I'd like to thank the committee for the opportunity to speak to the amendments to the Hazardous Materials Information Review Act, as set out in Bill S-2.
As president and chief executive officer of the Hazardous Materials Commission, I wish to introduce the officials who accompany me. Sharon Watts is a vice-president, corporate services and adjudication. Also here today is Marc-André Dionne, our legal counsel to the commission.
I will provide you with a brief overview of the Commission's responsibilities and governance structure. Ms. Watts will then present each of the proposed amendments, after which we will entertain your questions.
But first, by way of introduction, I would like to describe how the Commission fits into Canada's overall system to protect the health and safety of workers.
In 1987 the Workplace Hazardous Materials Information System, known as WHMIS, was established through a consensus of industry, organized labour, and the federal, provincial, and territorial governments. The goal was an integrated and coordinated approach to ensuring that workers using hazardous materials had the information they needed to minimize risk of illness and injury.
The WHMIS system ensures that appropriate information--key word, it's an information system--on the handling of hazardous materials is provided to workers through product labels and material safety data sheets. Concomitantly, these information documents provide the basis for workers to receive necessary education and training.
When WHMIS was established, it was recognized that there was a need to balance the right of workers to have accurate health and safety information with the right of industry to protect confidential business or trade secrets. The Hazardous Materials Information Review Commission was set up as an integral part of WHMIS to provide this balance.
Like WHMIS, the commission is a joint undertaking on behalf of labour, industry, and the federal and provincial governments. I'll be coming back to this later when I make some comments on governance of the commission.
I will now provide a brief overview of the roles and responsibilities of the Hazardous Materials Information Review Commission and its governance structure.
The role of the commission is to manage the trade secret component of WHMIS. It operates as an independent, quasi-judicial agency established under the Hazardous Materials Information Review Act. The commission's mandate is to grant exemptions from ingredient disclosure for bona fide trade secrets, while ensuring that the documentation on the safe use of the hazardous products provided to workers is accurate and complete.
In essence, WHMIS is a hazard communications system. The system requires that product labels and safety documentation include the identification of hazardous ingredients in a product, the specific hazards posed by a product, the precautions to be taken in handling the product, and the first aid measures to be applied in the event of exposure to the product.
The basic rule of WHMIS is that health and safety documentation must include full information on the chemical identity, concentration, and mixtures of all hazardous ingredients in a product. But there's an exception to that full disclosure rule, and this is where the commission's mandate is so important.
Exemption from full disclosure of hazardous ingredient information is possible when disclosure would reveal a trade secret or betray a trade secret, and when this revelation would result in an economic loss to the claimant or an economic gain to the claimant's competitors.
The essence of the Commission's mandate is the review of economic and safety documentation in all situations where a hazardous material has a trade secret component and is being claimed as such. When the disclosure of certain information on a hazardous product would betray a trade secret, an application can be made to our Commission for an exemption from the requirement to disclose that specific information.
The commission is unique, in my opinion, because it is a single organization of government that serves all jurisdictions. The commission receives claims for trade secret protection, reviews health and safety documentation, issues compliance orders, and provides appeal mechanisms on behalf of the federal, provincial, and territorial jurisdictions.
The commission's mandate has been incorporated by reference into provincial and territorial legislation. For example, if you look at the Saskatchewan Labour Act you'll see the Hazardous Materials Information Review Commission named as being the provincial entity for having a provincial mandate to grant trade secret orders, while reviewing and issuing orders for health and safety compliance. It is really a unique, single-window type of commission.
At this point in my presentation, I would like to describe the Commission's activities in three key areas as they relate to its dual role to ensure a balance between workers' right to know what is in the products they work with and their hazards, and the industry's right to protect its trade secrets.
The commission's mandate really breaks down to three business lines, for want of a better description. First, we do an economic analysis to determine whether the claimant's information is truly a trade secret, and whether disclosure will have economic consequences.
Second, there's a scientific analysis to ensure that the health and safety information being supplied to employers and workers about the product is accurate and complete in its description of the product's hazards, ingredients, protective measures, and first aid to be taken should someone be exposed.
The third part of our mandate is an appeals process. We issue mandatory compliance orders when violations are found--and I'll come back to this. When the claimant or any affected party, such as a worker representative, a union, challenges a decision of our commission, an appeal board is appointed to hear that challenge.
I'd like to go back to the first part of our mandate. To support a claim that certain information is a trade secret, the current system requires that a claimant--for example, a big chemical company, whether American or Canadian--file documentation on the measures taken to keep that information confidential. The claimant must also file documentation on the amount of economic loss they would suffer if they had to disclose that information and it became public knowledge, or they have to file documentation on the economic advantage their competitors would gain if the information became public.
When the documentation accompanying a claim comes to the commission, it's checked by commission staff. All the relevant information is enclosed in the application, and based on the fact that the file is complete, we issue a registration number that replaces, and therefore protects, the trade secret ingredient information on the health and safety documentation. The registration number permits the product to be marketed by the claimant in Canada.
Based on the information filed by claimants as to the value of their trade secrets protected by the commission during the fiscal year ending March 31, 2006, the disclosure protection mechanism administered by the commission had an industry value in the order of $624 million.
The second part of the mandate of the commission is the scientific review of the health and safety information to be supplied to employers and workers using the product. The claimant must include this information with the application for trade secret protection.
This second part of the mandate is crucial. Because employers and workers do not have access to the information protected as a trade secret, it is essential that all of the health and safety information they are provided is complete and accurate.
Over the history of the commission's operations, the commission has ordered corrections to the health and safety documentation on a very high proportion--roughly 95%--of the claims filed. In 2005-06, a total of 2,605 inaccuracies--violations, if you will--were ordered to be corrected. On average, eight to nine corrections to health and safety information have been required on each claim filed with the commission.
A significant number of these inaccuracies result in a potential threat to the health and safety of workers. They include, for example, failure to identify hazardous or toxic ingredients in a product, and improper classification of the toxic properties of an ingredient, the first aid measures, and the protective measures that workers can take to protect themselves. That is, to some extent, the clustering of the violations.
Once we've completed our economic and scientific analysis, we communicate to the claimant our decisions: whether the trade secret's valid, and whether the health and safety documentation meets regulatory standards. At the same time, we publish these decisions in the Canada Gazette and on our website for all to see.
When the decision is that the health and safety documentation is not compliant, we oblige the claimant to make the necessary corrections. As I said, last year 2,605 corrections were ordered, obliged. The claimant must then provide the commission with a copy of the amended documentation, or, alternatively, appeal the decision, or stop selling the product in Canada.
This brings us to the third part of the commission's mandate: the appeals process. Appeals can be filed by the claimant and also by affected parties. An affected party could be a union. These appeals are heard by independent boards on which government, labour, and industry are represented.
So those are pretty well the three parts of our mandate. Now I'd like to switch to governance, because this commission has a unique governance structure that's worth sharing with you.
The governance structure of the commission is unique. It's overseen by a council of governors. This council of governors is an 18-member council. There are two representatives of organized labour, two industry representatives, one representing employers of those handling hazardous materials and one representing those supplying such materials. We also have a representative of each provincial and territorial government on our council, and a representative of the federal minister responsible for occupational health and safety.
The role of the Council is one of oversight and governance. Under the Act, the Council has the mandate to make recommendations to the Minister on procedures for reviewing claims, appeal procedures and changes in fees.
With respect to the amendments set out in Bill S-2, which is in front of this committee, these were developed under the aegis of our tripartite council, which then recommended them to the Minister of Health in accordance with the provisions of our act. This 18-member council played a key leadership role in the stakeholder consultations and analysis that were carried out under the renewal program initiated by the commission.
I believe it's unique to have industry, labour, and federal, provincial, and territorial governments at the same table for 19 consecutive years. They work extremely effectively. Throughout the renewal process there was a great deal of discussion. It was always positive. It was always constructive. In the end, unanimity was achieved, with the full support, again, of the federal, provincial, and territorial governments; the workers handling the hazardous materials; the industry supplying these materials; and the businesses using the materials.
In November 2002 the council of governors formally recommended to the Minister of Health that the renewal of the commission be completed through the implementation of the amendments that are the subject of Bill S-2.
The amendments you will be considering have been the subject of extensive consultation and debate among stakeholders. There were many improvements identified through the renewal process. Most of these have already been implemented through changes to administrative procedures or through regulatory changes.
At this point I will stop and ask Sharon to deal in more detail with the amendments.
