Seite - 243 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

243Balancing Risk and Reward in the Time of COVID-19 of property and contract without which commerce cannot exist,40 it is fair to expect that the privilege of incorporation and its associated rights is granted so long as the pursuit of private commerce promotes the broader public interest. The pandemic has raised this point squarely. Just as with matters of climate change and sustainable governance, absent of hard rules to mandate that decisions integrate specific considerations, relying on corporate law duties that provide the option, but not the obligation, to do the right thing seems hopelessly optimistic. As the Cargill exam- ple shows, even when it could be argued it would be rational from a long-term perspective for the corporation to take preventive measures and address externalities like risk factors linked to the socio-economic circumstances of its vulnerable workforce (carpooling, living arrange- ments) and the risk of community spread, short-term thinking is all too common; the temptation to take a chance and underspend on pre- vention is high. And this temptation only increases when the benefits of these preventive measures do not accrue to the corporation. The result is an accountability gap in those areas where there is no regula- tion specifically mandating that interests external to the corporation be considered. And the reality is that even where there is regulation, enforcement capacity tends to be limited and highly dependent on self-regulation. A Way Forward? Though not prepared with this in mind, a recent amendment to the Canada Business Corporations Act41 that expressly recognizes and expands on the more inclusive view of stakeholder interests relevant to corporate decision-making set down in BCE42 could be leveraged 40. Scholars like Cass Sunstein have argued that private rights of contract and prop- erty do not exist without state support through enforceable remedies and legal recognition of rights. Cass R Sunstein, “State Action Is Always Present” (2002) 3 Chicago J Intl L 465. Sunstein’s position suggests that in discussions of hori- zontal distribution of rights, nothing is exempt from scrutiny a priori, though other factors, such as cost, may make it impractical, even for an activist state, to assure meaningful protection of certain social and economic rights, like the right to housing. 41. CBCA, supra note 2, s 122(1.1). 42. Charles-Étienne Borduas & Petra Vrtkova, “Stakeholders’ Primacy: Paradigm Shift Confirmed” (September 2019), online: Norton Rose <www.norton- rosefulbright.com/en-ca/knowledge/publications/a979357b/stakeholders- primacy-paradigm-shift-confirmed>.