Article published in the Hill Times

By PETER MAZEREEUW  – JUNE 7, 2021

A human rights group is calling on Canada’s political leaders to give victims of human rights abuses abroad the right to sue Canadian companies implicated in the wrongdoing, in Canadian courtrooms.

The Canadian Network on Corporate Accountability (CNCA) released draft legislation last week that it hopes lawmakers will adopt and pass through Parliament in the future.

The draft legislation would legally obligate Canadian businesses to do due diligence to ensure that they are not causing “adverse human rights impacts” overseas: either through their own actions, or those of their affiliates or business partners.

Under the proposed law, Canadian businesses could be sued in Canada and found liable for human rights abuses if a Canadian court decides that they have not made a sufficient effort to ensure human rights were being respected in their supply chain. The government would be given the power to exempt small businesses in some industries from those requirements.

The draft legislation is merely a proposal from a public interest group; it will have no impact on Canadian law unless it is seized upon by the government or a Member of Parliament, and passed through Parliament.

The proposed law would likely not be well-received by the government if it was picked up by an MP as a private member’s bill, said Liberal MP John McKay (Scarborough-Guildwood, Ont.), who has campaigned for years for the government to crack down on corporate misbehaviour abroad.

Liberal MP John McKay has championed efforts to crack down on corporate misdeeds abroad for years. He said the government may not look kindly on legislation opposed by corporate Canada.

“I congratulate [the CNCA] on their ambition. It certainly would be a herculean task to get a bill like that—certainly a private member’s bill—from the floor of the House of Commons to Royal Assent,” he said in an interview.

“I would be very surprised that corporate Canada shows much enthusiasm for allowing others, no matter how well motivated, to sue them,” he said.

NDP MP Peter Julian (New Westminster-Burnaby, B.C.) welcomed the proposed law in an interview.

Like Mr. McKay, Mr. Julian has previously sponsored legislation aiming to hold Canadian businesses accountable for misdeeds overseas. He sponsored a private member’s bill in the last Parliament that would have given Canada’s Federal Court clear jurisdiction to hear civil claims brought by non-Canadians over human right abuses. It was voted down at second reading.

“It’s long overdue that Canada join the rest of many, many countries who are partners and friends and actually put in place robust corporate accountability measures,” he said.

“If there is an election soon, and there are fewer Conservative and fewer Liberal members in the House of Commons, and more New Democrats and more from other parties that support human rights, then I think the chances of this kind of legislation passing is very good,” he said.

In an emailed statement, a spokesperson for Minister Mary Ng, who is in charge of export promotion and international trade for the government, did not say whether the government would support the CNCA’s proposed legislation.

“We’re happy to work with advocates on solutions to ensure that human rights and the environment are respected,” said a statement from spokesperson Alice Hansen.

“We expect Canadian companies to uphold the highest standards of business conduct around the world and have a comprehensive Responsible Business Conduct strategy to accomplish this,” said the statement.

Courts hear cases now, but jurisdiction battles can take years

Canadian mining companies have been tied to human rights abuses at overseas mine sites numerous times over the past 20 years. The alleged and sometimes proven abuses range from systematic rapes of local women by mine security, to claims that the air or water in nearby communities has been contaminated, use of slave labour, and more. Often those abuses were alleged to have been carried out by local authorities, security guards, or workers for subsidiaries or subcontractors to the Canadian business.

In recent years Canadian courts have begun to hear lawsuits brought against Canadian companies for alleged human rights abuses at their overseas operations.

Vancouver’s Nevsun Resources settled a lawsuit in 2020 that had been launched by former workers at a mine run by its subsidiary in Eritrea. The workers alleged they had been enslaved and brutally treated at the worksite. Nevsun denied the allegations made in the lawsuit.

Nevsun had unsuccessfully sought to have that case thrown out, arguing that it should be dealt with in Eritrean courts instead. The two sides fought a legal battle for six years before the Supreme Court of Canada ruled in 2020 that the former workers could sue in Canadian courts.

In 2019 the Supreme Court refused to hear a case brought against Canadian grocery giant Loblaws by relatives of workers who died in the Rana Plaza disaster in Bangladesh in 2013, when a garment factory that made clothes for one of Loblaws’ suppliers collapsed, killing 1,130 people.

Loblaws announced after the collapse that it would pay three months wages to the victims and their families.

The CNCA’s draft legislation would make clear in Canadian law that similar cases could go ahead in Canada, and eliminate the need for claimants to go through multi-year legal battles over jurisdiction, said civil society organizers during a June 1 press conference announcing the draft legislation.

The proposed law is supported by a collection of civil society organizations and by two major unions: the United Steelworkers, and the Canadian Labour Congress.

Ken Neumann, the United Steelworkers’ national director for Canada, said his union leaders supported the draft legislation in part because they had received calls from workers at Canadian-owned mines in Mexico, who had alleged mistreatment at the hands of their employer.

“The Canadian government has to do the right thing to make sure that these abuses are stopped, that we’re all on the same level playing field,” he said during the press conference.

France passed a similar law in 2017.

“We’re actually not calling on Canada to be a global leader or a global first, we’re calling on them to catch up to the global momentum that’s happening around the world,” said CNCA coordinator Emily Dwyer during the press conference.

The CNCA’s draft legislation is very unlikely to be adopted in Parliament any time soon. There are currently more than a dozen bills on the agenda in the House of Commons, and less than three sitting weeks in which to debate and vote on them before the summer adjournment begins after June 23. Political insiders believe there is a good chance an election will be called this fall.

Ms. Dwyer and Mr. Neumann each acknowledged that the proposed legislation was unlikely to make its way into Parliament soon.

Bill follows broken Liberal promises

Canada’s government has taken a series of actions over the past decade to address the reports of human rights and environmental abuses caused by Canadian companies overseas. All of them have been derided by civil society groups as insufficient.

Marketa Evans resigned as Canada’s Extractive Sector Corporate Social Responsibility (CSR) Counsellor in 2013, after companies she had tried to investigate for overseas misdeeds refused to cooperate. The CSR Counsellor was then restyled into an office that worked more collaboratively with the mining industry by the Harper government.

The Liberals campaigned on a promise to created a new, more powerful ombudsperson for corporate misbehaviour in 2015; the government created the Ombudsperson for Responsible Enterprise in 2019, but broke public promises to make the office independent from the government, and give it powers to compel documents and testimony from Canadian companies.

Senate bill already in the works

A Canadian Senator, Julie Miville-Dechêne (Inkerman, Que.), has introduced a Senate public bill—similar to a private member’s bill—that would require Canadian companies to report annually on steps they have taken to prevent the use of slavery in their overseas operations. Businesses that fail to do so would face fines up to $250,000. The import of products found to have been produced with the input of slave or child labour would be banned.

That bill, numbered S-216, is still in the Senate. It has been assigned to a Senate committee for study, though the study had not yet begun as of last week. The bill is unlikely to pass through Parliament before the summer adjournment, and would be wiped out if an election were called this fall.

Ms. Dwyer criticized S-216 in an op-ed in iPolitics last year, arguing it would not compel businesses to take action to prevent human rights abuses, only to issue reports. She argued that it would not give victims of human rights abuses an opportunity to seek compensation in Canadian courts.

Mr. McKay had introduced a bill similar to S-216 in the last Parliament; it was wiped away by the 2019 election. He said in an interview that he hoped any debate over the CNCA’s proposed legislation wouldn’t obstruct progress on Sen. Miville-Dechêne’s bill.