Responsible business conduct abroad – Questions and answers

Canadian Ombudsperson for Responsible Enterprise (Ombudsperson)

What is the mandate of the Ombudsperson?
  • The Ombudsperson’s mandate is to address complaints related to allegations of human rights abuses arising from a Canadian company’s activity abroad.
  • The Ombudsperson is mandated to undertake collaborative and independent fact-finding, make recommendations, monitor implementation of those recommendations, and report publicly throughout the process.
  • The mandate and associated responsibilities are outlined through an Order in Council (2019-0299).
How was the Ombudsperson selected and what is the duration of its term?
  • The selection process was guided by an open, transparent, and merit-based process.
  • The Ombudsperson was appointed through an Order in Council (2019-0300) and will serve full-time for a term of up to five years.
When will the Ombudsperson be operational?
  • The intention is to have the Ombudsperson office operational as soon as possible.
How is the Ombudsperson different from the Extractive Sector Corporate Social Responsibility (CSR) Counsellor?
  • The Ombudsperson is empowered to investigate independently. The Ombudsperson is mandated to pursue collaborative fact-finding, wherever possible.
  • To improve transparency, the Ombudsperson will report at various stages of an investigation process and when monitoring recommendations, while much of the CSR Counsellor’s work of initiating informal dialogue was confidential.
  • With the Ombudsperson, Canada is moving toward a multi-sector approach. The CSR Counsellor’s mandate was focused on the extractive sector only.
  • The Ombudsperson was appointed for a term of up to five years. The CSR Counsellor served a three year term.
How is the Ombudsperson different from the Canadian National Contact Point (NCP)?
  • Canada’s National Contact Point (NCP), required under the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises, continues to fulfill its mandate of dialogue facilitation or mediation for all sectors for a wide range of issues, such as disclosure, employment and industrial relations, environment and bribery.
  • The Ombudsperson role is focused on investigations, informal resolution of disputes, and on making public recommendations.
  • The roles of the Canadian NCP and the Ombudsperson are complementary, whereby the Ombudsperson may refer cases to the NCP for formal mediation, where appropriate, and where parties are in agreement.
What is the role of the Canadian Trade Commissioner Service with the creation of an Ombudsperson?
  • The Canadian Trade Commissioner Service (TCS) provides advice and guidance on responsible business conduct for Canadian companies doing business abroad. The TCS actively promotes awareness and understanding of the importance of responsible business practices and creates opportunities for relationship building through conferences, workshops and other activities involving companies, representatives of host governments, and civil society.
  • The TCS will receive enhanced training on Canada’s new approach to support providing services to Canadian client companies around the world, in line with the Government of Canada’s expectations for responsible business conduct abroad, and Canada’s new guidelines on supporting human rights defenders.
  • For certain types of enhanced services, the TCS requires that companies sign an Integrity Declaration, which refers to the OECD Guidelines for Multinational Enterprises and declares that a company is doing business responsibly, ethically and within the law.
How is the appointment of an Ombudsperson considered an improvement to Canada’s approach on CSR abroad?
  • Building on Canada’s existing expertise and leadership in corporate social responsibility, the creation of an Ombudsperson demonstrates our continued commitment to responsible business conduct, human rights and progressive trade that ensures all segments of society can benefit from the opportunities that flow from trade and investment. 
  • The appointment of an independent Ombudsperson provides a strengthened approach to address alleged human rights abuses arising from a Canadian company’s operations abroad. The Ombudsperson has a wider mandate than existing mechanisms, with the ability to:
    • undertake collaborative fact-finding;
    • initiate independent fact-finding, even without the submission of a complaint;
    • report throughout an investigation; and
    • make recommendations to parties involved in the complaint, as well as to the Canadian Government. 
  • The Ombudsperson’s mandate covers the garment, mining, and oil and gas sectors, which represents a significant expansion. Together with the Canadian National Contact Point, Canada now has two mechanisms, with complementary roles, to support dispute resolution for multiple sectors.
  • With a scope that extends beyond the extractive sector, the government has more options to respond to alleged human rights abuses that arise in other sectors of business. This increased scope further underscores our commitment to responsible business conduct in all sectors.
  • The longer term (up to five years) also allows for more independency and consistency in operations.
What sectors will be covered under the Ombudsperson mandate?
  • Initially, the Ombudsperson will cover cases in the garment, mining, and oil and gas industries. 
  • Expansion to additional sectors is expected after the first year, informed by advice from the multi-stakeholder Advisory Body on Responsible Business Conduct.
What teeth does the Ombudsperson have? How will the Office of Ombudsperson deal with companies that do not cooperate with the Office
  • The Government is committed to ensuring that the Ombudsperson has all the tools required to ensure compliance with information requests – including the compelling of witnesses and documents – in the hopefully very rare circumstances where a company is not fully and appropriately cooperating.
  • The Ombudsperson will operate with a budget sufficient to allow her to conduct complex collaborative and independent investigations.
What penalties will be applied to business if the Ombudsperson uncovers wrongdoing abroad? / What remedy can complainants expect?
  • The Ombudsperson can recommend sanctions, which include the withdrawal of certain Government services, such as trade advocacy and future Export Development Canada support, for companies found to be involved in wrongdoing.
  • In the Ombudsperson’s final report, the Ombudsperson can also make specific public recommendations to companies which will be monitored. This could include recommending compensation, an apology, cessation of particular activities, mitigation measures or corporate policy changes.
  • Any evidence of Canadian criminal wrongdoing will be provided to the appropriate law enforcement authority, including the Royal Canadian Mounted Police.  
How much independence does the Ombudsperson have? For example, is the Ombudsperson able to initiate independent investigations and publish its findings?
  • The Ombudsperson retains full discretion to undertake collaborative and independent fact-finding to address allegations of human rights abuses by Canadian companies operating abroad.
  • To improve transparency, the Ombudsperson will publicly report at various stages – another important distinction - of an investigation process and when monitoring recommendations.
  • The Minister of International Trade will table the Ombudsperson’s annual reports in Parliament. Before being published, all reports will be shared with the Minister and the parties to ensure procedural fairness. 
What are the investigative powers of the Ombudsperson?
  • The Ombudsperson has the ability to conduct collaborative and independent fact-finding, as relevant and appropriate.
  • When companies do not cooperate in the process, the Ombudsperson has the ability to recommend denial or withdrawal of trade advocacy and future Export Development Canada financial support, as an interim measure or as a final recommendation. This sanction provides leverage to encourage companies to meaningfully participate in the process.
  • The Government is committed to ensuring that the Ombudsperson has all the tools required to ensure compliance with information requests in the hopefully very rare circumstances where a company is not fully and appropriately cooperating.
What is the Ombudsperson’s complaint or investigation process?
  • Standard Operating Procedures will be established by the Ombudsperson in consultation with the Department’s legal advisors, other implicated federal departments, and the Advisory Body on Responsible Business Conduct. They will be made available to the public online so that the Ombudsperson’s process is clear, predictable and transparent.
How should complaints be submitted?
  • After the Ombudsperson’s Office is fully functional, a web portal will enable public submissions. There will also be an option to make submissions by mail, for those who do not have access to a computer or the internet.
What appeals process is there if my company is subject to a complaint?
  • Standard Operating Procedures will be established in consultation with the Department’s legal advisors, other implicated federal departments, and the Advisory Body on Responsible Business Conduct. They will be made available to the public online so that the Ombudsperson’s process is clear, predictable and transparent. 
I own a small company with operations abroad. What rules should I follow to ensure I am not investigated?
  • All Canadian companies operating abroad, regardless of size, are expected to respect human rights, all applicable laws and international standards, to operate transparently and in consultation with host governments and local communities, and to work in a socially and environmentally responsible manner.
  • Companies should operate in a manner consistent with recognized business and human rights standards including the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises.
  • The Government of Canada provides guidance and resources to support Canadian companies to make informed decisions and operate responsibly abroad. Companies are invited to connect with a Canadian trade commissioner at one of the regional offices across Canada, or in the country where they are operating to learn more.
Does the Ombudsperson serve as a replacement for bringing claims against Canadian mining companies to Canadian courts?
  • The creation of the Ombudsperson’s office does not affect the right of any party to bring a legal action in a court in any jurisdiction in Canada regarding allegations of harms committed by a Canadian company abroad.
Can the Ombudsperson make recommendations to the Government of Canada?
  • The Ombudsperson can recommend the withdrawal of certain Government services, such as trade advocacy and future Export Development Canada support, for companies found to be involved in wrongdoing.
  • The Ombudsperson can make recommendations to the Government on fulfilling Canada’s human rights obligations, and the effective implementation and development of its laws, policies and practices related to responsible business conduct by Canadian companies operating abroad in all sectors.