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Ombud Independence and the Venice Principles

A report commissioned by the Canadian Ombudsperson for Responsible Enterprise

Author: Dr Chris Gill

24 May 2023

Table of contents

Executive summary

Main findings

This report provides a set of indicators of independence, based on the Council of Europe’s Venice Principles and other standards developed for ombud offices, and uses these to evaluate the status, institutional arrangements, mandate, and powers of the Canadian Ombudsperson for Responsible Enterprise (CORE).

The report’s two most important findings are that:

These summary conclusions belie the underlying difficulty of assessing the CORE against international ombud standards: these standards have been developed for ombud offices with a governmental jurisdiction, rather than an ombud, such as the CORE, with a jurisdiction over private actors. CORE is a world-first in being an ombud with a jurisdiction to receive complaints from foreign nationals about the actions of private actors operating abroad.

Ultimately, this report has concluded that the standards developed to apply to public service ombuds, such as the Venice Principles, should also apply to the CORE. The report recognises, however, that there is room for reasonable disagreement with regard both to the degree of independence the CORE requires from the Government of Canada and the powers it requires to fulfil its mandate.

In addition to the two central conclusions highlighted above, the report concludes that the CORE’s status, institutional arrangements, mandate, and powers require improvement to meet international best practice standards. For example, the report concludes that improvements are required to provisions for the CORE’s appointment, tenure and dismissal, term of office, ability to appoint advisers independently, immunity from legal proceedings, and ability to enforce responses to its recommendations.

This report is limited to considering questions of principle and evaluating areas where the CORE could be strengthened based on the Venice Principles and other international ombud standards. The report stops short of recommending how these principles should be implemented within Canadian law – that will be matter for the CORE and other stakeholders to take forward with domestic legal experts if consideration is given to implementing this report’s recommendations.

It should also be noted that this report does not include an evaluation of the CORE against human rights standards, such as the UN Guiding Principles on Business and Human Rights. That evaluation is the subject of a separate independent expert report.

Summary of recommendations

Recommendation 1

The CORE should be established independently of executive government, as a fully independent ombud office, rather than as a ministerial Special Adviser.

Recommendation 2

The CORE should be established by primary legislation, to provide a degree of entrenchment and protect the office from executive interference, and to allow for provisions to be made regarding the office’s powers and immunity.

Recommendation 3

Primary legislation for the CORE (as recommended in Recommendation 2 above), should make provisions that secure the fully independent status of the ombud. This is best done by ensuring the close connection of the ombud to the legislature (such as by making the ombud an Officer of Parliament). In drafting new legislation for the CORE, a benchmarking exercise should be conducted to ensure that the CORE’s level of remuneration is in line with that of other Canadian ombuds (or similar commissioners or officers of Parliament) and sufficient to ensure that the officer-holder is perceived to be of “high rank” within Canada’s system of government.

Recommendation 4

The CORE should be appointed by, and report to, the Parliament of Canada (the Parliament).

Recommendation 5

The CORE’s term of office should be for a fixed term of seven years, either non-renewable or renewable only once.

Recommendation 6

The grounds on which the CORE may be dismissed should be specified in law, ensuring that the threshold for dismissal is high and the grounds are limited.

Recommendation 7

Dismissal of the CORE should be a matter for the Parliament, following a vote demonstrating a parliamentary majority in favour of dismissal.

Recommendation 8

The CORE’s budget-setting process, and its decisions with regard to how that budget is spent, should be independent of the Government of Canada. The Parliament should be given the role of approving and overseeing the CORE’s budget.

Recommendation 9

The CORE’s legislative mandate should include provisions requiring that the CORE’s budget should be set at an adequate level to allow it to fulfil its functions.

Recommendation 10

The ongoing adequacy of the CORE’s allocated budget for the delivery of its mandate should be subject to regular review before an appropriate committee of the Parliament.

Recommendation 11

The CORE should be entitled to commission legal advice from a legal services provider of its choice.

Recommendation 12

The CORE should be granted immunity from legal proceedings for actions taken in the delivery of its functions.

Recommendation 13

The CORE should be granted legally enforceable powers to compel the production of evidence.

Recommendation 14

The CORE should be granted the legally enforceable power to require that its recommendations are responded to within a given timescale.

About the author

Dr Chris Gill works as an independent consultant and is also a Senior Lecturer in Public Law at the University of Glasgow. He regularly conducts consultancy and commissioned research work, with former clients including the Council of Europe, the Legal Services Board, the Business Banking Resolution Service, Utilities Disputes Ltd (New Zealand), the Parliamentary and Health Services Ombudsman, Citizens Advice, and the Legal Ombudsman. Before becoming an academic, Dr Gill worked in ombud and regulatory services for the Advertising Standards Authority and the office of the Scottish Public Services Ombudsman. He is a member of the Ombudsman Association’s Validation Committee, the Scottish Legal Complaints Commission’s Consumer Panel, and the Administrative Justice Council’s Academic Panel. His research expertise is in access to justice, administrative justice, the ombud institution, and complaint systems. He has published widely in these areas. For more information, please see Dr Chris Gill’s profile on the University of Glasgow website.

Terminology and abbreviations

There is yet to be consensus on the use of gender-neutral language in this field.Footnote 1 In this report, the terms “ombud” or “ombuds” are used rather than “ombudsman”, “ombudsmen”, or “ombudsperson(s)”. However, when referring to specific legislation or the name of a particular ombud, the report uses the organisation’s formal title, even where that title does not reflect gender neutral language.

Abbreviation

The Australian Government Benchmarks
The Australian Government’s Benchmarks and Key Practices for Industry Based Customer Alternative Dispute Resolution
Canadian companies
Canadian companies operating in the garment, mining, and oil and gas sectors
CORE
Canadian Ombudsperson for Responsible Enterprise
IOI
The International Ombudsman Institute
IOI By-Laws
The rules governing membership of the International Ombudsman Institute
The McIsaac Report    
Legal advice commissioned by Global Affairs Canada from Barbara McIsaac KC
OECD Guidelines
OECD Guidelines for Multinational Enterprises
Ombudsman Association (OA)
The membership body for ombuds in the UK, Ireland and British Overseas Territories
The OA Terms and Rules
The Terms and Rules of the Ombudsman Association
Order in Council 1  
Order in Council 2019-0300 appointing the present CORE office holder
Order in Council 2  
Order in Council 2019-1323 establishing the mandate and powers of the CORE
The Operating Procedures
Operating Procedures for the Human Rights Responsibility Mechanism of the CORE  
The Parliament
The Parliament of Canada  
The Political Activity Guidelines
Guidelines for the Political Activities of Public Office Holders  
The Private Members’ Bill  
Bill C-263, An Act to establish the Office of the Commissioner for Responsible Business Conduct Abroad and to make consequential amendments to other Acts  
Venice Commission
The Council of Europe’s Commission for Democracy Through Law
Venice Principles
Opinion No. 897/ 2017 Principles on the Protection and Promotion of the Ombudsman Institution
UN Guiding Principles
The United Nations Human Rights Council’s Guiding Principles on Human Rights and Business
The UN Resolution
The United Nations General Assembly’s Resolution 75/ 186 The role of Ombudsman and mediator institutions in the promotion and protection of human rights, good governance and the rule of law
The UN Working Group  
The United Nations Human Rights Council’s Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises on its Mission to Canada

1. Introduction

This report has been commissioned by the Canadian Ombudsperson for Responsible Enterprise (the CORE). The aim of the report is to identify indicators of independence for the ombud institution, including the Council of Europe’s Commission for Democracy through Law (the Venice Commission’s) Opinion No. 897/ 2017 Principles on the Protection and Promotion of the Ombudsman Institution (the Venice Principles), and evaluate the CORE’s status, institutional arrangements, mandate, and powers in light of those indicators.

The CORE’s mandate is to:

The CORE is an internationally unique ombud. It is the first time that an ombud has been created with a jurisdiction to investigate complaints about human rights abuses on the part of corporate actors operating abroad. While a very few human rights ombuds have a mandate to determine complaints about private actors in addition to governmental actors, it is the norm that human rights ombuds are restricted to a public jurisdiction.Footnote 3 As has been recognised in legal advice provided by Barbara McIsaac KC to Global Affairs Canada (the McIsaac Report), the CORE does not fit within established ombud models.Footnote 4

The CORE’s novelty poses a challenge in relation to:

This report has been commissioned on the premise that international standards applying to public services ombuds (that is, ombuds with a jurisdiction over state bodies and private actors delivering essential services) apply to the CORE. However, the Venice Principles, as clearly indicated in Principle 13, apply to ombuds with a mandate over “public administration at all levels. The mandate of the Ombudsman shall cover all general interest and public services provided to the public, whether delivered by the State, by the municipalities, by State bodies or by private entities.”

There are currently no international ombud standards that apply to ombuds with a jurisdiction over private sector actors. Where national standards exist (as in the United Kingdom and Australia), these suggest that bespoke criteria are required for ombuds with a private sector jurisdiction. However, these standards have been developed to regulate private sector ombuds that operate in consumer law contexts to provide independent resolution of complaints from a company’s customers (or sometimes their staff). This context is clearly quite different from the human rights mandate entrusted to the CORE.

The CORE, therefore, falls between two stools: it is neither a classic human rights ombud with jurisdiction over state bodies, nor is it a typical private sector ombud. Generally, higher standards of independence and effectiveness are required of the former than the latter. At the same time, it is not evident – without enquiry and analysis – that all standards applicable to ombuds with a state jurisdiction should apply equally to the CORE.

For example, does the CORE require to be independent from the government or only from the companies which it is tasked with investigating? And does the CORE require the power to legally enforce the production of evidence (as with public sector ombuds) or are other mechanisms for ensuring cooperation acceptable (as is more common with private sector ombuds)?

Reasonable people may come to different conclusions on these questions and this report’s findings and recommendations should be read in light of this: current ombud standards do not provide an unequivocal answer with regard to the exact degree of independence required for the CORE, nor in relation to the particular methods through which cooperation with its investigations should be secured.

That said, the report’s overall conclusion is that the particular context in which the CORE operates and the human rights mandate it is tasked with delivering suggest that it should be established according to the highest standards of independence and effectiveness and that the classical public service ombud model (including its human rights variations)Footnote 5 provides the best guide to the design of the CORE.

In coming to this view, the report takes the view that, in setting up a non-judicial grievance mechanism for the resolution of human rights abuses by Canadian companies as an ombud (rather than some other complaint mechanism), the Government of Canada has effectively committed itself to adopting the highest standards of independent complaint resolution. The title “ombud” is generally seen as protecting those standards and as being distinguished from forms of complaint resolution that are weaker in relation to their independence, status, and powers.

In coming to a view about the requirements that are applicable to the CORE, it is also necessary to consider the international precedent that is being set in creating an ombud to deal with complaints about business and human rights. The CORE will likely be a starting point for discussion among other nations considering improving the remedies available for human rights abuses by national corporate actors operating abroad, and there is, therefore, a particular need to ensure that the model adopted by the CORE reflects the best available practice internationally.

  1. Report objectives

The following research objectives were set by the CORE in commissioning this research:

  1. Research and analysis regarding the indicia of independence of the ombud institution including those arising from the Venice Principles;
  2. An assessment of the CORE’s independence considering its status and institutional arrangements, mandate and powers; and,
  3. Options and recommendations to strengthen the CORE’s independence including possible amendments to its Order In Council.
  1. Methodology and limitations

This report is based on desk research and analysis. This included an analysis of the Venice Principles and a range of other international and national standards (see section 5 below). In addition, the research included a review of relevant academic literature and other commentary on independence and the ombud institution.

Internet research was used to access publicly available information about the CORE, its establishment, mandate, powers, and operation to date. In addition, the CORE provided, on request, a range of documents to support the research process. This included documents related to:

The CORE also provided helpful responses to requests for clarification during the research.

The report’s approach is limited to consideration of the CORE’s de jure rather than de facto independence. An evaluation of the latter would require an empirical rather than desk-based methodology. It would also be premature, given that the CORE has been in operation for a very short time and has only recently started receiving complaints

The research also did not involve detailed consideration of how the CORE compares to other federal and provincial level ombud institutions in Canada. Nor does this report provide detailed comment on the CORE’s position within Canada’s domestic legal system. This report’s recommendations are limited to considering whether and how, in principle, changes are required to the CORE to meet international ombud standards, in particular the Venice Principles.

The recommendations stop short, therefore, of making suggestions with regard to how such changes should be reflected within Canadian law. In this regard, the Canadian Network on Corporate Accountability’s Draft Model Legislation, the McIsaac Report, and the recently published Bill C-263, An Act to establish the Office of the Commissioner for Responsible Business Conduct Abroad and to make consequential amendments to other Acts (the Private Member’s Bill) all provide specific suggestions as to legislative form and content.

2. Preliminary matters

2.1 A note on the Venice Principles

The primary focus of this report is to evaluate the CORE against the requirements of the Venice Principles (PDF). While a range of other standards are drawn on (see section 5 below), the Venice Principles constitute the most prescriptive and demanding international ombud standards, and it is therefore important to explain their context, scope, and effect.

The Venice Principles are issued by the Council of Europe. The Council of Europe is an international organisation, based in Strasbourg, which was created in 1949 and now includes 46 European countries, set up to promote democracy, human rights, and the rule of law.

Canada was granted “Observer Status” of the Council of Europe in 1996.Footnote 6 Observer Status is regulated by Statutory Resolution No. (93) 26 on Observer Status, which applies to any state “willing to accept the principles of democracy, the rule of law, and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms and wishing to co-operate with the Council of Europe”.

Canada is a member of the Council of Europe’s Venice Commission.Footnote 7 The Venice Commission is the Council of Europe’s advisory body on constitutional matters. Its role is to provide legal advice to its member states, assist member states in raising their practices to meet European and international standards, and develop a common constitutional heritage.

The Venice Principles – formally Opinion No. 897 / 2017 Principles on the Protection and Promotion of the Ombudsman Institution – were adopted by the Venice Commission on 15-16 March 2019 and endorsed by the Committee of Ministers on 2 May 2019.Footnote 8 The Principles are non-binding and, as opinions, have been compared to a form of “soft law”.Footnote 9 As an Observer State of the Council of Europe and Member of the Venice Commission, therefore, the Principles provide non-binding guidance to the Government of Canada.

As noted in the introduction, the Venice Principles are directed towards the protection and promotion of ombudsman institutions with a jurisdiction over government administration (or providers of “general interest services”). Principle 13 states, inter alia, that: “The institutional competence of the Ombudsman shall cover public administration at all levels. The mandate of the Ombudsman shall cover all general interest and public services provided to the public, whether delivered by the State, by the municipalities, by State bodies or by private entities.”

As such, while the Venice Principles provide authoritative guidance on standards applicable to ombud institutions, they are not calibrated for ombud institutions whose mandate covers the actions of private sector actors. Similarly, other international standards relating to the ombud institution are geared towards public ombuds, such as the United Nations General Assembly’s Resolution 75/ 186 on The role of Ombudsman and mediator institutions in the promotion and protection of human rights, good governance and the rule of law and the “International Ombudsman Standards” contained in the By-Laws of the International Ombudsman Institute (IOI).

This is an important point, since it cannot simply be assumed that standards developed for public services ombud institutions apply straightforwardly in other contexts. In this respect, other international and human rights standards, such as the United Nations Guiding Principles on Business and Human Rights and the OECD’s Guidelines for Multinational Enterprises provide guidance on grievance resolution approaches that is more context-specific.Footnote 10 This issue is returned to in section 5.1 below, although – generally – it is fair to say that guidance on non-judicial grievance resolution mechanisms in the business and human rights context is less demanding and less prescriptive than guidance aimed at ombuds with a public jurisdiction.

Finally, despite the Venice Principles being aimed at ombuds with a jurisdiction over governmental actors, the CORE’s Annual Report 2019 – 2021 states that the “main attributes of an ombud are set out in the Venice Principles” and that “the CORE supports the Principles on the Protection and Promotion of the Ombudsman Institution ("The Venice Principles")”. The CORE, therefore, considers the Venice Principles to be applicable to the office and has committed to meeting them. As noted in the introduction, this position is not self-evident. This report takes the CORE’s commitment to the Venice Principles, and its decision to commission research evaluating the CORE against those principles, as relevant considerations in the analysis that follows.

2.2 What is an ombud?

There is no internationally accepted definition of an ombud. As noted above, there is not even clarity on what ombuds should be called. The lack of definitional consensus reflects the extraordinary development and spread of the ombud institution, from its roots in Sweden in 1809 to an institution that, following rapid development from the 1950s onwards, now exists globally. Some of the key developments include:

In spreading to these different institutional contexts and adapting to varied constitutional, legal, and cultural settings around the world, the institution has shown a remarkable ability to adapt and a great deal of flexibility. These features have enabled the rapid spread of the institution but, inevitably, have raised questions about how far adaptation can take place while remaining true to orthodox understandings of what the institution is.Footnote 11

Indeed, there is considerable controversy over the use of the ombud title, which in some jurisdictions has been given statutory protection to prevent abuse.Footnote 12 In the United Kingdom, the Ombudsman Association will only admit to its membership organisations using the ombud title that meet all of its membership criteria. There has been concern that the use of the title “ombud,” particularly by non-statutory schemes set-up by private sector actors themselves, could give a misleading impression with regard to such schemes’ independence and powers. There is also concern that government, when setting up new ombud offices, have a limited understanding of what ombuds are and the high standards they should conform to.

The point, for the purpose of this report, is that (a) there is substantial variety in relation to the types of ombuds that exist and the roles they are intended to fulfil, particularly in relation to whether they oversee government activity or private sector actors (b) ombuds have spread to different jurisdictions and work in different settings, so that a context-sensitive approach needs to be taken to understanding particular ombuds in particular contexts (c) while there is significant variety and a need for context-sensitivity, the title “ombud” is generally seen as protecting high standards in relation to independent complaint resolution, distinguishing the institution from other forms of complaint resolution.

While there is room, therefore, for a variety of different ombud models and approaches (see section 5.2 below), there is an expectation that where the title “ombud” is used, the institution in question should conform to the highest standards in relation to its independence and powers. This point is important given the decision to style the CORE as an “ombudsperson” rather than some other form of non-judicial grievance mechanism. The use of this term brings with it a heightened expectation with regard to the type and quality of complaint resolution service on offer.

3. Indicators of independence

3.1 International and national ombud standards

Section 5 brings together a set of “indicators of independence” drawn from the following international standards:

Issuing organisation

Title

The Council of Europe’s Venice Commission

Opinion No. 897/ 2017 Principles on the Protection and Promotion of the Ombudsman Institution (Venice Principles)

The United Nations General Assembly

Resolution 75/ 186 The role of Ombudsman and mediator institutions in the promotion and protection of human rights, good governance and the rule of law (the UN Resolution)

International Ombudsman Institute

By-Laws of the International Ombudsman Institute (the IOI By-Laws).

As noted in section 4.1 above, the Venice Principles, the UN Resolution and the IOI By-Laws apply to ombuds with jurisdiction over government authorities (or private actors delivering essential services).Footnote 13 There are no international standards applicable to ombuds with a jurisdiction to determine complaints about private sector actors. As a result, two authoritative sets of national standards have been included in the analysis below, where it appears helpful to do so. The Ombudsman Association’s standards cover both ombuds with a governmental and private sector jurisdiction, while the Australian Government’s guidance relates solely to private sector Alternative Dispute Resolution.

Issuing organisation

Title

Ombudsman Association (UK, Ireland, and British Overseas Territories)

Terms and Rules (the Terms and Rules)

Australian Government

Benchmarks and Key Practices for Industry Based Customer Alternative Dispute Resolution (the Benchmarks and Key Practices)

It should be noted that these national standards are generally aimed at private sector ombuds set up (whether by statute or as part of self-regulatory systems) to determine consumer complaints within particular national jurisdictions and, as such, their context is very different from that of the CORE in terms of the nature and sensitivity of the disputes being considered. Nonetheless, in the absence of international ombud standards which apply straightforwardly to the CORE’s internationally unique situation, there is benefit in considering these approaches to ombuds with a private sector mandate.

3.2 Recognition of flexibility and a multi-model approach

As with the Venice Principles discussed in section 4 above, the standards referred to in section 5.1 are not legally binding. However, together, they may be taken as authoritative guidance with regard to established good practice for ombud institutions.

In addition to being non-binding, there is recognition within each of these documents that there are multiple ways in which ombud institutions can be designed and operated within particular national contexts. None of the documents recommend a “one-size-fits all” approach and each provides significant autonomy for approaches to be tailored to particular national contexts or corporate sectors.

For instance:

While each of the documents sets out principles/ standards/ criteria/ benchmarks, there is variation in the degree to which they are prescriptive, and each recognises the need to apply principled approaches flexibly in practice. Indeed, each of these documents can be seen as an attempt to draw up authoritative standards, while ensuring enough flexibility to recognise the lack of uniformity in practice within national and global ombud communities.Footnote 14 Thus, in setting out “indicators of independence” in this section, and applying them to the CORE in section 6, there is a need to recall that standards in this field are not “black and white”, and that provision is generally made for a considerable diversity of approaches.Footnote 15

3.3 Indicators of independence

The following indicators of independence can be identified through analysis of the standards set out in section 5.1 above. The indicators of independence are grouped into two categories: indicators that relate to features of ombud institutional design; and indicators that relate to the powers ombud institutions require to guarantee effective independent action.

Institutional design

Institutional powers

4. Assessment of the CORE’s independence

This section of the report details the requirements of each indicator of independence and evaluates the degree of the CORE’s compliance with them.Footnote 16

4.1 Indicator of independence 1: structural independence

4.1.1 Standards

The Preamble to the Venice Principles refers to the “core principles” of the ombud institution as “including independence, objectivity, transparency, fairness and impartiality”. Independence has been referred to as the sine qua non of the ombud institution.Footnote 17 As will be seen in the other indicators below, a number of the Venice Principles are directed to supporting the ombud institutions’ independence. However, Principle 14 bears most closely on the question of the ombud’s structural independence. It requires that “The Ombudsman shall not be given nor follow any instruction from any authorities”.

The UN Resolution makes repeated reference to independence in its preamble and within the resolution itself. The clearest reference to structural independence comes within the Preamble, where the General Assembly makes its resolution while “Underlining the importance of autonomy and independence from the executive or judicial branches of Government, its agencies or political parties, of Ombudsman and mediator institutions, where they exist, in order to enable them to consider all issues related to their fields of competence, without real or perceived threat to their procedural ability or efficiency and without fear of reprisal, intimidation or recrimination in any form, whether online or offline, that may threaten their functioning or the physical safety and security of their officials.”Footnote 18

The Preamble to the IOI By-LawsFootnote 19 refers to the three “core principles” for ombuds as “independence, objectivity, and fairness”. The IOI By-Laws define independence as “The ability of a member [of the IOI] to perform its Ombudsman role without interference from the appointing body and who may be dismissed only with cause clearly defined in a statute, Terms of Reference and/ or Governance Rules established by a formal legal process.” Article 2(2) of the By-Laws include a set of principles, referred to as the “International Ombudsman Standard”. Article 2(2)(d) states that: “it [the ombud office] should not receive any direction from any public authority which would compromise its independence and should perform its functions independently of any public authority over which jurisdiction is held”.

The IOI By-Laws therefore appear less prescriptive than Principle 14 of the Venice Principles, being willing to countenance direction from a public authority as long as independence is not compromised.

The OA Terms and Rules set out the membership criteria of the OA. They explain the expectations of members and the requirement for the use of the title “ombud”. The criteria apply equally to ombuds with a jurisdiction over government and those with a jurisdiction over private sector actors. The first criterion is independence. This makes clear that the requirement is independence “from those whom the Ombudsman has the power to investigate” and that appointment, dismissal and oversight must also be carried out independently from “those subject to investigation”.

The Benchmarks and Key Practices provide a unique source of good practice guidance specifically targeted at private sector ombuds with a mandate for dealing with customer complaints.Footnote 20 One of the benchmarks is “independence” and the underlying principle is stated as follows: “The decision-making process and administration of the [ADR] office are independent from participating organisations”. Similarly, to the OA Terms and Rules, the Benchmarks and Key Practices stress that independence is required from “participating organisations” in relation to decision-making, the background of the decision-maker, accountability arrangements, and recruitment of staff.

In summary, standards relating to the ombud institution generally require high levels of structural independence, defined as independence from those organisations subject to investigation and from the body that appoints the ombud. Those standards that include ombuds with a private sector jurisdiction emphasise independence from the organisations subject to investigation. Where the jurisdiction is public, naturally, the emphasis is on independence from state authorities as the organisations which these ombuds are empowered to oversee.

4.1.2 Evaluation

The CORE is a Special Adviser to the Minister of Small Business, Export Promotion and International Trade (the Minister), appointed by Order in Council 2019-0300 (Order in Council No 1), under s. 127(1)(c) of the Public Service Employment Act. The CORE is appointed by the Governor in Council on the advice of the Privy Council of Canada (the Cabinet). The CORE is, therefore, effectively appointed by executive government and is accountable to the Minister for the delivery of its mandate.

In addition to being in a position to amend Order in Council 2019-1323 (Order in Council No 2) establishing the CORE and setting out its mandate, the government is able to set priorities for the CORE and monitor how those priorities are being delivered. The Minister has recently issued the CORE with a Statement of Priorities and Accountability which outlines Global Affairs Canada’s (GAC’s) expectations in practice.

At the same time, CORE operates at arms length from GAC, and is not subject to direct control by GAC in terms of its decision-making and advisory functions.

The CORE is, therefore, a public servant who is appointed by executive government on an arms length basis and who is structurally independent from the companies which the office is empowered to determine complaints about. Independence from those subject to investigation is crucial and is the most important requirement set out in national and international ombud standards. The CORE clearly meets this requirement.

A more challenging question is whether, given its purpose and mandate, the CORE also requires to be fully independent from executive government. The Venice Principles require this, but as has been made clear in sections 4 and 5 above, these principles are directed at ombuds with a public jurisdiction over governmental actors rather than a private sector jurisdiction over corporate actors.Footnote 21 As Prof Buck and his colleagues note in relation to public ombuds:

“Securing the independence of the office is a design feature that has always been considered to be an imperative for ombudsman schemes… Within this standard [independence] an extremely important claim for authority and legitimacy is being made, upon which, in the eyes of both the complainant and public bodies, rests much of the authority which the ombudsman exercises.”Footnote 22

It is evident that a public service ombud should be independent of government, but in what circumstances should a private sector ombud be independent of government?

Globally, where ombud offices are set up in statute to determine complaints about private sector actors, this is most commonly within consumer law settings where the ombud determines consumer complaints brought by customers within particular sectors.Footnote 23 In this context, there has been no expectation that such ombuds should be independent of government as well as industry. Indeed, if anything, government involvement in establishing and/ or overseeing this kind of ombud has generally been seen as vesting the institution with greater authority and legitimacy than private sector ombuds set up on a self-regulatory basis.

CORE’s mandate, however, is quite different to that of consumer ombuds:

In the view of this report, these particular features of the CORE’s context point to a need for structural independence from government that goes beyond what is generally required for ombuds with a jurisdiction over private sector actors.

Of particular concern here is the recognition in the UN Guiding Principles of the existence of a “state-business nexus,” which exists both in relation to corporations controlled by the state and those that receive significant state support/ services. As powerful economic and social actors, major corporations are also frequently able to gain privileged access to government and influence governmental priorities and policies.

It is clear that some of the CORE’s stakeholders are concerned about the closeness of the CORE to GAC, whose policy agenda includes both the promotion of responsible business conduct and the promotion of Canadian companies abroad.Footnote 24 This is seen as a potential conflict of interest, with the potential to impinge on the way in which the CORE operates in practice. It is also the case that future changes in government, political climate, and/ or economic imperatives could lead to government seeking to influence the CORE’s approach and priorities in ways that might be seen to benefit Canadian companies.

This criticism has also been levelled in academic commentary:

“… the institutional ambiguities surrounding the CORE and its investigatory powers leave the position open to interference by corporations, which could lobby to ensure that the office remains ineffective by design. In other words, corporate lobbyists might take advantage of the present weaknesses of the CORE to suppress any future ability for the office to meaningfully curtail abuses engendered by Canadian companies overseas.”Footnote 25

While the CORE operates at “arms length” from GAC, the CORE’s priorities and accountabilities remain firmly set by the Minister for Small Business, Export Promotion and International Trade. This can be seen in the Statement of Priorities and Accountability, which emphasises the accountability of CORE to the Minister for its performance and requests close working with the Minister and other governmental actors to deliver the government’s Responsible Business Conduct Strategy.

A particular tension arises here between the CORE’s mandate to provide independent advice to government, and its need to work with others to deliver the government’s strategy and account for performance against priorities set by the Minister.

In considering these issues, a key real-world variable relates to the needs and expectations of the CORE’s stakeholders. The issue of independence, combined with limited investigatory powers, has led to significant criticisms from human rights NGOs, even to the extent of warning individuals and groups to be cautious when approaching the CORE.Footnote 26 These concerns have been summarised as follows:

“… [criticisms of the CORE] have been mainly concerned with its lack of enforcement powers, lack of ability to compel evidence, and lack of independence from the government. Indeed, since the CORE was created by, and reports to, the executive branch, the risk of institutional dependence has cast doubt over its ability to effectively investigate corporate conduct and to act as an "independent watchdog".”Footnote 27

A particular concern of NGOs is that complainants may face reprisals for making complaints and that, in that context, there needs to be absolute confidence in the independence and effectiveness of a grievance resolution mechanism such as CORE. Without such confidence, the fear is that making a complaint may make an individual’s situation worse and fail to result in any meaningful improvements in human rights compliance.

Although the focus of this report is on the requirements of the Venice Principles and other ombud standards, it is relevant to note here that human rights norms have been argued to require independence of the CORE from government. The UN Human Rights Council’s Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises on its Mission to Canada (the UN Working Group), for example, recommended in its 2018 report that:

“… the Office [the CORE] should have total independence from the Government, undertake meaningful investigations and have the investigatory powers to summon witnesses and compel stakeholders to produce documents and any other powers as are necessary to fully address human rights abuses.”Footnote 28

The conclusion that independence of the CORE is required from government, and not only Canadian companies, has also been reached by Charis Kamphuis and Leah Gardner in their work on developing a framework for the evaluation of effective non-judicial grievance mechanisms. Referring to the Masstricht Principles (as well as relevant statements by UN human rights bodies),Footnote 29 they note that “Principle 37 [requires] that states must provide an effective remedy before an independent authority”. Consequently, the second area of their framework requires both “independence from parties and the state”. Kamphuis and Gardner conclude:

“The [UN] Guiding Principles contemplate that they [grievance mechanisms] may also be independent from the state, but do not explicitly require this as the Maastricht Principles clearly do. Arguably though, the requirements of public trust and non-interference expressed in the [UN] Guiding Principles would require a grievance mechanism to be independent from the state. The Working Group’s recent report resoundingly confirms that independence from the parties and the home state is part of the effectiveness standard required by international law.”Footnote 30

Overall, in light of the points discussed above, this report concludes that it would be preferable for the CORE to be structurally independent not only from the companies it investigates but also from the government which it is tasked with advising. CORE’s current status, as a ministerial Special Adviser, does not achieve this. Structural independence is best achieved by making the ombud office’s appointment, dismissal, and accountability relationships matters for the legislature rather than government.Footnote 31 These specific aspects of ombud independence are dealt with in other sections of the report below.

In reaching this conclusion, some caveats are required:

4.1.3 Recommendation

Recommendation 1: the CORE should be established independently of executive government, as a fully independent ombud office, rather than as a ministerial Special Adviser.

4.2 Indicator of independence 2: legislative basis

4.2.1 Standards

Principle 2 of the Venice Principles states that “The Ombudsman Institution, including its mandate, shall be based on a firm legal foundation, preferably at constitutional level, while its characteristics and functions may be further elaborated at the statutory level.” The aim, particularly of constitutional entrenchment, is to protect the ombud institution from having its establishment, jurisdiction, and powers amended without appropriate scrutiny. Where an ombud is set up on a non-statutory basis or using legislative instruments that may be easily amended by a powerful executive government, there is evidently a threat to the ombud’s independence.

The IOI By-Laws similarly require in Article 2(2)(a) that the ombud “should be provided for by a Country, State, Regional or Local Constitution and/or an Act of a Legislature, or by international treaty”. The UN Resolution refers, in paragraph 2(b), to ombuds being endowed with “the necessary constitutional and legislative framework” to ensure (along with a range of other important features) “the efficient and independent exercise of their mandate and to strengthen the legitimacy and credibility of their actions as mechanisms for the promotion and protection of human rights and the promotion of good governance and respect for the rule of law.”

In keeping with the fact that many private sector ombud institutions operate on a non-statutory basis, the OA Terms and Rules and the Australian Government Benchmarks do not require that ombuds have a basis in law or within the constitution. A greater range of models is generally permitted for private sector ombuds which may be set up by statute, as a feature of a system of statutory regulation (or co-regulation), or independently of government as a self-regulatory mechanism

In summary, ombuds with a public jurisdiction should generally be provided for in primary (rather than executive) legislation, ideally within the constitution. Standards relating to ombuds with a private jurisdiction permit a wider range of models for making provision for an ombud.

4.2.2 Evaluation

The CORE is established by an Order in Council, a form of executive law-making. This type of arrangement is generally inappropriate for ombuds with a governmental jurisdiction, because it does not protect the ombud from undue interference by the executive with its mandate and powers. A greater degree of entrenchment (and heightened scrutiny of any proposed changes) is generally required.

This report has already discussed the particular context of the CORE in section 6.1 above and whether the standards applying to public ombuds should also apply to the CORE. In relation to the basis of the legislative mandate, the CORE’s independence would be bolstered by having its mandate included within primary legislation. This would also help to enhance stakeholders’ confidence in the independence of the institution and its freedom from undue influence and amendment by government.

On a practical basis, as we shall see below, the establishment of the CORE through an Order in Council also limits the ability to grant the CORE the powers that are routinely expected of ombud institutions and immunity from civil prosecution (see sections 6.10 and 6.11). According to the McIsaac Report, such provisions require to be made in primary legislation.

Indeed, the McIsaac Report suggested that, from a legal perspective, the best way to establish the CORE would be through primary legislation or by setting up the CORE as a Commission of Inquiry under the Inquiries Act. The former option was recommended as superior by McIsaac. The recommendation below goes with the grain of that advice, as well as international ombud standards.

4.2.3 Recommendation

Recommendation 2: The CORE should be established by primary legislation, to provide a degree of entrenchment and protect the office from executive interference, and to allow for provisions to be made regarding the office’s powers and immunity.

4.3 Indicator of independence 3: appropriate status and remuneration

4.3.1 Standards

Only the Venice Principles make provisions with regard to the status and remuneration of the ombud. Principle 3 states that “The Ombudsman Institution shall be given an appropriately high rank, also reflected in the remuneration of the Ombudsman and in the retirement compensation.”

4.3.2 Evaluation

As a ministerial Special Adviser, the salary of the CORE is in the range GCQ-6, $183,600 - $216,000. The GCQ pay scale is a 10-point scale used for Governor in Council appointees.Footnote 34 As a public service employee, the CORE has access to the Public Service Pension Plan.Footnote 35

The Venice Principles do not define the term “appropriately high rank”. The CORE’s status as Special Adviser and level of remuneration are suggestive of a senior position. This status is similar to other Canadian Federal Ombuds: for instance, the Taxpayers’ Ombudsperson is also a ministerial Special Adviser.Footnote 36

As already discussed in section 6.1 above, however, the CORE’s current status as a ministerial Special Adviser is inappropriate in relation to ensuring the structural independence of the organisation as required by the Venice Principles. As a result, this status requires amendment to ensure that it is properly reflective of the ombud’s independence.

It is notable that statutory ombuds with a public services jurisdiction in Canada, operating at provincial level, are often provided with a status which clearly reflects the office’s independence from executive government. For example:

Although not designated an ombud, the federal Commissioner for Official Languages has many features of an ombud. The Commissioner has the status of an Officer of Parliament and has remuneration set “equal to the salary of a judge of the Federal Court, other than the Chief Justice of that Court”.Footnote 40

In the absence of a prescriptive standard within the Venice Principles, it is a matter for debate as to what the appropriate level of remuneration for an ombuds should be. There appear to be different approaches within Canada to this issue and there would be value in benchmarking the salary paid to the CORE against other ombuds at both provincial and federal level to ensure that the salary is broadly in line with that of other ombuds and fully reflective of the high rank required by the Venice Principles.

4.3.3 Recommendation

Recommendation 3: Primary legislation for the CORE (as recommended in Recommendation 2 above), should make provisions that secure the fully independent status of the ombuds. This is best done by ensuring the close connection of the ombud to the legislature (such as by making the ombud an Officer of Parliament). In drafting new legislation for the CORE, a benchmarking exercise should be conducted to ensure that the CORE’s level of remuneration is in line with that of other Canadian ombuds (or similar commissioners or officers of Parliament) and sufficient to ensure that the officer-holder is perceived to be of “high rank” within Canada’s system of government.

4.4. Indicator of independence 4: appropriate method of appointment

4.4.1 Standards

Principles 6, 7, and 8 of the Venice Principles make provisions for the appointment of the ombud. Principle 6 refers to the appointing body and states “The Ombudsman shall be elected or appointed according to procedures strengthening to the highest possible extent the authority, impartiality, independence and legitimacy of the Institution. The Ombudsman shall preferably be elected by Parliament by an appropriate qualified majority.” The text of this principle appears to recognise that ombud institutions are often appointed by the executive rather than the legislature, albeit the latter is considered to be preferable.

Principle 7 states that “The procedure for selection of candidates shall include a public call and be public, transparent, merit based, objective, and provided for by the law”. An open and merit-based selection application process is required in order to ensure that the executive (where it is responsible for making appointments) does not simply select a candidate that will be favourable to government and to ensure the selection of high calibre candidates.

Principle 8 seeks to further this goal by ensuring that selection criteria are broad enough to attract a diverse range of candidates: “The criteria for being appointed Ombudsman shall be sufficiently broad as to encourage a wide range of suitable candidates. The essential criteria are high moral character, integrity and appropriate professional expertise and experience, including in the field of human rights and fundamental freedoms.”

The UN Resolution endorses the principle that “Where they exist, [Member States should] take the appropriate steps to ensure that the means of appointment of the Ombudsman or mediator respect the full independence and State recognition of, as well as respect for, the Ombudsman and mediator institutions and their work”.

The OA Terms and Rules state that “The persons who appoint the Ombudsman should be independent of those subject to investigation by the Ombudsman. This does not exclude minority representation of those subject to investigation on the appointing body, provided that the body is entitled to appoint by majority decision.” The OA Terms and Rules go further than the Venice Principles here in requiring the overall independence of the appointing body and, in principle at least, ruling out appointment of public ombuds by the executive.Footnote 41

The Australian Government Benchmarks contain limited provisions regarding the appointment process, only requiring that “The decision-maker [in most cases an ombud or commissioner] is not selected directly by participating organisations”.

In summary, the central requirement is that the ombud is not appointed by those subject to investigation. For public service ombuds, the Venice Principles suggest that is preferable for appointment to be via election by the legislature. The selection process must be open, merit-based, and use broad criteria to encourage the diversity and quality of applicants.

4.4.2 Evaluation

The appointment of the current CORE was made following an open and merit-based recruitment process, with the criteria for appointment being broad-based and appropriate to the ombud’s role. These features of the recruitment process meet the requirements of the Venice Principles. They should, however, be reflected in primary legislation to ensure that they are a consistent feature of the ombud’s appointment in future.

The CORE is appointed by the Governor in Council. This method of appointment is commonly used for a range of posts “from heads of agencies and chief executive officers of Crown corporations to members of quasi-judicial tribunals”.Footnote 42 Appointments are made by the Governor in Council on the advice of the Queen’s Privy Council of Canada (the Cabinet). As such the appointment is made by the executive.

This method of appointment meets the essential requirement of some of the ombud standards set out above, in that the appointing body is not subject to investigation by the CORE.

The Venice Principles suggest, however, that it is preferable for appointment to be made by the legislature, albeit the tentative nature of the guidance here is reflective of the fact that appointment by the executive is common within the global ombud community. Indeed, Linda Reif notes that:

“…the ombudsmen in United Kingdom and France are appointed by the executive in one sense or another, but are independent in law and practice. Most classical, human rights and hybrid ombudsmen in Africa and Asia are executive appointments.”Footnote 43

While there is mixed practice and some debate about the necessity of appointments by the legislature,Footnote 44 it is notable that the Venice Principles (Principle 6) require that the appointing procedures should aim at “strengthening to the highest possible extent the authority, impartiality, independence and legitimacy of the Institution” (my emphasis). If the CORE wishes to meet the highest standards of independence and, given the points made in section 6.1 about the value of providing CORE with structural independence from government, consideration should be given to changing the method of appointment to election by the legislature or, at a minimum, confirmation of appointment by the legislature.Footnote 45

Public service ombud offices operating at state level in Canada offer models for how such an appointment process might work. The Ontario Ombudsman Act, for example, provides in s. 2 that the Assembly appoints the ombud either by unanimous consent of the Assembly or unanimous consent of a panel composed of Assembly members from each party and chaired by the Speaker.

In Ontario, the status of the ombud is as an “officer of the Assembly” (s. 1 Ontario Ombudsman Act).Footnote 46 A similar approach is followed in British Columbia under the Ombudspersons Act 1996. Providing a strong relationship between the ombud and the legislature is important not only in securing the independence of the ombud but in making the most of the particular approach and function of ombuds.Footnote 47

Since ombuds are generally unable to enforce their findings and recommendations, a major mechanism for securing compliance and highlighting issues of public interest arising from cases, is the ability to report to the legislature. Thus, closeness to the legislature – established both through the appointment process and ongoing relationships of accountability – provides an important function not only in relation to independence of the institution, but also in relation to its status and effectiveness.Footnote 48

Given the CORE’s status as a human rights ombud, a heightened relationship to the legislature is appropriate.

4.4.3 Recommendation

Recommendation 4: the CORE should be appointed by, and report to, the Parliament of Canada (the Parliament).

4.5 Indicator of independence 5: appropriate term of office

4.5.1 Standards

Principle 10 of the Venice Principles states that “The term of office of the Ombudsman shall be longer than the mandate of the appointing body. The term of office shall preferably be limited to a single term, with no option for re-election; at any rate, the Ombudsman’s mandate shall be renewable only once. The single term shall preferably not be stipulated below seven years.” The purpose of providing a single term of appropriate length (or subject only to a single period of re-appointment) is to ensure that there is no incentive for an ombud to make favourable decisions in the hope of reappointment.

The IOI By-Laws are considerably more vague and permissive, requiring that appointment of the ombud should be “for a defined period of time in accordance with the relevant legislation or Constitution”.

The OA Terms and Rules state that “The term of office should be of sufficient duration not to undermine independence. The appointment should be for a minimum of five years. It may be subject to renewal but the renewal process should not undermine or compromise the office holder’s independence.” Again this standard is more permissive that the Venice Principles and includes no limits on re-appointment and no requirement for the ombud institution’s term of office being longer than the mandate of the appointing body.

The Australian Government Benchmarks are the most permissive, only requiring that “The decision-maker is appointed to the office for a fixed term”.

In summary, there is recognition that an ombud’s term of office and whether it is renewable can impinge upon independence. The Venice Principles provide the most directive guidance, requiring that terms of office should be renewed only once and recommending a seven-year term of office.

4.5.2 Evaluation

Paragraph 2 of Order in Council No 2 establishing the CORE states that the CORE’s appointment is for a fixed term period of “up to five years, which term may be renewed”. Order in Council No 1 appointing the present office holder as the CORE states that she is to “hold office during good behaviour for a term of five years”.

The term of office, and the way it is provided for within Order in Council No 2, requires improvement in order to conform to the expectations noted above. The phrasing of Order in Council No 2 and the use of the words “up to”, provide scope for the government to make appointments for fixed terms that are shorter than five years. While the present appointee has been appointed for a five year fixed term, the length of the term should be fixed in law rather than allowing for discretion on the part of government in making the appointment.

The lack of limitation on renewal is also an issue and best practice suggests that the term of office should either not be subject to renewal or only subject to renewal once.

A five year term office is not out of line with many ombud offices internationally, but the Venice Principles suggest that it is preferable for that term to be seven years.

4.5.3 Recommendation

Recommendation 5: the CORE’s term of office should be for a fixed term of seven years, either non-renewable or renewable only once.

4.6 Indicator of independence 6: appropriate tenure and dismissal arrangements

4.6.1 Standards

Principle 11 of the Venice Principles states that “The Ombudsman shall be removed from office only according to an exhaustive list of clear and reasonable conditions established by law. These shall relate solely to the essential criteria of “incapacity” or “inability to perform the functions of office”, “misbehaviour” or “misconduct”, which shall be narrowly interpreted. The parliamentary majority required for removal – by Parliament itself or by a court on request of Parliament- shall be equal to, and preferably higher than, the one required for election. The procedure for removal shall be public, transparent and provided for by law.” The Venice Principles therefore require that grounds for removal should be highly constrained and narrowly interpreted and that removal should only follow a parliamentary vote.

The IOI By-Laws are more permissive, including only a requirement that the legislature should initiate removal, but providing no details with regard to the basis on which removal might be ordered: “its [the ombud office’s] incumbent or incumbents should only be dismissed by a Legislature or other elected body or with its approval for cause as provided by the relevant legislation or Constitution”.

The OA Terms and Rules state that “The appointment must not be subject to premature termination other than for incapacity or misconduct or other good cause. The grounds on which dismissal can be made should always be stated, although the nature of the grounds may vary from scheme to scheme. Those subject to investigation by the Ombudsman should not be entitled to exercise the power to terminate the Ombudsman’s appointment, but this does not exclude their minority representation on the body which is authorised to terminate.” The Terms and Rules are less explicit, therefore, than the Venice Principles both with regard to who may initiate dismissal and the basis on which it may be initiated.

In summary, it is generally accepted that dismissal of an ombud cannot be influenced by organisations subject to investigation and must meet a high threshold, with the grounds for dismissal both limited and specific. For public service ombuds, the expectation is that dismissal should be initiated by the legislature or with its approval.  

4.6.2 Evaluation

The CORE is appointed “during good behaviour” (Order in Council No 2, Paragraph 2). The following advice relates to Governor in Council appointees appointed on this basis:

“Appointees who serve during good behavior may only be removed for cause, which threshold may vary in accordance with the precise wording set out in the legislation or other statutory instrument that establishes the position and authorizes the appointment and in accordance with their terms and conditions of appointment.”Footnote 49

Order in Council No 2 and Order in Council No 1 do not make further provisions with regard to when the CORE may be dismissed from office. The present CORE has confirmed that her current terms and conditions of employment make no further reference to the threshold for dismissal.

Currently, therefore, there is insufficient specificity with regard to the circumstances in which the CORE may be dismissed. Conformance to best practice also requires dismissal to be initiated or approved by the legislature rather than the government.

4.6.3 Recommendations

Recommendation 6: the grounds on which the CORE may be dismissed must be specified in law, ensuring that the threshold for dismissal is high and the grounds are limited.

Recommendation 7: dismissal of the CORE should be a matter for the Parliament, following a vote demonstrating a parliamentary majority in favour of dismissal.

4.7 Indicator of independence 7: prohibition on inappropriate political activity

4.7.1 Standards

Only the Venice Principles provide guidance in relation to this issue. Principle 9 states that “The Ombudsman shall not, during his or her term of office, engage in political, administrative or professional activities incompatible with his or her independence or impartiality. The Ombudsman and his or her staff shall be bound by self-regulatory codes of ethics.”

4.7.2 Evaluation

Order in Council No 2 is silent in relation to political activity, however, the following guidance applies to all Governor in Council appointees:

“Governor in Council appointees should not participate in a political activity where it may reasonably be seen to be incompatible with their duty, or reasonably seen to impair their ability to discharge their public duties in a politically impartial fashion, or would cast doubt on the integrity or impartiality of the office. Any questions regarding obligations under the guidelines should be directed to the Senior Personnel Secretariat, Privy Council Office.”Footnote 50

Detailed guidance is provided in the Guidelines for the Political Activities of Public Office Holders (the Political Activity Guidelines),Footnote 51 which sets out both a “general principle” and a list of “guiding factors” for assessing the appropriateness of any political activities by office holders. In addition, the CORE is subject to the provisions of the Conflict of Interests Act and the Lobbying Act.

The CORE is appointed “under the Public Service Employment Act” (Order in Council No 2, Paragraph 2) and as such is subject to the provisions made in Part 7 of the Public Service Employment Act 2003, in relation to “political activities”. The purpose of Part 7 is set out in s.112: “to recognize the right of employees to engage in political activities while maintaining the principle of political impartiality in the public service.” S. 113 sets out the general principle in relation to political activities that are to be permitted: “An employee may engage in any political activity so long as it does not impair, or is not perceived as impairing, the employee’s ability to perform his or her duties in a politically impartial manner.”

The Political Activity Guidelines note that:

“All questions with respect to the political activities of any public office holders appointed pursuant to, or subject to, the Public Service Employment Act fall within the exclusive jurisdiction of the Public Service Commission. This group includes those deputy heads, deputy ministers, associate deputy ministers, associate deputy heads, chief executive officers or equivalents who are subject to either Part 7 or section 117 of the Act, as well as special advisors to a Minister who are appointed under section 127.1(1) of the Act. The Public Service Commission has the power to investigate allegations of improper political activities on the part of such public office holders. Questions with respect to obligations under the Public Service Employment Act are to be referred to the Public Service Commission.”

Overall, therefore, suitable arrangements are in place to ensure that the CORE does not engage in political activity that would threaten the independence of the office.

4.8 Indicator of independence 8: sufficient resourcing

4.8.1 Standards

Principle 21 of the Venice Principles states that: “Sufficient and independent budgetary resources shall be secured to the Ombudsman institution. The law shall provide that the budgetary allocation of funds to the Ombudsman institution must be adequate to the need to ensure full, independent and effective discharge of its responsibilities and functions. The Ombudsman shall be consulted and shall be asked to present a draft budget for the coming financial year. The adopted budget for the institution shall not be reduced during the financial year, unless the reduction generally applies to other State institutions. The independent financial audit of the Ombudsman’s budget shall take into account only the legality of financial proceedings and not the choice of priorities in the execution of the mandate.”

The UN Resolution states that “adequate financial allocation for staffing and other budgetary needs” to ensure “the efficient and independent exercise of their mandate and to strengthen the legitimacy and credibility of their actions as mechanisms for the promotion and protection of human rights and the promotion of good governance and respect for the rule of law.”

The IOI By-Laws state that “it [the ombud office] should have adequate funding to fulfil its functions.

The OA Terms and Rules state that “the office of the Ombudsman must be adequately staffed and funded, either by those subject to investigation or from public funds, so that complaints can be effectively and expeditiously investigated and resolved.”

The Australian Government Benchmarks state that “the office has sufficient funding to enable its caseload and other relevant functions to be handled in accordance with the Benchmarks for Industry-based Customer Dispute Resolution.”

In summary, the expectation across each of the standards is that ombuds will receive adequate funding to deliver their mandates. The Venice Principles suggest additional requirements: the adequacy of funding should be set out in law; the budget setting process should involve the presentation of a draft budget by ombuds and involve consultation, and not be subject to arbitrary reduction; financial audit should be limited to legality, rather than performance.

4.8.2 Evaluation

Currently, Order in Council No 2 makes no reference to the adequacy of the CORE’s budget. Given the status of the Order in Council as executive legislation and the CORE’s current status as a ministerial Special Adviser, this is not surprising.

As noted in section 6.2 above, best practice standards suggest that the ombud should be established in primary legislation (and ideally within the Constitution itself). Such legislation should also include a principled statement with regard to the adequacy of funding for the CORE.

In terms of the budget setting process, this requires transparency and independent oversight, to ensure that the executive cannot reduce the effectiveness of an ombud by inappropriately reducing its budget. Trevor Buck and his colleagues have noted that:

“Given the dangers of executive control via the resource allocation process, at the very least there should be transparent procedures to verify the budgets supplied by ombudsmen… what is important is that Parliament is able to intervene should the ombudsman’s budget be unreasonably cut.”Footnote 52

In the Australian State of Victoria, the ombud (along with other Victorian Officers of Parliament) has recently published a report which highlights the problems arising from executive decision-making around budget-setting and lack of transparency and oversight.Footnote 53 The risks inherent in executive control of the budgets of independent agencies suggest that clear budget setting processes are required to preserve the independence and effectiveness of ombuds.

The budget setting process for the CORE involves participating in Global Affairs Canada’s annual budget exercise in the last quarter of the fiscal year, indicating how the CORE intends to spend its ongoing funding. As long as the budget is within the approved ongoing annual funding, the CORE has discretion of spending, subject only to rules and regulations to which all Government of Canada entities have to adhere.

The Venice Principles are open to interpretation with regard to the exact requirements of an ombud’s budget-setting process. The ombud must have “sufficient and independent budgetary resources”, but the principles are silent with regard to whom the budget should be presented and who should consult with the ombud in setting the budget.

Given the Venice Principles’ emphasis on securing, to the highest extent possible, the ombud’s independence and legitimacy, the reference to independent budgetary resources falls to be read as including the budget-setting process (rather than being restricted to independence in expenditure). Indeed, independence in the spending of budgetary resources is of limited value unless it goes hand in hand with genuine independence in budget-setting.

With regard to financial audit, there has yet to be a financial audit of the CORE. However, the OIC does not reflect the Venice Principles’ requirements with regard to the limited role of audit in relation to the ombuds. This should be clearly set out in the ombud’s founding legislation, to ensure that financial audit cannot be used as a tool to interfere unduly with the CORE’s independent budgetary discretion.

In terms of the substantive adequacy of the CORE’s current budget, CORE was granted $1.6 million to cover start-up costs. In the 2021 Federal Budget, the CORE's annual budget was increased to $4.6 million.

There is no indication that this budget has been insufficient to deliver the CORE’s mandate to date. Indeed, CORE’s Annual Report 2019 – 2021, and Annual Report 2021 – 2022 show that the CORE has been able to carry out substantial work setting up the office, consulting stakeholders, and developing procedures to deliver its mandate since the first ombud was appointed in April 2019.

CORE’s budget should also be evaluated in relation to what are currently low volumes of complaint. For instance, only 15 complaints were received in financial year 2021-21. In the same period, the CORE employed a total of 20 staff comprised of 17 subject matter experts and 3 strategic and corporate services staff.

Given the current caseload of the office and the fact that the budget of the office has increased substantially since its inception, there have not been any concerns up until now with regard to the adequacy of the resourcing for the office.

This is likely to change, however, as the CORE develops its mandate to launch reviews on its own initiative (without receipt of a complaint), as the number of complaints increases, and if parties request dispute resolution services such as joint fact-finding and arbitration (which are likely to be costly).

As the CORE has yet to complete a complaint review, there are no data in relation to costs. However, initial costing quotes indicate that a complaint review may cost between US$25,000 and US$100,000, depending on the complexity of the case. At the time of writing, CORE has 14 admissible complaints and, depending on their complexity, to review each of these may require resources beyond those currently allocated to the CORE. As such, there needs to be ongoing scrutiny of the adequacy of the CORE’s budget.

Such scrutiny should be performed by regular appearance before a committee of Parliament, where the CORE (and its stakeholders) could publicly raise and discuss issues around funding adequacy.

In relation to operational independence in the use of budgetary funds, the CORE has – in practice – discretion over how the budget it directly controls is spent (subject to rules and regulations applicable to the use of public funds). This has recently been confirmed in the “Cooperation Framework” between the CORE and GAC. While this confirmation is welcome, there is a need for independence not only in relation to the use of budgetary funds but the budget setting process itself.

4.8.3 Recommendations

Recommendation 8: The CORE’s budget-setting process, and its decisions with regard to how that budget is spent, should be independent of the Government of Canada. The Parliament should be given the role of approving and overseeing the CORE’s budget.

Recommendation 9: The CORE’s legislative mandate should include provisions requiring that the CORE’s budget should be set at an adequate level to allow it to fulfil its functions.

Recommendation 10: The ongoing adequacy of the CORE’s allocated budget for the delivery of its mandate should be subject to regular review before an appropriate Parliamentary committee

4.9 Indicator of independence 9: free appointment of staff

4.9.1 Standards

Principle 22 of the Venice Principles states that: “The Ombudsman Institution shall have sufficient staff and appropriate structural flexibility. The Institution may include one or more deputies, appointed by the Ombudsman. The Ombudsman shall be able to recruit his or her staff.”

The Australian Government Benchmarks state that “The office selects its own staff. Office staff are not answerable to participating organisations for the operation of the office.”

4.9.2 Evaluation

The CORE Annual Report 2019 – 2021, states that “the CORE has sub-delegated authority and autonomy over staffing the office subject only to the rules, policies and standards that apply to all government departments and bodies.” Some back-office functions are provided by GAC: “Office infrastructure support services such as procurement, staffing and information technology, were provided by Global Affairs Canada.”

While the CORE has de facto autonomy over its staffing arrangements, this is not clearly provided for within Order in Council No 2. Indeed, Paragraph 3 of the Order in Council is silent with regard to the autonomy of the CORE to appoint staff:

“The staff of the Office of the Canadian Ombudsperson for Responsible Enterprise is employed under the Public Service Employment Act and is within the Department of Foreign Affairs, Trade and Development.”

In addition, the CORE does not currently have the ability to commission independent legal advice. Instead, the CORE is reliant on legal services provided by GAC. Particularly in light of the CORE’s advisory function in relation to both government and Canadian companies, the ability to secure independent legal advice is important to the independent delivery of its mandate.

While there are no explicit standards in relation to the commissioning of legal advice, the general principle that the ombud should appoint its own staff has the purpose of ensuring that the ombud’s independence is not compromised through reliance on staff appointed by another party. There is no reason why this should only apply to employed staff and not also apply to the commissioning of expert advice from outside sources. Indeed, other ombud legislation makes specific provision for the commissioning of independent advice.Footnote 54

4.9.3  Recommendation

Recommendation 11: the CORE should be entitled to commission legal advice from a legal services provider of its choice.

4.10 Indicator of independence 10: legal immunity

4.10.1 Standards

Only the Venice Principles make provisions regarding legal immunity. Principle 23 states: “The Ombudsman, the deputies and the decision-making staff shall be immune from legal process in respect of activities and words, spoken or written, carried out in their official capacity for the Institution (functional immunity). Such functional immunity shall apply also after the Ombudsman, the deputies or the decision-making staff-member leave the Institution.”

4.10.2 Evaluation

Order in Council No 2 makes no provisions with regard to immunity of the CORE from civil proceedings. The McIsaac Report provides the following commentary with regard to legal immunity of the CORE:

“Typically, ombudspersons and similar offices created by statute benefit from provisions which protect them from civil liability for acts done by them in fulfilling their mandates. Statues providing for the creation of commissions of inquiry frequently contain such provisions as well. If, like the federal Inquiries Act, they do not, case law suggests that the commissioners benefit from the common law protection of qualified privilege if not from the absolute privilege accorded to judges.”

It is not clear from this commentary whether the CORE, as an ombud created by Order in Council as a ministerial Special Adviser, would benefit from any common law protections applying to commissions of inquiry. In any event, given the importance of legal immunity for the independent delivery of the CORE’s mandate and the need for the office to have certainty with regard to any potential liability (particularly if the CORE’s powers were to be extended, see section 6.11 and 6.12 below), immunity should be explicitly provided for in law, as required by the Venice Principles.

4.10.3 Recommendation

Recommendation 12: the CORE should be granted immunity from legal proceedings for actions taken in the delivery of its functions.

4.11 Indicator of independence 11: power to compel the production of evidence

4.11.1 Standards

Principle 16 of the Venice Principles states: “The Ombudsman shall have discretionary power, on his or her own initiative or as a result of a complaint, to investigate cases with due regard to available administrative remedies. The Ombudsman shall be entitled to request the co-operation of any individuals or organisations who may be able to assist in his or her investigations. The Ombudsman shall have a legally enforceable right to unrestricted access to all relevant documents, databases and materials, including those which might otherwise be legally privileged or confidential. This includes the right to unhindered access to buildings, institutions and persons, including those deprived of their liberty. The Ombudsman shall have the power to interview or demand written explanations of officials and authorities and shall, furthermore, give particular attention and protection to whistle-blowers within the public sector.”

The UN Resolution states in paragraph 2(b) that the ombud institution should be endowed inter alia with “the powers necessary to ensure that they have the tools they need to select issues, resolve maladministration, investigate thoroughly and communicate results, and all other appropriate means, in order to ensure the efficient and independent exercise of their mandate and to strengthen the legitimacy and credibility of their actions as mechanisms for the promotion and protection of human rights and the promotion of good governance and respect for the rule of law”.

The IOI By-Laws state in Article 2(2)(e) “it [the ombud] should have the necessary powers and means to investigate complaints by any person or body of persons who considers that an act done or omitted, or any decision, advice or recommendation made by any public authority within its jurisdiction has resulted in the kind of action specified in paragraph 2 (b) [maladministration, breach of rights, injustice, etc. cause by a public authority]”.

The OA Terms and Rules state that the ombud should “(ii) Save as otherwise provided by law, have the right to require all relevant information, documents and other materials from those subject to investigation.”

The Australian Government Benchmarks state “The decision-maker can demand that a participating organisation provide all information which, in the decision-maker’s view, is relevant to a complaint, unless that information identifies a third party to whom a duty of confidentiality or privacy is owed, or unless it contains information which the participating organisation is prohibited by law from disclosing.”

In summary, the expectation is that the ombud should have the right to require the provision of information (subject to exceptions provided for by law). Most of the standards are silent in relation to how this right to demand/ require information is to be enforced, with only the Venice Principles explicitly setting out that legal enforcement should be available to the ombud.

4.11.2 Evaluation

As noted earlier in this report, flexibility and adaptability have been features of the ombud institution that have allowed it to spread to varied contexts around the world. However, one of the fundamental features of the ombud is its strong powers of investigation. While ombud institutions generally seek cooperation from bodies they investigate, appropriate powers to pressure organisations to produce evidence are required as a backstop, particularly given that ombuds are generally set up to investigate the actions of powerful and highly resourced actors (e.g. government and large corporations).

Indeed, Michael Frahm, commenting on the application of international norms to ombuds in Australasia and the South Pacific notes:

“The investigative function usually endows the Ombudsman with far-reaching powers to ascertain all relevant facts related to the subject-matter under investigation… The Ombudsman may hear any person and obtain any material or document from this person. In this context, he or she may administer an oath in all jurisdictions. The body concerned as well as any person summoned by the Ombudsman is legally bound to support the Ombudsman by giving the requested information and by rendering any material requested…  It is a big challenge for Ombudsmen that they must depend on the willingness of administrations to cooperate in order to effectively carry out investigations. A high standing and reputation of the Ombudsman him- or herself may often be supportive. However, without the threat of sanctions, compliance with requests of Ombudsmen is likely to be lower than it is today.”Footnote 55

Internationally, it is the norm for public service ombuds, as reflected in the Venice Principles, to have legally enforceable powers to compel. This is reflected in Linda Reif’s description of the powers of the “classical ombudsman”:

“The ombudsman is given strong powers of investigation. These powers include compelling the production of documents and the attendance and testimony of witnesses, through subpoena if necessary. Although they are important backstops for ombudsman investigations, in practice these strong powers do not have to be used often.”Footnote 56

In relation to private sector ombuds,Footnote 57 various models exist to ensure cooperation with the ombud’s investigation:

In relation to private sector ombuds, therefore, there exist means through which cooperation by organisations can generally be secured, even in the absence of legally enforceable powers to compel. Most commonly, this is achieved by cooperation between the ombud and a regulator, which has the power to impose sanctions and/ or control market access. A regulatory back-stop, combined with reputational damage generated by negative publicity, can be effective in most cases. In addition, it is common for terms of reference and scheme rules to specify that – in a particular case – adverse inferences will be drawn from a failure to provide information which has been demanded.

Turning to the CORE, the mechanism available for it to secure cooperation in the conduct of investigations is set out in Paragraph 10 of Order in Council No 2:

10 If a Canadian company has not acted in good faith during the course of or follow-up to the review process, the Ombudsperson may make recommendations to the Minister on implementing trade measures, including any of the following:  

(a) the withdrawal of trade advocacy support provided to the Canadian company by the Department of Foreign Affairs, Trade and Development;  

(b) the refusal by the Department of Foreign Affairs, Trade and Development to provide future trade advocacy support to the Canadian company;  

(c) the refusal by Export Development Canada to provide future financial support to the Canadian company.Footnote 59  

In addition, Paragraphs 13 – 16 of Order in Council No. 2 make provisions in relation to reporting that provide a power for CORE to publish reports into investigations and a duty to submit annual reports to the Minister who must then table the report in Parliament.

Where there is a refusal to provide information and cooperate with an investigation, the CORE may draw negative inferences from the refusal in terms of determining that particular case, in line with Paragraph 11.2 of the CORE’s Operating Procedures for the Human Rights Responsibility Mechanism (the Operating Procedures). The Operating Procedures, in section 12, provide further details with regard to when the CORE will consider a business not to be acting "in good faith” for the purpose of Paragraph 10 of Order in Council No. 2.

The CORE, therefore, has mechanisms at its disposal to pressure organizations to provide information. But are these mechanisms sufficient or are legally enforceable powers required?

The McIsaac Report provides an overview of the arguments for and against providing a legally enforceable power to compel:

It is of course, difficult to settle this question in the abstract, since there have been as yet no documented instances of non-compliance with requests for information and it is unclear, therefore, whether the mechanisms available to CORE will be effective in practice. It may well be that the CORE’s current powers are sufficient – in practice – to ensure compliance and that the fears expressed by human rights NGOs will not come to pass.

Indeed, while making clear that criticisms of the CORE’s current mandate and powers have merit, Tamar Meshel makes the following points in relation to the potential effectiveness of the CORE as it is currently constituted:

These are helpful observations, although there is an important question with regard to whether regulatory theories should be applied to ombuds, whose primary function is the independent resolution of grievances. The requirement for impartiality and procedural fairness between the parties in the context of an “adjudicative” mechanism,Footnote 61 are clearly quite different to the dyadic relationship between regulator and regulatee. In any event, while modern regulatory practice may emphasise collaboration and responsiveness, regulators are not generally bereft of sanctioning power and a have range of levers to ensure regulatory outcomes are achieved.

Given the points made in section 6.1 above regarding the need for independence from government as well as independence from Canadian companies, reliance on sanctions being applied by government may be seen as an imperfect mechanism for securing compliance. Changes of political climate, changes of government, or economic imperatives may all affect the degree to which this mechanism is effective over time. There are legitimate concerns here about whether compliance with a human rights ombud’s investigations should be subject to such vagaries.

It is also noteworthy that, as noted above, the UN Working Group, has recommended that the CORE should “have the investigatory powers to summon witnesses and compel stakeholders to produce documents.”Footnote 62

In addition, the argument put forward by sector associations representing Canadian companies in relation to the CORE’s process becoming confrontational and legalistic seems misguided. Corporate actors will either be willing to act in good faith in cooperating with the CORE or they will not. The existence of a back-stop power to compel information will not lead an organisation that would otherwise have been willing to cooperate, not to do so.

An important distinction requires to be made here with regard to the ability to enforce compliance with the ombud process and the ability to enforce compliance with the outcomes of that process. The latter is generally seen as inappropriate for ombuds on the grounds that it will reduce cooperation and lead to legal challenges, while the former is generally considered to be a core feature allowing for the effective delivery of the ombud function.Footnote 63

Where powers to compel exist, there is limited evidence of these powers requiring to be used by ombuds in practice. Instead of preventing cooperation, backstop powers to compel may in fact encourage cooperation, making no difference to parties that are in any event willing to engage in good faith and focusing the minds of those who would otherwise be tempted not to cooperate in the investigation process.

It is also noteworthy that the debate regarding the CORE’s powers to compel has proceeded on an either/or basis. There would appear to be value in the CORE having a range of approaches available within its compliance “toolkit”, so that legal enforcement powers are available alongside the ability to recommend to the Government of Canada that support is withdrawn for non-compliant companies. Again, a distinction may be made here between having formal powers and the judicious use of those powers: having a range of mechanisms available to deal with recalcitrant companies should not prevent the CORE from generally seeking cooperation from companies and working with them in a way that seeks to achieve genuine enhancements in human rights practice rather than grudging compliance.

Overall, therefore, this report concludes that it would be preferable for the CORE to have powers to compel the production of evidence.Footnote 64 While there are reasonable arguments on either side of this debate, this conclusion is straightforwardly in line with the Venice Principles. Powers to compel should exist alongside the existing mechanisms set out in Paragraphs 7 and 10 of Order in Council No 2, providing a range of tools for the CORE to ensure compliance with its investigations.

4.12.3 Recommendation

Recommendation 13: the CORE should be granted legally enforceable powers to compel the production of evidence.

4.12 Indicator of independence 12: power to enforce responses to recommendations

4.12.1 Standards

Principle 17 of the Venice Principles state: “The Ombudsman shall have the power to address individual recommendations to any bodies or institutions within the competence of the Institution. The Ombudsman shall have the legally enforceable right to demand that officials and authorities respond within a reasonable time set by the Ombudsman.”

The IOI By-Laws simply refer to the power to make recommendations rather than the ability to demand a response within a set period: “it [the ombud institution] should have the power to make recommendations in order to remedy or prevent any of the conduct described in paragraph 2 (b) and, where appropriate, to propose administrative or legislative reforms for better governance.”

The OA Terms and Rules state, in relation to the implementation of ombud decisions that either “(i) Those investigated should be bound by the decisions or recommendations of the Ombudsman; or (ii) There should be a reasonable expectation that the Ombudsman’s decisions or recommendations will be complied with. In all those cases where they are not complied with, the Ombudsman should have the power to publicise, or require the publication of such non-compliance at the expense of those investigated.”

In summary, the power to make recommendations is a key expected feature of the ombud institution. It is also expected that a mechanism should exist to ensure compliance in most cases. This is most commonly in the form of powers to publicise non-compliance. The Venice Principles suggest that ombuds should have a legally enforceable right to ask for responses to recommendations.

4.12.2 Evaluation

The CORE is currently empowered, in Paragraph 11(1) of Order in Council No 2, to make recommendations to any person following an investigation and may, by virtue of Paragraph 11(2), follow up on those recommendations. Non-compliance with recommendations can be publicised through the reporting arrangements specified in Paragraphs 13 – 16.

The CORE’s Operating Procedures, in Paragraph 12.2, state that “Refusal without reasonable explanation by a Canadian company to implement a recommendation made by the Ombud may be relevant to a consideration of whether the Canadian company is acting in good faith.” As noted above, Paragraph 10 of Order in Council No 2, provides a mechanism for the CORE to recommend that government support is withdrawn from companies not acting in good faith. Further detail on the circumstances in which such as a referral will be made for non-compliance with recommendations is provided in Paragraphs 13.6 and 13.7 of the Operating Procedures.

The CORE’s current approach, which does not include powers to legally enforce responses to recommendations, mirrors that of many ombuds around the world. The ability to enforce a response to a recommendation is one of the areas where the Venice Principles appear to be aimed at raising standards rather than reflecting predominant current practice in the ombud community. As with the ability to compel the production of evidence, legal powers to enforce a response would generally be expected to operate as a back-stop, and not to be routinely required. As such, this power would provide a useful addition to the CORE’s powers.

4.12.3 Recommendation

Recommendation 14: the CORE should be granted the legally enforceable power to require that its recommendations are responded to within a given timescale.

5. Conclusion

In creating the CORE as an ombud, rather than some other form of non-judicial grievance mechanism, the Government of Canada – in effect – committed itself to adopting the highest standards in relation to the independence and effectiveness of the new institution. While the exact requirements for ensuring independence and effectiveness vary with context, there is little debate among the global ombud community that structural and operational independence and effective means of securing evidence and testimony are required features of the ombud institution.

This report has found that a range of improvements could be made to the CORE to ensure that it is compliant with the Venice Principles and other international standards applying to the ombud institution. The CORE’s structural independence, legislative basis, mode of appointment, term of office, tenure and dismissal, budget setting process, ability to appoint advisers independently, immunity from legal proceedings, powers to compel, and powers to demand responses to recommendation, could all be enhanced. A summary of the recommendations made throughout the report is available above.

As has been noted earlier in this report, the findings and recommendations in this report should not be taken to mean that, as currently established, CORE cannot deliver its mandate with a considerable degree of effectiveness and independence. Many ombuds around the world do not meet all of the standards set out in the Venice Principles. Among those that meet the standards on paper, a number will fall short of those standards in practice, and vice versa. De jure and de facto independence and effectiveness are often imperfectly connected.

That said, the task of this report has been to evaluate the CORE against the high standards set for the institution in the Venice Principles even where these are not currently fully reflected within the practice of the global ombud community. These standards have not been developed with the CORE’s unique jurisdiction in mind but the report has argued that, given CORE’s particular context and its human rights mandate, they are applicable to the CORE and provide the best source of international ombud norms against which to evaluate the office.

This evaluation has found a number of areas in which enhancements could be made to secure the CORE’s full independence. These enhancements are important, not only for the CORE and those right-holders whom it is designed to protect, but also for Canada’s ambition to provide global leadership in relation to business and human rights. The CORE represents an innovative use of the ombud institution, that may come to provide a landmark point of reference internationally. As such, it is important that the CORE’s legislative design matches up to the ambitious rhetoric committed to by the Government of Canada in setting up the CORE.

The current position of the CORE is reflective of a conundrum which is familiar within the global ombud community – how can standards be raised, at the same time as recognising a variety of approaches and not disparaging the efforts and value of organisations whose mandates have limitations, but who nonetheless may make an important contribution to enhancing access to justice? Ultimately it is for the Government of Canada, the CORE, and its stakeholders to consider how far the CORE should be reformed to meet international ombud standards. It is hoped that this report and its recommendations will provide a helpful point of reference in those discussions.

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