Lexpert US Guides

INTERNATIONAL TORT RISK relevant stakeholders on a regular basis to stay informed about important developments. 3. Integration: Human rights policy should be appropriately integrated into company oversight and control systems. Just as prudent Canadian oil and gas companies, for example, have an active health and safety committee that meets regularly and is vested with budgetary and decision-making powers to carry out its mandate, prudent CCOAs should consider how best to integrate ongoing human rights due diligence into the company's internal processes. This could mean many different things, from appointing a designated officer, to striking a committee of the board of directors, to hiring an external consultant. 4. Track Performance: Depending on the system in place, different qualitative and/or quantitative metrics could be appropriate. Qualitative measures could be based on ongoing dialogue with internal and external stakeholders. Some large organizations use a "compliance hotline" to encourage anyone to anonymously report information. Quantitative measures may be related to number of incidents, but companies should be mindful that frequency is only one indicator. 5. Reporting Performance: It is important to regularly report performance to internal company decision-makers to keep them ap- prised of developments. External reporting can also sometimes be appropriate but should be undertaken only after consideration of the impact of disclosure on those involved in the matters reported (including internal and external individuals). 6. Remediation: If an incident has occurred, it may be appropriate to discuss remediation options with those affected in order to mitigate adverse impacts and reduce the risk of future incidents. Access to appropriate remedies can be an effective tool to rebuild relations between the company and the community because it demonstrates accountability for actions and a desire to improve future outcomes. In this short article, we have sought to alert the Canadian and American business community to an essentially new kind of litigation risk, the scope and extent of which is only beginning to emerge. In our view, international human rights-based tort cases in Canadian courts are not transitory, but a growing phenomenon that will persist as long as severe violations of international human rights come to light in connection with the economic activity of CCOAs. THE AUTHORS WOULD LIKE TO THANK THEIR COLLEAGUES, WAYNE EGAN AND IAN MITCHELL, FOR THEIR VALUABLE INSIGHTS ON GOVERNANCE ISSUES, AS WELL AS ASHLEY SCHUITEMA, SUMMER STUDENT WEIRFOULDS LLP (2013), FOR HER HELPFUL RESEARCH ASSISTANCE. ERRORS THAT REMAIN ARE OURS ALONE. H. Scott Fairley, SJD, FCI. Arb. WeirFoulds LLP Tel: (416) 947-5015 Fax: (416) 365-1876 sfairley@weirfoulds.com Scott Fairley is an experienced public and commercial law litigator and commercial law arbitrator and arbitration counsel. He also has a strategic advisory practice focusing on transnational disputes. He has appeared before both Ontario and Federal courts, and has extensive experience as counsel in the Supreme Court of Canada. Scott has also acted as counsel, advisor to US counsel and expert witness in the US Federal Courts. Kim Lawton WeirFoulds LLP Tel: (416) 947-5096 Fax: (416) 365-1876 klawton@weirfoulds.com Kim Lawton practices corporate and securities law. Her practice includes corporate finance and securities, mergers and acquisitions, governance and directors' liability, private equity and venture capital, as well as human rights and anti-corruption compliance. Kim has experience with clients across a variety of industry sectors, including mining, oil and gas, aerospace, healthcare, governments and other public bodies, private equity, retail trade and not-for-profit corporations. www.lexpert.ca | LEXPERT • December 2013 | 53

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