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

HPA Sections 22, 23 and 24 - Search, Seizure and Forfeiture

Help on accessing alternative formats, such as Portable Document Format (PDF), Microsoft Word and PowerPoint (PPT) files, can be obtained in the alternate format help section.

Search, Seizure and Forfeiture

22.(1) An inspector may at any reasonable time enter any place where the inspector believes on reasonable grounds any hazardous product is manufactured, prepared, preserved, processed, packaged, sold or stored for sale, processing or packaging and

(a) examine any product, material or substance that the inspector believes on reasonable grounds is a hazardous product and take samples thereof, and examine any other thing that the inspector believes on reasonable grounds is used or is capable of being used for the manufacture, preparation, preservation, processing, packaging, sale or storage of a hazardous product;

(b) open and examine any receptacle or package that the inspector believes on reasonable grounds contains any hazardous product;

(c) examine any books, records or other documents that the inspector believes on reasonable grounds contain any information relevant to the enforcement of this Act and make copies thereof or of any portion thereof;

(d) where the inspector believes on reasonable grounds that any computer system on the premises contains data relevant to the enforcement of this Act or that such data is available to the computer system, use the computer system or cause it to be used to search any data contained in or available to the computer system, reproduce any record or cause it to be reproduced from the data in the form of a printout or other intelligible output and seize the printout or other output for examination or copying; and

(e) seize any product, material or substance, or any labelling advertising, material or other thing, by means of or in relation to which the inspector believes on reasonable grounds any provision of this Act or of any regulation made under this Act has been contravened or has not been complied with.

Interpretation / Discussion of Sections 22, 23 and 24

Sections 22 to 24 give inspectors the powers necessary to enable them to carry out their duties under the Hazardous Products Act HPA.

Section 22 describes the entry and the search and seizure powers of an inspector. It is important to remember that, legally, entry is a separate act from search and seizure. Accordingly, the criteria which justify entry are different from the criteria which justify seizure.

Legal entry can be made where the inspector reasonably believes that any of the processes described in the opening words of subsection 22(1) are occurring or where the product is being stored for sale, processing or packaging. Mere importation of a hazardous product is not sufficient. The hazardous product could simply be in transit.

Legal search and seizure requires a belief on reasonable grounds that a violation of the HPA or the regulations made under that Act has occurred. This belief is in addition to a reasonable belief that the elements that support legal entry exist.

For example, the advertisement of a hazardous product may provide grounds for legal entry into the place the product is being stored for sale but, without more, the advertising of a hazardous product will not provide grounds for a search and seizure since there is no evidence on which to reasonably believe that the Act or the regulations have been violated.

Subsection 22(1):

Subsection 22(1) sets out powers, not duties. For example, the words "may ... enter" do not imply an obligation to enter, but give the inspector the power to enter where the criteria for legal entry are met.

"Any reasonable time" means reasonable in the circumstances. It is generally interpreted to mean the normal business hours of the firm involved. This interpretation may be broadened under some circumstances - for example, if there is reason to believe that there is imminent danger of a hazardous product reaching the public.

"Any place" is generally interpreted as a place of business, including a warehouse, although it can also include a home. Entering a home is not advisable unless the home is being used as a place of business or unless there is a sufficient compelling reason. Subsection 22(1) permits entry into a vehicle in which goods are being transported where the vehicle is a place where hazardous products are undergoing any of the processes in the opening words of subsection 22(1) or are being stored for sale, processing or packaging.

"Reasonable grounds" means reasonable in the circumstances but does not require "certainty". Knowledge of test reports, or other information indicating that a product is a WHMIS controlled product, would constitute "reasonable grounds". Such knowledge does not have to be first hand knowledge, but can be based on information from a reliable person.

A "hazardous product" means a prohibited product (a product listed in Part I of Schedule I), a restricted product (a product listed in Part II of Schedule I) or a controlled product (a product that is included by the Controlled Products Regulations in any of the classes listed in Schedule II to the act). Where the product is listed as a general product category (e.g., matches) it carries with it a broader power of entry than where the product is specifically described in the item (e.g., textile fibre products having certain burning characteristics).

"Is manufactured, etc." is written in the present tense, but is not interpreted so literally as to mean that the action must be occurring just as the inspector is seeking entry. However, if the suspected manufacture, etc., occurred several years ago and is not still occurring, the inspector's right of entry would have to be based on a belief that hazardous products were being prepared, preserved, packaged, or stored for sale, etc..

"Preserved" could include products being preserved for private use and not for sale, and would, therefore, support the power to enter the premises but not to seize the product.

"Stored for sale" includes stored for distribution. The words "for sale" apply only to the word "stored" and not to the preceding words. Goods stored in a warehouse are usually goods stored for sale. Also see the definition of "sell" in section 2 of the Act.

"Examine" means to gather evidence, but does not mean to damage or destroy a product by such examination. Damage to packaging may be unavoidable but, if destructive examination of the product is required, it is Departmental policy to take samples for such examination.

"Take samples" is interpreted as the power to take sufficient samples for test purposes.

If the inspector wants to take samples to determine whether the WHMIS MSDS or labelling requirements have been met, the inspector can seize samples under the seizure power set out in paragraph 22(1)(e).

The examination of "books, records or other documents" must be relevant to enforcement of the HPA. An i nspector does not have the power to examine or copy documents which are clearly not relevant, such as documents relating to price, cost, or financial matters only. Invoices, shipping documents and information regarding product contents may be examined and copied. It appears that documents can be removed from the premises for copying, but it is preferable to obtain the trader's consent.

"Copies" can be made by hand if necessary or by photocopier. If a photocopier is available, and the inspector is unreasonably denied use of it, the refusal to give the inspector access to the photocopier could be construed as a violation of subsection

23(1). Any copies or extracts should be signed by the inspector and, preferably, by the owner or manager of the firm for identification and future use as evidence. Photography is also an acceptable method of obtaining copies.

"Seize" means to bring under the control but not the ownership of the inspector. Seizure is intended to procure the evidence for use in a prosecution or in order to determine whether to prosecute. Seizure for the purpose of removing hazardous products from the market is considered to be consistent with the intent of the Act.

The criteria which authorize seizure are more restricted than those authorizing entry, examination, etc. To justify seizure, the inspector must believe that a violation "has" occurred.

Paragraph 22(1)(e), authorizes seizure relating to violations of any provisions of the HPA or of the regulations; i.e., this authorization is not limited to violations of section 4, 13 or 14 of the HPA.

Subsection 22(2):

The "owner or person in charge" and the staff on the premises that has been entered under the power set out in subsection 22(1) must assist the inspector. Assistance includes help in moving boxes or other large items, and can involve minor expenses for the firm.

Specific reference to the "owner or person in charge" in addition to the reference to "every person found therein" means that the owner or manager, even if absent from the premises, is obliged to assist the inspector, and can be required to make a reasonable effort to come to the premises to provide that assistance. The amount of time which the owner or the staff would be "reasonably" required to devote to assisting the inspector will vary with each case.

The information that an owner or manager may be required to furnish can include the formulations of products if known. In the case of prohibited and restricted hazardous products it is not reasonable to require the owner or manager to obtain formulation information where it is not already known. A supplier would be expected to know the ingredients of its WHMIS controlled products.

Inspectors can only require the owner or manager to furnish information about a "hazardous product" as defined in section 2 of the Act or that is relevant to the enforcement of the Act. Information relating

to all other products, (e.g. products of concern in regulatory development projects) can be requested by the inspector but the owner or manager cannot be compelled under subsection 22(2) to provide the requested information.

All assistance and information demanded by the inspector must be relevant to carrying out the powers set out in paragraphs 22(1)(a) to (e).

Subsection 23(1):

Obstruction of an inspector includes refusal to allow entry to premises where such entry is authorized under subsection 22(1) and any other Act which prevents the inspector from carrying out his or her duties.

Under subsection 23(1) it is also an offence to make false or misleading statements "knowingly"; i.e., intentionally.

Subsection 23(2):

Under subsection 23(2) it is an offence to remove, alter or interfere with a seized product without the authorization of an inspector. This subsection is intended to prevent tampering with seized products that are left in the care and control of the supplier.

Also under subsection 23(2), the inspector can authorize removal of the seized products to another location for storage or for re-working, re-labelling or recalling a product. Where a product is moved to another location the cost of transportation and insurance is borne by the firm or firms involved and the owner or manager may be requested to sign a form to this effect. Authorization for removal can also be given in cases where the firm involved wishes to have the products transferred to some other location for storage. Again, the firm bears the expenses.

Section 24:

Section 24 permits an inspector to leave the seized products where he or she has seized them or, where the inspector considers it appropriate to remove, or arrange removal of, the seized products to a different location. The probability that seized products may be tampered with would be a consideration in exercising this power. Where the probability of tampering is high, it is usual for the enforcing jurisdiction to bear the risks and costs of removal and storage.

A "proper place" includes warehouse space appropriate to the type of product, the premises of a manufacturer or distributor serving as a central location for storage of recalled goods, or the office of the inspector. Although removal to a private home is not necessarily advisable, there may be circumstances in which a private home could be considered a proper place for the storage of seized goods.

Release from Seizure by the Inspector: The Act does not expressly provide for releasing goods from seizure where the seized goods are no longer considered hazardous. This is because once a seized product is no longer hazardous (i.e. no longer in violation), there is no longer any authority to continue the seizure. In practice, where, within two months after the date of seizure, seized products are altered with the inspector's permission to bring them into compliance with the Act or regulations or for some other reason are no longer considered hazardous, the inspector can release the goods from seizure. Where products have been seized for longer than two months, the Minister must authorize the release of the goods. This is because two months after the date of the seizure care and control over the seized goods passes to the Minister under subsection 25(5) of the Act. Thereafter only the Minister has the authority to dispose of the seized goods.

Alternatives to Seizure: The inspector is not legally obliged to seize a hazardous product, and, in practice, seizure is used only as a final recourse. The less expensive and disruptive options of corrective action by the dealer to rework a product or voluntarily recall and destroy a hazardous product are often accomplished by agreement.

Since the export of hazardous products is not prohibited by the Act, the export or re-export of non-complying products is sometimes an appropriate solution. Refer to the discussion under section 25 and 26, i.e. "Restoration", for the policy on the export of seized goods.