Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 3 - Evidence
OTTAWA, Wednesday, May 17, 2006
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill S-2, to amend the Hazardous Materials information Review Act, met this day at 4:02 p.m. to give consideration to the bill.
Senator Wilbert J. Keon (Deputy Chair) in the chair.
[English]
The Deputy Chair: Honourable senators, we have a quorum. Mr. Minister, if you are ready, we would like to hear from you first.
Steven Fletcher, Parliamentary Secretary to the Minister of Health: Thank you for the opportunity to take part in your deliberations on Bill S-2, to amend the Hazardous Materials Information Review Act.
The officials accompanying me are Mr. Weldon Newton, President and Chief Executive Officer of the Hazardous Materials Information Review Commission, and Ms. Sharon Watts, the commission's Vice-President, Corporate Services and Adjudication.
This is the second opportunity your committee has had to review this legislation. It was introduced as Bill S-40 in the last session of Parliament; and after hearings by this committee, it was given third reading in the Senate on October 20, 2005. However, it did not proceed past first reading in the House of Commons before Parliament was dissolved.
The legislation is the final step in a renewal program that the commission started in 1998. The process has been long, indeed.
During the debate at second reading of Bill S-40, Senator Cochrane asked that your committee look into the length of time it took to bring these amendments forward. As was explained then, there is no simple explanation for the delay. Since the amendments were first recommended to the Minister of Health in 2002, there have been various interruptions, not the least of which were two general elections. I am sure the honourable senators will appreciate that those in government responsible for the health of Canadians are continually faced with many complex issues with far- reaching consequences.
In the debate on Bill S-40, Senator Cochrane also questioned the level of provincial involvement in the development of the amendments and the level of their support. This question was addressed during the committee's hearings on Bill S-40 by Dr. Yves Brissette, chair of the commission's Council of Governors. Dr. Brissette is a Quebec representative on the council, but he spoke on behalf of all provincial and territorial governments and on behalf of labour and industry.
All these groups are fully represented on the council, and the Dr. Brissette was able to assure the committee that the amendments had the full and unanimous support of all interested parties. This message was reinforced by the testimony of the representatives of labour and industry who accompanied Dr. Brissette as witnesses, and appeared as a panel of stakeholders at the committee hearings. The sustained support of the commission's council for the legislation was most recently confirmed to Mr. Newton during a teleconference on May 4, 2006.
When the Minister of Health was briefed on the history of the renewal process in Bill S-40, and was informed of the strong support of all stakeholders, he and I agreed that it was important to support the reintroduction of this legislation.
Minister Clement and I thank honourable senators for their efforts in seeing this bill proceed through both the last session and the current session of Parliament. We especially thank Senator Cochrane and Senator Cowan for their diligent efforts in the review of Bill S-40, and for sponsoring the reintroduction of the legislation as Bill S-2.
To refresh your memories on the roles of the Hazardous Materials Information Review Commission, I have asked Mr. Newton to provide a brief 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-2.
After Mr. Newton's intervention we will be happy to entertain your questions.
Weldon Newton, President and CEO, Hazardous Materials Information Review Commission: Good afternoon, honourable senators. As Mr. Fletcher indicated, I will give a brief overview of the roles and responsibilities of the Hazardous Materials Information Review Commission and its governance structure. Ms. Sharon Watts will then deal with the proposed amendments, after which we will entertain your questions.
As to the role of the commission, the Hazardous Materials Information Review Commission was created in 1987 as part of the Workplace Hazardous Materials Information System, WHMIS.
WHMIS ensures that employees using, or exposed to, hazardous materials have health and safety information about these hazardous products that are used in the workplace. Simply put, WHMIS recognizes that employees have a right to know what they are working with or being exposed to. The WHMIS program is a hazard communication system, and it is required by the federal, provincial and territorial governments. The system requires that product labels and safety documentation include the identification of the hazardous ingredients in a product, the specific hazards posed by the product, the precautions to be taken in handling the product, and the first-aid measures to be applied in event of exposure to the product.
The basic rule of WHMIS is that safety documentation — safety data sheets specifically — must include full information on the chemical identity and concentration of all hazardous ingredients in a product. The exception to full disclosure of such ingredient information is when this disclosure would reveal a trade secret resulting in an economic loss to the claimant or an economic gain to a claimant's competitor or competitors.
This communication, to some extent, is the essence of why the Hazardous Materials Information Review Commission was created. It was created as an independent, quasi-judicial agency operating under the Hazardous Materials Information Review Act. Its mandate is to review economic and safety documentation in all situations where a hazardous material is a trade secret, or is being claimed as such.
What makes the commission unique, I believe, is that the statutory mandate of the commission has been incorporated by reference into provincial and territorial legislation. You will see the name of this commission in the Saskatchewan provincial statute, and its mandate is the legal mandate for the Province of Saskatchewan. The same is true in other provinces.
In effect, the commission may receive a claim for trade secret protection, perform a review of health and safety documentation, issue mandatory compliance orders and provide appeal mechanisms on behalf of the federal, provincial and territorial jurisdictions. One organization of government serves all jurisdictions.
Where disclosure of certain information on a hazardous product would betray a trade secret, an applicant may make application to our commission for an exemption from the requirement to disclose that specific information.
At this point, I want to describe the commission's activities in three areas.
First, an analysis determines whether the claimant's information is truly a trade secret and whether disclosure will have economic consequences. An economic analysis is the first thing we do.
Second, a scientific analysis ensures that the health and safety information supplied to employers and workers about the product accurately and completely describes the hazards of the product and its ingredients.
The third part of our mandate or activities is an appeals process. We issue mandatory compliance orders. When the claimant or any affected party, such as a representative of workers, challenges a decision of the commission, there is an appeal process. Ms. Watts will speak to that later.
I return to the first part of our mandate, the protection of bona fide trade secrets. To support a claim that product information is a trade secret, the current system under the current laws requires that the claimant file documentation on the measures they have taken to keep the information confidential. They must file documentation on the amount of economic loss they would suffer if they had to disclose the information or file information on the economic advantage their competitors would gain if the information became public.
The documentation that comes with the application for trade secret protection is reviewed by the commission staff, and a decision is made as to whether it meets the regulatory criteria for trade secret non-disclosure.
If the trade secret criteria are satisfied, we give a number that replaces the trade secret information on the safety documentation. This number permits the product to be marketed, but if the trade secret claim is not upheld we oblige that the ingredients be disclosed or the product not sold in Canada.
This year, finishing on March 31, 2006, based on information filed by claimants pertaining to the value of their trade secrets, the commission administered a protection mechanism in the order of $624 million of trade secrets that were protected.
The second part of our mandate is the scientific review of health and safety. Here, with the application for trade secret protection, we get the health and safety documentation that is supplied to employers and workers using the product. This part of our mandate is very important. Because employers and workers do not have access to the information protected as trade secret information, it is particularly important that all the health and safety information they are provided is complete and accurate.
Once the commission has completed its economic and scientific analysis, we communicate a decision to the claimant on whether the trade secret claim is valid and whether the health and safety documentation meets the regulatory standards. At the same time, we publish these decisions in the Canada Gazette for all to see.
When the commission decides that the safety documentation is not in compliance, we oblige the claimant to make the necessary corrections to the health and safety documentation, and provide us with a copy of the amended documentation. Alternatively, the claimant can appeal our decision or stop selling the product.
The final part of the mandate is the appeals process. Appeals can be filed not only by the claimant, but also by affected parties. These appeals are heard by independent tripartite boards in which government, labour and industry are represented.
Now I will speak briefly to governance. Senator Cochrane expressed concerns the first time this bill came to this committee. The governance of the Hazardous Materials Information Review Commission is unique, I believe. The three-part mandate I described is overseen by a council of governors. This 18-member council has representatives of organized labour; two industry representatives, one representing employer stakeholders and one representing supplier stakeholders; representatives of each provincial-territorial government; and a representative of the federal government. Thus, it is a substantial council 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, fee changes, et cetera. The amendments were developed under the aegis of our council and communicated to the minister in accordance with the provisions in the act.
The 18-member council of governors has played a key leadership role in the consultations and analysis that were carried out in the renewal of the commission.
The governors have been vigilant in carrying out their responsibilities, and they have ensured that the views of their constituents are brought to the table and given full consideration. It is unique to have labour, the chemical industry and federal-provincial governments all sitting at the same table. There was a great deal of positive and constructive discussion, but in the end, unanimity has been achieved in the areas to which I will speak.
In November 2002, the council of governors formally, in writing, and unanimously, recommended to the then- Minister of Health that the renewal of this commission be completed through the amendments that are subject to Bill S-2 before you today. Each of the three amendments relates to one of the three elements: the economic side of our business activities, the health and safety side of our business activities, and the appeal activity. There is one amendment for each area. Ms. Watts will position those for your better understanding.
Sharon Watts, Vice-President, Hazardous Materials Information Review Commission: Good afternoon, honourable senators.
We have three amendments proposed to modernize and streamline the operations of the commission, as mentioned by Mr. Newton. The first amendment will allow claimants to declare, with a minimum of supporting information, that the information for which they seek an exemption from disclosure is confidential business information. When I say ``summary,'' I mean just an amount without the substantiating information: just a statement that this information is confidential business information, there is a value to it, and I take measures to protect it.
Right now, claimants must provide detailed documentation for each of those statements. They provide information on the steps they have taken to protect confidentiality, They also provide information on potential financial implications of disclosure, whether that be loss to them or gain to a competitor.
This requirement is an administrative burden on claimants and on the commission. Industry has been conscientious in filing claims for exemption, and with a few exceptions, have adequately supported their claims. Practically all of them have been found to be valid. We are still talking here about the economic side, not the health and safety side.
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.
We have a declaration approach, but the fall-back is an affected party asking for full disclosure of all documentation, or the claimant being caught in a verification scheme, a sampling plan.
That is the first amendment. It relates to that first piece of the mandate on the economic side that Mr. Newton talked about.
The second amendment relates now to the second part of our mandate, which is the health and safety side of our compliance review. This amendment will permit claimants to enter into undertakings to voluntarily correct product health and safety information when it is found to be non-compliant.
As the act stands now, we must issue formal correction orders even if the claimant, having been told what the compliance issues are, is prepared to make those changes voluntarily.
These orders are published in the Canada Gazette in their entirety. However, they do not become binding until 75 days after publication, because of the 45-day appeal period that is offered, and then another 30 days at the end of the appeal period to comply and submit their amended material safety data sheet.
Allowing them, with the amendment, to correct these violations voluntarily will expedite that whole process of getting corrected information into the hands of workers more quickly. Right away the 75-day period is abrogated and, in fact, the 75 days is usually longer because we batch our orders to the Canada Gazette, so the period is certainly a couple of months more than that. Then the claimant provides an amended Material Safety Data Sheet, MSDS, which is then provided to the workplace. We already have compliance well ahead of the game.
In addition, claimants feel that these orders imply reluctance on their part to fulfill their responsibilities for workplace safety, when in fact they have told us that they would like to send an amended MSDS without an order being issued.
It is important to note here that if there is no compliance, and if the undertaking is not entered into, then immediately there will be a correction order and full compliance will be assured, no matter what.
Transparency in this proposal will be assured by publishing not the order in this case but the undertaking and the contents of the undertaking so that workers know what information was voluntarily corrected. Workers can go back to their workplace and make sure they see the correction in the workplace.
That transparency was a labour imperative so there would be no backroom deals cooked up between the commission and its claimants.
The third amendment speaks to that third piece of our mandate, the appeals process. This amendment will improve our appeals process by allowing the commission and a commission official to provide factual clarification of the record to appeal boards, when needed to facilitate the process. Right now, 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 — all of them from my experience — would have benefited from additional explanatory information from the commission, but this is not permitted under our legislation. We do not have standing in an appeal at this time.
We are not looking for standing as a full partner. We are looking to become a friend of the court and to provide clarification when it is needed.
Permitting us to make this type of clarification or intervention in an appeal as needed will expedite the appeals process and will likely enhance the quality of decision-making. One has to assume that if board members have all the information, and they are not rooting around for information, the decision will be better and faster.
None of these changes interferes with the statutory independence, which is absolutely essential for the commission to retain in respect of an appearance before an appeal board.
Those are the three amendments. I will turn it back to Mr. Newton.
Mr. Newton: I have a few brief concluding remarks. These amendments contained in Bill S-2 are straightforward. They are the product of extensive consultation amongst industry, labour and federal/provincial/territorial governments.
During the last session of Parliament, Mr. Fletcher mentioned that this bill was passed in the Senate without opposition or amendment. A panel of industry, labour and government representatives sat at the table in unanimous agreement saying they supported this legislation and they urged your support in moving it along.
Since last October, I convened another teleconference with my council on May 4, 2006, where I said that we are back in the process and I want to go to the Senate committee and say again that this bill enjoys unanimous support from all my council. I was given that vote of confidence and I am pleased to share with you today that the message from my Council of Governors to the Senate committee is that they are still strongly behind these amendments.
In a nutshell, the amendments will reduce the time required to review claims for trade secrets; speed up the correction of information that workers need to handle hazardous products safely; and expedite appeals. These amendments can only be positive for workplace health and safety.
The Deputy Chair: Before proceeding to questions from senators, Ms. Watts, can you walk us through the appeals process as it exists now and as it will exist after these amendments? As I read the legislation, I cannot see a great deal of difference. You will be involved in gathering some information, but you will still not be part of the appeals process, as far as I can see.
Why did you not go all the way and get involved in the appeals process? Can you walk us through the process now and how it will change? Then perhaps you could deal with the question?
Ms. Watts: I would be happy to do so. You are right that we are not part of the appeals process. We had long and interesting discussions with lawyers from the Department of Justice, even on the amendment that we are putting forward, to ensure that we would not become part of the appeals process. Instead, we would ensure that the statutory and independent nature of our tribunal would be maintained while still allowing for this friend-of-the-court role we propose to play. The short answer is that we do not feel that we should be, legally, part of the process, as an independent tribunal appearing before its appeal board.
However, what does that get us in terms of the process? We would become — if I can use this analogy — a talking record. If a record could talk, it would tell you where the ambiguities are; it would clear up the ambiguity that unfortunately resides in written paper. That is the simplest way to put it.
When an appeal board, appellants and affected parties look at the record of the screening officer, the evidence put before the screening officer and the decisions rendered, it should be patently obvious exactly what happened. Unfortunately, the reality is that at times there are ambiguities; there are policies used that perhaps are not as clearly evidenced in the record. Assumptions are made, and weight-of-evidence approaches taken by the scientists involved that are not fully understood by those using the record for the purposes of an appeal.
I can speak with some recent experience, given that my former position was the Chief Appeals Officer. I sat through many appeals and listened to board members have protracted discussions about why this particular study had been used to support this decision; where was the information supporting the decision that had been taken? Appellants were scratching their heads as to why this study had been used instead of another one; and why this ingredient had been classified in a particular manner? A piece of paper could have been passed very simply to the board or appellant that would provide the information they were missing: I am not putting forth a position or defending my decision, but providing some clarity where there seems to be some ambiguity.
That will happen. It will not interfere with the process other than at the point where the record has already been provided. The appeal board is convened, the appellants and the affected parties now have standing and they make their submissions to the appeal board. Once everyone has all their information before them, questions arise and they often have a teleconference or a pre-hearing conference. That is when this kind of information would be most helpful and it should be before the hearing, ideally.
It would be as simple as a written question from the appeal board. The question would always go through the appeal board to the commission, and the commission official would send send an answer back. We do not purport to come in person. Again, we do not want to look like we are coming to be examined by the appellant; but, if possible, we would like to provide that information in writing.
We will bring a second phase in our regulatory scheme that if this passes. This phase would allow for an in-person appearance if a question came up at a hearing where it was absolutely essential to obtain clarification.
[Translation]
Senator Robichaud: Is the format of Bill S-2 the same and does it contain the same provisions as the former Bill S-40 that was tabled to this committee?
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Mr. Fletcher: My understanding is that it does.
[Translation]
Senator Robichaud: My second question is for Mr. Newton, who maintains that the Commission unanimously supports this bill. If memory serves me well, all stakeholders, including yourself, who came before the committee last year were unanimous in their support of the bill and wanted it to move forward. Mention was made of industry worker representatives. Am I to understand that nothing has changed in the interim?
Mr. Newton: They were invited to testify before the committee last October. This time around, I did not know who was scheduled to appear. To be clear on where people stood, I organized a teleconference with all of the witnesses who appeared to find out how they felt about the proposed changes. They indicated that their position was unanimous on May 4, that they were prepared to appear before the committee and that we had their permission to reiterate their support for the bill.
Senator Robichaud: Last year, the bill was adopted without amendment at the committee and third reading stages, and it even went all the way to the House of Commons. I hope for your sake that things will move a little more quickly this time around.
[English]
Senator Cochrane: My question is supplementary to Senator Keon's earlier remarks. The process for putting accurate information into the hands of workers will be much more efficient now. You say that it will take approximately 75 days less. Could you give me the timeline for correcting public health and safety now? What is the timeline now as compared to what it will be once this legislation is passed?
Ms. Watts: We have to take into consideration the time it takes to render the decision, which currently can be anywhere from 12 to 18 months, given that we have a backlog of claims to hear. Once the decision is rendered, it takes two to three months for it to be published in the Canada Gazette. Then there is a 45-day appeal period. If there is an appeal — and this is where it is so important that we be transparent and provide information to claimants to diminish appeals — that process can take another 18 months. Meanwhile the health and safety information still has not been corrected and put into the hands of the workers. In the case of an appeal it can take a long time for information to be corrected.
We have not yet mentioned that although we propose a change to the appeals process, we have not had an appeal for over five years. That is because we instituted a dispute-resolution mechanism five years ago when we started our renewal program. We have inserted touch points with our claimants throughout the first-instance decision-making process that allows us to communicate transparently to claimants about the information we use to render our decisions so there are no surprises at the end of that process.
In the past, claimants may have been unhappy, upset and surprised when they received their decision and needed to go through an appeals process to get that information. They may still be unhappy under this process, but they understand the basis on which that decision was made, as the information is shared with them all along. As a result, we have seen a dramatic diminution of appeals.
In the best case scenario, where there is no appeal, we have a two- or three-month period until it is published in the Canada Gazette and then we add the 75 days to that. We are talking about a six-month period where the information is not in the hands of the workers whereas, with the voluntary undertaking, as soon as they have made that change they sign an undertaking that the information has been put in the hands of the workers.
Senator Callbeck: Did you say that you have not had an appeal in the last five years?
Ms. Watts: That is correct. We have had 16 appeals in total, and five appeal hearings for those 16 appeals. They were the big ones, the 3Ms and Monsantos of the world, and they went on for some time.
Senator Callbeck: Is there a fee to appeal?
Ms. Watts: Yes, the fee is $2,000 regardless of the grounds. That fee is nominal; it is certainly not meant to be a cost- recovery fee. There is also a fee for filing a claim for exemption.
Mr. Fletcher: There is a 50 per cent discount for small business.
Senator Callbeck: Did I understand you to say the average length of time of an appeal is 18 months?
Ms. Watts: Yes, it is based on our modified experience with five appeals. We have three part-time appeal-board members, and a couple of times it was difficult to get the three members together, along with all the scientists, the appellants' lawyers and the affected parties.
Senator Callbeck: This amendment on the appeals should lessen that time?
Ms. Watts: Yes, that cannot account for all the delays we experience during the appeal period, but as Mr. Newton indicated earlier, in the renewal we undertook only these three items that require legislative amendment. We have made all sorts of changes administratively and through regulatory means, one of which is expediting the appeal process by being more efficient with pre-hearing conferences, structuring, and training of appeal-board members. The short answer is yes, this last piece should expedite that process.
Mr. Newton: The commission went through a renewal. The old commission — for want of a better description — issued compliance orders, which are quasi-judicial judgments, without sharing with the chemical industry or the claimant the reasons. The claimant would make a claim and would get an order telling them to change documentation in a material way in nine or ten places. The only way they could find out what motivated the changes was to appeal. Then, on appeal, because of this legal limitation, the commission was not permitted to give a full explanation.
During our renewal we tried to shift the pendulum from an appeals process to an information-sharing process at the beginning. The assumption was that the earlier the claimants know where we are coming from scientifically, the earlier the debate can take place on weight of evidence or relevance of a study or testing method, in order to avoid an appeal.
When we get an advice document from our scientists, we give it to the industry before the decision is made. We tell them that it is the basis of our science, it is at variance with theirs, and ask for their opinion on it. We have tried to open access to information before these decisions are made that set the stage for appeals.
To some extent, this amendment is still needed because it is only a policy that we share information with the industry; it is not a legal requirement. However, it is a fail-safe at the end. It gives them statutorily couched access to information that in the past had been withheld from them.
Senator Cordy: It makes our job easier when all the stakeholders agree that something is good.
Mr. Newton talked about the exception to full disclosure as revealing a trade secret, and that is common sense. If someone spends a lot of time on research and development, it would not be good to reveal it to competition.
How do you explain to employees the health and safety aspects of hazardous materials without disclosing what the material is?
Mr. Newton: That is an excellent question and one about which our labour members of council are vigilant. Most people would have difficulty understanding the concentrations and mixtures of chemical ingredients in scientific terms.
What is important to the worker is that the ingredients of the health and safety declarations are disclosed. Many times they are not. It is important that their toxic properties are clearly stated. Many times they are not. The first-aid measures and preventive measures are not clearly stated.
In our work, it is important we ensure that the safety documentation is corrected to 100 per cent. With that documentation in the hands of an employer, the employer will then set up health and safety committees to train employees how to use the product and how to protect themselves. We have a mandate to ensure that the health and safety declarations are accurate for ingredients and concentrations that are not disclosed. We call it the balancing act, balancing the right to conceal hazardous product information and ingredient information, with the workers' right to know. We have that point of concealment, although we ensure that there is total disclosure of the health and safety impacts of the product.
Senator Cordy: Do you work well with the labour groups involved?
Mr. Newton: The labour groups are vigilant. We have the Canadian Labour Congress, CLC, and another labour group on our council, and two from industry. Sometimes we joke that it is the council of dynamic tensions. However, they work extremely well together, because industry believes it is responsible for protecting workers, and the union representatives and council agree with that. There are healthy debates, but when it comes to workplace safety, they are on the same page. That makes our job easier.
For 95 per cent of our renewal, we have done many things, such as opening up transparency and saying, ``Here is our scientific advice; you do not have to appeal to get it. You can even talk to our scientists. If we are wrong, we want to get our science right.''
We have done a great deal. All of this has been encouraged. In fact, it was the industry representative on our council at the time who encouraged open disclosure. They asked us to share information. They asked, Why are you hiding behind an appeal process to some extent where we cannot get at it? Labour supported that. They said, The sooner we have that out there, the sooner we can get better documentation and the sooner workers can be protected.
It was an interesting renewal. It was rewarding, but having overseen it, I felt that industry, labour and federal and provincial governments worked well together toward a common cause. That is the result today.
Senator Forrestall: Having spent a number of years on the transportation of hazardous products, I am curious about the relationship or impact of that act and the matters you are discussing here on that area. Second, do you suggest that we are withholding from the transporters of such products the identification of the ingredients that are in the products so as to prevent the transporter to effect the safest method of moving it?
Mr. Newton: I will take the second part of your question. Ms. Watts can take the first part.
I met you in the transportation sector a number of years ago in another capacity. It is nice to see you again.
The trade-off is that trade secrets are not revealed, but the health and safety measures are. However, in the event of any workplace accident, spill or transportation incident, where the product documentation indicates that these ingredients are not fully disclosed, our act permits us to reveal to a qualified medical practitioner what the product ingredients are for cleanups and for protection of people at the site. There is an emergency release mechanism for us to share, but it is withheld from those transporting and handling containers, et cetera.
Ms. Watts: To answer the first part of your question, our relationship with Transport Dangerous Goods, TGD, is that of a colleague. The role of TGD and the piece that they cut out in the health and safety world is distinctly different from ours. Ours is in the workplace, theirs is in transport, and it is complementary. That is how I would describe our relationship. The hazard classification system we use for classifying our hazardous materials in controlled products is complementary to that used by Transport Dangerous Goods. When we work on projects of mutual interest, such as global harmonization, we work with the TDG people alongside of us, as well as the environment people, to ensure that we all have the same understanding. Once you are in a workplace, our piece of the health and safety world involves the non-disclosure of only the ingredient name, because all other health and safety information and first aid measures must be disclosed for the trade secret ingredient. Only the identity is not disclosed.
Senator Forrestall: Being a plodder and not a brilliant person, I hope there is a complementary benefit and not just a convenient benefit.
Ms. Watts: Our clients hold our feet to the fire there. The Monsantos and the industry people out there who have to deal with so many of us make sure that we are complementary and not at cross-purposes.
Senator Forrestall: Monsanto and the three or four others were not far from the back of my mind because I recall heated discussions some years ago now — and you have just referred to it, I am surprised to hear it again — that transportation is not the workplace.
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Senator Champagne: Thank you, Mr. Chairman. When Bill S-40 was examined previously, I was not yet a senator. I have a question for you, as a rookie. I have read the documents and as I understand it, Ms. Watts, the amendments concern three important areas: economic considerations, health and safety issues and the appeals process. However, who are the people most affected by these amendments and who convinced you to bring in these amendments and re- introduce Bill S-40, given that it is identical to the previous bill? Were you pressured by the industry, scientific experts, or workers? How is it that this bill is before the committee today?
Ms. Watts: That is a rather difficult question to answer because in the case of the first two amendments, and in particular the amendment respecting the declaration, the industry very much favoured this approach. It was the most difficult one to deal with, in terms of our role. Did the industry really deserve this type of work reduction? Was this type of approach really needed? The answer is yes.
The other challenge was to convince workers that this was not merely a plus for the industry, but rather a win-win situation. If the administrative burden is lightened both for us and for the industry, then workers stand to benefit because the process of providing material safety data sheets will be expedited and corrective action taken more quickly in the workplace.
At the same time, there was pressure from within the industry for a voluntary approach. That was another challenge we faced with our unionized colleagues. It came down to a matter of perception, the perception that the Commission was in no real hurry to provide material safety data sheets or to take other corrective action, which is not at all the case.
In fact, the president of another company, Monsanto, told us that he really wanted to comply, but wanted to do so without having to see a notice in the Canada Gazette informing the public that Monsanto and another company had been ordered to make changes.
Finally, and more importantly as far as I am concerned, delays were encountered because considerable ambiguity prevailed.
Senator Champagne: Since everyone appears to be in agreement, I do hope that it will not take parliamentarians five years, the length of your appeals process, to refer Bill S-2 back to the Senate and then on to the House of Commons.
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Mr. Fletcher: It was the Senate, it was not us.
The Deputy Chair: Mr. Fletcher, we have been nice up to now.
Mr. Fletcher: You have to catch me first.
Senator Fairbairn: You may not be able to answer this question, or even wish to, but can you give us a grade-one version of exactly what happens here. What is the process when, at some point in time, someone believes something is not right and, piece by piece, it comes to you, through you and then finally gets settled? You do not have to use Monsanto, you can make one up.
It is fascinating, and it is an important piece of legislation. Can you give us a fundamental notion of how you are alerted, what it could be and how you get to where you want to be?
Mr. Newton: When hazardous products are imported into Canada, sold or distributed, if there is no trade secret — concentration mixture or formulation — it goes straight into the market. The product documentation and the product go into the market without a pre-review. It is up to the provincial, territorial and federal jurisdictions, through their normal monitoring routine, to determine whether they are compliant or non-compliant.
In the sole situation where there is a trade secret formulation, which is an exception to the WHMIS rule of full disclosure, only when the industry wants to protect a trade secret do they seek our assistance — our service, if you will. We do not look for them. We do not tell them they have to send anything to us. We are totally reactive. I do not know who is at my door today, honestly. The couriers show up, they are bonded, and they have trade-secret documentation. We are totally demand-driven; that is the first point.
One on one, an example of a real-life situation — I will de-identify the company because it serves no purpose — we received an application for trade-secret protection, and it was a fire-fighting foam used only at airports. The scientific opinion of the company that wanted the trade secret not disclosed was radically different from our scientific opinion. We believed acute exposure could cause damage to the central nervous system. Their view was that chronic overexposure could cause damage.
That is the type of stuff that we discuss with the industry. We share our science, and in the end — using a bridge analogy — we have a trump card. We can order compliance. We would rather have them come into compliance voluntarily.
By sharing information in the end, we required them to restate the toxic properties in that case, to be more in line with our opinion. That required them to change the protective measures and the first aid for exposure.
In our old system, our current system, we have to order them to comply even though they saying, we see the light here. We issue an order of compliance that is in the Canada Gazette. They then send in their documentation, which is the previous documentation amended in accordance with our discussion, our provisional order. We will accept it if it is in compliance with our order, and they will amend their documentation. We hope they would do so wherever it is sold in the world, although the order is only for Canada. However, we do have leverage in the sense that it would be irresponsible, if they agree with our science, not to amend their product documentation wherever the product is sold. That is beyond our jurisdiction, but due diligence would suggest that they do that.
We do that type of thing all the time. I used examples — I think, but I do not know — that some of the products we get are phytotoxins, but they do not disclose that at all on product documentation. We look at the ingredients, the concentrations, the threshold levels for disclosure or whatever and we say it is a phytotoxin and you have to change it for these declarations. Then it goes back.
Last year we issued 2,103 orders — almost like judicial orders, for want of a better word, to change product documentation. We did not get an appeal. We are dealing with DuPont and other American companies; 45 per cent of our claimants are big American companies — Union Carbide, 3M, et cetera. They are well resourced.
By the time we issue the order, which we must do under the legislation, they know it is coming; they have agreed and they are prepared to submit amended documentation.
When Ms. Watts said we have had no appeal in five years, it is not that we have not had conflict. Probably we have issued thousands of compliance orders, but without appeal. It means we have negotiated compliance in terms that ensure that the workers in the workplace have the correct documentation and the means to protect themselves.
That is on one side. On the health and safety side, they know they are submitting the documentation to us for 100- per-cent review. That is the irony, that we find these violations — about nine per claim on average. The violations are failure to disclose an ingredient that had to be disclosed, failure to adequately disclose the toxic properties, or failure to adequately describe the preventative measurements or first aid treatments. Of the violations we look at, 90 per cent are in what we call the core safety areas, not in the editing, format, commas and stuff like that.
On one side of the house, the industry has demonstrated a tremendous ability to meet the trade-secret protection mechanisms to have it declared a trade secret and not disclosed — 4,000 out of 5,000, perhaps. Ms. Watts can correct me, but I think that is the order of magnitude. On the health and safety side, every year, over 2,000 orders have to be issued to order compliance.
Labour sits at our table. We have to give a performance report, an operational report, to labour every year with industry at the table. We publish these statistics in our annual report. It is not as if we show them and hide them; we openly publish them. We give them to all the provincial regulators as a means to say maybe you want to focus your inspections on the plastic sector, group sectors or groups of products. We find non-compliance in these areas. By extension, perhaps your provincial programs could benefit if you were to look at these areas under your provincial mandate.
That is why the council has provincial regulators, labour and industry at the table, and we talk openly, just like this.
Senator Fairbairn: That is very useful. Thank you.
I assume by what you have said throughout this meeting that it would be unusual for one of these clear processes to end up in court.
Mr. Newton: That is right. If I use the example of getting into an adversarial stance with the industry, which has happened, and taking it through our appellate process — through the entire Federal Court process — a worker could work with a product with significantly inadequate and inaccurate safety declarations and find out seven years after the fact. That is why we said, when we started the review, that we had to shift the appeals from the rear-end to the front and do dispute resolution, share information and get undertakings right up front. Only in that way do we adequately serve the interest of the workers. If we get into a litigious process, it can be drawn out for years and the documentation does not change. It remains inaccurate until the final court decision. That is why we moved away from the courts.
The Deputy Chair: There being no further questions, I wish to thank all our witnesses for clear presentations.
Honourable senators, in view of the consensus on this legislation and in view of the process that it has undergone, perhaps we could move to clause-by-clause consideration tonight rather than doing that tomorrow. We could even dispense with clause-by-clause consideration and ask for approval of the bill without amendment, and I could report it to the Senate.
Senator Robichaud: This bill is not long and following the normal procedure of clause-by-clause consideration would take only a few minutes. In that way, it could not be said that we did not follow the proper procedures.
The Deputy Chair: I see consensus for that.
Is it agreed that the committee move to clause-by-clause consideration of the bill?
Hon. Senators: Agreed.
The Deputy Chair: Is it agreed that the title stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Is it agreed that clauses 1 to 9 be adopted?
Hon. Senators: Agreed.
The Deputy Chair: Is it agreed that the title be adopted?
Hon. Senators: Agreed.
The Deputy Chair: Is it agreed that this bill be adopted without amendment?
Hon. Senators: Agreed.
The Deputy Chair: Is it agreed that I report this bill without amendment at the next sitting of the Senate?
Hon. Senators: Agreed.
The Deputy Chair: Thank you very much.
Honourable senators, we have one small, straightforward item of business, and that is consideration of two draft budgets, which have been circulated to you.
The first budget has a bottom line of $54,500. This budget is for the special study on mental health. The breakdown is $2,500 for professional and other services, $10,000 for transportation and communications and $42,000 for all other expenditures.
There is a further breakdown on page 3.
Senator Cordy: I move the adoption of this budget.
The Deputy Chair: Will all those in favour so indicate?
Hon. Senators: Agreed.
The Deputy Chair: We now move to our budget for legislation for the fiscal year ending March 31, 2007. It has a bottom line of $8,000 with $6,000 for professional and other services and $2,000 for all other expenses.
Senator Cochrane: I move the adoption of the budget.
The Deputy Chair: Will all those in favour so indicate?
Hon. Senators: Agreed.
The Deputy Chair: Thank you, honourable senators. That concludes our meeting.
The committee adjourned.