Table of Contents | Print This Page

9. WHMIS and the Ontario Ministry of Labour

  • ISBN: 978-1-4249-6996-8
  • Revised: August 2008
  • Content last reviewed: June 2009

This guideline is being updated to reflect changes that take effect July 1, 2016 as amendments to the WHMIS regulation, Regulation 860, come into force.

In Ontario, the Ministry of Labour is responsible for the administration and enforcement of both the federal and provincial WHMIS (Workplace Hazardous Materials Information System) legislation. This is the result of an agreement between the federal and provincial governments that only the latter would enforce the legislation so that employers and suppliers would not be subject to inspections by both federal and provincial inspectors. This means that for the purpose of enforcing WHMIS, inspectors of the Ministry's Operations Division have the duty to monitor compliance with the Hazardous Products Act, the Controlled Products Regulation, the Occupational Health and Safety Act and the Ontario WHMIS Regulation.

It should be pointed out that the above is true only for workplaces under provincial jurisdiction. For federal workplaces such as banks, post offices and airports, inspectors from Human Resources Development Canada's Labour Program will enforce the WHMIS legislation.

Enforcement of Ontario's WHMIS Legislation

To enforce the provincial WHMIS legislation, inspectors will primarily be checking that controlled products are properly labelled or identified, that material safety data sheets are present in the workplace, and that worker education programs have been carried out. Inspectors will monitor compliance with WHMIS during the course of their regular workplace health and safety inspections, or during the investigation of related complaints, accidents or work refusals.

Where non-compliance is found, the inspector will enforce the WHMIS legislation by issuing an order to correct the violation within a specified time period. This is no different than the way in which all other occupational health and safety legislation has been enforced to date.

Ontario's WHMIS legislation gives the inspector one new power, and that is the power to stop the use of a particular controlled product.

For a violation of the WHMIS provisions in either the Occupational Health and Safety Act or Ontario's WHMIS Regulation, the penalties on summary conviction are the same as the penalties for any other violation of the Act or its regulations, namely, a fine of up to $25,000 and/or a term of up to 12 months in jail.

Enforcement of the federal WHMIS Legislation

To enforce the federal WHMIS legislation, inspectors will primarily be checking that supplier labels and material safety data sheets have been provided and that they meet the content and design requirements outlined in Chapter 3. WHMIS and the Supplier. If judgements need to be made about the classification of a controlled product, or about the accuracy of technical information on the MSDS, these will generally be referred by the inspector to scientific or medical staff located in the district offices or at the head office.

Inspectors will monitor compliance with the federal legislation during routine inspections of the supplier's workplace, and in response to particular questions or complaints from employers who buy controlled products from the supplier.

Where non-compliance with the federal legislation is found, the inspector will use the enforcement tools available under the Hazardous Products Act. These are different than the enforcement tools available under the Occupational Health and Safety Act. Specifically, under the Hazardous Products Act the inspector does not have the power to issue an order to a supplier for a violation of the federal WHMIS legislation. The inspector would first give the supplier the opportunity to comply voluntarily. If unsuccessful, the inspector would use the "power of seizure" to achieve compliance, and in some cases prosecution would also be pursued. These actions are explained below.

Voluntary Compliance

After being informed of a particular violation of either the Hazardous Products Act or the Controlled Products Regulation, the supplier has several options to correct the violation. For example,

  1. removal from sale—the supplier can withdraw the controlled product in question from sale until the violation is corrected;
  2. recall—the supplier can stop selling and recall a controlled product that has already been distributed. This may involve return of the product for correction, or correcting the violation on site;
  3. disposal—if the supplier does not want to correct the violation, the supplier can dispose of the controlled product in question. Disposal can take place at the supplier's workplace or at the customer's workplace if the product has already been distributed.

The Power of Seizure

If the supplier does not agree to any of the above courses of action, the inspector has the power to seize the controlled product [section 22(1)(e) of the Hazardous Products Act]. The inspector is likely to use this power in cases where the nature of the violation warrants strict control of the product.

The inspector can have the seized product stored on site or removed and stored elsewhere. Once seized, the supplier is not allowed to change or interfere in any way with the controlled product unless permitted to do so by the inspector.

Within two months of the seizure, the supplier can apply to a Provincial Court judge to have the controlled product returned. In so doing, the supplier has to provide evidence that the supplier is entitled to have the controlled product returned, for example, evidence that the violation that led to the seizure has been corrected. Whether the controlled product is returned to the supplier depends upon the evidence presented to the Provincial Court judge and also on whether the Ministry of Labour intends to prosecute the supplier in addition to seizing the controlled product.

Prosecution

Prosecution of the supplier is an action that would be considered in the following circumstances:

  • a violation of the Hazardous Products Act or Controlled Products Regulation that presents a serious risk to worker health or safety;
  • interference with a controlled product that has been seized;
  • obstruction of an inspector;
  • repeated violations, usually despite repeated warnings; and
  • where other enforcement options have proven unsuccessful.

The penalties on summary conviction are a fine of up to $100,000 and/or a term of up to 6 months in jail. On proceedings by way of indictment, a fine of up to $1,000,000 and/or a term of up to 2 years in jail may be imposed.

Previous | Next