Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 29 - Evidence - September 28, 2005
OTTAWA, Wednesday, September 28, 2005
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill S-40, to amend the Hazardous Materials Information Review Act, met this day at 4:12 p.m. to give consideration to the bill.
Senator Wilbert J. Keon (Deputy Chairman) in the chair.
[English]
The Deputy Chairman: Honourable senators, we have quorum, so we will proceed. We will hear from witnesses today and have discussion of the bill. Clause-by-clause study will take place tomorrow.
I wish to welcome all the witnesses who will appear before us this evening, especially the Honourable Robert Thibault.
The Honourable Robert Thibault, Parliamentary Secretary to the Minister of Health: Honourable senators, thank you for the opportunity to take part in your deliberations on Bill S-40.
The legislation before you is the final step in the renewal program that began in 1998. It has been a long process. Indeed, during the debate at second reading, Senator Ethel Cochrane asked that your committee look into the length of time it took to bring these amendments forward.
[Translation]
There is no simple explanation for the delay. Over the three years since the amendments were recommended to the Minister of Health, there have been various interruptions, including the appointment of a new ministers of health and an intervening general election.
As I am sure honourable senators will recognize, those in government responsible for the health of Canadians are continually faced with complex issues with far-reaching consequences, which sometimes leaves little time to focus on matters of a less urgent nature.
[English]
At about the same time, cabinet utilized a process to speed up our regulatory process, which might have had an adverse affect. It is possible that time spent on waiting for the commission's report might have affected the process. I cannot be certain, but I know that the change of ministers and the election also affected the outcome.
As a parliamentarian, I am often frustrated; as I am sure, all of you are, with the amount of time taken for consultations. Whenever I can, I raise the point that the word ``consultation'' seems to have morphed into ``consensus.'' When we consult, we may not always reach consensus. The goal is to hear Canadians in order to formulate responsible policy for the benefit of all Canadians. I do not know whether that has been the case with this or not, but we have seen previous consultations going on for five years or more on matters that could be dealt with more expeditiously.
[Translation]
I can assure you, however, that once the current minister, the Honourable Ujjal Dosanjh, was briefed on the issue, he made the passage of this legislation a priority, and we have moved through the various processes necessary to ready the legislation for Parliament without delay.
[English]
Senator Cochrane also had a question about the level of provincial involvement in the development of the amendments and the level of their support. Minister Dosanjh and I are satisfied that the provinces participated in the whole renewal process and that they support the amendments. However, I am sure that you will want to raise this question with the representatives of the commission's council of governors who will follow us as witnesses. Provincial and territorial governments are fully represented on the council.
I emphasis that Minister Dosanjh is in full support of the initiative and that he is very appreciative of the Senate's expert handling of this bill. I wish to thank Senator Cowan, as I understand that this is the first bill he has sponsored in the Senate. He is a welcome addition to the Senate; he is a fellow Nova Scotian.
Since the Hazardous Materials Information Review Commission is not an institution with high visibility, I have asked Mr. Newton to provide an overview of the responsibilities of the commission, the genesis of the renewal program and the rationale behind the amendments to the act included in Bill S-40. After Mr. Newton's brief introduction, we will be happy to answer your questions.
Mr. Weldon Newton, President and CEO, Hazardous Materials Information Review Commission: Thank you, Mr. Chairman. I also would like to thank Senator Cowan for sponsoring our bill.
In 1987, the Hazardous Materials Information Review Commission, HMIRC, was created as part of the Workplace Hazardous Materials Information System. WHMIS fits within the overall constellation of the activities that ensures that employees using or exposed to hazardous materials have health and safety information about the hazard of the products used in the workplace. The Workplace Hazardous Materials Information System is, in essence, a hazards communication system. It is required by the federal, provincial and territorial governments.
It requires product labels and safety documentation to include identification of the hazardous ingredients in a product; the specific hazards posed by the product; the precautions to be taken when handling a product; and the first aid measures to be applied in the event of exposure to the product. The basic rule of WHMIS is that the product safety documentation must include full information on the chemical identity and concentration of all hazardous ingredients in a product.
There is one exception to that full disclosure: Full disclosure does not have to take place if it betrays or reveals a trade secret that can result in economic loss to the claimant or an economic gain to the claimant's competitors.
This is at the heart of the Hazardous Materials Information Review Commission, which is an independent, quasi- judicial agency that operates under the Hazardous Material Information Review Act. It is responsible for making trade secret determinations and reviewing safety documentation for regulatory compliance in all situations where hazardous material is a trade secret. Our statutory mandate is incorporated by reference into provincial and territorial legislation.
The commission receives claims for trade secret protection. We review the health and safety documentation of those products; we issue compliance orders and provide appeal mechanisms under federal, provincial and territorial legislation; one commission for all those jurisdictions.
When we receive a claim, we have to determine whether disclosure would have economic consequences to that claimant. We perform a scientific analysis to ensure that the health and safety information supplied to employers and workers accurately and completely describes the hazards of the product and its ingredients.
There is an appeals process, where the claimant or any affected party may challenge the commission's decision. This could be a worker representative; it could be a union or competitor claimant.
I would like to return now to the first part of the mandate, which is the trade secret protection. Claimants are currently required to document the measures they have taken to keep the trade secret information confidential. Further, they must document the amount of economic loss they would suffer or the economic advantage their competitors would gain if the information became public.
The document in support of the non-disclosure of the agreement is reviewed by the commission and a decision is made whether it meets the regulatory requirements to protect the disclosure of the trade secret.
If the trade secret regulatory criteria are satisfied, the commission issues a number that replaces the trade secret information on the safety documentation. This permits the product to be marketed. If the trade secret claim is not upheld, then the ingredient or ingredients must be disclosed or the product is not sold in Canada. Based on filings for the year 2004, the trade secret mechanism protected secrets in the order of $350 million to $400 million.
The second part of our mandate is the scientific review of health and safety information provided by the claimant on the documentation and supplied to employers and workers using a product. This is a very important exercise because employers and workers do not have access to the information protected as a trade secret. Basically, one could say they do not know what they are working with in terms of the scientific ingredients.
Once the commission completes its analysis, it communicates its decision to the claimant and publishes its decision in the Canada Gazette. When the decision that the safety documentation is not in compliance, the claimant must make necessary corrections and provide the commission with a copy of the corrected documentation or, alternatively, appeal our compliance order or stop selling the product.
This brings me to the third part of the commission's mandate, the appeals process. Affected parties can file appeals and when they launch these appeals, independent boards with representation from government, labour and industry hear them.
A council of governors oversees the commission and its three-part mandate. Representatives of that council will be here today. On this council of 17 members, there are representatives from organized labour, industry, the territories, and the provincial and federal governments.
The council has a statutory mandate; it is a creature of statute mentioned in our statute. The mandate of the council is to make recommendations to the Minister of Health on the procedure for reviewing claims, appeal procedures and fee amendments.
The commission is undergoing a renewal and throughout this renewal process, the council of governors has been vigilant in carrying out its statutory responsibilities. In 2002, the commission staff and the council of governors formally and unanimously recommended to the Honourable Anne McLellan the completion of the renewal system through the implementation of the amendments in Bill S-40.
Each proposed amendment set out in Bill S-40 relates to an element of the mandate of the commission.
The first amendment relates to whether a trade secret claim is valid. In lieu of detailed documentation, this amendment permits claimants to declare that the information for which they are seeking an exemption from disclosure is a valid trade secret. They will not provide the documentation but will have to keep the supporting documentation and provide it to the commission on request. This amendment relieves claimants and the commission of the administrative burden of preparing and reviewing detailed documentation in support of a trade secret claim.
The commission has existed for 17 years and during that time, industry has shown itself to be conscientious in filing exemption claims, most of which have been valid. However, to maintain the integrity of the trade secret protection mechanism, we will introduce a validation scheme to detect false claims and the claimant will have to provide full documentation when an affected party challenges the claim.
These declarations relate only to the claim for exemption from disclosure of trade secret information. This proposed amendment does not influence the requirement to provide workers with health and safety information concerning hazardous products in their workplace. The declarations are solely on the economic analysis that has to be performed to protect the trade secret.
The second amendment will speed up the process of getting health and safety information into the hands of workers and employers. This amendment permits claimants to enter into undertakings with the HMIRC to correct inaccuracies in their safety documentation without the necessity of a compliance order. As the act stands, the commission must issue a correction order even if the claimant is fully prepared to make the necessary corrections voluntarily. The commission publishes the correction order in the Canada Gazette, but it is not binding until 75 days after publication.
Claimants feel that the publication of compliance orders in the Canada Gazette implies reluctance on their part to fulfill their responsibilities for workplace safety. Allowing corrections to be made without issuing the formal order of compliance will put the information in the workers' hands much earlier in the process and will ensure that correct and accurate information goes into the workplace much sooner than under the current process.
To ensure transparency, the Canada Gazette will publish the details of these undertakings, providing the opportunity for affected parties to appeal the terms of those undertakings. The affected parties are workers reps or competitors.
The third proposed amendment will permit the commission to respond to requests by appeal boards for clarification of the record. The current legislation does not allow the commission to provide such clarification.
The commission bases its decisions on complicated economic and scientific analyses and the appeal boards often need additional clarification. This proposed amendment will allow us to legally provide clarification and expedite the appeals process.
We need these legislative amendments to complete the renewal program of the Hazardous Materials Information Review Commission. They will reduce the time required to review claims for trade secret exemption. They will speed up the correction of information that workers need and rely upon to handle hazardous materials safely, and they will expedite the appeals process.
The Deputy Chairman: Ms. Watts, do you have a presentation?
Ms. Sharon Watts, Vice-President, Corporate Services and Adjudication, Hazardous Materials Information Review Commission: No, but I will be happy to respond to questions.
The Deputy Chairman: Mr. Thibault, please expand on the provincial and territorial buy-in for these three major changes encompassed in the legislation.
Mr. Thibault: The minister is interested that such a proposal is agreed upon by all parties concerned — not only industry and the provinces but also the users of these products, whether consumer groups or unions.
We had full consultations and certainly, senators agree that they were lengthier than necessary. As explained by Mr. Newton, the council represents all these sectors or provinces. The minister would not want to proceed unless he was confident that there was a general buy-in by all the concerned parties.
All players must be confident that our system will protect trade secrets, encourage innovation to develop products, and provide security, protection and safety for Canadians who use these items in their homes or workplace. It would not be good to change the ground rules that provide protection without having the agreement of all players. That is why there was such a long and arduous process.
The Deputy Chairman: Mr. Newton, my question is about the seven-year gestation period for the legislation.
In your opinion, was it due to controversy, bureaucracy, or something else?
Mr. Newton: The areas of renewal fell into three areas: administrative reform, regulatory reform, and statutory changes.
From 1998 to 2002 when the statutory changes, which are before the committee today, were communicated to the then Minister of Health, we reached agreements in many areas and, in fact, changes were made. We accomplished this through the tripartite concept that included industry, labour and government.
The commission gained a reputation, whether deservedly, of not being a claimant-friendly commission that took the claimant's money without providing any services or trying to help the claimants to comply with the requirements.
One of the elements that emerged from our consultation renewal was that we develop a client-services orientation. Since 2002, for each claim that we deal with and for every company that we regulate, we provide a claimant feedback questionnaire in which we ask whether the HMIRC was helpful or knowledgeable et cetera. Open to anyone's examination, we have a significant tombstone of information on our efforts to meet the expectations of the clients in the economic area.
The commission did not have any other mechanism between 1998 and 2002 to resolve disputes or complaints. We invested in dispute resolution or complaint management approaches. We made the process highly transparent so that we could bring claimants into compliance at a much earlier date.
In the past, the dispute would go to an appeal that could take up to three years. That process had to be complete before the safety documentation entered the workplace. We shifted the pendulum of dispute resolution away from appeals to the front end. Guided by our policies and overseen by our council, we became much more transparent.
We found one area where disputes would generate between the commission and its claimants. We would have our scientific advisors and they would have theirs, but neither would share, and so we would agree to disagree on virtually everything. They would determine our position scientifically when we issued an order of compliance; and they would have to appeal to get their case before the commission.
Our council was quite insistent that we should share our advice documents and scientific evidence with claimants and allow the scientists speak to each other. If this brings us into compliance much sooner in the process, then this is a logical way to proceed. We became much more transparent and willing to share the information that heretofore had been kept, to some extent, away from the claimants.
We invested resources in pre-assessment safety documentation. We thought that we could receive the claim and do an initial assessment, provide a checklist, send it out to the claimants and ask that they voluntarily comply.
It is not in anyone's interest to go through the entire review process only to have the commission order changes to documentation. We found many administrative areas where we could bring about guided reform.
In terms of the regulations, we modernized our fee structures. To some extent, we are partially cost-recovered. Our fees were often cited as being complex and incomprehensible. We modernized our fees as part of our renewal and demystified them to some extent. We took forms out of the regulations and made them administrative forms so they could be amended and reflect the changes in our program.
There was constant change between 1998 and 2002 with constant oversight by the interest groups represented in my council. We had three amendments that we did not have the prerogative to pursue, those being the statutory amendments that are currently before you.
Senator Callbeck: I want to return to Senator Keon's first question about the council.
You have representation from organized labour and industry from each territorial and provincial government, as well as from the federal government. How many people is that in total?
Mr. Newton: There are 17 members on the council.
Senator Callbeck: The mandate of the council is to make recommendations to the minister. What percent of the 17 members must agree in order to make a recommendation?
Mr. Newton: We must have agreement of five provinces, the federal government, one industry and one labour representative to constitute a valid recommendation.
Senator Callbeck: How many labour representatives do you have?
Mr. Newton: We have two.
Senator Callbeck: So that is 50 per cent.
Mr. Newton: Yes.
Senator Callbeck: Did you have unanimous approval for these amendments?
Mr. Newton: Yes, we did.
Senator Callbeck: How many claimants do you generally get in a year?
Mr. Newton: We are demand driven and governed by economic factors. We deal with 250 to 400 claimants per year; bonded couriers show up at our door.
Senator Callbeck: Is that constantly increasing?
Mr. Newton: Since 2000, it has been tracking between 300 and 350. There were fewer claims in the early to mid 1990s.
Senator Callbeck: Of the 250 to 400, roughly what percentage is in compliance?
Mr. Newton: Since 1987, we have received and reviewed over 2,000 claims and only four were not compliant on the economic side.
Senator Callbeck: You do not have many appeals.
Mr. Newton: Not on the economic side, but we do reviews on health and safety disclosures and on that documentation we find a much higher level of non-compliance.
Senator Callbeck: What is the percentage?
Mr. Newton: It varies from company to company. Fifty per cent of our client base is American companies selling products into Canada. One could argue that they may not be totally aware of the Canadian regulatory requirements. We find a significant number of the claimants are in non-compliance. It is usually eight to nine inaccuracies or violations per claim, and we order these corrected to 100 per cent.
We have had very few appeals since we have shared our advice and scientific documents. Since we shifted dialogue to the front end of the process, thereby being more open and transparent, we have brought safety documentation into compliance much earlier in the process and have gotten it into the hands of the workers accordingly.
[Translation]
Senator Gill: I am interested in hearing more about how the commission handles appeals. You say that few appeals are filed and that people cannot file appeals for frivolous reasons. There are certain procedures that must be followed. When you do receive an appeal, who handles it? Not the commission. Is it handled by groups of scientists appointed by the commission? Could you elaborate further on this?
Mr. Newton: I will try to answer your question. I will admit that very few appeals have been filed recently. Appeals may be referred to an appeals board composed of three members: one represents workers, a second represents the chemical manufacturing sector and a third is appointed by the government. These individuals are not necessarily scientists.
However, the appeals board can seek the advice of scientific experts. Once the appeals process is completed, the board may either confirm the Commission's findings or order it to change its decision. Does that answer your question?
Senator Gill: You mentioned claims originating in the United States, more specifically, that 50 per cent of claims originate in the United States. Are these claims filed directly with the Commission? How are U.S. claims routed to your Commission?
Mr. Newton: According to our multi-year statistics, U.S. companies account for 50 per cent or 52 per cent of our clientele. They file their claim directly with the Commission.
Senator Pépin: You stated that the appeals board is not necessarily made up of experts. When an affected party, whether representing labour or industry, comes before the board, will that party necessarily be dealing with experts in the quest for answers?
Mr. Newton: I will defer to Sharon Watts who is responsible for appeals.
Ms. Sharon Watts: With respect to our appeals process, you must first remember that we are talking about an appeals board that operates at arms length from the commission. As Mr. Newton said, three board members are appointed by the commission's Director of Appeals. The relationship that does exist is truly one at arm's length. Three independent members are appointed, one to represent labour, one to represent the industry and one to serve as Chair of the Appeals Board.
Thereafter, we receive the appeals directly from the director of appeals on the board. The board merely administers the appeals process and facilitates administrative matters. Only the appeals board can appoint experts and counsel to preside over the hearings with the claimant and occasionally, with the parties involved.
Each time we receive an appeal, there is always a party involved, that is the employer working with hazardous materials. As a rule, we deal with issues of a scientific nature.
Senator Gill: Once the commission has made a decision, is any follow up action required?
Ms. Watts: Yes. In the case of an appeals board decision, the follow up action may confirm, or overturn the commission's initial finding. Follow up action consists of analyzing the studies used by the board to assess the situation and of revising existing policies, where necessary.
[English]
Senator Trenholme Counsell: Please excuse me for being late, and if I repeat a question please tell me.
I am interested that the 50 per cent of the products with which you concern yourselves are American products.
Is there any relationship or any cross-border work to have similar standards? Is there anything common between the two countries? Do you work with a common commission?
Mr. Newton: No, there is not an American equivalent of the Hazardous Materials Information Review Commission. American manufacturers have a regulatory framework of what they have to disclose in terms of health and safety declarations. When they offer these products for sale in Canada, they come into Canada with that documentation. If a trade secret is involved, it comes to us for review. We would review it in accordance with the Canadian control product regulations and we would order changes to the American documentation as required if they wished to sell their product in Canada.
If the market is too small, they may elect not to sell. They may elect to withdraw their application and say the market is too small. However, if they wish to sell it, they must make the change to conform to Canadian law.
Senator Trenholme Counsell: You mentioned only products from the United States of America.
Is this also an issue with regard to other countries with whom we have a trading relationship?
Mr. Newton: I would not want to leave an impression that we review any other large percentage of foreign suppliers. There are a couple of examples where a European company would want to sell a product in Canada, seek trade secret protection and end up before our commission for our determinations. By and large, it is overwhelmingly American companies.
Senator Trenholme Counsell: From time to time, do you have a factor of crime, of products somehow coming into the country with false labelling? Has this been an issue — let us say for the manufacturer of drugs or the manufacturer of explosives or of any other substances detrimental to society?
Mr. Newton: Excluded, under Part 11 of the Hazardous Products Act, are explosives, radioactive materials, drugs and food. We look at chemical products only. Those are exclusions from our review.
Senator Trenholme Counsell: Do these chemical products find their way into Canadian households?
Mr. Newton: Any hazardous product deemed a trade secret and that has received nondisclosure of the ingredients may end up in the workplace and possibly in the home.
As mentioned earlier a number would signify the substance instead of the hazardous ingredient itself. The end user would not know the composition of the precise ingredient or concentration or mixture.
The importance of our health and safety review is to make sure that the toxic properties, the preventive measures, and the first aid information are accurate so people can protect themselves from these substances.
Mr. Thibault: I used the term ``domestic.'' Under the WHMIS guidelines, all cleaning products meet these requirements for domestic purposes. If I confused the issue, I apologize; I did not mean to do so. When I used the term ``domestic,'' I was referring to those types of products.
The Deputy Chairman: When you have a product with a label, which, because of some change, is no longer compliant with the act, how do you deal with that issue? Who is responsible for bringing that defective label to your attention?
Mr. Newton: Hazard communication under WHMIS falls into two areas. If there is a trade secret involved, they have to disclose everything unless they get our approval to conceal the ingredient, mixture or concentration, while ensuring that the labels and the safety documentation are accurate.
If we get a claim, we do our safety review, and if it is our scientific opinion that the documentation is inaccurate, we will order it changed. We will ask that they send the amended documentation to us or we will order them not to sell the product in Canada.
When it comes to the commission, if there is a trade secret involved, we have powers to ensure that if they are not in compliance, they will come into compliance.
Products that go straight into the Canadian marketplace, whether accurately or inaccurately disclosed, do not come before our commission.
I have no knowledge of the level of inaccuracies or non-compliance of labels and safety documentation on any product that does not come to the commission.
The Deputy Chairman: It would seem to be a major problem, is it not?
Mr. Newton: I am not in a position to comment on that question. I can speak to what the commission reviews are because we review and we negotiate compliance. We order compliance where trade secrets are involved. However, in the broader WHMIS world — a product is coming straight into the marketplace — I am not qualified to give you on opinion on the level or compliance or non-compliance.
Ms. Watts: Perhaps I could supplement with an explanation that the compliance issue in the broader spectrum of the world that does not have trade secrets is dealt with through the ministries of labour in the provinces and the workers' compensation boards.
Inspectors are doing inspections under the Hazardous Products Act, looking for WHMIS non-compliance, finding non-compliance and handling it, whereas we look at trade secret issues only.
The Deputy Chairman: That is comforting.
I think our time for this segment has expired. We want to thank you very much for coming forth and being very clear in your presentations.
Mr. Thibault: I thank all honourable senators for their attention this afternoon.
The Deputy Chairman: I believe that Mr. Brissette will be our next presenter. Please proceed.
[Translation]
Dr. Yves Brissette, Chair, Council of Governors, Hazardous Materials Information Review Commission: Mr. Chairman, it is a pleasure for us, as members of the Council of Governors of the Hazardous Materials Information Review Commission, to be able to participate in your deliberations on the proposed amendments to the Hazardous Materials Information Review Act.
Although I have been representing the government of Quebec on the council for a number of years, it is as the chair of the council and representative of the provinces that I am appearing before you today. Indeed, this is the mandate which was entrusted to me this past May 24 by my council colleagues.
Accompanying me today are Mr. Bill Chedore of the Canadian Labour Congress, one of two representatives of organized labour on the council; Mr. Gordon Lloyd of the Canadian Chemical Producers' Association representing suppliers of hazardous materials; and Mr. Gerry Blanchard of Human Resources and Skills Development Canada, who represents the federal government on the council. The membership of the Council of Governors also includes a representative of employers in whose establishments hazardous materials are used and positions for each of the ten provinces and each of the three territories.
The representatives of provincial and territorial governments are drawn from the ministries responsible for Occupational Health and Safety and are appointed only after consultation with the responsible provincial or territorial minister.
The council has a statutory mandate which entails overseeing the Hazardous Materials Information Review Commission by providing strategic advice and guidance, as well as making recommendations to the Minister of Health on such regulatory issues as the commission's fee structure and changes to procedures for reviewing claims or hearing appeals.
The Council of Governors was fully involved in all aspects of the Commission's Renewal Program including the development of the proposed amendments to the Hazardous Materials Information Review Act.
In fact, with unanimous agreement, the council recommended the proposed legislative amendments to the then Minister of Health, the Honourable Anne McLellan. Ongoing dialogue, information sharing and consultation between the commission and the Council of Governors on these proposed amendments have been a standing item at annual meetings and regular teleconferences of council. I can therefore assure you that the amendments have the full support of labour, industry, and all provincial and territorial governments. In summary, the amendments will reduce the time required to review claims for exemption from disclosure of confidential information, speed up the correction information workers need to handle hazardous materials safely and expedite and improve the appeals process.
With that brief introduction out of the way, we invite your questions on the role of the council and on the amendments under consideration.
[English]
The Deputy Chairman: That is very reassuring and you have answered many of our questions.
Who will present next? Will each of you be making a presentation?
[Translation]
Mr. Brissette: Unless my colleagues wish to say a few more words.
[English]
Mr. Bill Chedore, Coordinator, Health, Safety and Environment, Canadian Labour Congress: We agree with the chair's comments and are prepared to go to questions.
The Deputy Chairman: I must say that the chair has addressed my major concerns about this legislation. I agree that if it was seven years in the making there must have been disagreements along the road. However, it appears that every component of the industry and every geographic and political jurisdiction agree. That is mainly what I wanted to hear.
[Translation]
Senator Robichaud: Your presentation was clear and concise. Therefore, there are very few questions that we need to ask. In fact, you support the position of previous witnesses and fully agree with these amendments. You assure us that the amendments have the full backing of workers. All of those who use these hazardous are well protected and their health is not threatened in any way. So then, you are quite pleased with these amendments?
Mr. Brissette: I could begin to answer the question and then turn the floor over to my colleagues who represent workers. The bill and the proposed amendments do not in any way affect the process currently used by the Council of Governors to evaluate the quality of information data sheets and their contents. The amendments respecting claims apply only to the portion of the claim that has to do with the secret formulation, not the specific scientific and technical information that must be disclosed either on the label or on the data sheet accompanying the chemical products.
Senator Robichaud: The fact that a product has a secret formulation can have a direct impact on users. Is that correct?
Mr. Brissette: That is the reason why the Commission was established, precisely so that all of this secret, confidential information can be submitted to select individuals, and all of the mechanisms can be put in place to prevent disclosure of this information. However, review commission experts have access to all of this information in order to verify, for example, that the reported health effects of a product or the procedures to follow in the case of poisoning do indeed correspond to genuine product information that is subject to secrecy.
Senator Robichaud: However, is product information in fact disclosed to the Commission?
Mr. Brissette: Absolutely. The Commission's role is to protect trade secrets and to ensure that in spite of these secrecy provisions, workers receive accurate information about the risks associated with the use of products where product information remains confidential.
Senator Robichaud: I have trouble understanding. You mention products and information that are not diclosed.
Mr. Brissette: Let me give you an example. In the case of a product marketed by a manufacturer, reference was made to U.S. manufacturers selling products in Canada. The Hazardous Materials Information Review Act administered by Health Canada links the sale and importation of products with the disclosure of product safety information. Manufacturers who market a product in accordance with the guidelines set out in the regulations must provide a detailed list of all product ingredients and the specific hazards they pose. In the case of manufacturers who do not want to disclose any trade secrets because of a particular competitive edge they may have, they approach the commission and provide a detailed description of the product along with the chemical identity and concentration of ingredients they do not want to disclose. The commission then provides information to ensure the public's health is protected, even if the ingredients remain a trade secret.
Senator Gill: It is rare to see all parties get along as you do. That is very unusual. As a rule, there are two sides to every issue and people agree more or less on things. I congratulate you.
I also find it surprising to see the Americans comply with Canadian requirements when it comes to hazardous products. The figure quoted was 50 per cent. The Americans operate in an open, transparent manner in to comply with the commission's requirements. The number of appeals filed is minimal, as noted previously. This means the Americans are quite receptive to Canadian regulations and that is surprising.
Mr. Brissette: As a result of the Hazardous Materials Information Review Act, a company, whether Canadian or American, that markets its products in Canada must comply with the Canadian legislation and regulations. The U.S. hazardous materials information system is similar, but not identical, to our Canadian system.
For the past several years, an international effort has been under way to harmonize initiatives across several countries. Canada has one regime, the U.S. another, while Japan and Europe follow their own procedures. From 1990 to 2001, a UN committee examined this matter in an effort to harmonize the approaches used in various countries. Canada played a leading role in this international harmonization initiative. An international movement is therefore under way to adopt a common approach.
[English]
Mr. Gordon E. Lloyd, Vice-President, Technical Affairs, Canadian Chemical Producers' Association: The American companies would probably be happier if the Canadian system was more like theirs. The European companies would probably be happier if it were more like theirs, and similarly for the Japanese. However, I think they all understand that if they are selling into Canada, they need to work within the Canadian system.
The Canadian system is unusual and a product of consensus between federal and provincial governments, industry and labour. That is not the case in other countries. That is true not only of the small part of the system we are dealing with today where HMIRC is looking at trade secrets, but for the whole WHMIS system itself, because it too was developed through the same kind of tripartite consensus building that the trade secret mechanism was build upon.
Yes, American companies, just like Canadian companies need to comply. Mr. Newton noted how the commission has changed its culture in the last five or so years. It has changed from being an aloof agency that did not really interact with its clients other than when there were orders and appeals, to an agency that tries to work with its clients upfront and provides them with information to help them come into compliance. Not only Canadian companies but foreign companies as well, appreciate the change. It has helped the commission to operate effectively.
Senator Trenholme Counsell: I wonder if this level of agreement is common. It is very pleasing to hear.
Even though you agree with everything in here, is there anything else you would like to see in it, or is this really the state of the art as of the fall of 2005?
Mr. Chedore: Believe it or not, it is not unusual for business, labour, and government to agree on things. This type of agreement rarely makes the papers.
Senator Trenholme Counsell: I guess it is only politicians who rarely agree.
Mr. Chedore: Sometimes it is harder to get agreement within my own organization that it is with others. In this particular circumstance, we reached the agreement by consensus and we agreed to it unanimously. We did not think that anything in this would take away from what already exists in terms of protections. The Canadian Labour Congress depends on other pieces of legislation or regulations to deal with products after they come into the country, and we depend heavily on regulations around threshold limit values for different workplace products.
When you are talking about getting things done, we have had agreement among business, labour and government around three different pending regulations. One of the regulations has been pending for almost four years and it took three years of negotiations to get us to that point. I am used to things taking a while to get into place, however, if we reach consensus agreements it is worth the effort because it protects the workers who use or deal with the product.
In this particular instance, we feel that the protections are still in place. I might have changed the wording a little bit in some respects, but we are happy with the way it is now and we are agreeable to support it.
Senator Robichaud: Therefore, you urge us to get on with it.
Mr. Chedore: Yes, I urged that this afternoon in my previous meeting. We do not have to reinvent the wheel on this one.
Senator Callbeck: It is wonderful to have such agreement among all the parties. I have one question concerning the commission's fee structure. Are the expenses cost-recovery, or where does the commission get their money to operate?
[Translation]
Mr. Brissette: Mr. Newton alluded briefly to that earlier. The commission has adopted a cost recovery system and follows Treasury Board guidelines with a view to recovering a significant percentage of related operating costs. The system has been modified over the years to take into account the specific type of information that is of interest to the public, as opposed to information of specific interest to industries applying to the commission for an exemption. Again, this approach was developed by all commission members who operated by consensus with a view to finding an approach that was satisfactory to all parties.
[English]
The Deputy Chairman: You have made our hearing very short. You have been a wonderful group of witnesses and I am not sure any of us have ever seen this before. Thank you all very much. It certainly appears that the committee is getting the message that this legislation is suitable and that we should get on with the matter.
Honourable senators, we will meet tomorrow for clause-by-clause consideration of this bill.
The committee adjourned.