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Departmental Performance

Summary 1998–1999 Performance Accomplishments

Cost Recovery

Commission costs are partly recovered through fees charged for filing claims for exemption and appeals. The Commission’s targeted level of cost recovery for fiscal year 1998–1999 was 25% of total annual program costs. The level of cost recovery achieved was 23%.

Since its establishment, the Commission has considered the achievement of operational efficiency and effectiveness measures to be a priority, and is continually striving to maximize the degree to which it can recover costs of operations. Close monitoring of such costs allows for the assessment of existing ways of doing business, and for the identification of any new areas which might be examined for improvement.

Cost recovery not only entails cost containment but also revenue. The Commission is cooperating with provincial occupational safety and health (OSH) agencies to increase compliance with the WHMIS trade secret requirements under the Hazardous Products Act.

Claims

As in past years, claims came principally from companies headquartered in Ontario and the United States. Claims are assessed against regulatory criteria which establish when a trade secret is deemed to exist. A valid trade secret claim permits the supplier to withhold or modify information that would normally be included in the product’s MSDS. All claims for which a decision was issued this year met the criteria.

Outputs: During fiscal year 1998–1999, the Commission registered 155 claims to bring the total to 3,012 claims registered up to March 31, 1999. To date, 1,526 of these have been withdrawn by claimants, while 597 were allowed by claimants to expire at the end of the three-year exemption period, for a total of 2,123.

A breakdown by geographical location of total claims registered and withdrawn since 1988 is presented below. Another 137 claims were received during this same period, of which 116 were withdrawn before being registered. The balance is awaiting registration due to incomplete regulatory required information.

Claims Status by Geographical Location as of March 31, 1999

Claimants choose to withdraw claims filed for a variety of reasons including:

• the product was never sold in Canada;
• the product is no longer being sold in Canada;
• the confidential business information (CBI) ingredient(s) has (have) been removed from the product formulation;
• former CBI ingredient(s) is (are) now being disclosed on the MSDS; or
• there has been a change in product ownership.

Notices of Filing: To afford affected parties an opportunity to make representations to the Commission with respect to claims, notices outlining the basic characteristics of registered claims must be published in Part I of the Canada Gazette. During the 1998–1999 fiscal year, the Commission published three such Notices, covering 169 claims for exemption.

Decisions and Orders

Outputs: During the 1998–1999 fiscal year, the Commission rendered decisions on a total of 143 claims for exemption.

Of the 143 claims which were adjudicated during the 1998–1999 fiscal year, all were found valid when assessed against the regulatory criteria respecting the confidentiality of the claimed information which ordinarily would have to have been disclosed on the relevant MSDS. However, MSDSs for all but 14 of the controlled products associated with these claims were found in non-compliance with the WHMIS requirements. In such cases, formal orders were issued by screening officers to bring about necessary corrections. An analysis of the MSDS violations found in respect of these claims is presented in Material Safety Data Sheet Review.

Issuance of Decisions as of March 31, 1999

Health and Safety Advice: Health and safety advice to the Commission, related to the compliance of MSDSs with WHMIS requirements, continued to be provided by Health Canada. This partnership with the Commission has existed, from the outset of operations, through a formal Memorandum of Understanding; however, as mentioned earlier in this report, a decision was made in December 1998, to transfer the department’s resources associated with this activity to the Commission, effective April 1, 1999.

The number of decisions rendered by the Commission is dependent on the number of health and safety advice documents received from the Toxicological and Chemical Evaluation Division. Advice documents relating to 219 claims were written by the evaluators. A total of 204 claims, for which an advice document had been received, were carried over into fiscal year 1998–1999 including 66 for which advice documents were provided in the last quarter of the fiscal year.

Material Safety Data Sheet Review

In recent years we have noted a positive trend in our analysis of MSDSs filed with claims for exemption, as screening officers find fewer violations. We believe that this is due to companies having more experience submitting MSDSs with their claims and more knowledge about what is required for compliance.

A significant proportion of time continued to be spent on preparatory work related to the issuance of decisions on claims for exemption and compliance of associated MSDSs. Often, a preliminary review of a claim results in the determination that the claimant has not provided all of the supporting documentation as required by the Hazardous Materials Information Review Regulations.

An opportunity is then given to claimants to supplement their initial submissions so that the decision on claim validity can be based on as much relevant information as possible. As for the determination of MSDS compliance, before seeking the advice of the Commission’s experts in this regard, claimants are contacted to ensure that the latest version of the MSDS has been obtained, and information is requested respecting the basis on which it was initially prepared by the claimant. This contact also affords the opportunity to identify/confirm claim status, in the event that the claim may be about to be withdrawn.

With this information, the Commission is better placed to render higher quality advice and decisions, as well as eliminating, to the fullest extent possible, work being done unnecessarily. Although the costs to the Commission in rendering decisions could be decreased by foregoing this process and rendering decisions on the face of the information provided by the claimant when the initial filing was made, it is likely that this would simply increase the number of appeals and potentially hamper the availability of products on the Canadian market. At the same time, Canadian workers are protected no less effectively because of these efforts on the part of the Commission.

Claimants, and any affected party that may have made a representation to the screening officer as a result of the Notice of Filing published in the Canada Gazette, are offered an opportunity to review and comment on the health and safety information and advice provided to screening officers. This step in the process has the primary objective of enhancing the transparency of the process.

Immediately prior to the formal signing and issuance of Statements of Decision/Order, screening officers conduct a telephone discussion with the claimant. The primary purpose of this discussion is to offer the claimant’s representative the option of going through the draft documents with the screening officer, and to seek clarification, if required, on any matter dealt with therein. At this time, the claimant may also wish to determine (for example, with a non-compliant MSDS) if the screening officer is amenable to corrective action other than that which is specified in the draft order. If the screening officer deems that any revision can be appropriately made to the statement, this is done.

Appeals

During the year in review, an appeal board was appointed pursuant to the Hazardous Materials Information Review Act for one (1) appeal filed against the decisions and orders of the screening officer.

In another appeal matter, a Notice of Withdrawal of the appeal board was published in Part I of the Canada Gazette on March 27, 1999, by the Chief Appeals Officer, for the withdrawal of five (5) appeals in accordance with the statutory requirements.

The appeals process is seldom used, and only one new appeal was begun in 1998–1999. Each appeal may involve several order items issued by screening officers. Over the lifetime of the Commission, appeal boards have heard eight appeals and ruled on 51 order items issued by screening officers. Appeal board decisions have upheld the majority of these orders, however, a significant number have been modified or rescinded. Seven appeals have been withdrawn prior to issuance of a decision by the appeal board.

Quality Management System

The Commission maintains a quality management system, elements of which were established many years ago and are detailed below.

Published Service Standards: During the past fiscal year, the Commission monitored its activities respecting claims registered and enquiries serviced, against its published service standards.

Claims Registered: Following a pre-registration check, the service standard calls for claims to be registered within seven days after receipt of filing, if the supporting documentation, as set out in the Hazardous Materials Information Review Regulations, is complete. When there is an expressed request from a claimant, the Commission can and has registered well-prepared claims within 48 hours of receipt; however, this is not accomplished without increases in unit time costs.

The Commission’s turnaround times for registration are important to claimants because registration allows the company to sell their product while the adjudication process is being carried out.

During fiscal year 1998–1999, the Commission received 176 claims, of which 155 were registered during this fiscal year. The remaining 21 were not registered. The supporting information required by regulation was incomplete and registration was impeded until the deficiencies were rectified by the claimant.

Of the 155 claims registered, 24 were registered within 48 hours of their receipt, and 116 were registered within seven days of their receipt. The remaining 15 claims were registered after seven days of their receipt as they were submitted with incomplete mandatory information.

Enquiries Serviced: The service standard calls for a Commission response to telephone enquiries normally within 48 hours, and written replies are expected to be handled within a week of receipt. The Commission responded to a total of 105 enquiries in 1998-1999, of which 89 were by telephone and 16 were written.

In-Branch Reviews: This is the term given to a process by which draft Statements of Decision/Order prepared by screening officers are peer-reviewed within the Operations Branch against several well-defined criteria. These reviews endeavour to promote such attributes as completeness, clarity and ensuring the Statement of Decision/Order is well reasoned.

WHMIS Enforcement Initiative

Enforcement of WHMIS disclosure requirements is a key ongoing factor impacting on the number of claims filed with the Commission. The responsibility for enforcing the reporting requirements of WHMIS lies with Human Resources Development Canada and the various provincial and territorial occupational health and safety agencies. Over the past year, staff liaised on an ad hoc basis with provincial government representatives regarding collaborative efforts to identify suppliers who claim proprietary information on MSDSs without filing a claim with the Commission.

The Commission will continue to support the efforts of provincial safety and health agencies to enhance the compliance of MSDSs with the trade secret exemption regulatory requirements. This will help to ensure that all suppliers become aware of their obligations in this respect, and that where necessary, claims for exemption are filed with the Commission, ensuring that a level competitive field is maintained for those suppliers who do file with the Commission.

Policy and Interpretation Issues

The Commission sought advice from Health Canada officials on policy and interpretation issues associated with the Hazardous Products Act and Controlled Products Regulations. The Commission continued to participate in the formal ongoing tripartite WHMIS forum (Current Issues Committee) to resolve policy issues, and in addition, on the Intergovernmental WHMIS Coordinating Committee which serves as the forum for intergovernmental consultation on matters related to WHMIS. These two bodies help to ensure that the Commission’s decisions on MSDS compliance are as consistent as possible with WHMIS tripartite consensus.