National Compliance Policy For The Workplace
Hazardous Materials Information System

This content was archived on June 24, 2013.

Issued by: The Intergovernmental WHMIS Coordinating Committee

Last revised: January 3, 2002

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Table of Contents

1. Purpose
2. Background
3. Definitions
4. Scope
5. Legislation & Authorities of the Whmis Framwork
6. Policy Statement & Guiding Principles
7. Roles & Responsiblities
8. Compliance Tools & Techniques
9. Response to non Compliance
10. Information on Compliance & Enforcement Activities
11. Associated Documents
12. Annex

1.0 Purpose

The purpose of the National Workplace Hazardous Materials Information System (WHMIS) Compliance Policy for the Hazardous Products Act (HPA) and occupational health and safety (OHS) legislation is to facilitate compliance with the WHMIS requirements. This policy establishes the principles for fair and consistent enforcement, informs governments, suppliers and employers of their responsibilities and explains the roles of the WHMIS regulatory agencies who enforce legislated WHMIS requirements.

Section 13 of the HPA places a legal requirement on the Canadian supplier of a "controlled product intended for use in a workplace in Canada" to transmit a MSDS and to apply a label disclosing prescribed information as conditions of sale. Section 14 of the HPA places a legal requirement on the Canadian importer of a "controlled product intended for use in a workplace in Canada" to obtain or prepare a MSDS and to apply a label disclosing prescribed information as conditions of importation. The Controlled Products Regulations (CPR), under the authority of the HPA specify the form and content of supplier labels, the type and arrangement of information on MSDSs, conditions of exemption and the criteria that define a controlled product.

Regulated parties and the WHMIS regulatory agencies need to have a common understanding of how these requirements will be applied. This policy:

• provides information that will guide the compliance and enforcement of the legal requirements of the HPA (CPR) and OHS legislation to ensure that the regulated parties are treated predictably and equitably throughout Canada;
• sets out the regulators' roles in the administration of the requirements of the HPA (CPR) and OHS legislation; and
• shows the interrelationships and differences between supplier and employer WHMIS requirements and related compliance / enforcement.

2.0 Background

WHMIS -- Canada's workplace hazard communication standard (implemented in 1988) -- is a national system with the prime objective of providing relevant safety and health information to Canadian employers and workers who use, store, handle and dispose of hazardous materials in workplaces so that they can take the necessary precautions to avoid injury, illness and premature death.

The key elements of WHMIS are cautionary labelling, material safety data sheets (MSDSs) and worker education and training programs. WHMIS ensures that employers have adequate information about hazardous materials being used in the workplace so that they can meet their legal obligations under federal, provincial and territorial OHS legislation to provide a safe workplace. Employers need to incorporate this information into their workplace health and safety programs. WHMIS addresses both the workers' right-to-know the identity and hazards of workplace chemicals, and the need for industry to protect confidential business information.

The program is enacted through complementary and interlocking federal, provincial and territorial (F/P/T) legislation which ensures a consistent national system of hazard communication for all Canadian workers. Administration of the federal HPA (CPR), coordinated by Health Canada, ensures consistency in the quality and quantity of hazard information, transmitted in the form of labels and MSDS from suppliers to users, for controlled products which are imported into Canada and/or traded between the provinces and territories. Provincial and territorial WHMIS legislation, as well as the WHMIS provisions of the Canada Labour Code administered by Human Resources Development Canada (HRDC) (Labour Program), specify requirements for workplace labelling, workplace availability of MSDSs and worker education and training programs.

The governments of each of Canada's provinces and territories have identified OHS agencies to administer the WHMIS program within their respective jurisdictions. The Labour Program of HRDC is the federal counterpart of the provincial and territorial OHS agencies and regulates federal workplaces. The coordination for WHMIS is a joint activity amongst the WHMIS regulatory agencies.

Each of the OHS regulatory agencies, in addition to conducting the compliance and enforcement program for WHMIS employer requirements has, through a formal agreement with Health Canada, agreed to enforce the WHMIS supplier/importer requirements of the HPA (CPR).

The WHMIS program was developed and continues to evolve through a consultative process with a consensus approach. This process provides for input from organizations representative of suppliers, employers, organized labour and the federal, provincial and territorial governments as reflected by the ongoing activities of these stakeholder groups at the WHMIS Current Issues Committee (CIC). Although the CIC has no formal powers, its role is to make recommendations to departments and agencies responsible for WHMIS legislation, particularly to the Minister of Health Canada, who is ultimately responsible for the administration of the HPA (CPR).

WHMIS includes a Hazardous Materials Information Review Commission (HMIRC) for ruling on claims for exemption from disclosure of confidential business information (i.e, trade secrets) on labels and MSDSs as well as appeals to these rulings. Chemical identities and certain other information can be claimed as a trade secret under the Hazardous Materials Information Review Act (HMIRA) administered by HMIRC.

3.0 Definitions

analyst: an individual designated by the Minister of Health Canada, under the authority of subsection 21(1) of the HPA, Part III, to provide laboratory analysis in support of the enforcement of WHMIS legislation.

compliance: the state of conformity of a regulated entity (including a corporation, institution, individual or other legal entity) or product with the legislative and/or regulatory requirements.

controlled product: WHMIS requires the disclosure of information in respect of "controlled products" intended for use in workplaces in Canada. A controlled product means any product, material or substance, specified by Part IV of the CPR, to be included in any of the classes listed in Schedule II to the HPA; i.e.,

Class A - Compressed Gas
Class B - Flammable and Combustible Material
Class C - Oxidizing Material
Class D - Poisonous and Infectious Material
Class E - Corrosive Material
Class F - Dangerously Reactive Material

employer: means a person, firm, association or body as defined under the respective OHS legislation of each provincial, territorial and federal jurisdiction.

enforcement: range of actions that may be taken from inducing to compelling compliance with the HPA (CPR) and/or OHS legislation.

inspector: means any person designated as an inspector pursuant to subsection 21(1) of the HPA or related OHS legislation.

intended use (of a controlled product): "a controlled product intended for use in a workplace in Canada" refers to the intention of the supplier. A supplier who sells a controlled product to a retail outlet for use by consumers is not subject to the WHMIS supplier MSDS and label requirements of the HPA (CPR) even if an employer, in turn, buys the product from the retail outlet for use in the employer's workplace.

supplier: means a person who is a manufacturer, processor or packager of a controlled product or a person who, in the course of business, imports or sells controlled products.

4.0 Scope

4.1 General: Pursuant to the supplier requirements established under the HPA (CPR) and employer WHMIS requirements under OHS legislation, this policy applies to:

• Canadian suppliers and Canadian importers of controlled products; and
• employers at workplaces in Canada where controlled products are used, stored, handled and disposed of.

As for the legislation, this policy does not restrict nor otherwise limit the use of any product, material nor substance in the workplace.

4.2 Exclusions and Exemptions: The scope of this policy does not exceed that of the legislation to which it applies nor does it limit the scope of the exemptions provided for by the legislation and associated regulations.

5.0 Legislation And Authorities Of The WHMIS Framework

5.1 Legislative Framework:

The protection of Canadian workers from the adverse effects of
controlled products through a downstream flow of WHMIS information

5.2 Authorities - Powers of Inspectors: Inspectors can:

• carry out inspections to verify compliance;
• conduct investigations to obtain evidence of violations;
• review options for corrective action and explain legal requirements (e.g., proper hazard classification, labels, MSDSs, worker education & training programs, etc.) including warning of potential violations, in order to assist regulated parties to meet their obligations under the HPA (CPR);
• prescribe corrective measures to be taken to meet obligations under the HPA (CPR); and
• direct that corrective measures be taken in an emergency, where there is an immediate danger to the health and safety of workers.

The specific powers of inspectors, including entry, search, seizure and forfeiture are specified in Part III of the HPA and in the applicable OHS legislation.

6.0 Policy Statement & Guiding Principles

The Canadian supplier and Canadian importer of a controlled product intended for use in a workplace in Canada have the legal obligation to adhere to the legislated requirements. More than 50% of chemical products marketed in Canada originate from outside of Canada. Although exporters to Canada may wish to bring their products into compliance with HPA (CPR) requirements to facilitate the marketing of their products in Canada, it is the Canadian importer who has the legal responsibility for ensuring compliance with Canadian law.

The following guiding principles govern the administration of WHMIS requirements:

• Canadian industry and trade: compliance and enforcement options will be exercised in a manner that minimize the economic impact on industry and the disruption on trade.
• Fairness: a fair approach to enforcement will be followed. Compliance promotion, monitoring and enforcement activities will be carried out by inspectors in an unbiased and nonprejudicial manner, irrespective of geographical location, race, national or ethnic origin of the seller or importer.
• Primacy of occupational health and safety: protection of the health and safety of Canadian workers from the adverse effects of hazardous materials will be a primary guiding principle in all regulatory actions.
• Respect for privacy and right to access: compliance and enforcement information may be disclosed publicly, subject to applicable F/P/T privacy and access to information legislation and the HMIRA.
• Risk management: in all cases, it is the level of risk to the health and safety of Canadian workers that will be taken into consideration in determining appropriate actions to be undertaken by the WHMIS Regulatory Agencies.

7.0 Roles and Responsibilities

7.1 Suppliers and Importers: Regulated parties have a legal obligation and must adhere to the requirements of the HPA (CPR); i.e., to:

• determine which of their products are controlled products;
• develop or obtain current information about their controlled products, and prepare this information in the form of appropriate labels and MSDSs; and
• apply appropriate labels and transmit MSDSs to user workplaces as conditions of sale/importation.

7.2 Employers: Employers have an obligation to provide information to their workers by:

• ensuring that all containers of controlled products have appropriate WHMIS labels and/or identifiers;
• ensuring that MSDSs for all controlled products are available and readily accessible to workers;
• providing worker education and training programs to ensure an understanding of the labels / MSDSs and precautions concerning the safe use, handling, storage and disposal of controlled products.

7.3 Regulatory Agencies: In the fulfilment of their respective roles and responsibilities, the WHMIS regulatory agencies (Annex 1) have agreed to follow this compliance policy and uphold its guiding principles which represent a consensus amongst these agencies.

8.0 Compliance Tools and Techniques - Measures To Promote Compliance

This policy operates on the premise that regulated parties share a mutual goal to respect legal requirements and achieve WHMIS objectives. An appropriate combination of the options indicated below will be used to achieve these objectives with the powers and authorities set out in the applicable legislation:

• promotion and communication;
• education;
• other voluntary means;
• compliance resources;
• enforcement action.

8.1 Communication and Education: Promotion of compliance through public awareness initiatives, education and other means is an effective tool in securing conformity with the law. Accordingly, Health Canada and/or the OHS agencies may undertake comprehensive public awareness initiatives to inform suppliers, employers and workers.

8.2 Voluntary Measures: Voluntary measures on the part of the regulated party may be requested including:

• on the part of the supplier, removal from sale; and
• on the part of the employer, stop usage in workplace.

Voluntary measures may also include correction of MSDS or label deficiencies by suppliers and/or employers in consultation with an inspector.

8.3 Enforcement Action (also see Subsection 9.0, Response to Non Compliance): Enforcement action may include:

• inspection and compliance monitoring to verify compliance; and
• formal investigation of violation(s).

9.0 Response To Non Compliance

Inspectors will examine suspected violations of which they have knowledge. Where corrective action is required, they will take measures consistent with the guiding principles in this policy, and will choose the appropriate response including one or more of the following enforcement options:

• written warnings;
• recalls;
• import refusal;
• stop sale;
• seizures;
• written directions, orders;
• injunctions;
• prosecutions.

9.1 Penalties (Offence, Punishment and Procedure):
Suppliers (subject to the provisions under the HPA and the HMIRA):

• Contravening or not complying with these Acts: Every person who contravenes or fails to comply with any provision of these Acts or of any regulation made under these Acts
  
  
  • is guilty of an offence punishable on summary conviction and liable to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding six months or to both; or
  • is guilty of an indictable offence and liable to a fine not exceeding one million dollars or to imprisonment for a term not exceeding two years or to both.
    
    
  • Where a corporation commits an offence under the Act or regulations: any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.
    

10.0 Employers:

• Penalties are established by OHS legislation of the jurisdiction where the offence occurred and under the HMIRA.

Information on Compliance and Enforcement Activities

Supplier violations: Subject to the provisions of the federal Access To Information Act and the Privacy Act. information on compliance and enforcement activities may be made available to the public.

Employer violations: Each F/P/T OHS agency may make information on compliance and enforcement activities available, subject to applicable privacy and access to information legislation.

Trade secrets: Subject to the HMIRA, the HMIRC may disclose compliance and enforcement information with respect to both suppliers and employers,

11.0 Associated Documents

Government of Canada Regulatory Policy, November 1999 - Privy Council Office;

Strategic Approach to Developing Compliance Policies, 1992 - Privy Council Office;

Compliance and Enforcement Policy Guideline, July 1998 - Health Protection Branch, Health Canada.

Annex

WHMIS Regulatory Agencies

The WHMIS regulatory agencies include Health Canada, the provincial, territorial and federal OHS regulatory agencies and the Commission which administers the WHMIS trade secret mechanism. Links are provided on the "Contacts" page of the Health Canada WHMIS web site, http://www.hc-sc.gc.ca/whmis.

• Alberta Human Resources and Employment
• Commission de la santé et de la sécurité du travail du Québec:
• Hazardous Materials Information Review Commission
• Health Canada
• Human Resources and Skills Development Canada (for federally-regulated workplaces) - Labour Program
• Manitoba Labour and Immigration
• New Brunswick Workplace Health, Safety and Compensation Commission
• Newfoundland & Labrador Department of Labour
• Nova Scotia Department of Environment and Labour
• Nunavut Territory (see Northwest Territories)
• Ontario Ministry of Labour
• Prince Edward Island Workers' Compensation Board
• Saskatchewan Labour
• Workers' Compensation Board Northwest Territories and Nunavut
• Workers' Compensation Board of British Columbia
• Yukon Workers' Compensation, Health and Safety Board