank you very much to the witnesses. We appreciate your time and effort.

I guess I'm still struggling with clauses 15, 16, and 17. Can you explain to me, please, the very slight differences in the wording?

In clause 15 it's without the consent of an individual and it's to address a serious danger. There's no mention about the public. In clause 16 it's imminent and there is the issue of public. And in the last one it's serious and imminent and there can be public disclosure.

Can you explain to me the differences in those three clauses, please?

[Athana Mentzelopoulos]

I know you've been studying it since the first question. Do you want to take it?

[Robert Ianiro]

Thank you, Madam Chair, for the opportunity to perhaps clarify those provisions further.

Let me begin with clause 15, which deals, obviously, solely with personal information. Clause 15 will basically allow the minister to share information with other persons or governments involved in the types of activities we at Health Canada are involved in to protect the health and safety of Canadians. In this particular case, the focus is specific to consumer products and agencies involved in consumer product safety. So this really gives us the ability to share personal information in situations where we feel that it is necessary—again, with other government agencies—to carry out our duties.

On the earlier question relating to why we have the word “serious” only in clause 15 and not “serious and imminent”, if the wording was “serious and imminent”, both of those conditions would have to be met. It would constrain us in our ability to share information, since both of those conditions would have to be met.

Clause 16 deals with confidential business information. In order for us to share that type of information, we require confidentiality agreements to be in place with the parties with which we share that information. Again, the information we would share would be related information that is required for us to carry out our business. It's again related to health and safety and consumer protection.

Clause 17 is very similar to clause 16 except that it would be the sharing of confidential business information without a confidentiality agreement in place. The clause is there to deal with situations in which there is a very serious and imminent danger and we don't have time, perhaps, to get a confidentiality agreement in place if it doesn't exist. There is an urgent need for intervention, and we want to share that information to better protect the health and safety of Canadians and take immediate action. In fact, it was also an amendment made at this committee that required that of us if there wasn't a confidentiality agreement in place. There is a requirement now in the bill for the minister to provide notice to the owners of that confidential business information within one business day after disclosure of that information.

I hope that helps clarify those three provisions.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

It does help. Thank you very much.

If you look at clauses 17 and 15, in clause 17 you don't have to share beforehand. You don't have to notify beforehand. And in clause 15.... I guess I'm trying to get at where the protection for the individual is. There seems to be more protection in clauses 16 and 17 than there is for the individual in clause 15.

[Robert Ianiro]

The protections for individuals exists insofar as the information we would be disclosing in any statute is also subject to the provisions of the Access to Information Act and the Privacy Act.

Perhaps I can turn it over to our legal counsel, who could speak to some of the other legal statutes that are in place to support that.

[Diane Labelle]

Clause 15 does not set aside the Privacy Act. Those protections granted or provided through the Privacy Act continue to apply. The reason for clause 15 is to provide lawful authority to a government in a situation in which it needs to exchange information. As explained by my colleagues, in this situation Health Canada would have very little information that would identify an individual. It's usually at an aggregate level, and it would take great efforts to re-identify an individual. But in the case that an individual could be re-identified, this protects both the individual and the government institution in sharing that information.

This is not just about sharing with international agencies; it's also about sharing within government departments and with provincial counterparts. Even to function within Canada we need these types of authorities. It's also required to meet the obligations the government has under section 8 of the charter, which imposes protections against unlawful search and seizure.

[The Chair, Conservative, Joy Smith]

Thank you very much.

We'll now go to Ms. Davidson.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thanks very much, Madam Chair.

Thank you very much for being here with us this morning.

I know this is a bill that everybody around the table is anxious to see move forward.

In your opening remarks you commented that there are new powers in Bill C-36 requiring manufacturers and importers, upon request by the minister, to provide safety test and study results for their products.

Now that the minister has discretionary powers and can ask for safety testing and so on, what would trigger that request, to begin with, and then how would the process work after it has been triggered? What will the minister make her decision on to determine whether or not there is a danger?

[Athana Mentzelopoulos]

Thank you for the question.

In general, what we would anticipate would trigger a request like that would be a suspicion of non-compliance. If we think, for example, of a product such as children's jewellery, in which we think there may be a problem with the level of lead in it, we might ask suppliers—that provision, I believe, is related only to importers and manufacturers, so it stays at a higher level of trade—to provide test results to verify that their products are within the regulated limits.

That's probably a good example, or one of the best examples I could give you.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

One of the other issues we talked about in predecessors to this bill was the number of inspectors who were going to be needed to make sure this bill is efficient. Can you tell me a little about what progress has been made as far as inspectors are concerned, what kinds of tools are necessary to process this function, the staff necessary? Do you feel the resources are going to be there?

[Athana Mentzelopoulos]

To the general question of whether I feel the resources are going to be there, yes. The funding that's been provided through the food and consumer safety action plan is considerable. It's approximately $70 million over five years, as well as ongoing funding.

Specifically with respect to inspectors, the funding for the numbers of inspectors is doubled, so what we will see over the period of the first time period of the food and consumer safety action plan is an increase from approximately 45 inspectors to approximately 90.

To your question about the process for staffing up, there are all of the attendant processes in government to do it, but we're making good progress.

Robert, do you know the exact numbers of where we are with staffing?

[Robert Ianiro]

In specific reference to inspectors, as indicated, prior to the five-year action plan being announced we had approximately 45 inspectors. We've already hired an additional 20, so we're already up to about 65 and well on our way to doubling that capacity by year five of the action plan, which is 2012–13.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Can you tell me a little bit about the penalty process that is in this bill? There are going to be heftier fines. Do you feel that there's going to be adequate enforcement?

I think we all feel that the fines system is probably going to be a big deterrent, making people comply with this. Could you give me your comments on that, please?

[Athana Mentzelopoulos]

The bill does introduce a very much modernized scheme for fines and penalties, the upper limit being $5 million for serious offences, and even more if they're committed knowingly. That's up from a limit of $1 million under the Hazardous Products Act.

It's important to say that I believe we have industry in Canada that wishes to be compliant. I think we have, for the most part, industry players who value their reputation. But we had, or we have now under the Hazardous Products Act, fines schemes that, for those who are not the more responsible players.... They may tend to look at it as a cost of doing business. I'm confident that the modernized fines would take us out of the realm of something that could be considered a cost of doing business.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thank you.

[The Chair, Conservative, Joy Smith]

Thank you, Ms. Davidson.

We now have Monsieur Dufour.

[Nicolas Dufour, Bloc, Repentigny, QC]

Thank you very much, Madam Chair.

I would like to thank the witnesses for appearing today. I also thank Ms. Davidson for her question. The Bloc Québécois has the same concerns regarding the number of inspectors. Since she is a member of the government party, I would encourage her to put some pressure on her government to ensure that we have a sufficient number of inspectors to properly implement Bill C-36.

I would have a few brief questions. First, the preamble of the bill contains what appears to be a definition of the precautionary principle. It read as follows:

[...] whereas the Parliament of Canada recognizes that a lack of full scientific certainty is not to be used as a reason for postponing measures that prevent adverse effects on human health if those effects could be serious or irreversible;

In your view, what was the government's intention behind that statement?

[Athana Mentzelopoulos]

Essentially, Madam Chair, the reference is to the precautionary principle. So this gives us the provision in cases where the evidence might be suggestive but may not be definitive. It may still be evolving. We would have the authority to act. I think a good example, although obviously not under the auspices of this legislation, is what we've done with bisphenol A and polycarbonate baby bottles. There was enough of a suggestion that there could be a problem with the exposure to infants and newborns to BPA through baby bottles that we acted to prohibit the presence of that substance in those products.

I think that's probably the best example, the recent example of how that provision might materialize.

[Nicolas Dufour, Bloc, Repentigny, QC]

Once again, according to Bill C-36, it will of course be up to the minister to respond in the event of such a recall.