Confidentiality Rules for Hazardous Materials

Summary#

These are final rules called the Regulations Amending the Hazardous Materials Information Review Regulations and Repealing the Hazardous Materials Information Review Act Appeal Board Procedures Regulations (SOR/2020-39). They change how confidential-business claims under the Hazardous Materials Information Review Act are handled, and they repeal the separate appeal-board procedures regulation. The item was published in the Canada Gazette on March 18, 2020 (registered March 4, 2020; P.C. dated February 29, 2020).

What it does#

• Rewrites parts of the Hazardous Materials Information Review Regulations to clarify how the Minister decides whether a claim to keep information secret is valid.
  • The Minister must look only at specific criteria, including whether the information is not publicly available, whether reasonable steps were taken to keep it secret, and whether disclosure would cause a material financial loss or give competitors a material gain.
  • The Minister may also consider whether the claimant spent substantial money or resources to develop the information — but only when deciding that a claim is valid (not when rejecting one).
• Defines the “prescribed medical professional” for a particular section of the Hazardous Materials Information Review Act as a nurse who is licensed and practising in the relevant province.
• Tightens filing rules for claims:
  • A claim must be in writing, signed (including electronic signature), dated, and must not contain false or misleading information.
  • The Minister will assign a registry number to a claim and mark the filing date as the date the registry number is assigned.
• Repeals the Hazardous Materials Information Review Act Appeal Board Procedures Regulations (the set of rules that previously governed the Appeal Board’s procedures).
• The regulations come into force when section 198 of the Budget Implementation Act, 2019, No. 1 comes into force, or on the day they are registered if that is later.

Who's affected#

• Companies and suppliers that submit claims to keep product or process information confidential under the Hazardous Materials Information Review Act.
• Employers and others who handle or supply hazardous materials and rely on confidentiality protections for business information.
• Nurses who may be called on under section 29 of the Act, since the regulations now specify that the prescribed medical professional must be a nurse licensed and practising in the province.
• Parties who use or challenge the Appeal Board process, because the previous Appeal Board procedures regulation has been repealed.
  If it is unclear exactly how some appeal or procedural details will work now, the source does not fully explain replacements.

Why it matters#

• The changes make the test for claiming confidentiality more specific. That can make it clearer to businesses what they must show to keep trade secrets off labels and safety documents.
• Requiring written, signed, and accurate claims reduces the chance of false or sloppy filings.
• Naming a nurse as the prescribed medical professional narrows who can play that role, which affects how medical issues under the Act are handled.
• Repealing the Appeal Board procedures removes an old set of procedural rules; the practical effect depends on what replaces them (the Gazette item references other regulatory changes but does not fully explain the replacement).
• The exact start date depends on when section 198 of the Budget Implementation Act, 2019, No. 1 comes into force (or on registration), so stakeholders should watch for the official coming-into-force date.