National Contact Point annual report 2021

1. Introduction

The OECD Guidelines for Multinational Enterprises (the Guidelines) provide companies with non-binding principles and standards for responsible business conduct in order to prevent and minimize negative impacts of their activities on the economy, the environment, and the society.

As an adherent to the OECD Declaration on International Investment and Multinational Enterprises, Canada has a National Contact Point (NCP) for Responsible Business Conduct (RBC).

The NCP and the Canadian Ombudsperson for Responsible Enterprise (CORE) are the two dispute-resolution mechanisms offered by the Government of Canada to support its commitment to RBC.

The mandate of the Canadian NCP is to promote awareness and adoption of the Guidelines amongst Canadian companies, and to offer a dialogue facilitation platform when a complaint is lodged about the alleged non-observance of the OECD Guidelines by a Canadian multi-national enterprise in any sector, anywhere in the world, including Canada.

This 2021 report fulfils Canada’s obligation as an adherent to the OECD Guidelines and covers the period from January 1, 2021 to December 31, 2021. During the year under review, the NCP prioritized responding to the recommendations made in the 2019 OECD Peer Review by proposing a number of procedural changes, as well as improvements to how it communicates its review process and findings. The proposed changes will be consulted with stakeholders, after which they will be finalized and implemented in 2022. The Secretariat’s activities also focused on the review of specific instances and on promotion and outreach.

It is important to note that the Canadian NCP’s efforts to fulfill its promotional mandate were significantly hindered as a direct result of the COVID-19 pandemic and the adjustment to a virtual workplace.  Despite these challenges, Canada’s NCP continued to support and actively engage with the OECD and the global Network of NCPs.

In 2021, Global Affairs Canada continued to work on its RBC Strategy renewal process, of which the NCP is an integral component.

2. Institutional arrangement

Canada’s NCP is an interdepartmental committee composed of officials from the following eight Federal departments: Global Affairs Canada (GAC) as the Chair, Natural Resources Canada (NRCan) as the Vice-Chair, Environment and Climate Change Canada (ECCC), Innovation, Science and Economic Development Canada (ISED), Employment and Social Development Canada (ESDC), Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC), Finance Canada (FIN) and Public Services and Procurement Canada (PSPC). Canada’s NCP has three non-governmental Social Partners, namely, the Canadian Chamber of Commerce (CCC), the Canadian Labour Congress (CLC), and the Confédération des syndicats nationaux (CSN).

Each of the member departments comprising the NCP brings specific expertise related to their mandated areas of responsibility. Representatives from the respective departments are thus able to provide informed advice on a broad range of issues covered by the Guidelines.

The NCP Secretariat, which is located in GAC, provides administrative support to the NCP. It is operated by two full-time staff members. GAC provides the human and financial resources to the NCP Secretariat. NCP member departments provide in-kind support.

The office of the Canadian Ombudsperson for Responsible Enterprise (CORE) became operational on March 15, 2021.  The NCP and the CORE held three quarterly meetings to coordinate their operations and explore ways to promote RBC jointly.

3. 2021 Procedural review

In 2021 the NCP Secretariat dedicated more than fifty percent of its time to reviewing its procedures and communications practices, in response to the recommendations of the 2019 OECD Peer Review. In doing so, the Secretariat took into consideration the feedback received from business, academia and civil society stakeholders during a series of three workshops held in September 2020.

The NCP Secretariat’s procedural review was informed by the principles of transparency, accountability and engagement and entailed a detailed assessment of all NCP operations. The results were a revised, and more comprehensive, Procedures Guide, better alignment with the Government of Canada Privacy Act and new communications and reporting tools, designed to improve transparency and efficiency.

The Secretariat’s procedural review was completed in late 2021 and its proposed changes were then presented to the NCP Committee and the NCP social partners for their input. The Secretariat will also present its proposed changes to external stakeholders via consultations in early 2022. The feedback obtained from these consultations will inform the final version of the NCP’s new Procedures Guide, communications and reporting tools.  The NCP’s updated Procedures Guide and tools will be incorporated into the NCP website, soon after the completion of the 2022 consultations.

To guide many of these efforts, the NCP Secretariat undertook a Privacy Impact Assessment (PIA) in 2021 to align the collection and handling of personal information associated with the specific instance review process, with Canada’s Privacy Act. New measures to protect personal information are reflected in the revised Procedures Guide. 

In addition, the NCP Secretariat hired the services of a lean management consultant to streamline its operations, more specifically in relation to the specific instance review process.

The actions described above confirm Canada’s commitment to better align NCP operations with OECD procedural guidance.  

4. Outreach and promotion

The promotion of the OECD Guidelines, of the Due Diligence guidance documents and of the NCP dispute-resolution mechanism is an important part of the NCP’s mandate. During the year under review, Canada's NCP co-organized and/or participated in a variety of responsible business conduct-related events with a view to raise awareness of the NCP mandate and promote the Guidelines and due diligence guidance to academia, businesses, non-governmental organizations, trade unions, and government officials. This year the Secretariat’s promotional efforts were limited by the COVID pandemic, a federal election (which restricted public-facing government initiatives under the “Caretaker Convention”), and the priority given to the procedural review.  The NCP will prioritize outreach and the promotion of the Guidelines in 2022. The NCP is also coordinating with the Canadian Ombudsperson for Responsible Enterprise (CORE) to conduct joint outreach activities in 2022.

During the year under review, Canada’s NCP co-organized and participated in a variety of RBC-related events.

Promotion

An important component of the NCP’s promotional efforts is to raise awareness of the OECD Guidelines and the NCP mechanism with Canada’s missions abroad.  For example, on November 16, the NCP Secretariat participated in a workshop organized by the Canadian Embassy in Panama. The Secretariat promoted the OECD Guidelines and the mandate of the NCP to a diverse audience of local NGOs, companies and government representatives. In addition, on December 15, the NCP Secretariat participated in an RBC capacity-building session organized by Canada’s Consulate in Rio de Janeiro for the Trade Commissioners at the Canadian Embassy and Consulates in Brazil.

Part of the NCP's domestic promotion mandate includes academic institutions.  For example, on November 25, the head of the NCP Secretariat was invited to give a presentation on the Guidelines and the role of the NCP to a class of 25 business students at Algonquin College in Ottawa, Ontario.

On November 26, the NCP Committee and its three Social Partners (the Canadian Labour Congress, the Canadian Chamber of Commerce and the Confédération des syndicats nationaux) held a meeting updating them on the NCP’s current cases, its promotion of the Guidelines and its overall engagement with the OECD.  Part of this meeting focused on the implementation of the 2019 OECD Peer Review recommendations, including the proposed changes to the NCP’s procedures and communication’s approach.  On December 1, the NCP Chair met with the Social Partners to undertake a more detailed discussion on the proposed changes to the NCP procedures and received valuable feedback on the NCP’s approach.

Support to the global network of NCPs

Canada attended two OECD-led annual meetings of the Network of NCPs and the OECD Working Party on Responsible Business Conduct (WPRBC).  For the sixth consecutive year, Canada provided financial support to the OECD to advance RBC and its Action Plan aimed at strengthening the global Network of NCPs. Canada’s 2021 contribution was $200,000 (CAN).

5. Policy coherence

Canada considers that policy coherence on RBC requires collaboration across Government in order to achieve meaningful outcomes. The Responsible Business Practices division in Global Affairs Canada, where the NCP Secretariat is housed, has consistently engaged with other government departments to promote synergies and consistency in Canada’s approach to RBC, including fostering fulsome exchanges on prospective legislation on due diligence and forced labour. The NCP Secretariat engaged with NCP member departments on a quarterly basis to discuss cases and current RBC-related issues.

In 2021 the Canadian NCP participated in three inter-departmental Director General Community of Practice (CoP) RBC meetings. The Chair of the Canadian NCP initiated these meetings in 2020 to convene Director Generals from a broad range of federal government departments to encourage discussions around RBC issues, including an update on the NCP and Canada’s overall engagement with the OECD on RBC.

In 2021 the Canadian NCP was the subject of an OECD Watch substantiated submission that related to the processing of a case dating back to 2016. Canada welcomed the opportunity to participate in this process, appreciating that its intent is to help improve the overall function of the NCP system.  Canada remains committed to enhancing and improving the functioning of its NCP.  

The Canadian Ombudsperson for Responsible Enterprise (CORE)

After the CORE began accepting complaints on March 15, 2021, the NCP Secretariat started collaborating with this office on case handling. The CORE referred one case to the NCP in 2021. The NCP and the CORE also initiated the planning of joint outreach activities, designed to further promote awareness of Canada’s two dispute-resolution mechanisms.

6. NCP Specific instances

The summaries of three specific instances have been published on the Canadian NCP website.

B2Gold and notifiers X and Y (Nicaragua): The notifiers alleged that B2Gold was in violation of Chapters I (Concepts and Principles), II (General Policies), III (Disclosure), IV (Human Rights) and, VI (Environment). The allegations brought forward relate to alleged illegal mining on a private property, between 2010 and 2015, and failure to undertake environmental remediation.

The NCP Committee concluded that the notifiers had not substantiated their allegations by providing the necessary information to consider that the issues merited further examination. The NCP Committee came to the decision not to offer good offices as criteria II, IV, V and VI of the OECD Guidelines were not met.

The NCP received the request for review on March 2021 and the specific instance was closed on June 2021.

SNC-Lavalin and group of creditors (Chile): The notifiers, a group of several SNC Lavalin Chile creditors, alleged that SNC Lavalin and SNC Lavalin Chile were in violation of Chapters IV (Human Rights) and V (Employment and Industrial Relations).  The notifiers claimed that the company implemented a plan to transfer the profits back to the parent company, allowing its subsidiary to become insolvent and thus defraud creditors.

The request for review was received in January 2020 and, after several unsuccessful attempts to obtain supporting documentation, the request for review was deemed incomplete and was closed in June 2021.

Tower Solutions and ETCBL (Bangladesh): The notifier alleged non-observance of Chapters III (Disclosure) and X (Competition). The parties had a different interpretation of their business relationship and commitments. The NCP Committee concluded that the allegations merited further examination to, at a minimum, bring the parties to discuss their understanding of the nature and extent of their business relationship. Mediation sessions were held on July 26, 2021 and November 19, 2021. Though no agreement was reached on remedies, the NCP concluded that the mediation was successful because it facilitated a constructive exchange and allowed the identification of best practices around the implementation of the Guidelines, more specifically in relation to Chapters III and X.

The NCP encouraged the company to proactively disclose their information in relation to their business relations with subcontractors, suppliers and partners as to avoid confusion, and encouraged the Notifier to adopt business practices, such as signing contracts that clearly outline the responsabilities and deliverables for all parties.

The request for review was received in March 2020, the mediation concluded in December 2021 and the specific instance was closed in February 2022, after consultation with the parties.