Procedures Guide for Canada's National Contact Point for the Organisation of Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises

1. Introduction

1.1. The purpose of this document is to outline the process that Canada’s National Contact Point will follow when receiving a request for review of a specific instance under the OECD Guidelines for Multinational Enterprises.

1.2. This text is based on the “Procedural Guidance” chapter of the OECD Guidelines for Multinational Enterprises and the related “Commentary on the Implementation Procedures of the OECD Guidelines for Multinational Enterprises” (create hyperlink to the Guidelines here).

1.3. The OECD Guidelines for Multinational Enterprises were initially created in 1976 and are subject to occasional revisions.  The most recent revision to the Guidelines was adopted on May 25, 2011.  Prior to this, the Guidelines were last updated in 2000. Requests for review received by the National Contact Point are processed in accordance with the applicable version of the Guidelines in existence at the time of the filing of the request for review.

2. Definitions

2.1. The following definitions apply in this document.

  • “Guidelines” means OECD Guidelines for Multinational Enterprises.
  • “MNE” means multinational enterprise.
  • “NCP” means Canada’s National Contact Point for the OECD Guidelines for Multinational Enterprises.
  • “Notifier” means any individual, organization, or community that believes that a multinational enterprise’s actions or activities have not observed the OECD Guidelines for Multinational Enterprises and who files a request for review of a specific instance with the NCP.
  • “Specific Instance” means an instance of alleged non-observance of the Guidelines by a multinational enterprise .
  • “Website” means Canada’s NCP website accessible at www.ncp.gc.ca.

3. Overview

3.1. The role of the NCP is to further the effectiveness of the Guidelines.  The NCP operates in accordance with the core criteria of visibility, accessibility, transparency and accountability.

3.2. The NCP contributes to the resolution of issues that arise relating to implementation of the Guidelines in specific instances in a manner that is impartial, predictable, equitable and compatible with the principles and standards of the Guidelines. 

3.3. The NCP may provide a forum for discussion and assist the business community, worker organizations, other non-governmental organizations, and other interested parties to deal with the issue(s) raised in an efficient and timely manner and in accordance with applicable law.

3.4. When Canada’s NCP receives a request for review of a specific instance, it will review the documentation and supporting material received and make an initial assessment of whether the issue(s) raised merit further examination and will respond to the parties involved.  If the NCP determines that the issue(s) raised do not merit further consideration, the NCP will issue a public statement and the case will be closed.

3.5. Where the issue(s) raised is/are considered to merit further examination, the NCP will offer its good offices to help the parties involved to resolve the issue(s).  In doing so, the NCP will offer, with the agreement of the parties involved, to facilitate a dialogue to assist the parties in dealing with the issues.  This may include access to consensual and non-adversarial means, such as conciliation or mediation.

3.6. Where the parties do not reach an agreement on the issue(s) raised or when a party is unwilling to engage in the procedures or participate in good faith, the NCP will issue a public statement.  The statement will at a minimum describe the issue(s) raised, the reasons why the NCP decided that the issue(s) raised merit further examination and the procedures the NCP initiated in assisting the parties.

3.7. Where the parties reach an agreement on the issue(s) raised, the NCP will issue a report.  The report will at a minimum describe the issue(s) raised, the procedures the NCP initiated in assisting the parties and when agreement was reached. 

3.8. As part of the development of any report or statement, the NCP will circulate a draft to the parties involved for comments.  The report or statement will then be made public by posting on the NCP website and possible inclusion in the annual NCP report to the OECD. It should be noted that the need to protect sensitive business and other stakeholder information is taken into account when finalizing the content of any report or statement that is made public.

3.9. The Canadian NCP’s languages of operation are English and French. 

4. Stages Involved in Processing Requests for Review

4.1. There are several stages involved in handling the receipt of a request for review by the NCP.

  • Stage 1 – From Receipt of the request for review to the Initial Assessment.
  • Stage 2 – From the Initial Assessment to the conclusion of Facilitated Dialogue.
  • Stage 3 – Drafting and publication of the Statement or Report.

5. Timelines

5.1. The NCP’s objective is to complete each stage of the processing of a specific instance within the timeframes indicated below.  However, due to unforeseen circumstances beyond the control of the NCP, flexibility may be required on a case by case basis and various stages may take longer than anticipated.

  • Stage 1: 3 months.
  • Stage 2: 6 months.
  • Stage 3: 3 months.

6. Parties Who May File a Request for Review Regarding a Specific Instance

6.1. A party that believes that an MNE’s actions or activities constitute non-observance of the OECD Guidelines for Multinational Enterprises may file a request for review of a specific instance with the NCP.

6.2. The notifying party, or notifier, may be an individual, an organization, a community affected by a company’s activities, employees or their trade union, or an NGO.  A notifier may act on behalf of other parties who are identified.  The notifier should have an interest in the matter and the nature and extent of the interest is a factor that will be considered by the NCP in its treatment of the request for review. 

6.3. When a request for review is jointly submitted by more than one notifier, the notifiers should indicate whether they have agreed that one of them will act as the lead for purposes of liaison and communication with the NCP.  The notifiers should further indicate whether correspondence from the NCP should be sent only to the one entity acting as the lead (and whether the others should be copied) or whether correspondence should also be addressed to all the notifiers.  When several Canadian MNEs are listed in a request for review the NCP will consult with the MNEs to determine the most appropriate way to communicate with them depending on the circumstances.  When dealing with situations involving MNEs from other countries, to determine how to best liaise with the MNE(s) in question, the NCP may communicate with the corresponding NCP in the home country of the foreign MNE(s) (if it is an adhering country).   

7. Appropriate NCP for filing a Request for Review

7.1. Generally, issue(s) will be dealt with by the NCP in whose country the issue(s) have arisen. 

7.2. Should the country where the issue(s) has/have arisen not adhere to the Guidelines and not have an NCP, then the request for review may be submitted to the NCP in the MNE’s home country if the home country adheres to the Guidelines.

7.3. Thus, the Canadian NCP may deal with all issue(s) that arise in Canada relating to the activities of any MNE operating in Canada, as well as the operations of Canadian MNEs operating in countries that do not have an NCP.

7.4. Cases of multi-jurisdictional specific instances that involve cooperation with the NCP of another country will be dealt with on a case by case basis.  In such cases, normally one of the NCPs will assume the lead with respect to the processing of the specific instance. 

7.5. Notifiers who wish to submit a request for review of specific instances to the NCP may do so by forwarding the request by mail, email or fax to the following addresses:

Mail:

Canada’s National Contact Point for the OECD Guidelines for Multinational Enterprises
Foreign Affairs, Trade and Development Canada
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Canada
Email: ncp.pcn@international.gc.ca
Telephone: 343-203-2341
Facsimile: (613) 944-7153
*Attention – BTA Division

8. Information to Include in the Request for Review

8.1. Notifiers who wish to file a request for review of a specific instance with Canada’s NCP should provide the following information in either English or French with their request:

  • The notifier’s identity, including contact person, name of organization and contact details. Where a notifier is raising a matter on behalf of a number of organizations, they should list all the organizations.
  • The notifier’s interest in the matter. For example, if a request for review of a specific instance is being lodged on behalf of others (e.g., a union or local community), the notifier lodging the request should outline their interest in this case and mandate or reason for lodging the request.
  • The identity (name) and location of the MNE (e.g., location of the MNE’s headquarters) whose actions or activities are the subject of the request for review. If the MNE is a subsidiary of another company, the names of the corporate entities involved should be provided with a description of their affiliation.
  • A description of the action or activity which the notifier lodging the request for review believes constitutes non-observance of the Guidelines. The stakeholder must provide any supporting evidence they may have (e.g., documents, reports, studies, articles, witness statements, etc.). Please note that unsubstantiated allegations are not sufficient for the NCP to make an initial assessment.
  • The location(s) of the action or activity to which the specific instance relates.
  • The parts of the Guidelines (i.e., chapter(s) and paragraph(s)) which are considered to be most relevant.
  • A list of any applicable or relevant law and whether there is an issue relating to compliance with this (these) law(s).
  • Background on whether the action or activity has been discussed with the MNE and the results of such discussions.
  • A list of other fora where the same matter has been raised (e.g., other government offices, agencies, NGOs, legal action in the court system, etc.) and the status of any corresponding action that such offices may be taking.
  • A description of the action(s) the notifier lodging the request for review considers the MNE should take to resolve the issues.
  • Any additional details that the entity lodging the request for review wishes to bring to the attention of the NCP and/or the MNE.
  • n addition to the above information, the request for review should also clearly indicate that the entity submitting the request for review is aware/and consent that all information provided to the NCP may be shared with the MNE or other parties

8.2. The Canadian NCP’s languages of operation are English and French.  Documents that are submitted in other languages will not be considered by the NCP.  All communications from the NCP to the notifiers or to MNEs will be in either French or English, and all public information on the Website will be in both languages.

9. Stage 1:  From Receipt to Initial Assessment

9.1. Notifiers who wish to raise a specific instance with the NCP should do so by submitting a request for review in writing with supporting documentation.  Notifiers should include all of the information listed above (as applicable) in their submissions.  The NCP may request additional information at any stage in the process. 

9.2. Notifiers may request a meeting with the NCP when making their submission.

9.3. All parties to a specific instance are requested to make it clear in all of their correspondence with the NCP that the information and documentation provided may be shared with the other party(ies).

10. Acknowledging Receipt of the Request for Review

10.1. Within five working days of the receipt of a request for review the NCP will issue a letter to the Notifiers acknowledging receipt.  (Note: notifiers must ensure that their submission includes a return address for such communication.)

10.2  Parties to a specific instance are encouraged to forward all relevant and supporting documentation to the NCP in one or several messages within a reasonable time frame rather than submitting separate documents over an extended period of time. The NCP may fix a deadline beyond which any additional documentation in relation to the specific instance will not be taken into consideration.

11. Initial Assessment

11.1. Following the receipt of a request for review the NCP will proceed to carry out an initial assessment.

11.2. As part of the initial assessment, the NCP will endeavour to forward the request for review to the MNE in question with an invitation to reply, taking into consideration the need to protect sensitive and confidential information (e.g. to safeguard the identity and/or safety of the parties).  The reply will be taken into account by the NCP in performing its initial assessment.  For purposes of assisting with the timeliness and transparency of the process, the parties should indicate their provision of consent to share the material submitted with the other party(ies).

11.3. The NCP will carry out an initial assessment with a view to determining whether the issues raised merit further examination.

11.4. In determining whether the issues raised merit further examination, the NCP will determine whether the issues are bona fide and relevant to the implementation of the Guidelines.  In this context, the NCP will take into account:

  • the identity of the party concerned and its interest in the matter;
  • whether the issues are material and substantiated;
  • whether there seems to be a link between the enterprise’s activities and the issue raised in the specific instance;
  • the relevance of applicable law and procedures, including court rulings;
  • how similar issues have been, or are being, treated in other domestic or international proceedings; and
  • whether the consideration of the specific issue would contribute to the purposes and effectiveness of the Guidelines.

11.5. The NCP may also consider a number of other issues, including:

  • the request(s) and solution(s) that the notifier(s) is seeking and whether these are possible within the mandate of the NCP; and
  • what the notifier(s) have indicated about their willingness or unwillingness to participate in a facilitated dialogue with a view to resolving the matter. 

11.6. At this stage the NCP may also review open source information and consult relevant government departments with knowledge of the issues raised.

11.7. Following its initial assessment, the NCP will respond to the parties concerned. 

11.8. Should the NCP decide that the issue(s) raised do not merit further examination, it will inform the parties of the reasons for its decision. The NCP will also consult with the parties for purposes of issuing a public statement.  The statement will at a minimum describe the issue(s) raised and the reasons for the NCP’s decision. If the NCP believes that, based on the results of its initial assessment, it would be unfair to publicly identify a party in a statement on its decision, it may draft the statement so as to protect the identity of the party.  The file will then be closed.

11.9. If the matter is considered by the NCP to merit further examination, the NCP will offer good offices to help the parties involved resolve the issues. The NCP may also make publicly available its decision that the issues raised merit further examination and its offer of good offices to the parties involved.

12. Stage 2: From Initial Assessment to Conclusion of Facilitated Dialogue

12.1. Where the issues raised are considered by the NCP to merit further examination, the NCP will offer its good offices, and with the agreement of the parties involved, to facilitate a dialogue to assist the parties in dealing with the issues.  This may include access to consensual and non-adversarial means, such as conciliation or mediation.

12.2. For this purpose the NCP will consult with these parties and where relevant:

  • Seek advice from relevant authorities, and/or representatives of the business community, worker organizations, other non-governmental organizations, and relevant experts. 
  • Consult the NCP in the third country or countries concerned.
  • Seek the guidance of the OECD Investment Committee if it has doubt about the interpretation of the Guidelines in particular circumstances.

12.3. In common with accepted practices on conciliation and mediation procedures, these procedures would be used only upon agreement of the parties concerned and their commitment to participate in good faith during the procedure.

12.4. In the event Guidelines-related issues arise in a non-adhering country, the NCP will take steps to develop an understanding of the issue(s) involved.  While it may not always be practicable to obtain access to all pertinent information, or to bring all the parties involved together, the NCP may still be in a position to pursue enquiries and engage in other fact finding activities.  Examples of such steps could include contacting the management of the firm in the home country, and, as appropriate, government officials in the non-adhering country.

12.5. If the parties resolve the issue(s) raised and come to an agreement, the NCP will indicate that the matter was resolved by the parties on the NCP website and in its annual report, which is also posted on the website.

13. Stage 3: Drafting and Publication of Report or Statement

13.1. At the conclusion of the procedures and after consultation with the parties involved, the NCP will make the results of the procedures publicly available, taking into account the need to protect sensitive business and other stakeholder information.

13.2. Where the parties reach an agreement on the issue(s) raised, the NCP will issue a report.  The report will at a minimum describe the issue(s) raised, the procedures the NCP undertook in assisting the parties and when agreement was reached.  As part of the development of the report, the NCP will circulate a draft to the parties involved for comments.  The report will then be made public by posting on the NCP website and possible inclusion in the annual report.  Information on the content of the agreement will only be included insofar as the parties involved agree thereto.

13.3. Where the parties do not reach an agreement on the issue(s) raised or when a party is unwilling to engage in the procedures or participate in good faith, the NCP will issue a statement.  The statement will at a minimum describe the issue(s) raised, the reasons why the NCP decided that the issue(s) raised merited further examination and the procedures the NCP undertook to assist the parties.  The NCP will make recommendations on the implementation of the Guidelines as appropriate, which will be included in the statement. A statement may be issued without recommendations if the NCP believes that specific recommendations are not required.  Where appropriate, the statement may also include the reasons why agreement could not be reached.  The statement may also identify the parties concerned, the date on which the issue(s) were raised with the NCP, and any other observations the NCP deems appropriate. As part of the development of the final statement, the NCP will circulate a draft to the parties involved for comments.  However, the statement is that of the NCP and it is within the NCP’s discretion to decide whether to change the draft statement in response to comments from the parties. The final statement will then be made public by posting on the NCP website and possible inclusion in the annual report. 

13.4. If the NCP makes recommendations to the parties, it may be appropriate under specific circumstances for the NCP to follow-up with the parties on their response to these recommendations. If the NCP deems it appropriate to follow-up on its recommendations, the timeframe for doing so will be addressed in the statement of the NCP. 

14. Confidentiality and Transparency

14.1. Pursuant to the transparency criteria of operations, the NCP will generally share all relevant information that it receives from one party(ies) with the other party(ies).  However, the NCP may determine not to share certain information that it receives if it has been requested not to share the information and corresponding justification and rationale was provided.

14.2. Transparency is recognized as a core criteria and general principle for the conduct of NCPs in their dealings with the public. However, it is also recognized that there are specific circumstances where confidentiality is important.  While the initial assessment and facilitated dialogue phases of the process are underway, confidentiality of the proceedings will be maintained.  It is understood that proceedings include the facts and arguments brought forward by the parties. At the conclusion of the procedures, if the parties involved have not agreed on a resolution of the issues raised, they are free to communicate about and discuss the issues. However, information and views provided during the proceedings by another party involved will remain confidential, unless that other party agrees to their disclosure or this would be contrary to the provisions of national law.

14.2. The NCP Procedures Guide, in conformity with the laws of Canada, strives to strike a balance between these two principles.

14.3. Canada’s NCP is required by the Government of Canada’s Policy on Government Security to maintain an appropriate level of confidentiality in respect of information received by the NCP. Canada’s access and privacy legislation deals with specific circumstances. The Access to Information Act gives Canadians a right of access to records held by the Government of Canada, but at the same time protects confidential information provided by third parties from disclosure.  This protection is backed up by mandatory notification to third parties before information supplied by them, or about them, is disclosed, giving them the opportunity to make representations to the government about disclosure and, if necessary, bring the matter before the Federal Court for judicial review. The Privacy Act protects personal information about individuals from being used for purposes other than that for which it was collected. Personal information can be disclosed only where specifically allowed by the Act, or where the subject individual has given his or her consent.

14.4 Subject to the Access to Information Act and the Privacy Act, the NCP follows the following rules regarding confidentiality and disclosure: 

  • In order to facilitate resolution of the issue(s) raised, the NCP will take appropriate steps to protect sensitive business and other information.  Equally, other information, such as the identity of individuals involved in the procedures, should be kept confidential.  During a review process, confidentiality of the proceedings will be maintained. It is understood that proceedings include the facts and arguments brought forward by the parties.
  • At the conclusion of the procedures, if the parties involved have not agreed on a resolution of the issue(s) raised, they are free to communicate about and discuss the/these issue(s).  However, information and views provided during the proceedings by another party involved will remain confidential, unless that other party agrees to their disclosure.
  • After consultation with the parties involved, the NCP will make publicly available the results of these procedures unless preserving confidentiality would be in the best interests of effective implementation of the Guidelines (e.g. to protect sensitive business information or the identity of individuals with a view to ensuring continued cooperation, etc.).
  • The NCP is required to report annually to the OECD.  Such annual reports are expected to include an update on the status of specific instances and may be general in nature so as to maintain the confidentiality of commercially sensitive information.  Such status updates may also be posted on the NCP’s website.

15. The Office of the Extractive Sector Corporate Social Responsibility Counsellor

15.1. As one of the pillars of the Canadian government’s corporate social responsibility (CSR) policy announced in March, 2009, (Building the Canadian Advantage:  A Corporate Social Responsibility Strategy for the Canadian International Extractive Sector), the Government created a new office of the Extractive Sector Corporate Social Responsibility Counsellor (“Counsellor”).  A Protocol between the NCP and the Office of the CSR Counsellor is available on the NCP website.

15.2. The mandate of the Counsellor is to review the CSR practices of Canadian extractive sector companies operating outside Canada, and to advise stakeholders on the implementation of four performance guidelines (the International Finance Corporation Performance Standards on Social and Environmental Sustainability, the Voluntary Principles on Security and Human Rights, the Global Reporting Initiative and the OECD Guidelines for Multinational Enterprises).

15.3. If a request for review is received by the Counsellor that relates only to the OECD Guidelines for Multinational Enterprises, the Counsellor shall refer the request to the NCP. 

15.4. If a request for review is received by the Counsellor or the NCP that relates to the OECD Guidelines for Multinational Enterprises and any other performance guidelines for which the Counsellor is responsible, the Counsellor shall lead the review and shall consult with the NCP on issues relating to the OECD Guidelines for Multinational Enterprises.

15.5 The Counsellor is subject to the Access to Information Act and the Privacy Act.