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Performance Accomplishments

MSDS Compliance

Strategic Outcome

Provide Canadians with workers that are knowledgeable about the health and safety hazards of exposure to chemicals found in products associated with claims for exemption.

Context

MSDS Compliance is the Commission’s “scientific arm.” Our scientific evaluators review MSDSs and some labels of products associated with claims for exemption to make sure they provide enough health and safety information to comply with WHMIS requirements. They take into account the relevant federal, provincial and territorial legislation and the latest scientific information available on the product ingredients and their known health and safety hazards. Evaluators provide advice to the Commission’s screening officers, who decide whether the MSDS complies with regulations, and issue a formal order for revision if it does not.

At the conclusion of the MSDS review process, a formal Statement of Decisions and Order 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 material safety data sheets reviewed have been found non-compliant with WHMIS requirements. (See Annex B – MSDS Violations and Claims Statistics.)

A Notice of Decisions and Order 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.

Accomplishments

Backlog Reduction
One outcome of organizational renewal has been an increase in claim submissions. A major element of strategic planning for the Commission has been to deal with the claims backlog, which now numbers more than 900. Some 25% are refiled claims.

2001–2002 was the first year of implementing the 5-Year Backlog Reduction Plan; a key element of this plan was recruiting and training new personnel, particularly in the MSDS Compliance Division. In addition to hiring extra screening officers and MSDS evaluators with Program Integrity Funding obtained from Treasury Board, several internal vacancies also had to be filled. Staffing the evaluator positions has proved to be difficult, as comparatively few candidates have the necessary qualifications (a degree in biology with experience in the evaluation of hazardous chemicals and toxicology) and competition for these candidates is intense both within and outside government. The Commission made use of all possible options to fill these vacancies, including employment equity programs, job fair recruitments, deployment and internal and external competitions. Most positions are now filled, and staffing will continue into the next fiscal year for the remaining positions.

The delay in staffing, the further delays that will be occasioned by the learning curve for new employees, and the significantly higher-than-estimated volume of new claims in the past three fiscal years have prompted a detailed review of the 5-Year Backlog Reduction Plan.

The statistics on workload analysis and prediction needed for the review were produced by the Claims Management System, a computer application originally developed to record and track the progress of claim submissions. The review also identified and assessed new options for claims management. Inputting formulation data for each claim into a computerized database, we were able to determine the frequency of specific hazardous ingredients in the backlog of claims. This enabled us to develop priorities based on Toxicity Profile Summaries for the most frequently occurring hazardous ingredients and to adjust the unit time cost estimates for various stages of claim processing. Also, entering formulation data into the database early in the process will now greatly facilitate grouping the claims for review efficiency and increase the scope of such groupings beyond what is possible using only the criteria involved for fee purposes.

The new backlog reduction plan is still in development, but it is clear that to reduce the volume of unprocessed claims to a reasonable level over the next five years, the Commission’s resources must be increased to an output capacity of approximately 500 claims annually. Operations and Corporate Services staff will continue to work out the elements of the new plan for backlog reduction in the coming year, and undertake discussions with Treasury Board officials on options for resolving shortfalls in resources.

Client Services

Strategic Outcome

Provide Canadians with protection of valid confidential business information concerning suppliers’ or employers’ hazardous products.

Context

Client Services helps suppliers and employers protect trade secrets while still meeting health- and safety-related disclosure obligations under WHMIS. We register claims for exemption, issue registry numbers and ensure the security of claim information. Claim registration allows a company to import or sell its product while the Commission is reviewing the claim and making its decisions. We also provide information and guidance to suppliers, distributors, producers, employers and other stakeholders about regulatory requirements and the Commission’s mandate and procedures.

At this time, the Commission deals with about 120 separate companies, many of which have numerous products on which they wish to claim exemptions. Approximately 40% of claim submissions come from the United States.

Accomplishments
During the past fiscal year, the Commission monitored its activities respecting claims registered and enquiries serviced, against its service standards. The service standards call 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 some 200 enquiries in 2001–2002, all within the established service standards.

Once a claim is submitted, Client Services carries out a pre-registration check. The claim is then registered, and a registry number is issued within seven days of receipt, if the supporting documentation is complete. When there is an express request from a claimant, the Commission can and has registered claims within a few hours of receipt. Claim registration allows the company to import or sell their product while the various decision making processes are carried out at the Commission.

Despite delays in staffing operational positions and a continued high level of claim submissions, the Commission surpassed its claim processing targets last year. A total of 350 new claims were received and 369 were registered*, respectively 15% and 21% above the previous year’s totals of 305 in both categories, and well above the 300-claim target. The Commission believes this significant increase is, at least in part, attributable to a renewed confidence in the Commission by industry stakeholders.

Of the 369 claims registered, 211 were registered within 48 hours and 128 between three and seven days of receipt. The remaining 30 claims required significant further consultation with the claimant before registry numbers could be issued. Problems which delayed registration included documentation discrepancies between MSDS information and formulation information, missing mandatory information, delayed receipt of fees and MSDS software conversion inadequacies which arose when companies amalgamated systems.

The claimant may decide to withdraw their claim at various stages of the registration and review process.

Once the Commission considers a claim a trade secret, the claim remains in effect for three years. At the end of that period the claimant can refile a claim for exemption.

To afford affected parties an opportunity to make representations to the Commission with respect to claims, a Notice of Filing must be published in Part I of the Canada Gazette outlining the basic characteristics of the registered claims. During the 2001–2002 fiscal year, the Commission published four such Notices, covering 367 claims for exemption.

Based on their assessment of the information submitted by the claimant, screening officers then issue a decision to grant or deny the validity of the claim for protection of confidential business information.

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 confidential business information that would normally be included in the product’s MSDS. Every claim for which a decision was issued this fiscal year met the criteria.

Claims Management

The computer system used to register, record, track, manage and analyze claims was completely rebuilt with new software in 1999–2000. It is now providing the greater flexibility and capacity the Commission requires to handle its workload. Further improvements are identified and added on an ongoing basis.

A number of renewal initiatives have progressed through the design, consultation, testing and approval stages and have now reached implementation. To make claims processing more transparent and efficient, advice documents prepared by the MSDS Compliance Division have been shared with claimants for some time now, and a pre-assessment process has been developed and is awaiting staff resources for implementation. Pre-assessment is part of a voluntary MSDS compliance program for claimants, in which they have an opportunity to remedy obvious technical shortcomings in an MSDS before formal review by a screening officer. In addition, preliminary steps have been taken for the legislative amendments necessary to permit compliance measures agreements and a procedure for issuing draft orders to claimants.

One factor that, in the past, has often slowed the processing of claims is the lack of complete information about the products/substances in question at the time a claim is filed. HMIRC has explored the option of requiring a statement of disclosure of 100% of the composition of any product on which a claim is being made; however, enforcement would require an amendment to the Regulations. We have now asked claimants to provide this information voluntarily, and so far the voluntary approach is working well.

New Fee Schedule
When Treasury Board published its new cost recovery policy in 1997 and updated it in 1998, HMIRC initiated a review of its fee structure, which was no longer congruent with government policy, particularly in terms of charges that relate to services for the public’s benefit. A new fee schedule successfully made its way through a process of development, claimant feedback, revision and approval by the Council of Governors, and was submitted to Treasury Board.

After Treasury Board approval, new fee regulations were drafted with the aid of the Department of Justice. There followed a formal submission to Treasury Board; the Minister of Health granted approval, as did the President of Treasury Board, and by the end of the fiscal year the new regulations were published in the Canada Gazette for public comment. The new fee structure came into force on June 13, 2002.

The new system is simple to administer, since it replaces the previous complicated groupings with one flat rate. It also reduces the amount of fees paid by claimants, on the basis that many aspects of claim registration and review benefit the public, rather than the claimants. The fee for refiled claims (renewal of exemptions on previously accepted claims on which the time has expired) is reduced, as is the amount of supporting information required, and the fee reduction for small business has been retained. Claimants may provide the required information in any form or format. For convenience, a new and simpler Application for a Claim for Exemption Form will be posted on the Web site.

In October 2001, we introduced a credit card option for fee payments, simplifying the process both for our clients and our own accountants and eliminating currency conversion problems for foreign clients.

During 2001, Client Services recorded net payments of $860,000 through cheques and credit cards.

Outreach

In April 2001, the Vice-President, Operations, visited WHMIS coordinators and other OSH staff in Manitoba, Saskatchewan, Alberta and British Columbia to discuss co-operation in detecting unfiled claims. Later in the year, similar trips covered Ontario, Quebec and the Maritime provinces. If information about a controlled (hazardous) substance is omitted from a product’s MSDS without a claim being filed, the worker’s right to know about the hazards he or she is dealing with has been compromised. However, detection of unfiled claims is not within the Commission’s mandate; it is the responsibility of the provincial/territorial OSH agencies. Good working relationships with these agencies, therefore, are essential. The meetings helped Commission staff gain more understanding of the issues and challenges OSH agencies face, and to gauge the demand for any support services from the Commission in the provinces.

The Commission has produced a field reference tool to assist provincial and territorial inspectors in detecting and reporting indicators of unregistered trade secrets and proprietary information in the Hazardous Ingredients section of MSDSs. The document was revised with comments from the provinces and territories to make it more user-friendly, and some referrals from the provinces and territories have been received.

Commission representatives also attended Hazardous Material (HAZMAT), Canadian Labour Congress (CLC) and Industrial Accident Prevention Association (IAPA) conferences in 2002 to maintain currency with industry health and safety developments and inform participants about HMIRC services. The Commission has acquired a customized display stand for use at such events, to establish a presence and provide a means of exhibiting and distributing informative material.

In addition to participating in events directly related to serving Canadian stakeholders, the Commission has provided support for the Canadian delegation involved in international discussions on the global harmonization of the requirements for communicating chemical hazards. In 2001, HMIRC representatives were asked to accompany the Canadian delegation to one of those meetings, where we presented the Canadian experience with trade secret exemption mechanisms and commented on draft documents.

Client Questionnaire

The Client Services questionnaire initiated in the last quarter of 2000⁷2001 was continued last year. Survey questionnaires are sent each month to companies that have filed claims, to obtain feedback on their level of satisfaction with information obtained from Client Services and from the Web site, on whether they thought their claim was handled promptly and efficiently, and how they rate the service provided overall. Numerous supportive comments have been received, and 84% of respondents indicated a satisfaction level of eight or better on a scale of 10.

Dispute Resolution

Strategic Outcome

Provide Canadians with a system that resolves disputes in a fair, efficient and cost-effective manner.

Context

Dispute Resolution provides the means by which claimants and affected parties can deal with a variety of issues that may arise during the Commission’s review of claims for exemption and associated MSDSs. Procedures for the resolution of such complaints and disputes supplement the formal appeals process by providing for the early identification and resolution of any problems arising out of work processes related to claim validity and/or MSDS compliance. Our success is demonstrated not only by the fact that no appeals have been filed in over three years, but also that we’ve been able to rely on our new processes to resolve differences such that no formal complaints or disputes have arisen in this same period of time. This reinforces our confidence in the direction we have taken with our renewal initiatives.

If it becomes necessary, the Commission is empowered to convene tripartite boards with representatives of industry, labour and government, to confirm, vary or rescind the decisions or orders being appealed.

An appeal may relate to the compliance of an 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. The Commission plans to identify some benchmarks for timing as part of its review of the dispute resolution process.

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 appeals 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.

Accomplishments

Although serious disputes and appeals do not figure largely in the Commission’s work, when they do occur, they can be both lengthy and costly. In the interests of achieving our ultimate goal—to promote the health and safety of Canadian workers—we have streamlined our procedures and become more transparent and accessible in all respects. This effort included a new conceptual framework for Dispute Resolution (DR) developed in 2000–2001. The DR team was active last year preparing the new process for implementation and putting some features into practice. The key goals of the new framework are:

• To prevent or minimize disputes;
• When disputes arise, to identify them quickly and resolve them in an expeditious, cost-effective, fair and open manner, recognizing that appeals are not always the best remedy; and,
• To provide parties with options for resolving disputes in a non-adversarial, collaborative and informal atmosphere, particularly in the case of scientific issues.

The new DR framework spans two business lines. As well as dealing with dispute resolution proper, i.e., the formal appeals procedure, it makes changes in the claims process to reduce the incidence of disputes and appeals at their source by making MSDS review more transparent and consultative.

Meetings with the Justice Department took place to sort the components of the new framework into those that require statutory amendments, those that require regulatory amendments and those that fall under the Commission’s administrative authority. Of the latter, several initiatives at the Client Services end have already been put into practice.

We have implemented feedback mechanisms throughout the claims process, both to help eliminate misunderstandings and disputes, and to improve our own performance. New guidelines and manuals ensure a standardized approach at all stages (and serve as a training tool), procedures now ensure improved contact with clients and clients are provided with more information. A voluntary MSDS pre-screening process (to identify any obvious deficiencies and enable the claimant to correct them before formal screening begins) is in place and awaiting staff resources for implementation.

The advice document prepared for the screening officer by scientific evaluators has been shared with claimants for two years as a pilot project, and continues to be provided under the new DR framework. Some 75% of claimants respond to the advice document, and of those, about one third require some level of discussion with the screening officer. Discussions take place in person or by phone and so far, very few issues have been difficult to resolve. We are turning our attention next to developing guidelines for facilitated discussions to deal with more contentious issues, and to refining our training programs and tools, as well as setting up procedures for monitoring and evaluating performance.

The appeal process itself has been significantly modified. New elements include a simplified procedure for appointing appeal board members, longer appointments to provide continuity and to address training issues, and a procedural manual covering all aspects of the process. In addition, a Commission official would be permitted to participate in an appeal hearing to clarify technical information in the findings of a screening officer.

Some aspects of these changes require statutory or regulatory reform, and work is continuing on advancing the amendments that will be required to complete the new process. A number of amendments are also sought to streamline the Regulations and to bring them into line with government-wide changes intended to modernize legislation.