Introduction

In a world that requires businesses to respect human rights throughout their operations and relationships, this guide hopes to assist businesses and their counsel to seize an opportunity for a more just and equitable future.

A. Businesses in societies

Businesses, including their subsidiaries and partners, are not isolated from the societies in which they operate, nor are they insulated from events occurring in places where they secure raw materials and other goods. These facts are underscored by two recent and high-profile international developments: the February 2021 military coup in Myanmar; and the persecution of Uyghurs and other minorities in China's Xinjiang province. As a result, companies in Canada and across the globe are being required to examine their operations to ascertain what links, if any, they have to any ongoing human rights abuses in these territories. Situations like these will continue to present themselves, and will require Canadian lawyers and their clients to examine operations and formulate responses. This guide is meant to assist Canadian (external and in-house) practitioners with these efforts.

B. Prevention and preparedness

More fundamentally, this guide aims to help prevent Canadian lawyers and their clients from being caught up in these situations in the first place or to have responses in place if they are. Businesses increasingly face legal and reputational exposure for failures to respect human rights in Canadian courts and non-judicial fora reviewing allegations of human rights abuses by Canadian companies operating overseas. Lawyers are well-placed to counsel their clients and help them assess their need for awareness of human rights impacts in their business as a component of business risk. This was recognized in a July 2018 report to the UN General Assembly, which stated: “[b]usiness lawyers — both in-house counsel and external firms — have a unique position for shaping the path an enterprise may take.” The same report noted business lawyers are not meeting that expectation. “Often, they are seen as one of the main obstacles to adopting effective human rights due diligence, with a traditional narrow focus on legal risk.” The report called for “a change in mindset among mainstream business lawyers.”

C. Emerging practice area

Business and human rights (BHR) law is an emerging area of practice in Canada and globally. New laws, regulations and case law are mandating businesses to account for their human rights practices and take steps to ensure their operations and supply chains respect human rights.  The investment community is also increasingly integrating environmental, social and governance (ESG) criteria into their financial analysis. Human rights are at the heart of social factors which require companies to have knowledge of evolving international and domestic expectations to ensure respect for human rights throughout their business operations and global supply chains.

This BHR guide is, in part, a response to the UN General Assembly’s 2018 report. Its objective is to:

• Introduce Canadian lawyers to the main BHR concepts applicable to lawyers and their corporate clients.
• Highlight the need for lawyers to incorporate BHR awareness into their legal practice.
• Integrate BHR concerns into Canadian lawyers’ advice to corporate clients.
• Situate Canadian efforts within the global progression to incorporate BHR concerns in the provision of legal services.

The 2011 UN Guiding Principles on Business and Human Rights (UNGPs) provide the substantive basis for the current BHR movement. The UNGPs were designed to address a global governance imperative. As businesses operated in an increasingly globalized and borderless economy, a growing gap emerged between the impacts of business and the ability of governments to effectively govern business activities and ensure the protection of human rights. In the intervening years, the UN Working Group on Business and Human Rights, UN treaty bodies and other international organizations have produced additional, specialized human rights guidance to help guide businesses. For more information, see the Resources Section.

The UNGPs are premised on the basic recognition that business activities can have adverse human rights impacts and that businesses and states have a critical role to play in upholding human rights norms. 

Despite their expressly voluntary nature, the UNGPs provide the substantive basis for a developing landscape of material legal, financial and reputational risk for businesses. The UNGPs have also become the basis for the development of legislation in multiple jurisdictions.

This guide will assist law firms, lawyers and their clients in meeting the primary expectation of businesses to respect human rights, according to the second pillar of the UNGPs.

This guide offers practical insights for lawyers to advise clients on mechanisms to fulfill these responsibilities.

D. Overview of BHR laws, trends in Canada

The guide will give an overview of BHR laws, trends in Canada, application to businesses, and the role of the legal profession. It also details the evolving landscape of judicial and non-judicial mechanisms for the resolution of business and human rights disputes, where this dynamic area of law will evolve, and how those fit with the responsibilities of states and businesses to ensure victims of human rights abuses have access to a remedy.

This guide intends to offer a Canadian perspective to complement the existing resources Canadian lawyers and businesses can draw on. For example, guidance documents on BHR and the legal profession have been published by the International Bar Association, the Council of Europe, European Bars Federation, the Law Council of Australia, Norwegian Bar Association, Law Society of England and Wales, and the Japan Federation of Bar Associations.

The Canadian Bar Association has previously addressed some BHR issues. For example, in 2016, it passed CBA Resolution 16-03-M: Model Business Principles on Forced Labour, Labour Trafficking, and Illegal or Harmful Child Labour. These model principles, developed by a working group of the CBA’s Canadian Corporate Counsel Association, offer businesses and their lawyers practical steps to ensure their supply chains are not connected to these human rights abuses. They can also serve as an example of the types of processes business can implement to avoid causing, contributing to, or being connected to human rights abuses.

Finally, this guide addresses BHR in the transnational sense. It does not address domestic human rights laws that apply in specific jurisdictions. Adhering to BHR laws transnationally complements those domestic laws.