Bill S-40 (Historical)

An Act to amend the Hazardous Materials Information Review Act

This enactment amends the Hazardous Materials Information Review Act to
(a) allow a claimant to make a declaration that information in respect of which an exemption is claimed is confidential business information and that information substantiating the claim is available and will be provided on request;
(b) allow a claimant to give an undertaking to the Hazardous Materials Information Review Commission to bring a material safety data sheet or a label into compliance with the provisions of the Hazardous Products Act or of the Canada Labour Code; and
(c) allow the limited participation of the Hazardous Materials Information Review Commission before an appeal board.

Hazardous Materials Information Review Act

[Marcel Lussier, Bloc, Brossard—La Prairie, QC]

Mr. Speaker, this afternoon I will speak about Bill S-2, An Act to amend the Hazardous Materials Information Review Act. This bill originated in the Senate and had already been tabled. It was formerly called Bill S-40. It has been renumbered and is now S-2.

This bill aims to improve the current process of the Hazardous Materials Information Review Act, and it has three main objectives.

The first objective is to allow companies that want to be exempted from the general rules concerning the listing of hazardous ingredients to make a declaration that information in respect of which an exemption is claimed is confidential business information, and that information substantiating the claim will be provided on request, rather than de facto providing all information.

The second objective is to allow companies to voluntarily give an undertaking to the Hazardous Materials Information Review Commission to modify and to bring a material safety data sheet or a label of products containing hazardous ingredients into compliance with the provisions of the Hazardous Products Act or of the Canada Labour Code.

The third objective is to allow the limited participation of the Hazardous Materials Information Review Commission before an appeal board.

The Workplace Hazardous Materials Information System, or WHMIS, combines an assortment of legislation, regulations and procedures whose objective is to protect workers by preventing illness and injury that could result from the use of certain hazardous chemicals in the workplace.

Quebec, the provinces and the federal government are all part of WHMIS.

Under WHMIS, manufacturers and distributors of controlled (hazardous) products must provide information on the health and safety risks associated with their products, together with instructions for safe handling, storage, transportation, disposal and first-aid treatment. This information is conveyed by the product’s mandatory Material Safety Data Sheet (MSDS) and label—

Each product's MSDS must include a number of elements. It must list all hazardous ingredients in the product, its toxicological properties, and the precautions one must take when using the product. The MSDS must also indicate the necessary first aid measures for anyone exposed to a product.

When the indications that must appear on the MSDS involve trade secrets—and this is where the problems begin—and disclosure of these secrets could have serious consequences, a mechanism is in place to, on one hand, assess the pertinence of not disclosing all the information and, on the other hand, ensure that workers' rights are protected. Therein lies the conflict between trade secrets and workers' rights. The mechanism in question is the Hazardous Materials Information Review Commission.

This commission was formed in 1987 and consists of quite a few people. That is the beauty of the commission, which has about 18 people on it. There are automatically two representatives of worker interests, one representative of suppliers, one employer representative, one representative of the federal government, and various representatives of the provincial and territorial governments for a total of about 18 people, who form a review committee.

Simply put, the commission’s mandate is to “help safeguard both workers and trade secrets in Canada’s chemical industry”. So when a company wants an exemption from its general obligations in order to safeguard confidential business information—this could be the identity or concentration of a hazardous ingredient in one of its products—it must apply to the commission for an exemption. The claim is registered and it is up to the commission to decide whether an exemption is called for.

The commission’s mandate may also cover evaluating whether certain data sheets and hazardous product labels are in conformance.

There are certain problems with the current legislation. It mandates the council to make recommendations to the health minister on the methods for reviewing claims, the appeal procedures, and the fees to make a claim.

In November 2002, the council officially and unanimously recommended the amendments in the current Bill S-2 to the health minister at the time.

There are three kinds of problems: the complexity of the economic information, the lack of a voluntary process for correcting the data sheets, and finally the lack of flexibility in the exchange of information between the commission and the independent boards in the appeal process.

That is why the bill proposes three amendments. The first amendment in clauses 1, 2 and 8 proposes a change to the obligations in section 11(4) of the Hazardous Materials Information Review Act in order to specify that when companies claim an exemption, they do not need to provide all the documentation previously required. This is intended to reduce the complexity of the claims, especially when the information does not really help the commission very much in judging the economic aspects of the claims.

Under the current process, companies claiming an exemption must submit detailed information on what they have done to safeguard the confidentiality of the ingredients used to manufacture their product and on the financial impact of the possible disclosure of this information.

In her testimony given to the Standing Senate Committee on Social Affairs, Science and Technology in 2006, Sharon Watts, vice-president of the Hazardous Materials Information Review Commission, specified in which cases the commission would require full documentation.

The commission will require full documentation to support a claim for exemption from disclosure when an affected party challenges a claim or when a claim is selected through a verification scheme that we will set up to discourage false or frivolous claims

The second change is proposed at clauses 3 and 4 of the bill which amend sections 16 and 17 of the Hazardous Materials Information Review Act in order to establish a new mechanism for the voluntary revision of material safety data sheets by the companies. With this new mechanism, when a company files a claim for exemption, a screening officer may “send an undertaking to the claimant setting out the measures that are required to be taken for the purpose of ensuring compliance” with those provisions governing dangerous goods contained in the Hazardous Products Act and the Canada Labour Code.

The purpose of this second change is twofold: to ensure that changes to material safety data sheets and labels are made more quickly and that companies acting in good faith will not be issued an order by the HMIRC, as this could be misleading about their willingness to comply.

In comparison, current legislation requires the Hazardous Materials Information Review Commission to issue a formal order for compliance, even if the company seeking an exemption is prepared to comply and to make the necessary corrections after having been notified.

The legislation also provides for a rather strict and time-consuming process. Thus, where non-compliance is found, an order is issued to the company seeking an exemption. This order is then published in the Canada Gazette and it does not become binding until 75 days after its publication. Other time limits are specified in the event that the company decides to appeal the order, or to allow the company to comply with the order and submit a new data sheet.

Finally, the existing rules would still allow orders to be issued to uncooperative companies in case of non-compliance with the rules and in the absence of a voluntary undertaking.

The third amendment proposed in Bill S-2 is contained in clause 7 of the bill, which amends the former section 23 of the Hazardous Materials Information Review Act, to enable the commission to provide clarification in respect of an appeal that has been submitted to an appeal board. Clause 8 amends section 48 of the Hazardous Materials Information Review Act to permit the making of regulations “respecting the participation of the Commission in an appeal heard before an appeal board”.

According to representatives of the commission, the third amendment seeks “to improve our appeals process by allowing the commission, at the request of an appeal board, to provide factual clarification of the record to appeal boards, when needed to facilitate the process. Appeals are heard by independent boards with three members drawn from labour, industry and government. The government member acts as chair of the board. Most appeals heard to date would have benefited from additional explanatory information from the commission, but this is not permitted under our legislation”.

In short, the Bloc Québécois supports Bill S-2. The Bloc believes that when it comes to hazardous materials, it is vital to keep in mind worker safety and to base all decisions on that imperative.

The Bloc Québécois recognizes that the amendments to the Hazardous Materials Information Review Act contained in Bill S-2 were unanimously approved by the members of the HMIRC council of governors.

The Bloc, therefore, supports Bill S-2 so that the amendments called for by the principal stakeholders in this kind of workplace can be adopted.

In all its actions, the Bloc seeks to protect the interests of workers. That is why we tabled Bill C-257, which, unfortunately, died on the Order Paper; a bill dealing with preventive withdrawal would have enabled pregnant Quebec workers in companies operating under federal jurisdiction to receive the same benefits as Quebec workers—another bill that died on the Order Paper; and Bill C-269 to improve the employment insurance system.

[Christiane Gagnon, Bloc, Québec, QC]

Thank you, Mr. Speaker. Bill S-2 originated in the Senate. It is the old Bill S-40 from the Senate before the last elections. It was discussed in the Senate. Now it is being debated in the House of Commons. We need to debate this bill on reviewing hazardous materials information.

I am the second Bloc member to speak on this. My colleague, the hon. member for Brossard—La Prairie, was a health and workplace safety engineer at Hydro Quebec and made his career in the health field. He spoke about this bill, guided us in our understanding of it, and enlightened us on its purposes.

The Bloc Québécois supports this bill for several reasons which I will explain over the next few minutes. Its purpose is to reduce the amount of information required to claim an exemption. The current process for claiming an exemption is very long. The form is complex and can delay the adoption of an exemption, even when the company agrees to do so. In the past, this was refused. Now, when there is a claim for an exemption, the process will be much shorter.

The second purpose is to speed up the process for providing workplace health and safety information about using these products. This bill enables the commission to reply to requests for further information on matters submitted by the appeal board. At present, this is not permitted. When companies want to submit rectifications without going through a long process, they are refused.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, it is a pleasure and an honour for me to be here in this House as Deputy House Leader of the Official Opposition.

In the 38th Parliament, this bill was Bill S-40. At the time, the Liberal Party of Canada formed the government in power. The bill that is now before this House was introduced under that previous government.

This bill is crucial to occupational health and safety. As I said, it was introduced by the previous government during the 38th Parliament. Bill S-2, which is the reincarnation of that bill, amends the Hazardous Materials Information Review Act. This act governs the activities of the Hazardous Materials Information Review Commission, an independent, quasi-judicial government agency. The commission plays an essential role in protecting workers' health and safety and also protects trade secrets.

The commission forms part of the Workplace Hazardous Materials Information System, also known as WHMIS. This information system was developed jointly by unions, industry and the federal, provincial and territorial governments. This is extremely important, because it is not every day that all the parties to an issue decide of one accord on the amendments that must be made to a bill or an existing law.

The role of WHMIS is to ensure that information on hazardous products is conveyed to the workers who use those products. A list of all the hazardous ingredients in the products is therefore available, as is information on how to handle those products safely: information on health and safety, first aid in case of contact with the product, how to dispose of the product, and so on. This information is essential to protect the health and safety of workers who have to use this type of product and these hazardous materials and handle them safely in their work.

This information is provided on a data sheet or a label affixed to the product. When WHMIS was introduced, the industry stated that there were cases where the full disclosure of hazardous materials ran the risk of disclosing industrial secrets and making them available to business competitors. To ensure that Canadian industry and our economy continue to grow and that new jobs are created, it is very important that companies that create this type of product have an assurance that confidential business information will not be communicated to or made accessible to their competitors.

If the complete chemical composition of ingredients were listed on a data sheet, a competitor could use that information in unfair competition and gain an advantage. Therefore, the Hazardous Materials Information Review Commission intervenes by examining the claim for exemption. That means that a company can file a claim for exemption so that the list of dangerous products does not appear on the label. However, the commission still provides documentation concerning the risks and dangers of the product.

In that case, it means that the competitive advantages of a company and its industrial secrets are protected. However, at the same time, sufficient information must appear on the label or in the data sheet to ensure that the health and safety of workers who are involved in the production or handling of this type of hazardous products or materials are protected.

The commission’s mandate consists in establishing a balance between the rights of the employers and the right of employees to obtain information about the dangerous products that they handle.

When a company wants to protect information concerning dangerous ingredients within a product, it must file a claim for exemption from the requirement to disclose the information, and submit the required documentation relating to health and safety.

The Hazardous Materials Information Review Commission determines whether it is an industrial secret and whether the information provided concerning health and safety is satisfactory.

If the information in the data sheet or on the label does not comply with the law, the commission orders changes to be made and calls for submission of a corrected data sheet.

If the corrections are not made within the required time limit, the company is subject to corrective action or the commission can simply prohibit the product.

That is very important. It is up to the commission to determine whether the hazardous materials information is sufficient to ensure the protection of the health and safety of workers who have to handle products containing that kind of hazardous materials.

If a company files a claim for exemption but fails to provide sufficient information to ensure that the health and safety of workers are protected, the commission has the authority to order corrective action or to simply ban the product in question from the market.

The claim for exemption forms have to be corrected 95% of the time because of missing information. On average, eight or nine pieces of information have to be added on each form.

In 1998, the commission undertook a renewal process designed to streamline its administrative operations and better meet the needs of stakeholders.

Many changes have been made to better meet the needs of stakeholders. Three, however, require legislative amendments, hence the need for Bill S-2, which, under the previous government, during the last parliament, was known as Bill S-40.

These three changes requiring legislative amendments correspond to the amendments to the Hazardous Materials Information Review Act contained in Bill S-2.

This act has to be amended to allow claimants to make, with a minimum of substantiating information, a declaration to the effect that the information in respect of which an exemption is claimed is indeed a trade secret.

At present, claimants are required to submit detailed documentation concerning the financial implications of the possible disclosure of the chemical components. This places an administrative burden on claimants and on the commission as well.

The majority of claims for exemption are valid. To date, only four out of 2,400 have been rejected.

Second, the amendments proposed by Bill S-2 will enable companies to voluntarily correct any safety labels the commission deems are not compliant.

Under current legislation, the commission must issue a formal order for compliance even if the claimant is completely prepared to make the necessary correction after being notified that some information is missing. Companies must then undertake a long administrative process, even if they voluntarily agree to change the health and safety label.

The second element is the amendment enabling companies to voluntarily correct safety labels, which is a good thing. I think that all of us in the House agree that this is a good thing.

If it is possible for corrections to be made voluntarily, the process can be speeded up. Workers can thus have faster access to any health and safety sheets that have been changed.

It should also be pointed out, however, that in cases of non-compliance with the rules and lack of undertaking by the claimant respecting the corrections requested, the commission can always issue an order to ensure compliance with the requirements, as exists now.

Workers’ health and safety is therefore not at all compromised by this amendment. It only speeds up the administrative process, making information accessible to workers much more quickly than the current system allows.

Third, the amendments will improve the appeal process by allowing the commission to provide the appeal boards with factual clarifications.

The appeals are heard by independent boards composed of three members who represent workers, industry and government. Up to now, 16 appeals have been heard and they would have benefited greatly from additional information from the commission. But to date the law does not allow this. The three parties concerned, that is, government, industry and workers or unions, all agree that this amendment should be made so that the commission can provide factual clarifications or information to the independent board with the authority to hear the appeals.

Representatives of industry, as well as unions in the provinces and territories, have unanimously supported the three amendments proposed in Bill S-2. The amendments to this act are very positive for the health and safety of workers and will simplify administrative procedures. There are of course significant economic impacts for companies, which will no longer have to deal with lengthy administrative procedures.

To recap, the three amendments will enable companies that have claimed an exemption to put their product on the market more quickly, while complying with health and safety requirements. In addition, workers will have access to corrections to health sheets faster since the administrative burden will be considerably reduced.

As I have already mentioned, this enables industry to access the market more quickly, while complying with the requirement to inform workers of any safety precautions to be taken.

In conclusion, I would simply say, as I have already mentioned, first that Bill S-2 is what was called Bill S-40 during the 38th Parliament. Second, these three amendments to the act have the shared support of industry, unions, the provinces and territories, and government.

I think that this is something good and that the members of this House should support it.

On that note, I conclude my remarks.

[Ruby Dhalla, Liberal, Brampton—Springdale, ON]

Mr. Speaker, I want to take this opportunity to express the support of our party, the official opposition in the House, for Bill S-2, An Act to amend the Hazardous Materials Information Review Act. It is very similar to Bill S-40 which was introduced in the previous Parliament by the Liberal government. The bill seeks to change the process whereby manufacturers of hazardous materials can become exempt from providing full disclosure of the nature of their products where that disclosure would force them to reveal trade secrets.

I know the Parliamentary Secretary to the Minister of Health has very eloquently put forward some of the changes that would take place, but perhaps I could also divulge some information in regard to this piece of legislation.

As was mentioned by the member opposite, the Hazardous Materials Information Review Commission is an independent quasi-judicial agency of government. It plays a very important role in ensuring that we protect the safety of our workers in Canada. Ultimately that is what this legislation is about; it is about protecting workers, both their safety and their health in Canada.

The commission is part of the Workplace Hazardous Materials Information System which provides workers with information about health and safety. There are product labels which are available to employees and workers who handle hazardous materials, along with material data safety sheets. They provide workers with information that is important for their protection, such as the different types of hazardous ingredients that they perhaps are working with, the specific risks that may be encountered when utilizing those products, and precautions on how to store and transport those products, and also how to ensure the proper disposal of those products. The labelling sheets and the data safety sheets also provide information on first aid measures that one can take if there is any type of accidental exposure.

The commission has played a vital and important role in terms of educating workers and ensuring their safety. The legislation that is before us wants to implement three amendments. The first amendment reduces some of the administrative burden that one requires for documentation. The second amendment deals with the voluntary correction of material safety data sheets and product labels. The third amendment improves the appeals process.

With respect to the first change regarding reducing the amount of administrative burden, when employers put forward information on how to provide for an application for hazardous materials, they must apply for an exemption. One of the difficulties with the exemption is that when they reveal what the chemical compounds are in those hazardous materials, they may end up revealing trade secrets and therefore, they apply to the commission for an exemption. However, the commission has only denied two of the 2,200 applications that have been put forward to the commission. There is an amendment to allow individuals to label their applications as confidential and the commission would only then review those applications if they were challenged on the basis of confidentiality.

The second amendment being put forward is the voluntary correction of material safety and data. As the Parliamentary Secretary to the Minister of Health told the House, if a correction is required to the product labels or the material safety data sheets, it has to appear in the Canada Gazette through a formal order and it is not binding until 75 days after it has been publicized. Thus workers cannot receive the appropriate information until 75 days after it has appeared in the Canada Gazette. This bill would ensure that workers would receive information in a timely manner because instead of having to go through the Canada Gazette, one could make a voluntary undertaking.

The third improvement is in regard to improving the appeals process. Right now the commission cannot have any type of interference. However, if it were able to provide some sort of factual clarification it would actually speed up the whole process.

In conclusion, we support this piece of legislation. It would provide definite improvements to the whole process. It would absolutely ensure that workers in this country had access to safe and effective information that would ensure their health and safety. Also, the information would be made available in a timely manner.

We will be supporting Bill S-2.