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The Canadian Ombudsperson for Responsible Enterprise – Lingering Questions on the Role’s Mandate and Powers

Earlier this month, the Canadian government announced the appointment of Sheri Meyerhoffer as the first Canadian Ombudsperson for Responsible Enterprise (“CORE”). The position has been lauded as being the first of its kind in the world. This blog post considers a number of the key issues which are still to be ironed out before Ombudsperson Meyerhoffer begins her work in earnest.

The Mandate and Powers of the CORE

The CORE’s mandate is to review alleged human rights abuses arising from the overseas operations of Canadian companies in the extractives and garment sectors, with the possibility of further expansion of industries in the future. In the course of its work, the CORE must be guided by, and promote the implementation of, established international norms, which specifically includes the United Nations Guiding Principles on Business and Human Rights (UNGPs) and the OECD Guidelines for Multinational Enterprises. The CORE’s remit is wider than that of its predecessor, the Corporate Social Responsibility (CSR) Counsellor for the Extractive Sector, both in terms of sector focus and powers. Indeed, one of the main criticisms of the CSR Counsellor was its lack of teeth: it lacked independent investigatory powers and the ability to recommend effective sanctions for non-compliance with relevant human rights standards. At this stage, the new Ombudsperson is anticipated to be empowered with the ability to self-initiate investigations as well as consider referrals from individuals and organisations and to make recommendations to the relevant parties and the government.

However, the scope of the CORE’s investigatory powers remains in question. In a public interview following her appointment, Ombudsperson Meyerhoffer expressed a desire for powers that are “as extensive and expansive as possible”.[1] The Government of Canada has been more circumspect, promising that the CORE would have “all the tools required to ensure compliance with information requests” [2], but has stopped short in saying what precisely those tools will be, indicating that it is currently seeking external legal advice on the matter. The expectation is that the CORE will have subpoena powers similar to those provided in the Inquiries Act, 1985: namely, to compel witnesses to testify and the production of documents. In light of the focus on businesses with overseas operations, one would expect that this advice would consider how the Ombudsperson’s powers would be exercised in practice where key documents or individuals are located outside the jurisdiction. It should also consider situations where there are parallel proceedings or processes already ongoing in Canada or elsewhere in relation to the matter, including what measures might be made available to protect the relevant parties’ procedural rights in the relevant forum.

Interface with Canada’s National Contact Point  

The CORE is intended to operate alongside Canada’s National Contact Point (“NCP”), which is established pursuant to the OECD Guidelines for Multinational Enterprises. The NCP serves as a means of allowing an individual or organisation to request a review of a business’ activity which may be contrary to the OECD Guidelines. While the Government of Canada has assured that the roles of the CORE and the NCP will be complementary[3], in the 2019 Peer Review of Canada’s NCP, it was recognised that “[t]he mandate of the Ombudsperson overlaps somewhat with that of the NCP, and as a result the Ombudsperson may represent a competing venue for the handling of grievances related to business and human rights.”[4]

However, it should be noted that the primary focus of the Canadian NCP and the CORE are in fact different. Countries have the latitude to design the procedure of their NCPs within the broad framework of the OECD Guidelines, and the Canadian process focusses on facilitated dialogue and mediation. Other countries have included an additional investigation conducted by the NCP in the event of the failure of mediation – for instance as reflected in the procedure of the NCPs in Denmark and United Kingdom – but this is absent in Canada’s NCP procedure. In this respect, the CORE fills an important gap: its primarily investigative function will allow it to focus on fact-finding in circumstances where mediation by the NCP is not a suitable procedure. This said, the CORE’s Standard Operating Procedures should nonetheless identify possible synergies in order to promote efficiency and to avoid unnecessary duplication of work between the two organisations.

Seeing the Wood for the Trees: The Broader Context of Developments in Canadian Business and Human Rights

The announcement of Sheri Meyerhoffer as the new CORE is but one of a series of recent developments in Canada in the sphere of business and human rights. Multinational human rights litigation is becoming increasingly common in Canadian courts, with the Supreme Court of Canada hearing arguments in appeal earlier this year in Nevsun Resources Ltd. v Gize Yebeyo Araya, et al., a case which raises the possibility of a novel tort for breach of customary international law and which may very well lead to further litigation in the future. The Government of Canada is also becoming increasingly active in relation to business and human rights, beginning a consultation process this year concerning the adoption of supply chain legislation akin to the Modern Slavery Act in the United Kingdom and in Australia. The changing landscape in Canada and other jurisdictions around the world, both in terms of policy initiatives and developments in judicial and non-judicial mechanisms of dispute resolution, underscores the importance of companies to actively take human rights risk into account in the course of their operations and to proactively develop systems and policies to ensure compliance with their business and human rights obligations.

Julianne Hughes-Jennett, Partner and Marjun Parcasio, Associate, Hogan Lovells Business and Human Rights Practice

[1],  Primetime Politics, Interview of Sheri Meyerhoffer by Peter van Dusen, 8 April 2019, https://www.youtube.com/watch?v=eYfk6O9W2dU

[2], Global Affairs Canada, “Responsible business conduct abroad – Questions and answers”, 8 April 2019, https://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/faq.aspx?lang=eng

[3], Ibid.

[4], OECD, OECD Guidelines for Multinational Enterprises National Contact Point Peer Reviews: Canada, 2019, http://mneguidelines.oecd.org/Canada-NCP-Peer-Review-2019.pdf