Canada’s National Contact Point - Specific Instance Procedures - 2022
The grievance form referred to in the procedures is not available yet. Requests for review can be submitted to ncp.pcn@international.gc.ca. Please follow the instructions at how to file a request for review with the Canada’s National Contact Point (NCP). Specific instances will continue to be reported on the following web pages: Ongoing NCP specific instances and Closed NCP specific instances.
Table of contents
Role of the National Contact Point
3. Submitting a complaint (request for review)
7. Specific instance follow-up
9. Participating in good faith
10. Privacy, confidentiality, transparency
11. Withdrawal of specific instances
Appendix A: Complaint Handling Procedure flow chart
Preface
This version of the procedures has been introduced to reflect the recommendations contained in the Organisation for Economic Co-operation and Development (OECD) 2018 Peer Review of Canada's National Contact Point (NCP) for the OECD Guidelines for Multinational Enterprises. The revised procedures aim at providing more clarity on the role of Canada's NCP for Responsible Business Conduct and its specific instance review process.
This version replaces the version published on December 13, 2017.
Please direct any queries to the Canadian NCP Secretariat via email at ncp.pcn@international.gc.ca.You can also consult Canada's National Contact Point for the Organisation for Economic Co-operation and Development Guidelines for Multinational Enterprises.
The purpose of this document is to outline the process that Canada's NCP follows when receiving a complaint (request for review) under the Guidelines.
Role of the National Contact Point
The role of Canada's NCP is to further the effectiveness of the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises (MNEs) (updated in 2011) and to contribute to the resolution of issues that arise relating to their implementation.
Canada adheres to the standards set out in the OECD Guidelines as a consequence of its commitment to the OECD Declaration on International Investment and Multinational Enterprises.
The OECD Guidelines for MNEs provide recommendations addressed by governments to multinational enterprises operating in or from adhering countries. The Guidelines represent the only multilaterally endorsed comprehensive code of conduct that 50 countries, including Canada, have committed to promoting. The Guidelines cover the following areas of business responsibility: disclosure, human rights, employment and industrial relations, environment, anti-corruption, consumer interest, science and technology, competition and taxation.
The Guidelines are voluntary and are not intended to override local laws and legislation. The Guidelines reflect good practice for businesses of all sizes, wherever they operate.
Canadian companies, whether they are operating in Canada or overseas, are expected to act in accordance with the principles set out in the OECD Guidelines and to perform to the standards they endorse.
The Canadian NCP actively supports the OECD's work in various sectors to help businesses adopt and implement the Guidelines.
Structure
Canada's NCP is an interdepartmental Committee comprised of eight member departments and chaired by Global Affairs Canada (GAC), with Natural Resources Canada (NRCan) as the vice-chair. Member departments are: Crown-Indigenous Relations and Northern Affairs Canada, Environment and Climate Change Canada, Employment and Social Development Canada, Department of Finance Canada, Innovation Science and Economic Development Canada, and Public Service and Procurement Canada.
Canada's NCP is supported by the NCP Secretariat, which provides administrative support and, with the input of an ad hoc working group, makes recommendations regarding the specific instance review process.
1. Glossary
- CORE: Canadian Ombudsperson for Responsible Enterprise mandated to review allegations of human rights abuse by Canadian companies operating abroad in the oil and gas, mining and garment sectors.
- Good faith: Means responding in a timely fashion, maintaining confidentiality, not misrepresenting the process, not threatening or taking reprisals against the other party, and genuinely engaging in the process with a view to finding a solution to the issue raised.
- Good offices: Means dialogue-facilitation services provided by the Canadian NCP or mediation, carried out by a professional mediator.
- Material and substantiated: Considering the NCP review process cannot be founded on assumptions, a request for review will be considered to be "material and substantiated" when:
- a) The allegations raised relate to the Chapters of the Guidelines.
- b) There is a plausible link between the issue raised, the context in which the allegations have taken place, and the respondent's activities.
- c) The supporting documentation relates to the allegations.
- d) The allegations brought forward are clearly described, explaining what actions are in breach of the Guidelines, why they are considered as such, and when and where the breach (es) occurred.
- MNE: Multinational enterprise. A MNE usually comprises companies or other entities established in more than one country and so linked that they may co-ordinate their operations in various ways.
- NCP: National Contact Point for the OECD Guidelines for Multinational Enterprises. Canada's NCP is a committee comprised of eight (8) member departments and chaired by Global Affairs Canada (GAC), with Natural Resources Canada as the vice-chair.
- NCP Secretariat: Administrative arm of the NCP responsible for managing the complaint process and promoting the Guidelines.
- NCP Working Group: Ad hoc working group created to examine specific instances. Members of the working group are members of the NCP committee.
- Notifier: Any individual, organization, or community, directly related with the issue and that believes a multinational enterprise's actions or activities have not observed the OECD Guidelines for Multinational Enterprises, and who files a request for review with the NCP. A notifier may act on behalf of another identified party. If anonymity of the party is justified, section 3.5 below could apply.
- OECD: Organisation for Economic Co-operation and Development.
- OECD Guidelines: The OECD Guidelines for Multinational Enterprises – an OECD document that articulates international best practices for Responsible Business Conduct.
- OECD Procedural Guidance: Procedural Guidance and Commentary within the OECD Guidelines.
- Parties: The complainant (notifier) and the multinational enterprise (respondent).
- Personal information: Canada's Privacy Act defines "personal information" as any information about an identifiable individual that is recorded in any form.
- Request for review: A written submission asking the NCP to review an alleged non-observance of the Guidelines by a multinational enterprise(s).
- Respondent: The multinational enterprise or entity against which the complaint is made.
- Specific instance: An instance of alleged non-observance of the Guidelines by a multinational enterprise or entity.
- Website: Canada's NCP website accessible at www.ncp.gc.ca.
2. Principles
Complaints received by the NCP will be handled in line with the procedures documented herein.
2.1 To support the effective implementation of these procedures, the NCP will adhere to the OECD Procedural Guidance, including the principles of visibility, accessibility, transparency, accountability, impartiality, predictability, equitability and compatibility with the Guidelines.
2.2 The NCP aims to support the participation of disadvantaged or vulnerable groups in NCP processes and will make best endeavours to sensitively manage barriers including those related to: language and literacy, cultural constraints, and difficulty accessing equal representation. For example, the NCP may suggest a list of civil society entities available to supporting notifiers and willing to work with the NCP.
2.3 The NCP will address, when possible, potential safety risks for notifiers and related parties throughout the NCP process, for example, as outlined in paragraph 3.5.
2.4 The NCP expects all parties to participate in good faith, as described in the glossary above and in point 9 below, during the entire process. Behaviours such as breaching confidentiality or issuing threats, on the part of either party, may lead to the NCP putting an end to the process.
3. Submitting a complaint (request for review)
A party that believes that the actions or activities of a MNE constitute non-observance of the OECD Guidelines for Multinational Enterprises may file a request for review of a specific instance with the NCP.
3.1 Notifiers can submit their request for review using the grievance form on the Canadian NCP website. If a notifier is unable to use the form, the NCP will seek to provide reasonable alternative arrangements to ensure the process is accessible. Reasonable arrangements to ensure accessibility will be made for the duration of the specific instance review process.
3.2 A request for review can be made to the NCP about:
- a) A foreign or Canadian multinational enterprise operating in Canada; or
- b) A Canadian multinational enterprise operating overseas, even in a country that is not adherent to the OECD Guidelines.
3.3 The NCP will seek to take a broad view of the definition of a Canadian multinational enterprise for the purposes of assessing a request for review. Factors such as the MNE's corporate identity and scope of management or control in Canada will be considered.
3.4 Requests for review should clearly demonstrate the link between the issue raised and the enterprise's actions or responsibilities.
3.5 In certain circumstances (i.e., where there are risks to the personal safety of the notifier and/or the threat or risk of reprisals), the NCP will enable anonymous filing of requests for review via a third party. Notifiers acting on behalf of others should be able to demonstrate their authority to do so and show evidence of the need for anonymity of the affected party. Regardless of the choice, personal information will be protected.
3.6 When a request for review is jointly submitted by more than one notifier, the notifiers should indicate which one of them will act as the lead for purposes of liaison and communication with the NCP. The notifiers should further indicate whether the others should be copied on the correspondence.
3.7 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 given the circumstances.
3.8 When a request for review involves more than one NCP, generally, it will be dealt with by the NCP of the country in which the issue has arisen.
3.9 Multi-jurisdictional requests for review 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 process, while other the NCP(s) will support them.
4. Initial assessment
4.1 The objective of the initial assessment stage is to determine whether a request for review merits further examination, should be transferred to another NCP, or should be rejected.
4.2 Requests for review concerning a matter that the NCP or another NCP is currently handling, or has already handled to completion, may not be considered valid if the substance of the complaint is not markedly different.
4.3 The NCP can examine an issue that has been or is being considered in other fora.
4.4 If the issue is related to allegations of human rights abuse by a Canadian MNE operating abroad in the mining, oil and gas or garment industries, notifiers may submit the request for review to either the NCP or the CORE – it is their choice. However, notifiers may not submit their complaint to both mechanisms at the same time; they may only submit their complaint to the other mechanism once the review has been completed.
4.5 The specific instance process will be reported in the case tracker on the NCP website.
4.6 Receipt of a request for review is acknowledged within five (5) business days.
4.7 Where a request for review does not contain the information necessary to conduct an initial assessment, the Secretariat will work with the notifier to explain what additional material is required. Incomplete requests for review will be considered invalid if notifiers are unable to provide the required information within a reasonable timeframe. Indicative timeframes stipulated in paragraph 8 will be extended when justified.
4.8 As part of the initial assessment, the Secretariat will forward a copy of the request for review to the MNE in question with a request to reply to the allegations. The NCP will take the reply of the MNE into account when carrying out its initial assessment.
4.9 Parties to a specific instance review process are to forward all relevant and supporting documentation to the Secretariat within the indicative timeframe stipulated in paragraph 8 (10 business days), which can be extended if justified. The NCP will indicate to the parties when additional documentation in relation to the review will no longer be accepted.
4.10 At this stage, the Secretariat may seek additional information from both parties to verify the accuracy of their input. The Secretariat will facilitate the exchange of this information between the parties.
4.11 All parties to a specific instance review process are requested to make it clear in all of their correspondence with the Secretariat whether the information and documentation they have provided may be shared with the other party. As per paragraph 10.4, the Secretariat shares all relevant information it receives from one party with the other party unless paragraph 10.5 applies.
4.12 The Secretariat may also review open source information and consult relevant government departments (members of the NCP Committee) and other NCPs who have knowledge or an interest in the issue(s). The source of this information will be conveyed to the parties.
4.13 The Secretariat will then proceed to draft the initial assessment with the information at hand and consult the working group to determine whether the issue is raised in good faith and relevant to the implementation of the Guidelines, and if they merit further examination. In this context, the six (6) admissibility criteria outlined in the OECD Procedural Guidance will be taken into account:
- a) the identity of the party concerned and its interest in the matter;
- b) whether the issue is material and substantiated;
- c) whether there seems to be a link between the enterprise's activities and the issue raised in the specific instance;
- d) the relevance of applicable law and procedures, including court rulings;
- e) how a similar issue has been, or is being, treated in other domestic or international fora;
- f) whether the consideration of the specific instance would contribute to the purposes and effectiveness of the Guidelines.
4.14 The Secretariat will interpret material and substantiated to mean that the issue is related to the application of the OECD Guidelines, and is plausible. The criteria for substantiated is to have reasonable evidence to substantiate the allegations. Considering the review process cannot be founded on assumptions, a request for review will be considered to be material and substantiated when:
- The allegations raised relate to the Chapters of the Guidelines.
- There is a plausible link between the issue raised, the context in which the allegations have taken place, and the respondent's activities.
- The supporting evidence relates to the allegations.
- The allegations brought forward are clearly described, explaining what actions are in breach of the Guidelines, why they are considered as such, and when and where the breach (es) occurred.
The Secretariat will then seek the NCP Committee approval on the recommendation made by the working group to either offer good offices, or not.
4.15 The Secretariat will then share the initial assessment with the parties before it is published on the NCP website. The initial assessment is that of the NCP and it is at the NCP's discretion to modify it or not. However, if the conclusions of the initial assessment must be changed, the parties will be informed of the reason(s) for the change and will be given the opportunity to comment on the new conclusion before the initial assessment is published. Initial assessments will not be changed once published.
4.16 An initial assessment will then be published on the NCP website, including: the identity of the parties, except for personal information as defined in Canada's Privacy Act; the location and description of the allegation; the respondent's response; and the rationale as to whether the NCP has accepted or rejected the specific instance.
4.17 Should the NCP decide that the specific instance does not merit further examination; the initial assessment will be published as the final statement.
4.18 Where the specific instance is considered 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 issue.
4.19 Acceptance or rejection of a specific instance is not an assessment of whether the MNE's actions are consistent with the OECD Guidelines nor is it a ruling on the merits of the issue raised by the notifier(s).
5. Good offices
5.1 The objective of the good offices stage is to facilitate an exchange between the parties with the aim of arriving at a mutually agreed-upon resolution.
5.2 The Secretariat will seek each party's agreement to proceed with a facilitated dialogue or mediation:
- a) if both parties agree, the good offices process will commence;
- b) if the notifier does not agree or does not participate in good faith, the Secretariat will prepare a final statement summarising the process and will make recommendations as appropriate, on the implementation of the Guidelines. The final statement will be shared with the parties and submitted to the NCP Committee for its approval before its publication on the NCP Website and reporting in the OECD database.
- c) if the respondent does not agree or does not participate in good faith, the Secretariat will prepare a final statement summarizing the process and will make recommendations as appropriate, on the implementation of the Guidelines. The final statement will be shared with the parties and submitted to the NCP Committee for its approval before its publication on the NCP website and in the OECD database. The NCP will determine if the trade measure should be recommended.
5.3 The good offices process begins with a preparation stage. In consultation with the parties, the Secretariat or mediator will prepare a plan for discussions in order to give clarity to the process and manage timeframes and expectations. Plans may include each party's initial objectives, anticipated communication methods, and confidentiality arrangements. Plans may vary in formality and will be case-specific to account for the preferences of each party and any practical constraints that may exist.
5.4 The Secretariat may facilitate the dialogue or use external mediation or facilitation services. If external services are used, the NCP will cover the costs and may observe the mediation or facilitated dialogue sessions.
5.5 Information and views provided during good offices will be treated as confidential. With the support of the Secretariat or mediator, the parties will reach, at the beginning of the process, a common understanding on what is considered confidential information. Expectations around communication with the media and the public should be clarified from the outset as well.
6. Final statement
6.2 If the NCP closes the specific instance review process without offering its good offices, on grounds that it determines the claim does not meet the admissibility criteria, the initial assessment will be published as the final statement, and will describe, at a minimum, the issue raised and the reasons for the NCP's decision; the final statement may include recommendations to the parties.
6.3 Where the parties reach an agreement on the issue raised, the final statement will, at a minimum, describe the issue raised, the procedures the Secretariat 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.
6.4 Where the parties do not reach an agreement on the issue raised, the final statement will, at a minimum, describe the issue raised, the rationale as to why good offices were offered and the measures undertaken to assist the parties. The NCP can make recommendations on the implementation of the Guidelines and may also include the reasons why an agreement could not be reached.
6.5 When a party is unwilling to engage in the process or participate in good faith, it will be noted in the final statement.
6.6 The Secretariat will share a draft of the final statement with the parties for comment. The final statement is that of the NCP and it is within the NCP's discretion to decide whether to change the draft final statement in response to comments from the parties. However, should a final statement be changed, the parties will be informed of the reason(s) for the change and will be given the opportunity to comment on the new version before it is published. Final statements will not be changed once published.
6.7 The final statement is posted on the NCP website, referenced in the NCP annual report as well as its annual report to the OECD. The specific instance is also entered into the OECD specific instances database.
7. Specific instance follow-up
7.1 The NCP may specify a timeframe for follow-up on the specific instance in the final statement, provided this is appropriate in the context of the issue involved. The objective of any follow-up process will be to examine the extent to which the terms of the agreement have been fulfilled and, if applicable, whether the recommendations in the final statement have been implemented or any further engagement from the NCP is warranted.
7.2 In these cases, the Secretariat will request an update from both parties on developments since the completion of the final statement.
7.3 The draft follow-up statement will then be provided to both parties for comment. The NCP may make changes to this statement at its discretion.
7.4 The Secretariat may publish a further statement with a summary of the updates received and any commentary on the matter that the NCP considers relevant, including the extent to which recommendations made in the final statement or any mediated outcome have been implemented. It may also recommend an additional follow-up period, where it considers this useful.
8. Service standards
8.1 The following table provides a breakdown of indicative timeframes for each stage of the specific instance review process, as per the OECD Guidelines standards. The NCP Secretariat recognizes that the parties may require more time to provide their input and will consider requests for extensions on a case by case basis. More detailed information on the progress of specific instance can be found in the case tracker.
Initial assessment (IA)- 3 months (approximately 66 business days)
| Action | Days |
|---|---|
| Secretariat acknowledges receipt of request for review | 5 |
| Notifier provides additional information if requested | 10 |
| Secretariat notifies the respondent | 1 |
| Respondent provides its input within 10 days | 10 |
| Secretariat seeks clarifications from the parties if necessary | 5 |
| Parties provide clarifications if required | 5 |
| Secretariat drafts the IA | 10 |
| Secretariat submits the IA to the working group for a recommendation | 5 |
| Secretariat and working group submit the recommendation to the NCP Committee | 5 |
| Secretariat informs the decision to the parties | 5 |
| Secretariat publishes the initial assessment on the website | 5 |
Good offices - 6 months (approximately 132 business days)
| Action | Days |
|---|---|
| Agreement on dialogue facilitation or identification of a mediator acceptable to the parties | 20 |
| Preparatory stage | 40 |
| Dialogue facilitation or mediation | 72 |
Final statement (FS) - 3 months (approximately 66 business days)
| Action | Days |
|---|---|
| Secretariat drafts FS | 25 |
| Secretariat submits FS to the parties | 15 |
| Parties comment FS | 10 |
| Secretariat submits FS to the NCP | 6 |
| Secretariat publishes the final statement | 6 |
Follow-up if specified - Within 6 months of the FS
8.2 Where delays are anticipated or ongoing, the Secretariat will discuss the reason(s) with the parties and consider available options to suitably manage the delay. Delays will be noted in the specific instance case tracker.
9. Participating in good faith
9.1 The NCP expects all parties to a specific instance review process to participate in good faith during the entire process. 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 process, and genuinely engaging in the process with a view to finding a solution to the issue raised.
9.2 The failure to abide by the agreement reached under 5.5, where the parties will agree, at the beginning of the process, on a common understanding of what is considered confidential information, should be sufficient cause for the Secretariat or mediator to suspend or, as appropriate, terminate the process.
9.3 NCP correspondence and documents are to be exclusively used and only published by the NCP Secretariat. Sharing information privy only to the parties may constitute a confidentiality breach.
9.4 While participation in the NCP mechanism is voluntary, actions or decisions by either party that do not reflect participation in good faith in an specific instance review process will be made public in the final statement.
9.5 If Canadian companies do not participate in the NCP process, or if the NCP determines that they do not engage in good faith or constructively in the course of or follow-up to the review process, the NCP can recommend the withdrawal of all Trade Commissioner Service support and that Export Development Canada and the Canadian Commercial Corporation also withdraw future support.
10. Privacy, confidentiality, transparency
Transparency is a core criterion by which the Canadian NCP and other NCPs operate.
10.1 The Canadian NCP Procedures Guide, in conformity with the laws of Canada namely, the Privacy Act and the Access to Information Act, strives to strike a balance between the principles of privacy, confidentiality and transparency.
10.2 The Privacy Act applies to personal information collected, used or disclosed by the NCP. This is the case when the notifier is an individual and not a representative of a corporation, trade union, non-profit or other incorporated organization. The NCP may also collect other personal information such as information about witnesses.
10.3 The Access to Information Act gives individuals the 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, to bring the matter before the Federal Court for judicial review.
10.4 When a request for review qualifies for consideration as a specific instance, the Secretariat shares all relevant information it receives from one party with the other party, including personal information on a need to know basis to allow parties to express their views.
10.5 If a party does not agree to share its personal information with the other party, the Secretariat will assess whether this is reasonable in the circumstances and where possible, work with the party to excise any sensitive information or provide a summary version of such information and state the reasons that prevent full disclosure.
10.6 The Secretariat will de-identify the personal information of a request for review prior to sharing the initial assessment with the working group, or the NCP Committee.
10.7 When good offices are offered to the parties, the Secretariat may disclose limited identifiable personal information to those persons who would have a legitimate need to know in order to undertake mediation of the specific instance, such as the mediator.
10.8 Information and views provided during the course of the good offices will be treated as confidential.
10.9 After consultation with the parties involved, the Secretariat will report the results of the mediation in the final statement.
10.10 Any final statement issued by the NCP shall not include identifiable personal information unless the notifier or participating third party expressly requests that it be included.
10.11 Apart from the requirements of the Privacy Act, either or both of the parties may wish to treat certain non-personal information as confidential in order to protect trade sensitive information, dealings with third parties or negotiations or for other reasons. The party seeking to keep information confidential must provide the Secretariat with an explanation for such a request. The Secretariat will consider such a request and determine whether to grant the request. Information that cannot be shared between the parties will not form part of the Secretariat's consideration of the specific instance.
10.12 The Secretariat will not include identifiable personal information of the notifier and third parties nor divulge confidential information in its report to the Investment Committee of the OECD, in the OECD database or in the published NCP Annual Report.
11. Withdrawal of specific instances
11.1 Notifiers may request to withdraw their specific instance in writing to the Secretariat. If this occurs, the NCP will consult the respondent and close the case. Withdrawn specific instances will be published on the NCP website unless there are sufficient grounds to withhold such information from publication.
11.2 If at any stage of the process, the NCP receives written notification from both parties that they wish to mediate outside the NCP process, the NCP will suspend the case. The NCP will request an update of progress every two months to determine whether the specific instance procedure needs to be reopened. If mediation outside the system is successful, the NCP will close the case. If this is achieved before the initial assessment is completed, a note in the case tracker closing the complaint without identifying the parties will be published. If this is achieved after the initial assessment stage, a reduced final statement will be published in the case tracker explaining that the parties have achieved a mediated settlement outside the NCP process.
Appendix A: Complaint Handling Procedure flow chart
Text version
Initial Assessment (3 months)
Step 1 – Notifier submits a request for review; Secretariat acknowledges receipt within five business days
Step 2 – Secretariat helps notifier to understand the criteria and complete the submission
Step 3 – YES: Request for review qualifies for consideration
NO: Request for review does not qualify for consideration and review process ends
Step 4 – Secretariat invites Multinational Enterprise (MNE) to participate and provide input*
Step 5 - Secretariat drafts initial assessment and examines it with the working group; posts the request for review in the public case tracker and informs OECD
Step 6 – NCP committee makes decision based on working group recommendation
Step 7 – Once parties have reviewed, the initial assessment is published and the case tracker is updated
Step 8 – YES: NCP offers mediation to the parties
NO: NCP does not offer mediation and the specific instance review process ends
Mediation (6 months)
Step 9 – YES: Both parties accept offer of mediation
NO: Either one or both parties decline mediation*; review process ends
Step 10—Mediation takes place
Final statement (3 months)
Step 11 – Secretariat asks parties to review final statement
Step 12 – Once approved by the NCP, the final statement is published, the case tracker is updated and the OECD is informed
Step 13 – If the final statement includes recommendations or an agreement for further action, a follow-up statement is published on the NCP website
Follow-up (6 months)
Step 13 - If the final statement includes recommendations or an agreement for further action, a follow-up statement will be published on the NCP website.
*If parties do not participate in good faith, the review process can be terminated and/or the trade measure can be invoked.
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