Health Committee on Oct. 19th, 2010

[Robert Ianiro]

Sure.

I think part of the answer also is that we've been focusing a lot around solely increasing our capacity of inspectors, which is clearly very important. We are doubling that capacity. By the fifth year of the action plan, 2012-13, in fact we will have overall doubled the entire complement in consumer product safety. We actually will have increased by about 125 employees.

I think it's important to recognize that we also are hiring more analysts to do testing and verification at our laboratory. With the introduction of the general prohibition, there's going to be a lot more research, hazard evaluations, hazard assessments, risk assessments. We're bringing in mandatory incident reporting. We need to have people sitting behind computers triaging the data, analyzing the data. These are all individuals beyond and in addition to the inspectors.

So it's a fairly broad complement of new employees. Inspectors are obviously very critical. We have those who would be devoted to risk assessment, those devoted to standards development. I think also a very critical piece, given the post-market regime of consumer product safety in Canada and worldwide, is the critical importance of outreach. There are also resources and new staff devoted to outreach. That includes outreach to industry in terms of understanding their obligations, as well as outreach to consumers, since we all have a role to play. As regulator, obviously, as government we have a role to play. Consumers have a role to play. Obviously manufacturers and industry have a role to play.

So it's much, much broader than just inspectors.

[Luc Malo, Bloc, Verchères—Les Patriotes, QC]

Madam Chair—

[The Chair, Conservative, Joy Smith]

Just a very teeny one.

[Luc Malo, Bloc, Verchères—Les Patriotes, QC]

I am addressing you, Madam Chair, I am no longer speaking to the witnesses.

If ever the witnesses are aware of the details as to how the new and current employees will be deployed in the various trades, committee members would appreciate receiving that information.

Thank you very much.

[The Chair, Conservative, Joy Smith]

Thank you.

Ms. Mentzelopoulos, is that possible to do that?

[Athana Mentzelopoulos]

Yes, Madam Chair.

[The Chair, Conservative, Joy Smith]

All right. We will ensure that you have that, Monsieur Malo. It would be our pleasure.

We now go to Monsieur Thibeault. Do you have any questions, sir?

[Glenn Thibeault, NDP, Sudbury, ON]

I have just one follow-up very quickly. Some of the—I hate to say “negative”—people are concerned with this bill and basically don't want it to be seen that we're creating a dragnet where anything can be considered a potential danger—like we have to put a big warning sign on scissors that you shouldn't run with them. Anything is possible, but what is practicable?

Is the definition “danger to health and human safety” in Bill C-36 too broad?

[Athana Mentzelopoulos]

I would say that given how it's subsequently defined in some of the policy elaboration we're doing, including through the consultation we're doing on mandatory reporting, no, it's not too broad.

I think that in program delivery we are always going to have a responsibility to provide precision, to be transparent to our regulatees, to provide the policy elaboration. But it does give the scope within, for example, reasonable and foreseeable use.

You mentioned you have a three-year-old daughter. We have toy experts whose life is literally to try to look at toys through the eyes of children and imagine all the various ways they can get at them, pull them apart, and make something that wasn't previously a problem into a problem.

So in terms of trying to anticipate the unexpected, as you say, we do need some latitude. And we get a lot of advice from legal colleagues on this. We have to provide the precision to give transparency so that regulatees know what it is we expect.

[Robert Ianiro]

Maybe I can just give a few other examples of wording or terms that are used in other statutes in other countries that would be analogous to our “danger to human health or safety”.

One of the risks of providing any more specificity is the very nature of the general prohibition and the definition of “danger to human health or safety” is to create that safety net to deal with unforeseen hazards, unregulated products, unregulated hazards.

The European Union has what is referred to as a general product safety directive, where they basically say you can only manufacture and sell safe products. We talk about not being able to manufacture, import, advertise, or sell something that poses a danger. The United States in their Consumer Product Safety Act basically defines a “substantial product hazard”.

So there are analogous definitions and terminologies that are used worldwide, and they are for the exact same reasons as what we would have. I think the simple answer would be we don't think it's too broad and it is required to support the general prohibition in the manner that we've explained.

[Glenn Thibeault, NDP, Sudbury, ON]

Thank you.

[The Chair, Conservative, Joy Smith]

Okay, is your question answered, Monsieur Thibeault?

Now we will go to Ms. McLeod.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Madam Chair.

This perhaps is a little bit of an unusual question, but again it helps me and perhaps others understand how both this new product safety act will work and some of the responsibilities of the department.

I had a very unusual situation last week where a constituent brought in a fry pan. This particular fry pan was from China, and when she read the fine print it said if you leave it on the stove it could kill birds. This was in print. So she was very concerned about this particular fry pan and what is it that would kill a household bird and was it hazardous to humans. So again in my pursuit of examples, maybe walk me through this as to how your department would handle this, whether it would ultimately decide that this substance that kills birds is hazardous to humans.

[The Chair, Conservative, Joy Smith]

Who would like to take that question?

[Robert Ianiro]

I'll try that one.

The labelling you're referring to, I would suspect, not having all the details, is reminiscent of labelling that is in place under Proposition 65 in the state of California, whereby you're required to label pretty much any product that contains any substance that is a known carcinogen, mutagen, or reprotox.

What I find a bit intriguing and perhaps bizarre in this situation is that it's about potentially killing birds. All I could suggest is that I think it's stemming from overheating frying pans. There is a certain chemical in the frying pans, which is often what's called PFOS. I'm not even going to try to give you what that stands for, but I'm pretty sure it's perfluorinated octanal sulfonate. It is something that's used in non-stick. If you put your frying pan on a stove for extended periods of time at high heat, it will release these fumes, and they could potentially kill birds.

I think we would probably be a bit more concerned if it were.... This is not to suggest that I'm not a bird lover, but we obviously would be more concerned with human health, with respect to Bill C-36, which is what we're here to speak to you about.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

So in this particular case, if someone brought this forward, you would assess it against the substance. You would determine whether Bill C-36 was....

[Robert Ianiro]

Exactly. There are a couple of elements. The first thing is—we didn't raise this, and it didn't come up in any of the questions—that we have new requirements in Bill C-36 that don't currently exist under the Hazardous Products Act. These relate to false and misleading claims relating to certification or health and safety claims. If it is indicated that something meets standards of CSA, the Canadian Standards Association for electrical safety...those types of things would be prohibited. So there are some new labelling and misleading and false claim requirements under the bill.

Speaking specifically to what we would do if we got that complaint, clearly we would need to identify whether it falls within the scope of the act. Clearly in this case, a frying pan does; it is an unregulated product. If it contained a substance of concern and we did a risk assessment and determined that there was an exposure to that substance and that therefore potentially it created a danger to human health or safety, we would have the ability.

It's an interesting example, because it's an unregulated product. Currently, under the HPA it would be very similar and analogous to the cadmium example we've used. Going forward, under Bill C-36, if there is a substance of concern that is found in the consumer product and there is exposure to that substance, then we would have the ability and the authority to take action.

The exposure is critical, because you could have a substance in a product that isn't accessible: there is no exposure; it isn't available. And it's only through that exposure that there actually could be a health concern.

[The Chair, Conservative, Joy Smith]

Thank you, Mr. Ianiro. We are absolutely, fully assured that you do love birds and we really appreciate your insightful dialogue, because we certainly learned something new.

Just for clarification, Ms. McLeod, you said you were going to bring the product in, meaning not the dead bird but the substance it was exposed to. Is that right?

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

This particular constituent left this frying pan with me, so I actually will.

[The Chair, Conservative, Joy Smith]

Oh, very good. Well, we look forward to its arrival.

We'll now go on to Mr. Dosanjh.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Ms. Labelle, can you take me through your thinking on the applicability of the Privacy Act and this particular act, as to which would override which? You mentioned that the Privacy Act is quasi-constitutional. I've never heard that word before. Something is either constitutional or not. I know that certain pieces of legislation override others, depending on whether one is specific or general.

Can you take me through that?

[Diane Labelle]

With respect to the expression “quasi-constitutional”, the Supreme Court of Canada has recognized status for certain statutes—the Privacy Act, the Official Languages Act. In other words, it's very hard to set aside these statutes, without express mention by Parliament, in a piece of legislation.

Madam Chair, I would ask that I may call upon my colleague Elspeth Gullen, who has expertise in privacy law, to provide further information to Mr. Dosanjh.

[The Chair, Conservative, Joy Smith]

Please go ahead.

[Elspeth Gullen, Legal Counsel, Legal Services Unit, Department of Health]

Thank you, Madam Chair.

I haven't got a copy of the Privacy Act in front of me, but I've dealt with the Privacy Act and the Access to Information Act for a number of years. The Privacy Act has certain provisions, of which section 8 concerns disclosure without the consent of the individual. The premise is that you have to have the consent of the individual, save and except certain examples that are set out in section 8 of the Privacy Act. One of them, and it's subject to a new act of Parliament, is that you have the authority. And what this bill is attempting to do is to provide the authority to provide without consent. However, that does not usurp the other provisions in the act that govern the protections afforded to the individual in the disclosure of personal information.

For example, there is still the provision that if there is to be disclosure subject to a subpoena, there is disclosure in the public interest. Those continue to apply. But as my colleague Diane Labelle has noted, the Supreme Court of Canada has noted that the Privacy Act has a quasi-constitutional status: the Supreme Court of Canada decision of Dagg.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

That's exactly what I was thinking. You could actually then provide, under this particular piece of legislation, in clause 15, personal information beyond the crib. It could be personal. Crib is not personal; what happened to the crib is not personal. For that, this is an area where you don't have to argue what you're arguing, because that example is not really valid in terms of your argument. Personal information isn't the crib or what happened to the crib; it's about the identity of the individual or something that might identify the individual. You haven't argued that at all.

My concern is that if you then did give personal information, you could as a government stand up and say, “Oh, sorry. We did that, but it was in the public interest”, because a court would then assess the situation as to whether or not it was in the public interest and would allow that to happen.

What I'm saying is that this particular regime that you have in clause 15, which is different from clauses16 and 17, doesn't provide the safeguards under those circumstances to individuals. I'm a little worried. I'm just expressing that to you.