Procedures Guide for Canada's National Contact Point for the Organization 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 (NCP) follows when receiving a request for review of a specific instance under the OECD Guidelines for Multinational Enterprises.

1.2. These Procedures are 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”.

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.
  • “Request for review” means a written submission to the NCP by a Notifier alleging non-observance of the Guidelines by a multinational enterprise (s) with supporting documentation and asking the NCP to review the specific instance.
  • “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 of the NCP process

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 acknowledge receipt, invite the company to respond to the allegations, review the documentation and supporting material received, 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 Final Statement explaining its decision 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 to facilitate a voluntary 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. Facilitated dialogue or mediation can only take place with the agreement of all parties.

3.6. Whether good offices are offered or not, and whatever the outcomes, the NCP will publish a Final Statement describing the proceedings at the end of each specific instance process as per OECD requirements. Lack of participation or any behaviour or actions non consistent with good faith, will be reported in the NCP Final Statement.

3.7. The NCP will circulate a draft of its Final Statement to the parties involved for comments. NCP Final Statements will be made public by posting on the NCP website and a reference will be included in the annual NCP report to the OECD and in the OECD database of NCP specific instances. The NCP may make recommendations to the parties as part of its Final Statements and may request follow-up from parties. If applicable, the NCP may publish a follow-up Statement on the implementation of any agreement between parties and/or NCP recommendations to the parties. The need to protect sensitive business and other stakeholder information will be taken into account when finalizing the content of any statement that is made public.

3.8 While the case is ongoing, confidentiality of the proceedings will be maintained. Parties are expected to respect confidentiality and participate in good faith. If the NCP determines that parties do not engage in good faith, the NCP may decide to apply consequences.

3.9. A flowchart explaining the NCP process is included in annex.

3.10. 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 (indicative timeframe: 3 months).
  • Stage 2 – From the Initial Assessment to the conclusion of the facilitated dialogue or mediation (indicative timeframe: 6 months).
  • Stage 3 – Drafting and publication of the Final Statement (indicative timeframe: 3 months).

4.2. The NCP’s objective is to complete each stage of the processing of a specific instance within the timeframes above. These timeframes are indicative. 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.

5. Who May file a request for review regarding a specific instance

5.1. 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.

5.2. 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 a non-governmental organization. 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.

5.3. 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).

6. Appropriate NCP for filing a request for review

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

6.2. 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.

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

6.4. Cases of multi-jurisdictional specific instances that involve cooperation with NCPs of other countries 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. Other NCP(s) may act as supporting NCPs to the lead NCP.

7. Information to include in the request for review

7.1. 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 documentation 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.
  • Information on any relevant laws or procedures and description of any potential issue regarding compliance with these laws or procedures.
  • 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.
  • In 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. Should the stakeholder submitting the request for review wish to seek an exception and keep certain information confidential, they should provide an explanation to justify this request.

 7.2. 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.

7.3. 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:

Canada’s National Contact Point for the OECD Guidelines for Multinational Enterprises
Global Affairs Canada
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Canada
Email: ncp.pcn@international.gc.ca
Telephone: 343-203-2341
Facsimile: (613) 992-8935
*Attention – BTA Division

8. Stage 1: From receipt to initial assessment

8.1. 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. The NCP Secretariat can answer questions on how to file a request for review.

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

8.3. 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 or parties.

9. Acknowledging receipt of the request for review

9.1. Within five working days of the receipt of a request for review, the NCP will issue a letter or email to the Notifiers acknowledging receipt. Notifiers must ensure that their submission includes a return address for such communication.

10. Initial assessment

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

10.2. 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 or parties.

10.3. 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.

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

10.5. 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.

10.6. The NCP may also review open source information and consult relevant government departments and other NCPs with knowledge of the issues raised.

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

10.8. 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 and publishing its Final Statement. The Final Statement will at a minimum describe the issue(s) raised and the reasons for the NCP’s decision. The NCP may make recommendations to the parties in its Final Statement. The file will then be closed.

10.9. 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 will draft an initial assessment report explaining its decision and circulate a draft to the parties for comments. The initial assessment report is that of the NCP and it is within the NCP’s discretion to decide whether to modify the draft in response to comments from the parties. The NCP may make publicly available its decision that the issues raised merit further examination and its offer of good offices to the parties involved.

11. Stage 2: From initial assessment to conclusion of facilitated dialogue

11.1. Where the issues raised are considered by the NCP to merit further examination, the NCP will offer its good offices, which can take the form of a facilitated dialogue or mediation to assist the parties in resolving the issues. Facilitated dialogue or mediation cannot take place without the agreement of all parties involved. If they accept the offer, parties will be expected to participate constructively and in good faith.

11.2. If they agree to participate in a facilitated dialogue or mediation, parties will be consulted on the modalities and will be asked to sign a facilitated dialogue or mediation agreement prior to the start of the facilitated dialogue or mediation. All participants will be asked to sign a confidentiality undertaking prior to the start of the facilitated dialogue or mediation.

11.3. The NCP may facilitate the dialogue or use external mediation or facilitation services. If external services are used, the NCP may observe the mediation or facilitated dialogue sessions.

12. Stage 3: Drafting and publication of the NCP final statement

12.1. 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.

12.2. Whether good offices are offered or not, the NCP will publish a Final Statement at the end of each specific instance process. If the NCP closes the specific instance without offering its good offices, the Final Statement will describe at a minimum the issues raised and the reasons for the NCP’s decision and may include recommendations to parties.

12.3. Where the parties reach an agreement on the issue(s) raised, the NCP Final Statement will at a minimum describe the issue(s) raised, the procedures the NCP undertook in assisting the parties and when agreement was reached. Information on the content of the agreement will only be included in the Final Statement insofar as the parties involved agree thereto.

12.4. 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 Final 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 Final Statement. Where appropriate, the statement may also include the reasons why agreement could not be reached.

12.5. In any case, NCP Final Statements 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. If the NCP determines that parties do not engage in good faith, consequences can be applied and will be reflected in the Final Statement. As part of the development of the Final Statement, the NCP will circulate a draft to the parties involved for comments. However, the Final 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, with a reference made in the NCP annual report to the OECD and in the OECD database of NCP specific instances.

12.6. If the NCP makes recommendations to the parties, the NCP may request parties to report back to the NCP on their response to these recommendations. The NCP may also request parties to report back to the NCP on the implementation of any agreement or commitments parties might have made during the proceedings. The timeframe for doing so will be addressed in the Final Statement of the NCP. The NCP may issue a follow-up statement.

13. Confidentiality and transparency

13.1. In order to ensure that the proceedings are transparent, 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 with corresponding rationale.

13.2. 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.  Confidentiality of the proceedings will be maintained during the entire NCP process.  It is understood that proceedings include the facts and arguments brought forward by the parties. Dissemination of NCP documents by a party such as the NCP initial assessment or draft versions of the Final Statement may be considered a confidentiality breach. At the conclusion of the procedures, if the parties involved in a facilitated dialogue or mediation 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.

13.3. The NCP Procedures Guide, in conformity with the laws of Canada, strives to strike a balance between the two principles of transparency and confidentiality.

13.4. 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.

13.5. 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, may be kept confidential.  During in NCP 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 in facilitated dialogue or mediation 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 in its Final Statement 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 will also be posted on the NCP’s website and the OECD database of NCP specific instances.

14. Participating in good faith

14.1. The NCP expects all parties to a specific instance to participate in good faith in the entire proceedings. Good faith behaviour in this context includes responding in a timely fashion, maintaining confidentiality, not misrepresenting the process, not threatening or taking reprisals against parties involved in the procedure, and genuinely engaging in the procedures with a view to finding a solution to the issues raised. Behaviours such as breaching confidentiality or issuing threats, on the part of either party, will lead to the NCP putting an end to the process.

14.2. Undertaking public campaigns related to a case during the proceedings or disseminating NCP documents such as the NCP initial assessment or draft versions of the NCP Final Statement are not considered good faith behaviour and may constitute a confidentiality breach.

14.3. While participation in the NCP mechanism is voluntary, actions or decisions by either party that do not reflect participation in good faith in an NCP specific instance process will be made public in the NCP Final Statement and will have consequences.

14.4. If Canadian companies do not participate in the NCP process, or if the NCP determines that they do not engage in good faith and constructively in the process, the NCP will recommend denial or withdrawal of Government of Canada trade advocacy support and will mention it in the Final Statement.

14.5. Non-participation or the lack of good faith participation will also be taken into account in the Corporate Social Responsibility-related evaluation and due diligence conducted by the Government of Canada’s financing crown corporation, Export Development Canada, in its consideration of the availability of financing or other support.

Annex: NCP process flowchart