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Initial assessment report: Complaint filed by the United Steelworkers and the Canadian Labour Congress about the activities of Canadian Tire Corporation Limited and Mark’s Work Wearhouse Limited, known as L’Équipeur in Quebec

Country: Bangladesh
File number: 220835
Complaint filed on: November 21, 2022
Date of publication: December 2024

Table of contents

About the CORE

The Canada Ombudsperson for Responsible Enterprise (CORE) is a business and human rights dispute resolution mechanism established by the Government of Canada. People can file complaints with the CORE about possible human rights abuses arising from the operations of Canadian garment, mining, and oil and gas companies outside of Canada.

What is the purpose of this report?

The CORE is reporting on the initial assessment stage of a complaint filed by the United Steelworkers and the Canadian Labour Congress on November 21, 2022, about the activities of Canadian Tire Corporation Limited and Mark’s Work Wearhouse Limited.

Under Section 16 of the CORE’s Order in Council, the parties had an opportunity to comment on the facts contained in the report. A summary of the comments received is at Part 5 of the Report.

Who are the parties to the complaint?

The Complainants are:

  1. The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers); and,
  2. The Canadian Labour Congress (“CLC”). 

The Respondent is Mark’s Work Wearhouse Limited, known as L’Équipeur in Quebec, a Canadian garment company (Mark’s/L’Équipeur). Mark’s/L’Équipeur is a wholly owned subsidiary of Canadian Tire Corporation Limited (Canadian Tire). Canadian Tire is a company incorporated under the laws of Ontario by letters of patent dated December 1, 1927, with its head office located at 2180 Yonge Street, Toronto.

What is the complaint about?

The complaint alleges that Mark’s/L’Équipeur uses suppliers and/or factories in its supply chain in Bangladesh that do not pay workers, primarily women, a living wage.

The Complainants ask the CORE to decide if Mark’s/L’Équipeur and Canadian Tire are responsible for human rights abuse and, if so, to make recommendations (listed below) to cease the alleged human rights abuse and remedy the harm arising from these abuses. 

To support their allegations, the Complainants rely on the report published in January 2021 by the Steelworkers Humanity Fund (“SHF”) entitled Not Even the Bare Minimum: Bangladeshi Garment Worker’s Wages and the Responsibility of Canadian Brands (“SHF Report”). The report interviews 35 workers employed in supplier factories for Canadian brands, including 2 suppliers who made clothing for Mark’s/L’Équipeur. They talk about the daily struggle of garment workers to provide for their families, and the impact of the low wages they earn in all aspects of their lives. It is also noteworthy to mention that researchers estimate that a vast majority of workers, between 60% and 80%, in the ready-made garment sector are women.Footnote 1

The SHF Report provides the names of two supplier factories, Patriot Eco Apparel Ltd. and Standard Stitches Ltd., associated with Mark’s/L’Équipeur that were identified by searching international shipping data from garment imports into US ports through Panjiva, a commercial data management firm. In addition, the Complainants state to have also identified, by using Panjiva, over 1,000 shipments from approximately 30 suppliers that originated in Bangladesh to Mark’s/L’Équipeur.

Complainants worked with a data collection project called Garment Worker Diaries (“GWD”) to gather evidence of wages paid to workers in factories that supply Mark’s/L’Équipeur. GWD was able to identify, within their database, five factories used by Mark’s/L’Équipeur for which GWD has worker wage data. They concluded that workers employed in Mark’s/L’Équipeur supplier factories face a living wage gap of between 45% and 55%. The Complainants do mention that the standardised wages earned by workers in Mark’s/L’Équipeur supplier factories are about 10% higher than wages earned industry wide. Nevertheless, they say the living wage gap is significant. The Complainants say that the wages in Mark’s/L’Équipeur supplier factories would have to at least double in order for workers to earn a living wage by any benchmark.

In addition, the Complainants researched three living wage benchmarks in Bangladesh: the first developed by the Centre for Policy Dialogue (PDF), the second by Asia Floor Wage Alliance, and the third by the Garment Worker Diaries. These three benchmarks highlight the range of living wage estimates based on the different assumptions considered by supporters of each. According to the Complainants, the results show that the earnings workers make in the ready-made garment industry on average fall far below any of these benchmarks.

Three other issues in relation to the allegation are raised by the Complainants which are: defining a living wage, distinguishing a living wage from a minimum wage, and the importance of transparency around suppliers.

Defining a living wage is crucial to meaningfully achieve compliance with international human rights law according to the Complainants. They state that there is broad international consensus that a living wage is a wage that enables workers and their families to meet their basic needs, by allowing them sufficient income to obtain adequate food, housing, clothing, education, and other necessaries of life, while saving for the future. They reference international human rights instruments, as well as definitions described by the Clean Clothes Campaign and the Global Living Wage Coalition.

Furthermore, the Complainants stress the minimum wage in Bangladesh is not a living wage.  The Complainants state that government-legislated minimum wages trap workers in poverty and refer to a 2021 report Wage theft and pandemic profits: The right to a living wage for garment workers, by the Business & Human Rights Resource Centre (BHRRC) which states: “[…] while in Bangladesh [the minimum wage is] one sixth of the living wage. BHRRC has observed that brands frequently refer to local minimum wage laws in their response to wage disputes in their supply chains, without addressing the inadequacy of local minimum wage setting mechanisms or of minimum wage enforcement.”

Lastly, the Complainants submit that the lack of transparency of Canadian Tire around its suppliers in Bangladesh is an important issue. Canadian Tire and its subsidiaries do not publicly disclose any information related to suppliers in its global supply chain, or about how much workers are paid by those suppliers while other brands do.

The Complainants ask that the CORE make the following recommendations:

  1. That Mark’s/L’Équipeur and/or Canadian Tire publicly commit to ensuring a living wage is paid to all workers in its global garment supply chain;
  2. That Mark’s/L’Équipeur and/or Canadian Tire change their policies, including but not limited to any purchasing and/or pricing policies, to provide that workers in their supplier factories will be paid at least a living wage, and negotiate mechanisms with independent Bangladeshi trade union federations to ensure living wages continue to be paid in supplier factories;
  3. That Mark’s/L’Équipeur and/or Canadian Tire publicly disclose information related to their garment supply chain, according to the requirements of The Apparel and Footwear Supply Chain Transparency Pledge developed by a coalition of international human rights advocacy organisations. A company meeting the standards of the Pledge will publish on its website on a regular basis: the full name of all supplier factories, the site address, the parent company of the factory, the type of products made, and the number of workers at each site.
  4. That Mark’s/L’Équipeur and/or Canadian Tire negotiate with independent Bangladeshi trade union federations representing workers in the garment sector and in the factories supplying Mark’s/L’Équipeur and Canadian Tire to provide financial compensation to workers who were paid less than a living wage in manufacturing its garments;
  5. That Mark’s/L’Équipeur and/or Canadian Tire issue a formal apology to workers in the factories they use to manufacture garments for their role in those workers being paid less than a living wage;
  6. That the CORE monitor Mark’s/L’Équipeur and/or Canadian Tire’s progress in pursuing any recommendations at regular intervals for a period of not less than 5 years, and issue follow-up reports at least every 6 months publicly reporting the status of Mark’s/L’Équipeur and/or Canadian Tire’s progress on each recommendation; and
  7. Any such further or other recommendations that the Complainants may request, or the CORE may deem appropriate and/or just.

Part 1 – Summary of the intake stage (or admissibility stage)

  1. On December 14, 2022, on the basis of the information provided by the Complainants, the Ombud decided that the complaint is admissible pursuant to Section 6.1 of the Operating procedures. This means that the Ombud decided there was sufficient information in the complaint to form a reasonable belief that each of the three admissibility criteria was met. The threshold for admissibility is a low one. The admissibility criteria are that:
    • The complaint concerns an alleged abuse of an internationally recognised human right;
    • The alleged abuse arises from the operations abroad of a Canadian company in the garment, mining or oil and gas sector; and
    • The abuse allegedly occurred after May 1, 2019, or, if it allegedly occurred before May 1, 2019, is ongoing at the time of the complaint (Section 5.7 Operating procedures).
  2. The Ombud’s decision was emailed to the Complainants on December 16, 2022. The Ombud’s decision was sent by registered mail to Mark’s/L’Équipeur and Canadian Tire on December 19, 2022, with a copy of the complaint. Cynthia Hill, Vice President of Legal and Associate General Counsel of Canadian Tire acknowledged receipt of the complaint by email on January 5, 2023, for both Canadian Tire and Mark’s/L’Équipeur. Only Canadian Tire has provided a response to the complaint and has also been responding on behalf of Mark’s/L’Équipeur. Considering Canadian Tire’s acknowledgement of the complaint for both Canadian Tire and Mark’s/L’Équipeur, the current report refers to Canadian Tire as the Respondent.
  3. The complaint was then moved from the intake stage to the initial assessment stage of the complaint process.

Part 2 – Initial assessment

Background

  1. Initial assessment is the process for deciding how to proceed with an admissible complaint including how to address any objections from the Respondent. The Ombud does not make a decision on the merits of the complaint during initial assessment.
  2. The objectives of the initial assessment process are to:
    1. Develop a better understanding of the parties’ positions regarding the allegations including any objections to the complaint from the respondent;
    2. Begin to identify the parties’ underlying needs and interests;
    3. Provide information regarding the role of the CORE and the different dispute resolution processes; and
    4. Work with the parties to decide what dispute resolution process may best address the issues raised by the complaint including the allegations and any objections from the respondent.
  3. During initial assessment, the Ombud meets separately with the parties to learn about their views regarding the allegations, respond to their concerns and questions, and seek their agreement to participate in early resolution or mediation. If the parties do not agree to participate in a consensual dispute resolution process, the Ombud will decide how to deal with the complaint including whether to begin an investigation.

The initial assessment process in this complaint

  1. The steps taken by the CORE during the initial assessment of this complaint were as follows:
    1. Desk review of the complaint. As well as an intake meeting with the Complainants on December 1, 2022.
    2. On January 23, 2023, CORE received and reviewed the Respondent’s initial response to the complaint.
    3. On February 9, 2023, an in-person initial assessment meeting took place with the Respondent’s representatives, as well as their counsel at the CORE’s office.
    4. On February 10, 2023, a virtual initial assessment meeting took place with the Complainants’ representatives. During the meeting, the Complainants asked for certain information from the Respondent.
    5. On February 21, 2023, the CORE sent the Complainants a letter explaining the CORE’s various dispute resolution processes.
    6. On March 3, 2023, the Complainants repeated their request for additional information from the Respondent. They also stated their openness to any of the dispute resolution processes.
    7. On March 7, 2023, the CORE sent an initial assessment follow-up letter to the Respondent that included various options for a dispute resolution process, as well as the Complainants’ request for information.
    8. The Respondent requested an extension to the week of March 27, 2023, to respond to the CORE’s follow-up letter and it was granted. On March 31, 2023, the Respondent submitted their response to the CORE including a Statement of Facts and their position on the Complainants’ request for information.
    9. On May 1, 2023, the CORE sent a letter to the Complainants informing them of the Respondent’s refusal to provide the information requested and that they raised the issue of good faith of the Complainants.
    10. On May 1, 2023, both the Respondent and the Complainants were informed that the CORE will proceed with the drafting of the initial assessment report.

What the Complainants told the CORE

  1. During the initial assessment meeting on February 10, 2023, the Complainants repeated their request for remedy and expanded on several arguments made in the complaint and shared the following additional information.
  2. Complainants stated that companies often argue that there is a “separate legal relationship” between the supplier and the sourcing company and therefore they cannot have a say on the wages paid. The Complainants believe that such an argument should not be allowed to support a human rights abuse. The Complainants say that if sourcing companies can negotiate the terms of sophisticated commercial contracts requiring manufacturing in a certain way, it is also possible for them to negotiate living wage commitments from manufacturing/producing factories.
  3. On the issue of living wages, the Complainants stated that they do not know of any other brands paying a living wage in Bangladesh but suggested that a multiple stakeholder initiative can be created where companies could be the leaders in paying a living wage. For example, the International Accord for Health and Safety in the Textile and Garment Industry sets standards that are above domestic requirements in the garment sector. The Complainants also mentioned exploring the option of an International Framework Agreement (IFA) being negotiated between a multinational company and a global union.
  4. It was mentioned that some benefits offered to workers are only provided on the day of a factory audit. In addition, the benefits are not standardised, and their extents are not determinable.
  5. The Complainants made a point to express the importance of transparency around the company’s sourcing practices in determining the next steps as gathering data was difficult and complainants had to depend on publicly available data. Unless the company has publicly available data and/or reports, it is very difficult to review the information, verify claims, assess gaps, and find opportunities for improvement. In addition, the Complainants state that the issue of transparency is critical in helping come up with viable solutions. For example, to minimise the massive gap between corporate profits and worker wages, it is important to discuss the question of equitable sharing of profit and publicly disclose profit margins.
  6. The Complainants requested the following information from the Respondent:
    1. The name and location of all factories they currently use, or have used between 2019 and present, to manufacture garments in Bangladesh;
    2. Wage grids from the above-noted factories showing the compensation for workers in each position in each factory;
    3. Any contractual terms in contracts between Canadian Tire and the factories that require the factories to pay certain wages to their workers.

What Canadian Tire told the CORE

  1. The Respondent provided an initial response to the complaint on January 23, 2023, and attended an initial assessment meeting with the CORE on February 9, 2023. In addition, on March 31, 2023, the Respondent provided a written response to the complaint which included a Statement of Facts. The following summarises the Respondent’s responses to the complaint.
  2. The Respondent asked the CORE not to proceed with the complaint for the following reasons:
    1. The lack of good faith displayed by the Complainants has irreparably compromised the fairness of the CORE process in its entirety.
    2. The complaint is unfounded, and they strongly disagree with all the allegations contained in the complaint.
  3. The Respondent also refused to provide the information requested (see list in para. 13) by the Complainants.
  4. The Respondent’s position is that the use of the CORE’s process to seek disclosure of this information is inappropriate, particularly with respect to wage grids that do not belong to Canadian Tire and that are the confidential business information of their supplier factories. They explained that their contractual agreements with their supplier factories are subject to confidentiality terms that prohibit such disclosure.
  5. However, regarding the request for the names and locations of all factories used by Canadian Tire and Mark’s/L’Équipeur, the Respondent is currently considering the release of this information through their website as part of their ongoing Environmental, Social and Governance (ESG) reporting processes.
  6. The Respondent expressed its ongoing commitment to ESG standards and that they strongly believe that their ethical sourcing standards and practices are aligned with industry best practices and established international human rights standards.
  7. Canadian Tire’s Supplier Code of Business Conduct requires that potential partners pass a pre-audit investigation by its sourcing team to ensure they meet with their ethical sourcing standards and are compliant. Once on-boarded, ongoing factory audits continue to ensure both the supplier, and its facilities are fully compliant with the internationally recognised Business Social Compliance Initiative. As part of their activities to ensure compliance, the Respondent regularly tracks wage rates and works with reputable independent global third parties to audit factories that manufacture their owned brand products.
  8. The Respondent mentioned that because they do not operate any factories or employ any factory workers in Bangladesh, their ability to influence suppliers is limited. The Respondent also mentioned that they employ 30 full-time field workers across Dhaka and Chittagong who are responsible for sourcing, product quality assurance and ongoing monitoring of working conditions at their supplier factories.
  9. On the issue of the minimum wage, the Respondent stated that their partner factories in Bangladesh comply with Bangladeshi minimum wage regulations, and on average pay employees higher wages than other Bangladesh factories. The Respondent also noted that the Complainants admit that the standardised wages earned by workers in Mark’s/L’Équipeur supplier factories in Bangladesh are about 10% higher than wages earned industry wide.
  10. The Respondent explained that additional benefits and services provided by their business partners, such as on-site health care, meals, children’s daycare, health insurance, paid maternity leave, paid sick leave, attendance bonuses, family stipends, transportation to and from the factory facilities, and seasonal clothing, should be included in living wage considerations.
  11. The Respondent noted that the concept of a living wage remains aspirational and involves a quantitative analysis involving societally specific and locally specific factors. According to the United Nations Global Compact: “[…] there is no universally agreed definition of a living wage as a concept and no universally accepted monetary amount that defines such remuneration […]”. Properly assessing what constitutes a living wage and holding supplier factories to a defined benchmark requires drawing from significant international, national, and local expertise. It is complex and requires analysis from a number of subject matter experts including applied and developmental economists. Even in advanced economies, such as Canada, where average income is much higher, the aspiration of an adequate wage is not always fulfilled. According to the Respondent, the complex issue cannot be resolved through the CORE complaint process, especially where the complaint singles out one individual company that, in any event, does not have the power or ability to resolve the issue.
  12. On the issue of good faith in the complaint process, the Respondent says that the Complainants are not acting in good faith because they held a press conference to publicise their complaint before the Respondent had received the complaint. In addition, in the media conference, they erroneously held out portions of their allegations as fact despite lacking any evidential foundation to support such allegations.
  13. The Respondent stated that by making public comments, at the stage where the CORE is tasked with determining the admissibility of the complaint, and before it had received the actual complaint, the Complainants’ actions undermined the integrity of the process by attempting to put public pressure on CORE to accept their complaint. The Respondent referred to the CORE’s Operating Procedures and Information Note: Privacy and Confidentiality (“Information Note”) regarding the parties’ obligation to act in good faith in the complaint process.
  14. In addition, the Respondent also viewed that setting demands for additional information (see list in para. 13) in the context of the early dispute resolution process constitutes an abuse of process and further bad faith on the part of the Complainants.

Part 3 – How to deal with the complaint

  1. The Ombud must decide how to deal with the complaint. The Ombud may decide to:
    1. Close the file – The Ombud may decide not to deal with the complaint and to close the file after publishing this report under Section 14(2) of the Order in Council;
    2. Offer mediation – The Ombud may decide, with the agreement of the parties, that mediation is the most appropriate consensual dispute resolution process; or,
    3. Conduct an investigation using independent fact-finding – The Ombud may decide to investigate the complaint using independent fact-finding under Section 7(b) of the Order in Council.
  2. In deciding whether to investigate a complaint, the Ombud considers the overall context of the complaint and relevant factors including whether:
    1. The complaint is frivolous or vexatious;
    2. The complaint is being reviewed or has been reviewed, in another forum;
    3. The Canadian company has already provided a satisfactory response or remedy to the allegations in the complaint;
    4. Relevant information is likely to be available;
    5. Effective remedy is likely to be available; and,
    6. An investigation is likely to lead to unacceptable risk to the complainant or others.
  3. In considering whether relevant information is likely to be available, the cooperation of the Canadian company named in a complaint is not determinative. The CORE may consider the availability of information from all reasonably accessible sources. As well, in any final report, the CORE may comment on how the cooperation of the parties impacted on the availability of information and other aspects of the investigation.
  4. In considering whether any practical or effective remedy is likely to be available in an appropriate case, the Ombud will consider the possible remedies and who may be able to provide them.

Analysis

  1. On its face, the complaint raises serious issues regarding the right to a living wage referred to in articles 23, 24 and 25 of the Universal Declaration of Human Rights (“UDHR”) and articles 7 and 11 International Covenant on Economic, Social and Cultural Rights (“ICESC”). In analysing the present complaint, it seems to the CORE that there are three main issues relating to the allegations that the comments of both parties fall under, which are: the issue of transparency around suppliers, the issue of defining a living wage and the issue regarding the negotiation of contracts with suppliers.

Transparency around suppliers

  1. In order to determine if the Respondent’s suppliers in Bangladesh pay factory workers a living wage, correct data from the source would be essential. In the case where the Respondent refuses to share such information, an investigation may, for example, allow for the CORE to gather information on wages paid, benefits and services offered, as well verifying if certain working conditions are respected (i.e. maximum working hours, rest, and leisure, etc.).
  2. The Complainants stated that gathering data was difficult and that, to properly engage in next steps, the Respondent needs to make publicly available data and reports so that the Complainants can review the information, verify claims, assess gaps, and find opportunities for improvement. The Complainants have expressed that the issue of transparency is critical in helping come up with viable solutions.
  3. During the initial assessment meeting, the Complainants requested documentation from the Respondent with respect to wage grids, as well as names and locations of all factories used by Canadian Tire and Mark’s/L’Équipeur in Bangladesh. The Respondent found the request inappropriate within the CORE’s complaint process, particularly the wage grids as they are confidential business information of their supplier factories. However, the Respondent did mention that, as part of their ongoing ESG reporting processes, they are considering the release of names and locations of all factories used by them.
  4. The CORE notes that, out of the three information requests made by the Complainants, there seems to be a possibility to come to an agreement on the request regarding the release of names and locations of all factories used by the Respondent in Bangladesh. It is also noted that the Respondent did not directly respond to the request regarding the existence of contractual terms in contracts between Canadian Tire and the factories which require the factories to pay certain wages to their workers.
  5. In the present case, information about wages would be required to evaluate how the Respondent is addressing the right to a living wage that is allegedly impacted. Section 21 of the United Nations Guiding Principles on Business and Human Rights (UNGP) (PDF) states that businesses should be prepared to communicate externally how they address their human rights impacts. This includes providing information that is sufficient to evaluate the adequacy of an enterprise’s response to the particular human rights impact involved.

Defining a living wage

  1. For the Complainants, defining a living wage is crucial to meaningfully achieve compliance with international human rights. They also state that there is a broad international consensus that a living wage is a wage that enables workers and their families to meet their basic needs, by allowing them sufficient income to obtain adequate food, housing, clothing, education, and other necessaries of life, while saving for the future. The complaint uses three different benchmarks to highlight the living range estimates. The Complainants also reference international human rights instruments, as well as definitions described by the Clean Clothes Campaign and the Global Living Wage Coalition.
  2. For the Respondent, the concept of a living wage remains aspirational and involves a quantitative analysis involving societally and locally specific factors. They argue that the issue is complex and that it cannot be resolved through the CORE complaint process and by singling out on individual company. They refer to the United Nations Global Compact which states: “[…] there is no universally agreed definition of a living wage as a concept and no universally accepted monetary amount that defines such remuneration […]”.
  3. However, the rest of the UN Global Compact text reads as follows: “…a lack of consensus is no excuse for inaction. Importantly, there is broad consensus around what constitutes a living wage — it is a wage that enables workers and their families to meet their basic needs.” International instruments, such as article 25 of the UDHR provides that “[E]veryone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” In addition, articles 7(a)(ii) and 11 of the ICESC also define an adequate standard of living.
  4. Many international instruments and documents, such as the UN Global Compact, as well as the above-mentioned organisations define a living wage. If the Ombud decides to launch an investigation, it may be desirable to develop a list of criteria to define a living wage in Bangladesh for the purpose of the present complaint.
  5. The Respondent says that they comply with domestic laws for minimum wage. However, the Complainants state that the minimum wage in Bangladesh is not a living wage and that compliance with local minimum wage should not be allowed to support a human rights abuse, such as the abuse to the right to a living wage. It is said that the inadequacy of local minimum wage setting mechanisms need to be taken into consideration. It appears that there are differing positions on whether paying a minimum wage in Bangladesh would amount to a human rights abuse. Making such a determination may warrant an investigation into the issue. This might need to be taken in consideration within the evaluation of the definition of a living wage.
  6. The Respondent stated that additional benefits and services are provided by their business partners (i.e. on-site health care, meals, children’s daycare, etc.) which should be included in living wage considerations. As previously mentioned, benefits and services may be included in the list of criteria in determining a living wage. The Complainants mentioned that some benefits and services offered to workers are only provided on the day of factory audit. The benefits are not standardised and their extents are not determinable. On this point, an investigation might consider this discrepancy by verifying if benefits and services are consistently offered to workers in the Respondent’s supplier factories in Bangladesh.

Negotiating contracts with suppliers

  1. The Respondent stated that their ability to influence suppliers is limited as they do not operate any factories or employ any factory workers in Bangladesh. On the other hand, the Complainants say that if sourcing companies can negotiate sophisticated commercial contracts, it is also possible for them to negotiate living wage commitments from the manufacturing/producing factories.
  2. On this issue, the CORE refers to Sections 11, 12 and 13 of the UNGP regarding corporate responsibility to respect human rights. More specifically, Section 13 states that “the responsibility to respect human rights requires that business enterprises: (b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts”. Furthermore, the Organisation for Economic Co-operation and Development Guidelines for Multinational Enterprises on Responsible Conduct (“OECD Guidelines”) (Section IV. Human Rights, Sections 37 and 38 of the Commentary)Footnote 2 state that “respect for human rights is the global standard of expected conduct for enterprises independently of State’s abilities and/or willingness to fulfil their human rights obligations and does not diminish those obligations.” In addition, “[a] State’s failure either to enforce relevant domestic laws, or to implement international human rights obligations or the fact that it may act contrary to such laws or international obligations does not diminish the expectation that enterprises respect human rights.”
  3. The Respondent says that they have limited influence over how their suppliers operate. According to the UNGP and OECD Guidelines, a company has an obligation to prevent or mitigate adverse human rights impacts, such as not paying a living wage, that are linked to their operations even if they have not contributed to those impacts. The Respondent has not shared information regarding the existence of clauses in their contracts with suppliers that might include commitments to paying a living wage to workers. An investigation may consider looking into this issue.

Part 4 – The issue of “good faith” in the complaint process

  1. As outlined above in para. 25 to 27, according to the Respondent, publicising the complaint submission before the Respondent received the complaint undermined the integrity of the process by attempting to put public pressure on the CORE to accept their complaint. The Respondent says that the lack of good faith displayed by the Complainants has irreparably compromised the fairness of the CORE process in its entirety. In addition, the Respondent also viewed that setting “demands” for additional information (see list in para. 13) in the context of the early dispute resolution process constitutes an abuse of process and further bad faith on the part of the Complainants.
  2. Section 12 of the CORE’s Operating procedures provides for the requirement of parties to act in good faith. More specifically, Section 12.2 states, “The requirement to act in good faith includes the requirement to keep personal and business sensitive information confidential, to respect confidentiality requirements related to the HRRM, and to refrain from providing false information to CORE and from publicly misrepresenting the process.”
  3. In the Information Note in the CORE’s Complaint Process, shared with both parties, section 4 states:
    1. “The obligation on parties and their representatives to act in good faith during the complaint process includes not making public disclosures of information or documents that undermine the integrity of the complaint process.”
    2. “Public disclosure by a party of information or documents already in their possession is not, in and of itself, evidence of bad faith on their part.”
  4. The Information Note outlines factors that should be considered in determining whether the public disclosure of information or documents has undermined the integrity of the complaint process. These factors include:
    1. Whether the disclosure was accidental or intentional
    2. Whether the information is personal information
    3. Whether the information is protected by a confidentiality agreement
    4. Whether the disclosure has compromised the fairness of the complaint process
    5. Whether the disclosure has or is likely to increase the risk of retaliation
  5. In OECD Watch’s view, parties can campaign during a complaint process and still respect applicable rules on confidentiality, although “some National Contact Points (NCPs) see campaigning during a complaint as a breach of confidentiality or good faith, and may dismiss a complaint if complainants communicate anything publicly about it.”Footnote 3 As succinctly stated in an OECD Watch publication, campaigning could be necessary given that it addresses the “power imbalance against complainants, by incentivising the company to engage to protect its reputation.”Footnote 4 But as noted by OECD Watch, a “complainant must decide whether and how to proceed with a complaint and campaign in light of transparency or confidentiality requirements.”Footnote 5 Essentially, OECD Watch believes that the existence of a campaign is irrelevant to the determination of a complaint on the merits.Footnote 6
  6. Furthermore, human rights tribunals in Canada have made decisions regarding publicising a complaint during the hearing process. For example, in Murugesan v. CIBC Mortgages Inc,Footnote 7 the tribunal decided that the rule regarding the confidentiality of documents does not apply to pleadings, but only to documents disclosed in proceedings. Similarly, in Avolonto v. York University,Footnote 8 where the applicant publicised his allegations and provided copies of some or all of his applications to the media, the Ontario Human Rights Tribunal held that its Rules of Procedure apply only to documents disclosed during proceedings, and do not apply to the dissemination of an application or the allegations contained therein, by an applicant.
  7. The following principles can be drawn from the above OECD Watch publications and decisions of human rights tribunals:
    1. Parties are not precluded from publicising their pleadings (e.g. a complaint or a response to a complaint).
    2. Rules prohibiting campaigning apply only to documents disclosed during proceedings, not to pleadings, including complaints.
    3. The existence of a campaign is irrelevant to the determination of a complaint on the merits.
  8. Regarding the question whether the “demands” for additional information (see list in para. 13) in the context of the early dispute resolution process constitute an abuse of process and further bad faith on the part of the Complainants, the following points may be important to consider.
  9. As an Ombud, a key function for the CORE during initial assessment is facilitating information sharing between the parties. Facilitated information-sharing can assist in early resolution.
  10. The information requested by one of the parties must be relevant to the allegation. In addition, there must be a reasonable basis to believe that the requested information may assist with a resolution of the complaint.
  11. In the case of confidential business information, the CORE may suggest options to protect such information during an initial assessment such as a non-disclosure agreement. The parties can also choose to proceed to mediation and protect confidentiality through a mediation agreement as well as the privilege that attaches to mediation.
  12. It is noted that one of the three requests for additional information (the request for the names and locations of all factories used by Canadian Tire and Mark’s/L’Équipeur) might be publicly shared on Canadian Tire’s website as part of their ongoing ESG reporting processes. At the time of preparing this report, no further update has been provided by the Respondent.

Part 5 – Comments from the parties

Comments from the Complainants

  1. In summary, the Complainants raise three areas of commentary in response to the draft version of the Initial Assessment Report (“Report”):
    1. that they have participated in the CORE’s process in good faith;
    2. that the issue of a living wage is appropriate for the CORE to investigate;
    3. that the issue of the Respondent’s control over its suppliers and/or human rights obligations with respect to supplier activities is appropriate for the CORE to investigate.
  2. The Complainants request that the CORE find that they participated in the CORE’s process in good faith, and that the CORE commence an investigation into the allegations raised in the complaint.

The issue of good faith in the complaint process

  1. In response to the Respondent’s allegation that the Complainants did not act in good faith, the Complainants responded as follows:

a. The Complainants believe that the publication of the complaint does not constitute bad faith participation and does not jeopardize the fairness of the CORE’s process.

  1. The Complainants refer to the CORE’s analysis at 51 to 53. They also state that the complaint only contains publicly available, non-confidential information, it does not contain any business information about the Respondent that is not publicly available, and it does not contain any personal identifying information of any individual involved in the garment sector in Bangladesh. The data from the GWD was the only data not publicly available online but was gathered from workers who voluntarily shared the information; therefore, it is not protected data according to the Complainants.
  2. The Complainants believe that the issue is whether they acted in bad faith when they shared largely publicly available information that they compiled about the Respondent. They believe that they did not breach any of the CORE’s rules or procedures by publicizing the complaint. Second, the Complainants believe that it would undermine the CORE’s vision for a transparent process to prevent the Complainants from publicizing information of the sort contained in the complaint.

b. The Complainants believe that they have complied with the CORE’s rules and procedures at all times.

  1. Complainants believe that the CORE has no rules or procedures which prevent the Complainants from publicizing their complaint. They refer to Section 12 of the CORE’s Operating Procedures, regarding the requirement to act in good faith, which they believe to have complied with all the requirements under this section.
  2. First, according to the Complainants, the complaint contained no confidential personal identifying information, nor did it contain any confidential business information. Second, the Complainants have not publicly disclosed or shared any information after the publicizing of the complaint and have participated in the CORE’s process fully and in good faith. The Complainants believe that they have not provided any false information to the CORE, nor have the Complainants publicly misrepresented the CORE process.
  3. The Complainants also mention a second source of guidance on the handling of confidential information which is the Information Note. The Complainants received this document by email from the CORE on February 10, 2023, and are not aware if it was published on the website prior to their filing of the complaint on November 21, 2022. The Complainants state that there is nothing in the Information Note which would prevent the publication of a complaint by a Complainant. Section 3 of the note addresses the issue of confidentiality in the CORE’s complaint process, and it pertains only to confidential documents.
  4. According to the Complainants, Section 5 of the Information Note only addresses the disclosure of confidential information or documents, not simply any information or documents available to the CORE. Even if the CORE decides to apply Section 5 of the Information Note to the disclosure of the complaint, the Complainants believe that the assessment of the factors weigh heavily in favour of proceeding with the complaint.
  5. Section 5 of the Information Note lists 5 factors regarding public disclosures (see para.50). The Complainant believes that the disclosure of the complaint contained no personal information, nor did it contain information protected by a confidentiality agreement. There is no risk of retaliation because the complaint was carefully crafted to protect the partners in Bangladesh. The Complainant disagrees with the Respondent’s allegation that the publication of the complaint undermined the integrity of the process by attempting to put public pressure on the CORE to accept the complaint. The Complainants believe that the CORE is an independent and impartial third party, and that such an allegation is unsubstantiated and improper.
  6. The Complainants refer to para. 52 and add the following: “[…] the Ontario Superior Court of Justice has held that the open court principle applies to both courts and administrative tribunals.Footnote 9 While the CORE is not a court or administrative tribunal, it is analogous in that it is an impartial third party, and similar to a court or administrative tribunal, the CORE can make impartial determinations even when investigating an issue that is in the public eye.”
  7. The Complainants recognize that confidentiality may protect the CORE’s process at some stages of a complaint, however they state that it would undermine the vision and purpose of the CORE to mandate confidentiality of all documents as a default position. They highlight that in order to encourage a transparent and accountable process, confidentiality should be applied on a limited basis to documents which contain confidential personal and business information.
  8. The Complainants refer to the OECD Watch’s view, as articulated above (see para 53): “…complainants should be permitted to campaign alongside a complaint process, and such activity should not be viewed as bad faith in the complaint process.”

c. The Complainants believe that they did not act in bad faith by requesting documents from the Respondent.

  1. They state that the request was made in good faith in direct response to an inquiry by the CORE. The Complainants met with the CORE on February 10, 2023, to discuss the complaint. During the meeting, the CORE asked the Complainants what documents they believed the CORE would need to assess the complaint. In response to the CORE’s inquiry, the Complainants assembled a broad list of relevant documents (see para. 13).
  2. According to the Complainants, the requested information was highly relevant to the complaint – it goes directly to the issue of wages paid to workers who manufacture clothing for the Respondent. They state that they did not seek access to entire contracts, but only to the contractual terms relevant to worker wages. They do not have knowledge of the Respondent’s contracts with supplier factories, nor did they know that the provisions of those contracts are confidential until it was stated in para. 17.
  3. They also believe that there are policy reasons why the CORE should dismiss the allegation of bad faith. If the Complainants’ request for information constitutes bad faith engagement in its process, it would have a significant chilling effect on complainant participating in the CORE’s processes as a whole. They believe that requests for documents and information sharing are standard in any adjudicative or ombudsperson process.
  4. They also refer to para. 57 where the CORE mentions the possibility of using confidentiality agreements to protect sensitive business information. They point out that the Respondent did not request such an agreement.

Defining a living wage

  1. The Complainants refer to the CORE’s analysis at para. 40 and add “that the complexity of an investigation ought not prevent the CORE from undertaking that investigation. International human rights abuses will always contain complexity. The CORE was created to investigate issues and determine whether Canadian companies are committing human rights abuses abroad. It is well within the mandate and power of the CORE to investigate the living wage issue.”
  2. They mention that they based their complaint on the best publicly available data, and that suppliers used by the Respondent fall short of the three reputable living wage benchmarks developed for Bangladesh. To date, the Respondent has not provided any evidence to the contrary. According to the Complainants, refusing to investigate because there’s no consensus on a single living wage benchmark would miss the forest for the trees: the point is, by any benchmark, it appears that suppliers fall short.Footnote 10
  3. In response to the Respondent’s claim that is sufficient for its suppliers to pay minimum wage, the Complainants pointed out Section 38 of the OECD Guidelines (see para. 45).Footnote 11 According to these guidelines, the fact that an enterprise follows domestic laws in a country does not absolve the enterprise of its international human rights obligations.

Negotiating contract with suppliers

  1. Regarding the ability to influence suppliers, the Complainants point out that the Respondents have not provided the CORE with any evidence or details about their relationships with suppliers and the amount of control they have over them.
  2. They refer to the Respondent’s statement that says they don’t have control over suppliers contradicts its own representations on the issue. The Complainants point to the Respondent’s website, under the section “Environment, Social and Governance,” including a subsection called “Responsible sourcing” which states: “[…] We have a responsibility to work with our vendors and their factories to generate continuous improvements in safe working conditions, human rights protection, fair compensation and environmental impacts, both in Canada and worldwide.”Footnote 12
  3. On another website subsection called “Sustainable Supply Chain Management,” the Respondent writes: “We collaborate closely with suppliers throughout our global supply chain to ensure our products are sourced and manufactured according to our rigorous standards.”Footnote 13
  4. The Complainants conclude by saying that the Respondent has made public statements that it: “[…] ‘collaborates closely’ with suppliers to ensure its ‘rigorous standards’ are met, and that it has a responsibility to ‘work with our vendors and their factories’. According to the Complainants, this hardly demonstrates that Canadian Tire is powerless to control the manufacturing conditions in its supplier factories. Canadian Tire’s level of control over its supplier factories is a legitimate area of inquiry that the CORE should investigate.”
  5. Lastly, the Complainants refer to para. 45 regarding the reference to the OECD Guidelines and the UNGPs that speak directly to a corporation’s responsibility to prevent and mitigate human rights abuses in its supply chain. They believe that the Respondent cannot absolve itself from its international human rights obligations by contracting out manufacturing to third parties.

Comments from Canadian Tire

  1. The Respondent’s counsel provided comments to the draft version of the Report. As stated in their correspondence, the purpose of their letter is to provide the Respondent’s response and initial reactions to the Report. Therefore, comments made by the Respondent’s counsel will be referred to as the Respondent’s comments.
  2. The Respondent disagrees with the content of CORE’s Report “from a legal, factual and conceptual standpoint as well as with the process that has led CORE to decide that the Complaint was admissible.”
  3. The Respondent considers that the Report is incomplete and lacks conclusions and/or findings to which the parties can respond, thus placing the Respondent in a position to having to speculate on the actual outcome of this process. The Respondent states that “natural justice, which supplements Section 16 of the CORE’s Order in Council, requires CORE to provide the opportunity to an affected party to provide observations on any adverse findings or conclusions, not simply on your understanding of the facts, before CORE issues its report.” They believe that the parties are left with providing written observations based on speculation.
  4. The Respondent believes that the 3-days notice prior to posting the finalized report on the CORE’s website is contrary to the CORE’s own rules, which provide that matters shall be addressed in a predictable, flexible, fair and transparent manner and refers to Section 3.5 of the CORE’s Operating Procedures. The Respondent requests 10 business days to provide additional observations should the CORE intend to issue a report in which adverse conclusions are reached.
  5. The Respondent repeated how they select vendors and factories throughout their global supply chain according to the standards of their Supplier Code of Business Conduct (“Supplier Code of Conduct”) (see para. 20). They also stated that their commitment to ethical sourcing throughout their global supply chain, Supplier Code of Conduct, and overall commitment to worker’s rights in Bangladesh are “real and substantial and not simply point-in-time efforts during audits or site inspections as the Complainants alleged without a factual and evidentiary basis for making such an allegation.”
  6. The Respondent repeated their statement regarding the 30 full-time workers responsible for monitoring the working conditions at their supplier factories (see para. 20 and 21).
  7. They pointed out that the draft version of this Report did not mention Nirapon. The Respondent is a founding member of this member-led not-for-profit organization which supports and promotes a culture of workplace safety in Bangladesh. Nirapon works with over 300 factories to provide guidance, maintenance, monitoring and assist with establishing a reporting process. It also administers the Amader Kotha anonymous help line which provides workers with the ability to voice health and safety concerns, and breach of employment standards. The Respondent states that they actively monitor and review complaints associated with all of its business partners.
  8. The Respondent reiterated their response regarding the issue of minimum wage (see para. 22 and 23).

The admissibility of the complaint

  1. The Respondent stated that the “complaint is not admissible and [the] CORE’s decision to find it admissible is not founded in fact or in law.” They believe that by deeming the complaint as admissible and by contemplating to investigate, the CORE would create a new business standard which is in contradiction to Section 6 of its Order in Council.
  2. The Respondent referenced the United Nations Global Compact’s SDG ambition benchmark reference sheet entitled “Achieving the Living Wage Ambition: Reference Sheet and Implementation Guidance”Footnote 14 and, in particular, the following section which states that “[t]he scope of this Ambition comprises employers and contractors in direct employ of the business. However, this Ambition should be progressively extended to a fair compensation commitment for all workers in the entire supply chain of a company.” They also point out that the current timeline to fulfil the living wage “ambition” is 2030. They also state that since their client’s “suppliers in Bangladesh are bona fide independent suppliers who serve many brands worldwide, the living wage ambition should, according to United Nations Global Compact, be progressively implemented sometime over the next decade.”
  3. They state that the “CORE’s mandate does not permit it to create new standards that exceed what the United Nations Global Compact has set and expects from companies around the world. In fact, the living wage ambition has not been fulfilled in a majority of countries around the world, including Canada.” For these reasons, the Respondent states that the CORE should dismiss the complaint.
  4. Regarding the definition of a living wage, the Respondent refers to para. 39 and 40 where a reference is made to the UN Global Compact. The Respondent believes that the UN Global Compact’s course of action to progressively implement the living wage ambition within the proposed timeline is not inaction.
  5. The Respondent states that CORE’s suggestion at para. 41 that it “may be desirable to develop a list of criteria to define a living wage in Bangladesh for the purposes of the Complaint” is contrary to the CORE’s Order in Council as this would exceed the scope of CORE’s mandate. They state that, when investigating a complaint, the CORE’s role is to engage in a “fact-finding” process to determine whether or not an allegation is founded. The Respondent believes that the “allegations set out in the Complaint do not involve a complaint concerning a well-defined human right that is being abused by a Canadian corporation, but rather an extremely complex economic issue facing most countries around the world that cannot reasonably be expected to be resolved through the CORE process.” They state that the very nature of the complaint itself falls outside the CORE’s jurisdiction.
  6. The Respondent repeated their point, as stated in para. 24, regarding the level of complexity in defining a living wage. They state that “[p]lacing this burden of determining a living wage, upon [the Respondent], who does not either directly, or indirectly, employ any workers within the factories at issue in the Complaint, would be a critical overreach of [the] CORE’s mandate. As such, engaging in further investigation into the Complaint would only serve to cause prejudice to [the Respondent] and further expense to Canadian taxpayers.”

Wages being reviewed in another forum

  1. The Respondent mentioned that the Bangladeshi government recently formed a wage board and is actively reviewing wages for ready-made garment workers (“RMG”).Footnote 15
  2. If the CORE determines that it has jurisdiction to pursue the matter, the Respondent believes that the CORE should decline to pursue the complaint because the allegations contained in the complaint are presently being reviewed in another forum (Section 7, Operating Procedures). They state that there is no reason for an entity of the Canadian government to investigate the issue of RMG wages while the government of Bangladesh is actively engaged with it.

The issue of good faith in the complaint process

  1. The Respondent repeated the issue of good faith raised regarding the conduct of the Complainants who held a press conference about the complaint before the Respondent had knowledge of it (see para. 25 and 26).
  2. The Respondent believes that the motivation of the Complainant is relevant in determining whether they are acting in good faith. In the present case, the Respondent believes that “the baseless factual assertions were carefully orchestrated specifically to cause harm to Canadian Tire’s good will and image in the public opinion.”
  3. Regarding the CORE’s analysis on the issue of good faith (see para. 47 to 58), the Respondent states the following: “[the] CORE appears to have concluded by way of ’analogy’ to judicial proceedings that the Complainants were not precluded from publishing at a press conference the complaint on the same day they filed it. However, this analysis fails to consider Section 6.2 of the CORE’s Operating Procedures, which expressly and unequivocally states that: “the complainant is required to keep the complaint and the Ombud’s decision confidential until the respondent is informed of the decision on admissibility.”
  4. The Respondent believes that there is no basis for the CORE to ignore the application of Section 6.2 Operating Procedures. They also state that “the application by analogy to irrelevant court cases does not justify the Complainants’ conduct.” The Respondent also stated that “[the] CORE’s discretion is not unfettered and must take into account [the] CORE’s own rules, including Section 12.2 of the CORE’s Operating Procedures” regarding the requirement to act in good faith. It was also mentioned that the CORE did inform the Respondent that the issue was addressed with the Complainants.
  5. As stated in para. 18, as part of their ongoing ESG reporting processes, the Respondent is still considering the release of names and locations of their apparel and footwear suppliers.

Recommendations requested by the Complainants

  1. The Respondent believes that the Complainants are asking the CORE to make recommendations that go well beyond both the scope of the complaint and the CORE’s jurisdiction and that there is no basis by which the CORE can or should address these recommendations. If the CORE determines to pursue or grant consideration to the Complainants recommendation requests, the Respondent states that it reserves the right to make additional submissions.
  2. In conclusion, the Respondent denies the allegations in the complaint and has raised concerns about the process followed to date by the CORE in this matter. They believe that the Complainants “have presented no evidence to support the allegations outlined in the complaint” and that they have “flagrantly breached [the] CORE’s process by actively campaigning publicly during [the] CORE’s review process.” They request that the CORE dismiss the complaint in its entirety.

Part 6 – Ombud’s decision

  1. The complaint alleges that, since 2019, the Respondent uses suppliers and/or factories in its supply chain in Bangladesh that do not pay workers, primarily women, a living wage. The Respondent has responded to the complaint by denying the allegations in the complaint as well as raising concerns about the process that led the CORE to decide that the complaint was admissible.
  2. As mentioned in Part 5, the Respondent has raised several issues regarding the CORE’s procedures. The following paragraphs address these issues.
  3. The Respondent raised the issue of the mandate of the CORE and its jurisdiction in examining the alleged human rights abuse of the right to a living wage.
    1. According to Section 4(c) of the Order in Council, the mandate of the Ombudsperson is “to review a complaint submitted […] concerning an alleged human rights abuse […].” The definition of a “human rights abuse,” according to Section 1(1) of the Order in Council, means “an adverse impact on an internationally recognized human right — including any of the human rights that are referred to in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights — arising from a Canadian company’s operations abroad” (our emphasis). As mentioned in para. 33, the right to a living wage is an internationally recognized human right in articles 23, 24 and 25 of the Universal Declaration of Human Rights (“UDHR”) and articles 7 and 11 International Covenant on Economic, Social and Cultural Rights (“ICESCR”).Footnote 16
    2. Furthermore, according to Section 5 of the Order in Council, the Ombudsperson is to be guided by the UNGP and the OECD Guidelines. In para. 45 and 46, the CORE refers to Sections 11,12 and 13 of the UNGPs (PDF) regarding corporate responsibility to respect human rights as well as Section IV of the OECD Guidelines. Therefore, reviewing a complaint that alleges an abuse of the human right to a living wage by a Canadian company is well within the mandate and jurisdiction of the CORE according to the Order in Council. The level of complexity of a human right is not a factor in determining the CORE’s jurisdiction in reviewing a complaint. In addition, reviewing a complaint of an alleged human right abuse does not equate to creating a new standard concerning responsible business.
    3. The Respondent refers to the UN Global Compact, an institution established in 2000, that has set standards for its members. As stated on their website, it is “a voluntary initiative based on CEO commitments to implement universal sustainability principles and to take steps to support UN goals.”Footnote 17 The UN Global Compact is not a replacement for the UDHR and the ICESC, but rather an organization that helps businesses, on a voluntary basis, to implement processes to achieve targets in alignment with UN goals. The CORE’s mandate refers to human rights instruments, such as the UDHR and the ICESC, that do not include timelines for respecting human rights.
  4. The Respondent has raised the issue of standard of proof in the CORE’s determination of the admissibility of the complaint.
    1. Sections 5.6 to 5.8 of the Operating Procedures state that a complaint will be considered admissible when the Ombud is satisfied there is sufficient information regarding the admissibility criteria (Section 5.7 Operating procedures). In addition, para. 1 mentions that, regarding the admissibility of the complaint, the threshold for admissibility is a low one. On December 14, 2022, the Ombud decided there was sufficient information in the complaint to form a reasonable belief that each of the three admissibility criteria was met. As stated in Section 5.8 of the Operating Procedures, the decision by the Ombud that a complaint is admissible is not a decision on the merits of the complaint. This information was also conveyed to the parties by the Ombud during their respective initial assessment meetings.
    2. At the admissibility stage, the Ombud makes a preliminary decision regarding the admissibility criteria based on the information and reasonable inferences submitted by a complainant.
  5. The Respondent invokes Section 8(b) of the Order in Council and Section 7.1.2 of the Operating Procedures, requesting that the Ombud refuse to review the complaint because the allegations contained in the Complaint are presently being reviewed in another forum.
    1. According to Section 8(b) of the Order in Council, it is in the sole discretion of the Ombud to refuse a complaint on the basis that it is being reviewed, or has been reviewed, in another forum. Furthermore, according to Section 7.2 of the Operating Procedures, the Ombud will not refuse to proceed with a complaint solely because there are parallel proceedings. Various factors, including the fact that the complaint is being reviewed in another forum, may be taken in consideration by the Ombud in making their decision, which is in their sole discretion.
    2. According to the Respondent, this other forum is organized by the government of Bangladesh which was, and may still be, actively engaged in investigating the issue of RMG wages. At the time of drafting this report, the government of Bangladesh seems to have made a decision regarding the minimum wage of RMG.Footnote 18 However, it is understood that the forum discussed the issue of minimum wage, but not the right to a living wage of RMG.
    3. Pursuant to Section 8(b) of the Order in Council and Section 7.2 of the Operating Procedures, and based on consideration of the various factors, including the information shared regarding the forum organized by the government of Bangladesh, the Ombud has decided that the fact the matter is being reviewed in another forum is not in this case cause to refuse the review of the complaint.
  6. The Respondent raised the issue of good faith regarding the conduct of the Complainants who held a press conference about the complaint before the Respondent had knowledge of it. The Complainants filed the complaint on November 21, 2022, and held a press conference on November 22, 2022. No decision by the Ombud was made regarding the admissibility of the complaint on the date of the press conference.
    1. Section 6.2 of the Operating Procedures states that the Complainant is required to keep the complaint and the Ombud’s decision confidential until the Respondent is informed. The intention behind this section concerns the safety of the complainant and the integrity of the complaint process.
    2. Contravening this requirement may be taken into consideration by the Ombud in deciding whether the Complainants acted in good faith. It is in the Ombud’s discretion to make such an evaluation according to Section 12 of the Operating Procedures and the timing of the decision on the good faith of the parties is at the discretion of the Ombud, therefore it may be made at the end of the review of the complaint.
    3. The consequence for taking action that might affect the requirement of good faith of the parties does not lead to the automatic dismissal of a complaint. Each action is a factor that may be considered in evaluating a party’s behaviour in the complaint process. It is also important to consider the impact of the human rights abuse alleged in the complaint versus a procedural error made by one of the parties.
    4. In the CORE’s analysis (para. 47 to 53), references to OECD Watch publications and decisions of human rights tribunals are made in order to demonstrate that publicising a complaint or campaigning is not a fatal mistake. Moreover, according to Section 12.2 of the Operating Procedures, the requirement to act in good faith includes the requirement to keep personal and business sensitive information confidential, to respect confidentiality requirements related to the HRRM, and to refrain from providing false information to the CORE and from publicly misrepresenting the process.
    5. It is noted that the information contained in the complaint is publicly available online. It does not contain any business information about the Respondent that is not publicly available, and it does not contain any personal identifying information of any individual involved in the garment sector in Bangladesh. The only data non-publicly available online was gathered from workers who voluntarily shared the information. In their correspondence, the Respondent did not point out any specific information that was shared in the complaint that they consider personal and business sensitive information.
    6. In the present case, the Ombud has determined that the information in the complaint is not personal and business sensitive information.
  7. The Respondents also raised the issue of good faith on the part of the Complainants for requesting documentation.
    1. Requests for documents and information sharing are standards in any adjudicative or ombudsperson process. As stated in para. 54 to 58, information requested by one of the parties must be relevant to the allegation and there must be a reasonable basis to believe that the requested information may assist with a resolution of the complaint. In the case of confidential business information, the parties may choose to protect such information with a non-disclosure agreement. The act of requesting documentation is not a factor listed in Section 12.2 of the Operating Procedures used in determining the good faith of a party.
    2. The Ombud has determined that the request made by the Complainants is not an act of bad faith.
  8. As mentioned in para. 105, the Respondent believes that the recommendations the Complainants are asking the CORE to make go beyond the scope of the complaint and the CORE’s jurisdiction. The recommendations requested by the Complainants will be considered and the Ombud will make their determination known at the end of the review of the complaint.
  9. The Respondent has also requested 10 business days to provide additional observations should the CORE issue a report in which adverse conclusions are reached. As previously mentioned, at this stage of the process, there is no decision made on the merits of the complaint. To further clarify, at this stage of the review process, the Ombud only considers whether the case should or should not go to investigation. The parties receive a copy of the final initial assessment report approximately 10 days before the publication date. The parties are also notified again 3 days prior the publication date.
  10. In order to address the allegation raised in the complaint, the Ombud has decided to launch an investigation using independent fact-finding. In reaching their decision, the Ombud considered the factors addressed in para. 29 and, in particular, whether there is a gap in the information currently available that warrants an investigation. Please refer to the section entitled “Analysis”, that demonstrates the conflicting information between the parties regarding the allegation.Footnote 19
  11. While the CORE will proceed with an investigation through independent fact-finding, mediation is available at any stage of the complaint process at the Ombud’s discretion and with the agreement of the parties. The Ombud encourages the parties to consider mediation and the related confidentiality that it can provide including with respect to commercially sensitive information. The Respondent will have an opportunity to provide further relevant information during the investigation.
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