The Canadian Ombudsperson for Responsible Enterprise (CORE) is an independent and impartial human rights ombudsperson that examines complaints of alleged human rights abuses committed by Canadian companies operating outside Canada in the garment, mining and oil and gas sectors. The CORE is the first Ombud office in the world with a mandate to hold national garment, mining and oil and gas companies accountable for possible human rights abuses resulting from their operations and supply chains abroad. Established in 2019 by an Order in Council, the CORE promotes the United Nations Guiding Principles (UNGPs) on Business and Human Rights and the Organisation for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises.

This article provides an overview of the CORE’s mandate and activities, as well as its potential impact on Canadian companies operating overseas in the garment, mining, and oil and gas sectors.

An overview of the Canadian Ombudsperson for Responsible Enterprise

The mandate of the CORE is to promote the implementation of the UNGPs and OECD Guidelines for Multinational Enterprises by Canadian garment, mining and oil and gas companies that conduct business in other countries. In this capacity, the CORE provides advisory opinions to companies on their practices and policies related to human rights and responsible business conduct. In relation to potential human rights breaches, the CORE focuses on the following:

• Reviews complaints of possible human rights abuses arising from the operations of Canadian garment, mining and oil and gas companies working in other countries; and
• Recommends courses of action to resolve disputes, such as trade measures against companies, company remedies to those harmed, and reforms to Canadian policies.

Complaints can be submitted to the CORE by individuals, or organizations concerning possible human rights abuse by Canadian companies abroad, operating in the garment, mining, or oil and gas sectors. Complaints can only be based on acts or omissions that took place after May 1, 2019. If the acts or omissions started prior to May 1, 2019, such acts or omissions must be ongoing at the time of the complaint. Human rights abuses include, but are not limited to, unsafe work, unpaid wages, child labour, forced labour, discrimination, harassment, land dispossession and pollution of water or land. In addition to receiving complaints, the CORE can also – on the Ombud’s initiative – review a possible human rights abuse within this same scope.

How the CORE complaint system works

In line with the CORE’s Operating Procedures and active Human Rights Responsibility Mechanism, upon receiving a human rights abuse complaint, the CORE contacts the complainant for further information. If the complaint is admissible (in line with the criteria established above) and the complainant agrees, CORE informs the company about the complaint and seeks to deploy early resolution to resolve the complaint.

Early resolution involves problem solving through information sharing, dialogue and facilitated negotiation. This review can begin with a joint fact-finding process where parties work collaboratively. Alongside these early resolution steps, mediation between the complainant and respondent is also possible when both parties consent throughout any step of the process. 

The CORE may also conduct a review if it decides to investigate the complaint. This can include independent fact-finding. Such independent fact-finding can range from interviewing the parties and witnesses, consulting experts, undertaking country visits, and seeking submissions from industry associations and civil society organizations, among others. In April 2021, the CORE established five criteria for Ombud-initiated reviews: (1) cases must be systemic and impact a large number of people, (2) the human rights abuse must impact an underserved group or community, (3) the nature of the alleged human rights abuse must be appropriate for a public and participatory review process, (4) the review will result in meaningful and relevant findings or remedies and (5) it must align with the CORE’s mandate and strategic priorities. Given the CORE’s limited budget, it remains unclear when such investigations will be initiated.

Companies are not required to participate in the CORE’s investigations or complaint proceedings. Where a company does not participate in an investigation process, the Ombud can adopt appropriate negative conclusions or adverse inference from a lack of participation. Furthermore, where a party to a review does not actively participate in the review process without a reasonable explanation, such party may be deemed not to be acting in good faith. Such determination can result in a decision to revoke Global Affairs Canada trade advocacy support from the company, as well as any future financing from Export Development Canada.

Potential remedies in a CORE investigation

The CORE’s investigations aim to incentivize companies to improve their human rights practices, and its recommendations can help companies identify gaps in their human rights due diligence processes and establish more effective grievance mechanisms. CORE reports publicly on its findings, makes appropriate recommendations for remedies and follows up to see whether the recommendations are being implemented. Recommendations can include the following:

• That parties refer the matter to the Canadian National Contact Point or the national contact point of another country if the matter aligns more within the mandate of a national contact point;
• That parties refer the matter to arbitration;
• Recommendation to the Minister of International Trade (the Minister) that the matter be referred to law enforcement authorities if, based on the information gathered during the review, the Ombud has reason to believe that a criminal offence may have been committed or is possibly being committed in Canada or abroad;
• Recommendation to the Minister that the matter be referred to a regulatory or other relevant authority if the Ombud has reason to believe that a regulatory offence may have been committed or is possibly being committed in Canada or abroad; and
• A determination that an allegation of human rights abuse is founded or unfounded.

The CORE can also recommend specific remedies, such as compensation, an apology, cessation of particular activities, mitigation measures or corporate policy changes.

While the CORE does not have the authority to impose punitive measures on companies it investigates, businesses should consider the reputational repercussions of such investigations, in addition to any follow-on litigation.

Notable CORE developments

A. Increasing use of CORE for human rights issues abroad

On March 22, 2023, CORE’s second annual report was tabled in the House of Commons. This report covers the period from April 1, 2021, to March 31, 2022. In that period, the CORE received five complaints and 80 inquiries. A complaint is an issue that may be within the CORE’s mandate, while an inquiry is a request for information about filing a complaint or a request to file a complaint about an issue that is clearly outside the CORE’s mandate. Notably, within two weeks of the end of the fiscal year covered by the second annual report, the CORE received 15 complaints, and by the end of 2022, the CORE had received a total of 17 complaints, of which 14 were admissible. 13 of these complaints were about forced labour, 11 in the garment sector and two in the mining sector. The 14th complaint was about the failure to pay a living wage in the garment sector. A detailed analysis of these complaints will be provided in the third annual report covering the fiscal year 2022–2023, to be published in 2024.

The significant uptick in the number of complaints from five in the fiscal year 2021–2022 to 17 in the following fiscal year shows that complainants are beginning to utilize the CORE complaints process and it will not be surprising if this number continues to rise. 

B. Parliamentary subcommittee recommends increasing CORE’s powers to compel witnesses and documents

Moreover, in June 2021, the Parliamentary Subcommittee on International Human Rights held discussions to, among other things, expand the powers of the CORE. These Subcommittee recommendations would give the Ombud the power to compel testimony and documents. On the basis of the Subcommittee’s review, two recommendations were submitted to the Government:

• Consideration 1: That the Governor in Council appoints the CORE as a commissioner pursuant to Part I of the Inquiries Act. It was recommended that this appointment remain in place until legislation establishing the CORE with the power to compel witnesses and documents has been adopted by the Parliament of Canada.
• Consideration 2: That the Government of Canada table legislation in the Parliament of Canada, establishing the CORE and vesting it with the power to compel witnesses and documents.

C. CORE releases first study on child rights and global supply chains for Canadian garment companies

In 2022, the CORE issued a study on respect for child rights and the risk of child labour in the global operations and supply chains of Canadian garment companies. The purpose of this study was to gain a better understanding of the measures taken by Canadian garment companies to strengthen respect for child rights and address the risk of child labour in their global operations and supply chains (excluding footwear). Ten Canadian garment companies and five civil society organizations participated in this study.

It is also advisable for companies to review the CORE’s study on respect for child rights and the risk of child labour in the global operations and supply chains of Canadian importers.

Key considerations for Canadian companies

Companies in the mining, garment, and oil and gas sectors are advised to stay up to date with the activities of the CORE and review their supply chains for potential risks of non-compliance with international human rights laws. There is significant commercial activity in these sectors in Canada, as 75% of the world’s mining companies are headquartered in Canada, natural gas and oil are Canada’s number-one export commodities, and as of 2020, 95% of apparel bought in Canada was imported. As complainants become more aware of the existence of the CORE, complaints against Canadian companies operating in these sectors abroad may increase.

For more information, please reach out to the authors, Sean Stephenson and Mariam Momodu.

This article is part of a series of business and human rights articles. See the last article in the series on modern slavery reporting here and stay tuned for another  article next month. For questions on Business and Human Rights, please reach out to Sean Stephenson.