CANADA Law and Practice Contributed by: Claudia Feldkamp and Chris Pigott, Fasken
OECD National Contact Point As an adherent to the OECD Declaration on International Investment and Multinational Enterprises and to the OECD Guidelines, Can - ada maintains an NCP for responsible business conduct. In addition to being responsible for promoting the adoption by Canadian companies of the OECD Guidelines, the NCP also provides a vol - untary, non-judicial process to help resolve dis - putes concerning implementation of the OECD Guidelines by multinational enterprises operat - ing in or from Canada. The NCP can review and help contribute to the resolution of complaints made against multinational enterprises operat - ing in or from Canada in any economic sector. Complaints can be related to observance of any of the guidance outlined in the OECD Guidelines’ 11 chapters (including chapters dealing with dis - closure, labour, human rights, bribery and the environment), whether abroad or in Canada. The Canadian NCP: • does not render rulings on guilt or determine damages but rather provides a mediated path to achieve resolution – when companies do not engage with the NCP’s process “in good faith” , the NCP can impose trade measures, including withdrawing government trade advocacy support and recommending that the EDC deny future financial support; and • does not have the power to launch investiga - tions or to make public the findings of the matters undertaken. Canadian Ombudsperson for Responsible Enterprise The Canadian government announced the crea - tion of the CORE in January 2018 to supplement
Hudbay sought to strike the claims, including on the basis that the claims improperly relied on “piercing the corporate veil” or ignoring the separate corporate personalities of Hudbay (a Canadian corporation) and CGN. The court con - cluded that it was not “plain and obvious” that the claims made would fail at trial. Duty of care According to the court, the plaintiffs had pled all the material facts that – if proven at trial – would establish a novel duty of care. The harm was a reasonably foreseeable consequence of the defendants’ conduct and there was a sufficiently proximate relationship between Hudbay and the plaintiffs. Although novel, it was not “plain and obvious” that a prima facie, duty of care could not be made out. Piercing the corporate veil In response to the claim that the corporate veil should be pierced to impose liability on Hud - bay for the torts committed by CGN’s employ - ees or agents, the court found that the plaintiffs had pled the required elements of the agency exception to the rule of separate legal personal - ity. It was not “plain and obvious” that a claim requiring an agency relationship to have existed between a parent company and its foreign sub - sidiary at the relevant time would fail if it pro - ceeded to trial. In the autumn of 2024, parties to the Hudbay action settled the case. 4.3 Grievance Mechanisms In Canada, there are two state-based, non- judicial dispute resolution mechanisms through which business-related human rights complaints can be made.
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