Confidential business information is protected under WHMIS (Workplace Hazardous Materials Information System) Both the supplier and employer can file a claim to be exempted from disclosing information normally required on a label or MSDS. The requirements respecting confidential business information are spread among several pieces of legislation:
This chapter provides an overview of the WHMIS requirements respecting confidential business information. More detailed information is available in the WHMIS Core Material, or from theHazardous Materials Information Review Commission
Confidential business information means technical information on a product or its manufacturing process that has economic value and that is usually known only to the producer.
The supplier can claim 2 pieces of information [section 11(1) HMIRA]:
The employer can claim 4 pieces of information [section 20 Ont. Reg.]:
The Hazardous Materials Information Review Commission decides whether a claim for exemption is valid, and whether the proposed label and MSDS for the controlled product meet WHMIS requirements. The Commission is a federal agency reporting to the Minister of Health.
The Commission must take the following factors into account [section 3 HMIRR and section 21 Ont. Reg.]:
Information on the above 5 factors must be provided by the claimant as part of the Claim for Exemption form [section 8 HMIRR].
Yes. A supplier can sell or import a controlled product for which a claim has been filed, while withholding the information considered confidential, as long as the MSDS, and where applicable, the label, show the date the claim was filed and the registry number assigned to the claim [section 26(1) CPR].
The same requirements apply to an employer wishing to use a controlled product for which a claim has been filed [section 22(1) Ont. Reg.].
The claimant is required to revise the MSDS, and where applicable, the label, to include:
If the claimant is an employer, these requirements are in the Ontario Regulation, [section 23]. If the claimant is a supplier, these requirements are in the CPR, [section 27].
A claimant has 3 options:
Yes, in 2 circumstances. First, in an emergency, suppliers and employers must provide any information they have about a controlled product, including confidential business information, if a medical professional asks for that information in order to make a diagnosis or give treatment [section 30(1) CPR and section 24 Ont. Reg.].
Second, certain government officials have access to confidential business information where that access is necessary in order to administer or enforce legislation [section 46(2) HMIRA]. For example, inspectors of the Ministry of Labour may need to know confidential business information from time to time. Consider a workplace where the following is true:
In such a situation, an inspector would need to know the identity of the chemical, to ensure that worker exposure to it is properly controlled. The inspector would be able to find out the identity of the chemical through the Hazardous Materials Information Review Commission.
Decisions of the Commission on claims for exemption can be appealed. An appeal can be launched by the owner of the confidential business information (i.e. the claimant), or by any other party, such as a worker, who may be affected by the Commission's decision.
Appeals are heard by Appeal Boards. Each Appeal Board is a 3 member panel that includes a representative of labour, a representative of industry and an independent chairman. The Commission appoints the chairman who in turn appoints the other 2 members from lists of potential candidates that have been submitted by labour and industry. Appeal Boards are completely independent of the Commission when deciding upon the outcome of an appeal.
The Commission is intended to be self-financing and therefore charges fees to cover the costs of reviewing claims for exemption and hearing appeals. The fees presented here are for the first 3 years of the Commission's operation.
The fee for filing a claim can vary and depends on the type and amount of information being claimed. The explanation given here is a summary only and for full information claimants should refer to the Claim for Exemption Instructions Guide.
If the information being claimed is the name of the controlled product or the name of the supplier, the fee is $1000.00 [section 5 HMIRR].
If the information being claimed is the identity or concentration of any ingredients, the basic fee is $1200.00, plus $100.00 for each additional ingredient, MSDS or label [section 4 HMIRR]. These fees apply to claims that involve:
If the information being claimed is the identity or concentration of any ingredients, plus any of the following,
there is no fee in addition to the one for ingredient identity or concentration [section 6 HMIRR].
The fees for small businesses are half of the above [section 7 HMIRR]. A small business is defined as
It costs $2000.00 to file an appeal [section 12 HMIRR] Changes to section 12 of the HMIRR have been proposed that will reduce the appeal fee for small businesses and for certain affected parties, such as an individual worker who is not a member of a trade union.