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Plans and Priorities by Strategic Outcome

Client Services Business Line

Client Services administers the process used by suppliers and employers who wish to protect confidential business information, while still meeting health- and safety-related disclosure obligations under WHMIS. We formally register claims for exemption, issue registry numbers, and ensure the security of all claim-related information.

Screening officers decide on claim validity by reviewing claimant information in support of the claim against regulatory criteria, taking into account any representations received from affected parties. These various activities are based on the Commission’s mandate as set out in the HMIRA and associated regulations.

Client Services also provides general advice and guidance to claimants (suppliers, producers, distributors, employers) as well as other stakeholders. This is carried out primarily on an ad hoc basis; however, we also include proactive outreach strategies in our program so as to communicate our mandate, industry-related regulatory requirements, etc., to as many stakeholders as possible.

Client Services collaborates closely with the MSDS Compliance business line, both in its ongoing work and on special projects.

Once a claim is submitted, Client Services carries out a pre-registration check. The claim is then registered, and a registry number is issued. Claim registration allows the company to import or sell their product while the various decision making processes are carried out within the Operations Branch. In this way, importing/selling disruptions are minimized, thereby maintaining product availability and access.

A claimant may decide to withdraw a claim at various stages of the registration or review process.

To afford an affected party an opportunity to make a representation to us with respect to any claim, a Notice of Filing must be published in Part I of the Canada Gazette outlining the basic characteristics of each registered claim.

Based on their assessment of the information submitted by the claimant and any representation received from an affected party, screening officers review the claim for exemption against the regulatory criteria and decide whether the claim is valid.

Plans and Priorities

The Commission has developed the following service standards as a means of measuring its performance in various areas of its work:

• Client Services will strive to respond to telephone enquiries within 48 hours and to written enquiries within a week. We expect to deal with approximately 100 enquiries annually during the planning period.
• Following a pre-registration check, claims will be registered within seven days after receipt of the completed claim, provided all the needed information has been included. At the request of a claimant, Client Services will register a claim in as little as 48 hours if the submission is in order. We expect to register approximately 300 claims annually during the planning period.

Screening officers will decide on the validity of claims for exemption, at a time concurrent with their determination of the compliance of the material safety data sheet associated with the claim (see also Strategic Outcome 2).

In addition to the day-to-day tasks outlined above, we will continue our program of renewal in Client Services by implementing the measures set out in the Blueprint for Change and the Workplan, as follows:

• Offer a workshop in the 3rd quarter as a means of promoting full communication with our tripartite stakeholders (government, industry and labour) in areas such as claim processing in general and changes to the cost recovery fee structure.
• Develop opportunities for joint initiatives with our WHMIS partners, both in Canada and abroad, who have similar interests and objectives.
• Launch a voluntary MSDS compliance program for claimants, which will afford claimants an opportunity to remedy obvious technical shortcomings in their MSDSs prior to the formal review by the screening officer.
• Upon the promulgation of regulatory amendments, implement the new cost recovery fee structure, which will recover costs associated with work done that is considered private benefit to industry.
• Propose amendments to the HMIRR to make it easier for claimants to demonstrate that certain information pertaining to their products is, in fact, a legitimate trade secret that should remain confidential.
• Maximize our impact on workplace health and safety by conducting market studies on unfiled claims, continue with our outreach efforts directed at the chemical industry, and maintain currency with international trends.
• Develop and enact policies and procedures designed to prevent misunderstandings and disputes between HMIRC and its clients.
• Work to inform other regulatory and/or registry agencies of government about our services and expertise.
• Increase our investment in the training and development of our employees to improve their awareness of—and ability to respond to—the needs of our clients.

Major adjustments

There are a number of new initiatives, including ones which involve regulatory amendments, which will present challenges in terms of staff training and claimant communications. These are (i) the new cost recovery fee schedule; (ii) the MSDS Pre-assessment Program; and (iii) a revised claim for exemption application form, which will reduce the amount of mandatory claimant information required to support a claim for exemption.

Key partners and relationships

HMIRC collaborates with Human Resources Development Canada (HRDC), which has responsibility for the administration of occupational safety and health (OSH) programs mandated by the Canada Labour Code (CLC); and with Justice Canada, on which the Commission relies for legal advice on various issues.

The Commission endeavours to build partnerships with provincial (OSH) agencies (namely, departments of labour and worker compensation boards). OSH co-ordinators in the provinces and territories work on the front lines of both the 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.

Major factors: challenges and risks

In cases where trade secret hazardous ingredient information is withheld from a material safety data sheet for a workplace controlled product, yet the supplier or employer has not filed a claim for exemption with the Commission, workers’ right to know about various chemical hazard information is being compromised. The identification of unfiled claims, and the initiation of necessary corrective action, is not within the mandate of the Commission; rather, this responsibility rests with provincial/territorial OSH agencies.

Within the Client Services business line, screening officers review claims for exemption and decide on claim validity. Over the past few years, a backlog of claims to be processed has accumulated at the Commission. For a full discussion of this backlog and the remedial measures which have been taken, please see Strategic Outcome 2.

Rationale

Client Services activities are related to statutory obligations set out in the HMIRA and the HMIRR. In terms of the work being carried out under the Commission’s renewal and re-engineering initiative, commitments outlined in the Blueprint for Change and associated Workplan documents, are being met.

Net Planned Spending ($ thousands) and Full Time Equivalents (FTE)

Monitoring

Claim registration activity is monitored through the application of service standards, while progress against the claim processing backlog such as the determination of claim validity, will be tracked on a monthly basis, with regular reports to Treasury Board. Client Services Survey Questionnaires are mailed out regularly to chemical companies who file claims for exemption, giving them an opportunity to rate their degree of satisfaction with the service they’ve received from the Commission, and to offer any suggestions for improvement. The Commission’s Council of Governors also plays a role in the monitoring of various Client Services activities, including the backlog, and maintains a particular interest in those matters related to the organization’s Blueprint for Change and the associated Workplan.

MSDS Compliance Business Line

MSDS Compliance is the Commission’s “scientific arm”. It helps ensure that workers know about the hazards of exposure to chemicals found in products associated with claims for exemption. The Commission reviews the related MSDSs and, in some cases, labels, to make certain that they provide appropriate health and safety information and guidance to comply with WHMIS requirements, based on the HPA, the CLC, and provincial and territorial occupational health and safety legislation. In each case, scientific evaluators review the most recent scientific information relevant to each of the products and/or its ingredients, and their known health and safety hazards. They provide advice to screening officers, who decide whether the MSDS complies with regulations.

At the conclusion of the MSDS review process, a formal statement of decision is forwarded to the claimant. If the MSDS does not meet the requirements, the screening officer issues a formal order for its revision and follows up to ensure compliance. All orders specify the period during which various changes must be made if the product is to continue to be sold in Canada. Since the Commission first began this activity in 1990–1991, some 95% of the MSDSs reviewed have been found non-compliant with WHMIS requirements.

A Notice is published in the Canada Gazette to make public the decisions and orders issued by the screening officer, and to initiate the time during which the claimant and affected parties may appeal the decisions or orders. If no appeal is filed, the claimant must provide a copy of the amended MSDS to the screening officer, who reviews it to ensure compliance with the order.

Plans and Priorities

HMIRC will review and verify the compliance of MSDSs and, in some cases, labels, associated with claim-related hazardous products. Where MSDSs and labels are found to be non-compliant, formal orders will be issued to claimants to have them corrected.

In addition to its day-to-day tasks outlined above, HMIRC will continue its program of renewal by implementing the measures set out in the Blueprint for Change and the accompanying Workplan. During the current planning period we will focus on the following initiatives relative to the MSDS Compliance business line:

• We will eliminate cost recovery associated with MSDS compliance work done in the public interest, in the context of Treasury Board’s Cost Recovery and Charging Policy.
• We will identify and develop opportunities for joint initiatives with WHMIS partners, both in Canada and abroad, who have similar interests and objectives.
• We will increase our investment in the training and development of our staff to ensure that they remain current on scientific and toxicological developments in the field of workplace chemical health and safety and are able to provide a high standard of service.
• We will propose amendments to the HMIRA to allow screening officers to enter into a Compliance Measures Agreement with claimants, whereby claimants undertake to voluntarily bring MSDSs into compliance rather than being compelled by an order of the screening officer to do so.
• We will continue to be proactive in WHMIS tripartite policy/interpretation analysis and development, and we will do more to communicate the results to claimants and the chemical industry as a whole.

Major adjustments

Depending on the timing of the promulgation of proposed statutory amendments to enable the implementation of the Compliance Measures Agreement program, staff training and claimant communication initiatives will be necessary to implement this new voluntary approach to MSDS compliance.

Key partners and relationships

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

We maintain close ties to Health Canada (HC), which bears ultimate responsibility for administering the HPA. Our relationship with HC’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. We also liaise with the WHMIS Division on matters related to the international harmonization of hazard communication requirements.

In the past, HMIRC contracted out some aspects of its work related to chemical hazard assessment to the Canadian Centre for Occupational Health and Safety (CCOHS). Located in Hamilton, Ontario, CCOHS is a federal agency under HRDC. Our relationship with the Centre is important because of the potential for CCOHS to provide us with much-needed assistance at a time when workloads have significantly increased.

Some members of our staff represent the Commission on two important WHMIS-related stakeholder groups. The Current Issues Committee is tripartite, consisting of representatives from industry, labour, as well as federal, provincial and territorial governments, which meets to consider ad hoc WHMIS policy and interpretation matters. The Intergovernmental WHMIS Coordinating Committee consists of federal, provincial and territorial representatives from occupational safety and health regulatory agencies, and its primary objective is to enhance the uniformity of WHMIS inspection, enforcement and policy interpretation across the country.

Major factors: challenges and risks

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), and these higher volume trends have continued into 2001–2002. This unprecedented increase in workload has created a backlog of approximately 900 claims.

In the fall of 2000 the Commission applied for and received additional financial support to help it address the backlog. HMIRC is applying the funds to hire additional staff to handle the projected increase in its workload and to reduce the size of the backlog over a 5-year period, which began April 1, 2001.

Among other things, HMIRC’s plan for dealing with the backlog of claims calls for increasing the number of claims processed annually during the 5-year planning period from 200 to a high of 425 in year three.

In 2001–2002, efforts continued to fill a number of vacant positions in the Operations Branch; however, due to a country-wide shortage of scientific/ toxicological personnel, coupled with intense competition within government for such resources, achieving a full complement of staff has taken significantly longer than anticipated. This has created a variance in terms of the targets set out in the 5-Year Backlog Reduction Plan, to the extent that a review of the Plan has been initiated.

Rationale

Activities in the MSDS Compliance business line are based on statutory obligations set out in the HMIRA and the HMIRR. The determination of MSDS compliance per se involves the application of the HPA and the CPR for supplier claims for exemption, as well as provincial and territorial OSH legislation where claims originate from an employer.

In terms of the work being carried out under the Commission’s renewal and re-engineering initiative, commitments are being met that are outlined in the Blueprint for Change and associated Workplan documents.

Net Planned Spending ($ thousands) and Full Time Equivalents (FTE)

Monitoring

Progress against claim backlog, such as the preparation of advice documents and MSDS compliance, will be tracked on a monthly basis, with regular reports to Treasury Board and variance analysis, including time utilization against operational workplan objectives.

The Commission’s Council of Governors plays a role in the monitoring of various MSDS Compliance activities, including the backlog, and maintains a particular interest in those matters related to the organization’s Blueprint for Change and the associated Workplan.

Dispute Resolution Business Line

Dispute Resolution (DR) provides all parties involved in a claim with a range of options, including facilitated discussion, for dealing with any issues that may arise from decisions and orders of the Commission. It supplements and works in conjunction with the appeals process by identifying and resolving problems and complaints, where possible, before an appeal becomes necessary. The less formal DR process is frequently more expeditious and effective in satisfying all parties, and is less costly than an appeal. The Commission ensures an impartial, unbiased decision making process that encourages consensus agreements.

An appeal may relate to the compliance of a MSDS, the rejection of a claim, or to a request that confidential business information be disclosed in confidence to an affected party for occupational safety and health reasons.

Claimants have 45 days to launch an appeal from the date that the Commission’s decision on a claim is published in the Canada Gazette; the length of the appeal process varies with the complexity of the case.

For each appeal filed, a Notice of Appeal is published in the Canada Gazette to provide affected parties with an opportunity to make representations to the appeal board.

The final outcome of the appeal process is a decision by the appeal board to dismiss the appeal and confirm the decisions or orders of the screening officer; or to allow the appeal and either vary or rescind the decisions or orders being appealed. A Notice of Decision, including the purport and reasons, is published in the Canada Gazette.

Plans and Priorities

HMIRC will convene independent tripartite boards to hear appeals and resolve disputes that arise from any of its orders and decisions. To date, 16 appeals have been filed on the decisions and orders rendered by screening officers. Nine appeals have been completed and seven were withdrawn by the claimant before the appeal board issued its final decision. Historically, 1% of claim submissions have resulted in an appeal; based on this figure, the Commission expects to hear three appeals annually during the planning period.

In addition to the day-to-day tasks outlined above, HMIRC will continue its program of renewal by implementing the measures set out in the Blueprint for Change and the Workplan. During the current planning period HMIRC will further develop the DR program by:

• establishing timetables, based on best practices and reasonable expectations, for the delivery of our services;
• establishing a complaint management system to deal with service complaints;
• systematically analysing decisions and orders of the Commission that have been successfully appealed to ensure that we are consistent in our decision making;
• soliciting feedback from our clients and sharing innovations and best practices related to the adjudicative/hearing process, in order to improve our services;
• further improving and streamlining the screening process by:
  • providing claimants with information about the Commission and its operations, especially the screening and appeal processes;
  • better briefing claimants at the pre-assessment stage on claims-related issues, including recent procedural changes and the voluntary compliance option.
• further improving and streamlining the appeal process by:
  • reviewing the appointment of appeal boards;
  • developing guidelines to assist appeal board members during procedural conferences;
  • creating a procedural manual for appeal board members;
  • providing appeal board members with formal training regarding appeals and tribunals;
  • developing guidelines for the content of the screening officer’s record;
  • developing evaluation and monitoring tools to assess the quality of our services and the effectiveness of the changes we’ve implemented under the DR program;
  • proposing amendments to the statute to allow the Commission to play a role in appeal hearings (for example, to clarify factual information).
• seeking additional funding from Justice Canada DR fund in order to:
  • develop guidelines and training plan for the implementation of the DR process;
  • design and develop a course outline and course material;
  • train staff, nominees and members to deal with DR process and related issues.

Major adjustments

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 process, which is where many problems start.

Throughout the spring and summer of 2000, HMIRC worked with its WHMIS partners and stakeholders to analyse its current practices and to develop ideas for a comprehensive DR 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 2000, 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.

Key partners and relationships

When necessary, the Commission convenes independent tripartite boards to address appeals or disputes from claimants or affected parties as early and effectively as possible. These appeal boards are made up of representatives from the Commission’s tripartite clientele of WHMIS stakeholders: industry (suppliers and employers in the chemical industry who wish to protect their trade secrets, and employers who rely on supplier MSDS information to prepare their own workplace MSDSs and training programs); labour, representing the workers who are exposed to these products; and the federal, provincial and territorial governments.

Major factors: challenges and risks

The new DR process, which is the responsibility of HMIRC’s DR 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 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, DR works to provide all parties with options for resolving the dispute in a non-adversarial, collaborative and informal atmosphere.

Proposed key changes to the screening process include:

• As a result of the pre-assessment stage, guidance in identifying possible non-compliance items on MSDSs will be provided to claimants who in turn will be granted opportunity to amend the MSDS, prior to the start of the formal review.
• HMIRC proposing amendments 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.
• Prior to issuing the final order, the claimant will be provided with a draft order, for review and/or discussion, to ensure it is understandable and that any other issues as to form, are clarified.

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.

Rationale

Continued support for the implementation of the DR initiative designed to assist the Commission in carrying out its statutory mandate more effectively and efficiently. Involves both dispute prevention and early resolution of disputes through non-litigious means, to reduce formal appeals.

The Commission is aware of the fact that the earlier disputes are resolved, the sooner the MSDSs will meet compliance standards which translates into improved safety in the workplace.

Net Planned Spending ($ thousands) and Full Time Equivalents (FTE)

Monitoring

The Commission will develop monitoring tools to assess the quality of the service and the effectiveness of the changes implemented in the appeals process, through the DR initiative. These tools will be aimed at:

• Assessing client expectations and satisfaction rates, through surveys, direct contact with participants and performance measurement indicators.
• Setting service standards.
• Communicating service and quality standards to clients.