FROM NEVSUNV ARAYA TO THE CORE: TAKING STOCK OF STATE-BASED BUSINESS AND HUMAN RIGHTS GRIEVANCE MECHANISMS IN CANADA.

• Author: Meshel, Tamar

1. INTRODUCTION

   One of the three pillars on which the United Nations Guiding Principles on Business and Human Rights ("UNGPs") (1) are founded is the need for states and businesses to take appropriate steps to ensure that, when human rights abuses occur, those affected have access to effective grievance mechanisms and remedies. (2) The Human Rights Council Working Group on Business and Human Rights has expressed a holistic view of effective remedies for business-related human rights abuses, noting that such remedies are "located in diverse settings". (3) Indeed, the UNGPs envision three types of grievance mechanisms: state-based judicial mechanisms, state-based nonjudicial grievance mechanisms (e.g. employment and environmental tribunals, consumer and data protection bodies, ombudsman services, professional standards bodies, or national human rights institutions), and non-state-based grievance mechanisms (e.g. operational-level grievance mechanisms, multi-stakeholder initiatives, or development finance institutions). (4)

   Despite this "all roads to remedy" approach, (5) for individuals and communities whose human rights have been infringed by transnational business-related activities the question of redress remains daunting. These rights holders (6) continue to seek remedies from domestic courts in the home states of impugned corporate entities. But such domestic litigation has its theoretical and practical challenges, including limited liability of parent companies, forum non conveniens, statutes of limitations, difficulties gathering evidence, and high litigation costs. (7) Alternative "administrative, legislative and other non-judicial mechanisms" must therefore be developed to supplement domestic litigation. (8) This article examines existing and potential non-judicial state-based grievance mechanisms available to rights holders in Canada and evaluates their ability to operate together to improve rights holders' access to effective remedies. (9) While business- and human-rights-related initiatives are not new to the Canadian landscape, (10) the renewed push for global implementation of the UNGPs in their second decade (11) invites a re-examination of the avenues available for rights holders bringing claims against Canadian businesses operating abroad.

   After briefly surveying the latest business and human rights jurisprudence in Canada in part II, the article proceeds to examine two Canadian state-based non-judicial grievance mechanisms and their potential for beneficial interaction. Part III discusses the recently launched Canadian Ombudsperson for Responsible Enterprise ("CORE"). The Canadian federal government has empowered the COPvE to receive complaints against Canadian businesses operating in certain industries overseas and review these complaints, initiate its own review of alleged human rights abuses, report its findings publicly, and make recommendations for sanctions. However, the CORE has been criticized for its limited investigative powers, its inability to enforce participation or compliance by Canadian companies, and its lack of independence from the government. (12) This article does not set out to counter such criticisms. Nor does it set out to apply normative criteria to predict the effectiveness of the CORE, (13) which has just begun its operation. (14) Rather, the article examines the CORE's basic functions and focuses on its potential role within a broader business and human rights grievance system in Canada.

   Another element of this system, examined in part IV of the article, is the Canadian National Contact Point ("NCP"), established under the OECD Guidelines for Multinational Enterprises ("OECD Guidelines"). (15) NCPs are agencies established to "assist enterprises and their stakeholders to take appropriate measures to further the implementation of the Guidelines. They also provide a mediation and conciliation platform for resolving practical issues that may arise." (16) NCPs are therefore designed to facilitate governments' abilities to monitor and discipline transnational businesses for human rights abuses, as well as resolve disputes and provide redress to rights holders. Much like the CORJE, the Canadian NCP has been criticized for its limitations. As with the CORE, this article does not purport to refute these criticisms. Notwithstanding the well-known shortcomings of both the CORE and the Canadian NCP, this article aims to identify, in part V, preliminary ways in which the two mechanisms might cooperate and complement each other within a broader business and human rights grievance system in Canada.

   The last component of this system, examined in part VI of the article, is legislation. (17) Even with optimal coordination, "soft law" mechanisms such as the CORE and the Canadian NCP as currently formulated are unlikely to guarantee adequate remedies for rights holders in Canada. "Hard law" mechanisms such as legislation, in contrast, have the capacity "to fill existing global governance gaps" as well as to exert "a significant influence on firms' [Corporate Social Responsibility] activities". (18) Indeed, several states have enacted a variety of legislative measures affecting businesses' accountability for negative human rights impacts. India, for instance, has put in place a regulation that requires companies to invest in Corporate Social Responsibility programs concerning environmental sustainability and education. Italy, The Netherlands, and Australia now impose criminal liability on corporations for human rights abuses committed abroad. (19) France has enacted due diligence legislation, giving rise to liability for companies that fail to comply. (20) Legislative initiatives addressing various aspects of business and human rights have also been introduced in Canada, but have thus far been largely defeated. Despite this unsuccessful legislative history, the article examines the potential for the recently proposed draft United Nations Treaty for Business and Human Rights to serve as a model for future Canadian legislation. Given that the draft Treaty seeks, inter alia, to improve access to remedy by rights holders through state-based mechanisms, legislation inspired by its key provisions could supplement and reinforce the "soft" mandates of the CORE and the Canadian NCR

   Part VII of the article concludes that, ultimately, none of the above-mentioned mechanisms is perfect, and each suffers from its own drawbacks and limitations. However, if they operate as an integrated state-based grievance system alongside domestic courts, such a system may improve rights holders' access to adequate remedies for human rights violations by Canadian businesses operating abroad. (21)

2. BUSINESS AND HUMAN RIGHTS JURISPRUDENCE IN CANADA

   In Canada, lawsuits alleging human rights abuses by Canadian businesses operating abroad have had mixed outcomes. Nine such lawsuits have been brought before Canadian courts, (22) none of which have thus far succeeded on their merits. Four of these cases were dismissed at a preliminary stage of the proceedings, (23) two cases concluded with a settlement, (24) and three are still pending before the courts. (25)

   In one of the unsuccessful cases, Piedra v Copper Mesa Mining Corporation, (26) the plaintiffs' claims were struck on the basis that they disclosed no reasonable cause of action. Plaintiffs, residents of Ecuador, brought an action against a Canadian mining company whose second-level subsidiary owned a copper mine in Ecuador, and two of its directors. Plaintiffs claimed that the defendants were liable in negligence for various human rights violations committed by the mine's security forces. Both the Ontario Superior Court and Court of Appeal found that the plaintiffs failed to plead any facts that would support a finding of a duty of care owed by the directors or the company to the plaintiffs.

   The three other unsuccessful cases were dismissed for lack of jurisdiction. In Recherches internationales Quebec v Cambior Inc ("Recherches"), (27) residents of Guyana brought an action against a Quebec corporation, claiming human rights violations in connection with a toxic spill from a gold mine operated by defendant's Guyanese subsidiary. The Superior Court of Quebec stayed the proceeding on the basis of forum non conveniens, noting that the plaintiffs and much of the evidence were located in Guyana, the alleged violations occurred in Guyana, a Guyanese court was in a better position to apply Guyanese law, and Guyana was an adequate forum. Subsequent suits brought in Guyana by the plaintiffs were dismissed. (28)

   In Yassin v Green Park International Inc, (29) residents of a village in the West Bank, occupied by Israel, brought an action against two Quebec companies that were constructing residential buildings in the village for use by Israeli citizens. Plaintiffs sought a declaration that defendants were complicit in Israel's violations of international law. The defendants applied for a stay of proceedings on the ground of forum non conveniens, which was granted by the Superior Court of Quebec and upheld by the Court of Appeal for similar reasons as in Recherches.

   Finally, in Association canadienne contre I'impunite (ACCI) c Anvil MiningLtd, (30) plaintiffs were victims of an attack by Congolese armed forces that occurred in a region of the Democratic Republic of Congo where the defendant's mine was located. Plaintiffs brought an action against the defendant for human rights violations, alleging it was involved in the attack. The defendant company was incorporated in Canada but its head office was located in Australia and its only presence in Canada was a small office in Quebec. While the Superior Court of Quebec allowed the action to proceed, the Court of Appeal reversed, finding that that the claims did not have a sufficient connection to defendant's activities in Quebec and that the plaintiffs could pursue them in Australia.

   The three cases that are...