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7. Confidential Business Information

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 the

Hazardous Materials Information Review Commission
427 Laurier Avenue West, 7th Floor
Ottawa, ON
K1A 1M3
Telephone: 613-993-4331
Fax: 613-993-4686
E-mail: hmirc-ccrmd@hc-sc.gc.ca

Claims for Exemptions

What is confidential business information?

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.

What information can the supplier claim as confidential business information?

The supplier can claim 2 pieces of information [section 11(1) HMIRA]:

  1. the chemical identity or concentration of any ingredient of a controlled product; and
  2. the name of any toxicological study that identifies any ingredient of a controlled product.

What information can the employer claim as confidential business information?

The employer can claim 4 pieces of information [section 20 Ont. Reg.]:

  1. the chemical identity or concentration of any ingredient of a controlled product;
  2. the name of any toxicological study that identifies any ingredient of a controlled product;
  3. the name of a controlled product; and
  4. the name of a supplier.

Who decides if a claim for exemption is valid?

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.

What steps should a claimant (i.e. a supplier or employer) take in order to file a claim?

  1. Obtain and fill out a Claim for Exemption form. The form and instructions for filling it out are available from the Commission. The form includes a section where the information that is being claimed as confidential must be disclosed.
  2. Calculate the fee for filing the claim and make out a certified cheque or money order in Canadian funds for the appropriate amount, payable to the Receiver General of Canada.
  3. Make a copy of the label and MSDS for the controlled product in question (or submit originals).
  4. Send the completed claim, the fee and the proposed label and MSDS by registered mail, or deliver in person, to the Commission [section 9 HMIRR].

What does the Commission do upon receiving the claim?

The Commission

  1. gives the claimant a registry number;
  2. publishes a notice in the Canada Gazette that a claim has been filed;
  3. waits for written submissions from affected parties in response to the notice in the Canada Gazette;
  4. reviews the claim and rules on its validity;
  5. reviews the product label and MSDS to ensure that the health and safety information provided meets WHMIS requirements;
  6. notifies the claimant, affected parties who made written submissions and enforcement agencies whether the claim has been accepted or rejected; and
  7. publishes the decision in the Canada Gazette.

What factors are taken into account when deciding upon the validity of a claim?

The Commission must take the following factors into account [section 3 HMIRR and section 21 Ont. Reg.]:

  1. the number of people other than the claimant who know the information;
  2. the measures taken by the claimant to protect the confidentiality of the information;
  3. the economic value (actual or potential) of the information to the claimant;
  4. the economic value of the information to the claimant's competitors; and
  5. the amount of money and other resources invested by the claimant in order to develop the information.

Information on the above 5 factors must be provided by the claimant as part of the Claim for Exemption form [section 8 HMIRR].

Can a supplier sell a controlled product for which a claim is pending?

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.].

What must a claimant do if the claim for exemption is granted?

The claimant is required to revise the MSDS, and where applicable, the label, to include:

  1. a statement that an exemption has been granted;
  2. the date of the decision granting the exemption; and
  3. the registry number assigned to the claim.

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].

What can a claimant do if the claim for exemption is rejected?

A claimant has 3 options:

  1. accept the decision of the Commission and revise the MSDS, and where applicable, the label, to include the confidential business information that was the subject of the claim;
  2. appeal the decision of the Commission; or
  3. withdraw the product in question from the market without revealing the information considered confidential.

Can confidential business information be revealed?

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:

  1. a chemical is used, to which exposure is strictly regulated under provincial occupational health and safety law; and

  2. the identity of the chemical has been withheld from labels and material safety data sheets, on the grounds that that information is a trade secret.

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.

Appeals

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.

Who hears an appeal?

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.

What steps are involved in the appeal process?

  1. The appellant files a statement of appeal with the Commission. The statement must be in writing and include the grounds for the appeal, any documents supporting the appeal and a filing fee.
  2. The Commission convenes an Appeal Board in the province where the claimant carries on most of his or her business.
  3. The Appeal Board reviews the ruling on the original claim for exemption, the statement of appeal and any supporting documents.
  4. The Appeal Board rules on the appeal and notifies the claimant, the appellant and any other affected parties.
  5. The ruling is published in the Canada Gazette.

Fees

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.

What is the fee for filing a claim for exemption?

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:

  1. one controlled product containing one or more confidential ingredients;
  2. more than one controlled product, all covered by a generic MSDS, and containing one or more confidential ingredients;
  3. more than one controlled product, all of which contain the same confidential ingredient(s); and
  4. any combination of confidential ingredients in any combination of controlled products.

If the information being claimed is the identity or concentration of any ingredients, plus any of the following,

  1. the name of the controlled product,
  2. the name of the supplier, or
  3. the name of any toxicological study that identifies that ingredient,

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

  1. having 100 or fewer employees, and
  2. having a gross annual revenue of $3,000,000 or less in the previous fiscal year.

What is the fee for filing an appeal?

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.

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