Reference Manual for the WHMIS Requirements of the Hazardous Products Act and Controlled Products Regulations

HPA Sections 5, 6 and 7 - Regulations and Amendments to Schedule I

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Regulations and Amendments to Schedule I

5. The Governor in Council may make regulations

(a) authorizing the advertising, sale or importation of any restricted product and prescribing the circumstances and conditions under which and the persons by whom the restricted product may be advertised, sold or imported;
(b) prescribing the procedures to be followed by a board of review established pursuant to section 9 in conducting an inquiry; and
(c) generally for carrying out the purposes and provisions of this Part.

Interim Orders

5.1 (1) The Minister may make an interim order that contains any provision that may be contained in a regulation made under this Part if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to health or safety.

(2) The Minister may make an interim order in which any power referred to in section 6 is deemed to be exercised, if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to health or safety.

(3) An interim order has effect from the time that it is made but ceases to have effect on the earliest of

(a) 14 days after it is made, unless it is approved by the Governor in Council,

(b) the day on which it is repealed,

(c) in the case of an interim order made under subsection (1), the day on which a regulation made under this Part that has the same effect as the interim order comes into force and, in the case of an interim order made under subsection (2), the day on which an order made by the Governor in Council under this Part that has the same effect as the interim order comes into force, and

(d) one year after the interim order is made or any shorter period that may be specified in the interim order.

(4) No person shall be convicted of an offence consisting of a contravention of an interim order that, at the time of the alleged contravention, had not been published in the Canada Gazette unless it is proved that, at the time of the alleged contravention, the person had been notified of the interim order or reasonable steps had been taken to bring the purport of the interim order to the notice of those persons likely to be affected by it.

(5) An interim order

(a) is exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act; and

(b) shall be published in the Canada Gazette within 23 days after it is made.

(6) For the purpose of any provision of this Part other than this section and section 19, any reference to regulations made under this Act is deemed to include interim orders, and any reference to a regulation made under a specified provision of this Act is deemed to include a reference to the portion of an interim order containing any provision that may be contained in a regulation made under the specified provision.

(7) A copy of each interim order must be tabled in each House of Parliament within 15 days after it is made.

(8) In order to comply with subsection (7), the interim order may be sent to the Clerk of the House if the House is not sitting.
[2004, c. 15, s. 68.]

Amendments to Schedule I

6. (1) The Governor in Council may, by order, amend Part I or II of Schedule I by adding thereto

(a) any product, material or substance that is or contains a poisonous, toxic, flammable, explosive, corrosive, infectious, oxidizing or reactive product, material or substance or other product material or substance of a similar nature that the Governor in Council is satisfied is or is likely to be a danger to the health or safety of the public ; or

(b) any product designed for household, garden or personal use, for use in sports or recreational activities, as life-saving equipment or as a toy, plaything or equipment for use by children that the Governor in Council is satisfied is or is likely to be a danger to the health or safety of the public because of its design, construction or contents.

(2) The Governor in Council may, by order, amend Part I or II of Schedule I by deleting therefrom any product, material or substance if the Governor in Council is satisfied that the inclusion of the product, material or substance in the Part is no longer necessary.

(3) For greater certainty, an order made pursuant to subsection (1) may describe a product, material or substance added thereby to Part I or II of Schedule I by reference to any properties or characteristics of the product, material or substance or by reference to any other criteria and any product, material or substance that has those properties or characteristics or meets those criteria shall, for the purposes of this Act, be deemed to have been added by the order to Part I or II, as the case may be, of Schedule I.

(4) An order made pursuant to subsection (1) incorporating a law, standard or specification by reference may incorporate that law, standard or specification as amended from time to time.

(5) [Repealed, 1996, c. 8, s. 26]

7. (1) The Minister shall cause a copy of each order made pursuant to subsection 6(1) to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the day the order is made.

(2) If both Houses of Parliament resolve that an order or any part of an order made pursuant to subsection 6(1) should be revoked, the order or that part thereof is thereupon revoked.

Discussion of Sections 5, 5.1, 6 and 7

The HPA is an Act of Parliament. Section 5 gives the Governor in Council (in effect, the federal Cabinet) the power to make regulations to carry out the purposes of the HPA. Section 6 delegates Parliament's power to amend Schedule I of the HPA to the Governor in Council. With those powers the Governor in Council can change Schedule I, which is not a regulation but is part of the HPA itself, by the same process that is used to make a regulation. This process is much quicker and less cumbersome than having Parliament itself amend Schedule I to the HPA whenever a new hazard is identified, or the description or method of handling a known hazard is modified. Section 7 sets out the procedure by which Parliament is informed of the changes to Schedule I made by the Governor in Council and by which Parliament can revoke those changes if it does not agree with the Governor in Council.

A regulation is subordinate legislation that expands upon and implements the legislative purpose set out in an Act. Although not passed by Parliament, a regulation is enacted by the body empowered by Parliament to act on Parliament's behalf. That party is usually the Governor in Council, but can also be a Minister or a Board. As the legal act of Parliament's delegate, a regulation is a law as binding as any passed by Parliament. To be a legal act, the regulation must be one that falls within the powers authorized by Parliament in the Act.

Section 5.1, Interim Orders: Please see discussion under HPA 16.1.