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Departmental Overview

What’s New

1. The Hazardous Materials Information Review Commission (HMIRC) continued the work of renewal and reform, begun in January 1999, as outlined in its publication Commission Renewal: Blueprint for Change and the accompanying Workplan. The Workplan, which lists the specific actions needed to realize the vision mapped out in the Blueprint, was approved by HMIRC’s Council of Governors in January 2000, published, and mailed to stakeholders in March of that year. Both documents have also been published on HMIRC’s Web site. The Commission expects to complete implementation of the Workplan during this planning period, placing emphasis on measures that enhance its ability to serve Canadian workers. (See The Planning Context for more information on the renewal effort.)
2. As part of its program of renewal and reform, the Commission has adopted a business attitude that focuses on performance and strategic partnerships. To better express this focus, HMIRC has redefined its organization along three business lines: Client Services, MSDS Compliance and Dispute Resolution. This year, for the first time, the Commission will carry out its planning and reporting functions through these business lines.
3. HMIRC unveiled its new Web site on March 1, 2000. The site offers on-line publications and forms, instructions for filing claims and appeals, e-mail interactivity, links to related Canadian and international sites and much more. The Web site supports both the Government of Canada’s goal of having all its departments and agencies fully on-line by 2004 and HMIRC’s goal of improved service delivery to its clients. (See The Planning Context for more information about the Government On-Line program and HMIRC’s Web site.)
4. HMIRC held its first-ever workshop for stakeholders in Ottawa on June 15, 2000. The event, dubbed “Dialogue 2000”, was designed to better inform stakeholders of HMIRC’s regulatory requirements and thereby improve the quality of claim submissions. Highlights of the agenda included an update on the renewal program, a guided tour of the Commission’s new Web site, and presentations by staff on a variety of topics related to the Commission’s operations. For each topic, presenters explained the current process, outlined any proposed changes, and answered questions from participants. All of the 25 representatives of industry and governments in attendance gave the workshop high marks for quality, relevance and usefulness, according to written evaluations submitted at the end of the day-long event. HMIRC plans to make its informational workshops an annual event.
5. HMIRC is updating its cost recovery operations to bring them in line with the Treasury Board of Canada’s current Cost Recovery and Charging Policy. Under the new scheme, HMIRC will propose to charge user fees for services rendered through its Client Services business line (which generally provide a private benefit to industry) while eliminating fees for services related to MSDS Compliance (which are performed in the public interest). HMIRC is now developing a revised fee schedule based on the framework. (See Horizontal Initiatives for more information on this initiative.)
6. HMIRC has developed a comprehensive dispute resolution process that seeks not only to resolve disputes through an effective appeal process, but to prevent disputes from arising in the first place, and, when they do arise, to resolve them quickly, fairly and economically. The new process, which is administered through the Dispute Resolution business line, introduces a number of important changes designed to make existing screening and appeal procedures simpler, more transparent and more effective. These changes encourage active participation by claimants and appellants, the sharing of information, improved communication and the resolution of disputes in a non-adversarial, collaborative and informal atmosphere. (See The Planning Context for more information on HMIRC’s dispute resolution process.)

Mandate, Role and Responsibilities

About the Hazardous Materials Information Review Commission
The Hazardous Materials Information Review Commission (HMIRC) was created as an independent agency in 1987 by proclamation of the Hazardous Materials Information Review Act. HMIRC is a small but important public sector institution charged with providing the trade secret protection mechanism within the Workplace Hazardous Materials Information System (WHMIS) at the federal, provincial and territorial levels.

WHMIS is a nation-wide program created in the late 1980s through a consensus of labour, industry and government. It is designed to provide Canadian workers with the information they need to protect themselves from the harmful effects of hazardous (or potentially hazardous) materials used in the workplace, while minimizing any adverse effects on industry and the economy’s capacity to generate wealth and employment. Health Canada’s Product Safety Bureau is the lead federal agency responsible for WHMIS policies and for making sure the program is applied uniformly in all jurisdictions.

How does the system work? Under WHMIS, manufacturers and suppliers of designated products must provide employers with information on the hazards of materials produced, sold or used in Canadian workplaces. This information is conveyed by the Material Safety Data Sheet (MSDS) that accompanies the product and by the product’s label. By law a product’s MSDS must fully disclose all hazardous ingredients in the product, their toxicological properties, the safety precautions to be observed when using, transporting or storing the product, and the recommended first-aid treatment to be applied in case of uncontrolled exposure to the product. Employers, in turn, provide this information to their employees through product labels, worker education programs and workplace MSDSs.

Some manufacturers are reluctant to disclose the identity of their products’ key ingredients or secret formulations for fear of losing their competitive edge in the marketplace. In such cases, the company can apply to HMIRC for an exemption from its legal obligation, under WHMIS, to disclose all of a product’s hazardous ingredients.

Once HMIRC registers the claim for exemption, the company is free to sell its product. Meanwhile, HMIRC makes a decision on the validity of the claim by reviewing the supporting information provided by the claimant in light of the criteria set out in the Hazardous Materials Information Review Regulations. HMIRC also determines whether the product’s MSDS (and sometimes its label) meets WHMIS requirements. This determination is based on a thorough scientific assessment of all the product’s ingredients and their health risks. If the MSDS falls short of WHMIS’s regulatory and legislative requirements, HMIRC orders the claimant to correct it and later follows up on the order to ensure compliance.

In the case of a valid claim, the exemption remains in effect for three years, at which time the claim must be re-submitted if the product continues to be sold in Canada, or withdrawn. It should be noted that companies that receive an exemption from having to disclose the claimed confidential business information must still comply with WHMIS requirements in all other respects.

In short, HMIRC enables Canadian and international chemical companies to protect their legitimate trade secrets while meeting their legal obligations under WHMIS. HMIRC also provides an appeal mechanism by which claimants can contest the rulings of the Commission.

The following statutes and regulations are central to the Commission’s work:

Hazardous Materials Information Review Act
This Act establishes the Hazardous Materials Information Review Commission and sets out its powers and responsibilities. The Act also specifies the information that can be claimed as a trade secret.

Hazardous Materials Information Review Regulations
These regulations specify the criteria against which the validity of a trade secret claim is assessed and set out the filing fees for claims and appeals.

Hazardous Materials Information Review Act Appeal Board Procedures Regulations
This document details the procedures to be followed by a claimant or an affected party in filing an appeal. It also establishes the procedure for dealing with appeals and conducting appeal hearings.

Hazardous Products Act
This Act provides Health Canada with the authority to control, restrict or prohibit the sale, advertising and importation of products and materials that could pose a health risk to Canadians. Under the Act, products used in the workplace that exhibit certain hazardous physical properties or toxic effects are classified as controlled. The Act covers a wide variety of workplace products but specifically excludes, among other things, pest control products, radioactive substances and products covered under the Explosives Act. The Act places a legal requirement on Canadian suppliers and importers of controlled workplace products to prepare (or obtain) and transmit an MSDS, and to apply a label disclosing prescribed information, as a condition of sale. Where a supplier is exempt from disclosing a specific chemical identity, the Act requires the disclosure of the generic chemical identity.

Controlled Products Regulations
In conjunction with the Hazardous Products Act, the Controlled Products Regulations establish specific criteria that identify controlled products and set out the requirements for labelling and MSDSs.

Provincial and Territorial Occupational Safety and Health Acts and Regulations
Most provincial occupational safety and health acts specifically reference the Hazardous Materials Information Review Act and refer employers who would like to protect a trade secret to HMIRC. In the case of claims for exemption made by these employers, HMIRC issues any compliance orders under the appropriate provincial/territorial occupational safety and health act. In this respect, HMIRC is truly a federal/provincial/territorial agency.

Mandate

Under the authority of the Hazardous Materials Information Review Act and the provincial and territorial occupational safety and health acts, the Commission is charged with carrying out the following mandate:

• to formally register claims for trade secret exemptions under WHMIS and issue registry numbers;
• to issue decisions on the validity of claims for exemption using prescribed regulatory criteria;
• for products that are the subject of a request for exemption, to make decisions on the compliance of their MSDSs and labels within WHMIS requirements as set out in the Hazardous Products Act and Controlled Products Regulations and various provincial and territorial occupational safety and health acts; and
• to convene independent, tripartite boards to hear appeals from claimants or affected parties on decisions and orders issued by the Commission.

Role

HMIRC’s role is to balance the right of chemical companies to protect legitimate trade secrets against the right of workers to have accurate health and safety information about hazardous products used in the workplace.

Responsibilities

The Commission is governed by a Council of Governors, whose members represent workers, suppliers and employers, and the federal, provincial and territorial governments. The Council makes recommendations to the Minister of Health on matters such as changes to the procedures used to review claims for exemption or to hear appeals, and applicable fees.

The President and CEO is appointed by the Governor in Council and, as the Commission’s Chief Executive Officer, has the authority and responsibility to supervise and direct the organization’s work on a day-to-day basis. The President is accountable to the Council of Governors and the Minister of Health. The Vice-President of Operations has the authority and responsibility to supervise and direct work within the MSDS Compliance and the Client Services business lines. The Vice-President of Corporate Services and Adjudication, who is also the Chief Appeals Officer, has the authority and responsibility to supervise and direct the work within the Dispute Resolution business line and Corporate Services.

Organization Chart Click on the above image if you wish to view it in full-size. WARNING: This will display the full-size image in a NEW browser window.

Departmental/Program Objective

The Commission’s departmental objective is to allow suppliers and employers involved with hazardous industrial materials to protect legitimate confidential business information related to their products and, at the same time, to ensure that workers are provided with accurate safety and health information regarding these products.

The Planning Context

Government Commitments

1. Renewal
HMIRC is entering its third and final year of program renewal. The process, begun in January 1999, is designed to transform the Commission into a more client- and results-based organization dedicated to meeting its clients’ changing needs efficiently and cost-effectively.

HMIRC laid out its renewal agenda in two key documents: Commission Renewal: Blueprint for Change, which establishes the guiding principles of renewal and maps the direction of change; and an accompanying Workplan, which enumerates the actions needed to realize the Blueprint’s vision. That vision is best expressed by the eight principles that form the cornerstones of renewal and the benchmark against which the Commission’s activities are measured: timeliness, accessibility, transparency, quality, consistency, competency, respect and fairness.

The Blueprint was developed in consultation with the Commission’s stakeholders. Both publications were approved by the Commission’s Council of Governors and by the Minister of Health, and both have been published and distributed to stakeholders as evidence of the Commission’s commitment to change. Both documents are available on the Commission’s Web site.

Many of the Blueprint’s 29 strategic measures have been implemented through administrative and procedural changes; others will require regulatory or statutory changes.

2. Dispute Resolution Process
When HMIRC set out to redesign its approach to handling disputes between itself and its clients (one of its renewal commitments), it realized that as well as improving the appeal process—the end stage of disagreements—it would also have to examine upstream events, those of the screening process¹, which is where many problems start.

Throughout the spring and summer of 2000, HMIRC worked with its WHMIS partners and stakeholders to analyze its current practices and to develop ideas for a comprehensive dispute resolution process that would include and complement the appeal process. The results of these labours are summarized in a document entitled Conceptual Framework for Resolving Disputes. The Framework outlines a set of proposed changes to the existing screening and appeal processes aimed at simplifying them and making them more transparent, cost-effective, fair and participatory—in short, more client-oriented.

HMIRC’s Council of Governors approved the Framework in October, giving the Commission a green light to finish developing the process. HMIRC is now preparing the administrative and legislative changes, guidelines and training programs needed to put its ideas into practice.

The new dispute resolution process, which is the responsibility of HMIRC’s Dispute Resolution business line, focuses not only on resolving disputes through an effective appeal process, but on preventing disputes from arising in the first place, and developing ways to resolve them—fairly, quickly and cost-effectively—when they do. The keys to the latter function are openness and communication. Both the remodelled screening and appeal processes feature more frequent contacts with claimants and appellants, through phone calls and conferences—particularly in the early stages—to brief them on policies, roles and procedures, to answer questions, and to create opportunities for the kinds of interactions that promote understanding and trust. Both processes emphasize the need to share information, to encourage clients’ participation and to identify problems early, before they become serious. For difficult cases, Dispute Resolution works to provide all parties with options for resolving the dispute in a non-adversarial, collaborative and informal atmosphere.

Among the proposed key changes to the screening process are these:

• HMIRC will introduce a new MSDS pre-assessment stage that includes a voluntary compliance option. Immediately after registration of the claim and before the formal review gets under way, HMIRC will examine a claimant’s MSDS for obvious technical violations and advise the claimant on how the MSDS might be improved with minimum effort. The claimant is given an opportunity to voluntarily amend the MSDS for those items. This procedure will speed up the screening process and reduce the number of orders issued by screening officers. It will also make accurate, complete MSDSs available to employers and workers sooner.
• After its health and safety evaluator has formally reviewed an MSDS and prepared an advice document for the screening officer, HMIRC will provide a copy of the advice document to the claimant for comment. This step includes provisions for identifying and dealing with any disagreements that might arise at this stage.
• HMIRC will propose changes to the legislation to allow claimants to enter into compliance measures agreements, in order to bring the MSDS into full compliance, as an alternative to a formal order.

Proposed key changes to the appeal process include:

• Allowing the Commission to play a role in appeal hearings to provide factual clarification of information.
• Measures designed to simplify the current appointment process for appeal board members: for example, appointing a three-member panel for a longer period, or reducing the number of nominees on lists of potential board members.
• Providing appeal board members and appellants with a procedural manual that sets out the regulatory context, the screening process, and information on how the appeal process works, has worked and can work.
• Measures to maximize the effectiveness of procedural conferences.

3. Government On-Line
Government On-Line (GOL) is the federal government’s multi-year project to provide Canadians with electronic Internet access to federal information and services 24 hours a day, seven days a week. The plan calls for all federal departments and agencies to be fully on-line by 2004. The program’s goals are to improve service delivery to Canadians, to increase citizens’ participation in government, to make the government more transparent and responsive to Canadians, and to spur Canada’s participation in the global e-commerce marketplace.

Many of the strategic initiatives of HMIRC’s renewal plan envisioned using the Internet to deliver the Commission’s programs and services more efficiently and effectively. HMIRC began planning its Web site in the fall of 1999; by the fall of 2000 HMIRC had extended its plan to incorporate the government’s GOL vision. HMIRC’s "Government On-Line Plan" describes how the Commission will implement, in three stages, the government’s GOL strategy.

HMIRC proudly launched its Web site on March 1, 2000. The site, which was developed in consultation with HMIRC’s clients, provides information about the Commission and its services, and instructions for filing claims and appeals. HMIRC’s publications and forms are available for viewing or downloading in a variety of formats. The site also features e-mail access with automatic acknowledgement, basic search capabilities, links to related sites, and a "What’s New" page to keep visitors abreast of recent developments and activities at the Commission.

The site was designed to comply with Treasury Board Secretariat’s Common Look and Feel Guidelines, to facilitate use by the disabled, and to respect both the letter and the spirit of the Official Languages Act. Indeed, HMIRC’s Web site achieves so much with such limited resources that it has been cited as a model for other departments and agencies to follow and showcased at several government workshops.

HMIRC is further developing the site to increase its functionality and features. Plans are under way to build in capacity for on-line filing of claims (e-filing) and fee payment (e-commerce). Also on the drawing board are advanced security and search capabilities, Internet forums, an electronic databank of toxicity profile summaries, a list of common MSDS errors, and templates and standard wording for MSDSs.

To further increase its accountability and transparency as a public service organization, and to encourage comment and participation by its WHMIS partners and stakeholders, the Commission has committed to posting all newly developed policies, regulations and procedures on its Web site.

As of January 1, 2001, HMIRC’s site had attracted over 10,000 visitors and supplied users with over one gigabyte of data.

Claims Backlog

Historically, HMIRC has received on average 200 new claims for exemption each year. In 1999–2000, however, the Commission received almost twice that number of claims (394). This unprecedented increase in workload has created a backlog of 650 claims. In addition, the Commission projects above-average rates of new filings in coming years, partly as a consequence of the healthy Canadian economy.

In the fall of 2000 the Commission applied for and received additional financial support to help it address the backlog. HMIRC will use the funds to hire additional staff to handle the projected increase in its workload and to reduce the size of the backlog over five years.

Among other things, HMIRC’s plan for dealing with the backlog of claims calls for increasing the number of claims processed annually during the planning period from 200 to a high of 425. This increase is possible because, thanks to HMIRC’s modernization and renewal program, the screening process has become more efficient.

Key Linkages to Other Documents

Because WHMIS is an integrated activity that spans many jurisdictions, the Commission works closely with its many partners in government, industry and labour.

HMIRC maintains close ties to Health Canada, which bears ultimate responsibility for administering the Hazardous Products Act. Our relationship with Health Canada’s WHMIS Division, which coordinates the development of WHMIS policy and strives to ensure that the program is applied consistently in all jurisdictions, is particularly important.

HMIRC also collaborates with Human Resources Development Canada, which is the lead agency for the federal government on occupational safety and health (OSH) programs; and with Justice Canada, on which it relies for legal advice on various issues.

HMIRC now contracts out some aspects of its work related to MSDS Compliance to the Canadian Centre for Occupational Health and Safety (CCOHS). Located in Hamilton, Ontario, CCOHS is a federal agency under Human Resources Development Canada. HMIRC’s arrangement with the Centre is fortuitous because it provides the Commission with much-needed assistance at a time when workloads have significantly increased.

Key Strategic Partnerships with the Private Sector and Other Levels of Government

The Commission is offering to build partnerships with provincial occupational safety and health (OSH) agencies (namely, departments of labour and worker compensation boards). OSH coordinators in the provinces and territories work on the front lines of both WHMIS and HMIRC programs, and their knowledge and expertise are invaluable to the Commission. For its part, HMIRC is looking for ways to help its OSH partners increase chemical companies’ compliance with WHMIS and identify unfiled claims that should be referred to the Commission.

Departmental Planned Spending