On
The CORE has decided to investigate complaints against
These are the first investigations launched by the CORE, which was first appointed in 2019 by
The CORE: Complaint and investigation process
The CORE reviews alleged human rights abuses involving Canadian companies operating abroad in the garment, mining, and oil and gas industries. Foreign entities directly or indirectly controlled by a Canadian company are subject to the CORE's purview.2 To be admissible, the alleged acts or omissions must have taken place after
Upon receipt of a complaint, the CORE review process proceeds in several stages.3
- The intake/admissibility stage: The CORE first engages in an informal information gathering process about a given complaint, in view of determining its admissibility.4 With the consent of the complainant, the CORE may communicate with the Canadian company named in the complaint to gather additional information in view of determining whether a complaint is admissible.5 A complaint is considered admissible where there are allegations of abuse of an internationally-recognized human right arising from the operations of a Canadian company in the garment, mining or oil/gas sectors after
May 1, 2019 . A decision on admissibility is not a decision on the merits of a complaint.6 Should it determine a complaint to be admissible, the CORE will inform the respondent company, and provide the company with a summary of the admissible allegations.7 - The initial assessment stage: The CORE may conduct an initial assessment of an admissible complaint by engaging in problem solving, dialogue and facilitated negotiation. Importantly, the CORE may prepare an Initial Assessment Report, which may be publicly disclosed after the respondent company has been given an opportunity to comment on the contents of the report, and the confidentiality of the information contained therein.8
- Review/investigation stage: The CORE will initiate a review of the facts and send a notice to the parties 10 days prior to making the investigation public. During the course of a review, the CORE may engage in joint or independent fact-finding, which may include interviews of the parties and others.9 While companies are not required to participate in the CORE's investigation and review process, the CORE can make adverse inferences from non-participation. Such non-participation can result in the CORE considering a party not to be acting in good faith.10 Good faith collaboration with the CORE includes respecting confidentiality protocols and not engaging in acts of retaliation against parties who file complaints.11 The CORE can then make recommendations to the Minister to implement trade measures, including withdrawing or denying trade advocacy or financial support from government ministries and bodies.12, 13
- Mediation: While mediation is available throughout the process, the CORE will seek parties' consent to engage in mediation following the initial assessment.14
- Recommendations and follow-ups: After a review is completed, the CORE prepares a final report containing recommendations, including a referral to arbitration, referrals to law enforcement or regulatory authorities, financial compensation, formal apologies, or changes to the Canadian company's policies.15 The CORE may also make recommendations to the Minister relating to funding and services provided by the
Government of Canada .16 The CORE can follow-up on these recommendations. Any final or interim reports are to be published, after allowing the persons concerned to comment.17
In the absence of a complaint, the CORE may also undertake a review on its own initiative.18
The complaints against Nike Canada and
The complaints were filed by a coalition of 28 organizations including the
In support of their allegations, the complainants notably rely upon the findings in a 2020 report published by the
The complaint filed against Nike alleges the company's involvement with multiple factories operating in Uyghur forced labour camps. Prior to the launch of the formal investigation, the CORE held separate meetings with the complainants and with representatives of Nike.23 The company has taken the position that it has fulfilled its due diligence obligations regarding forced labour activities and subsequently released statements reiterating its commitment to ethical and responsible business activities. It has however declined to meet with the CORE to undertake an initial assessment meeting.24 Nike has also not been amenable to mediation but has said it remains open to that possibility in the future.25
Dynasty is a mining company incorporated in
Key takeaways for Canadian companies
These first investigations by the CORE are consistent with increasingly robust initiatives taken by the
In view of complying, Canadian companies should pay attention to the activities of the CORE and potential evolutions in its mandate and investigation powers. Companies should proactively review their due diligence processes throughout their supply chains in view of ensuring compliance with international human rights laws. Companies should evaluate and comply with their obligations under the
While the CORE does not presently have the authority to compel information or to impose punitive measures, Canadian companies should consider the reputational repercussions of such investigations and related public reports, as well as potential resulting litigation.
The CORE is expected to publish Initial Assessment Reports for 11 pending complaints on their website in the coming weeks.30
Footnotes
1. See for example: OECD Guidelines and UN Guiding Principles.
2. Order in
3.
4.
5.
6. OP at ss. 5.7 and 5.8.
7. OP at s. 6.
8. OP at ss. 8 and 16.
9. OP at s. 10.
10. OP, ss. 12.4 and 12.6, and 13.7.
11. Ibid.
12. OP, s. 12.7.
13. OiC at s.10.
14. Ibid at s.9.
15. OiC at s. 11, OP at s. 13.
16. OiC at s. 12.
17. OiC at ss. 14 and 16.
18. OP at . 10.
19. CORE, Initial Assessment Report:
20.
21. Ibid.
22. Ibid.
23. CORE, Initial Assessment Report:
24. CORE, Initial Assessment Report:
25. Ibid at paragraph 40.
26. CORE, Initial Assessment Report:
27. Ibid at paragraph 3.
28. Ibid at paragraph 38.
29. Bill S-211: An Act to enact the Fighting Against Forced Labour and Child Labour in Supply Chains Act and to amend the Customs Tariff, 2023 c.9.
30. The CORE launches investigations into two Canadian companies (canada.ca)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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