Skip to main content Accessibility help

We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.

Close cookie message
×
Hostname: page-component-77c89778f8-5wvtr Total loading time: 0 Render date: 2024-07-17T04:53:24.564Z Has data issue: false hasContentIssue false

2 - The public fiduciary: a Canadian perspective

Published online by Cambridge University Press:  05 April 2014

By
Edward J. Waitzer  and
Douglas Sarro
Edited by
James P. Hawley ,
Andreas G. F. Hoepner ,
Keith L. Johnson ,
Joakim Sandberg  and
Edward J. Waitzer
Edward J. Waitzer
Affiliation:
York University, Toronto
Douglas Sarro
Affiliation:
Court of Appeal for Ontario
James P. Hawley
Affiliation:
St Mary's College, California
Andreas G. F. Hoepner
Affiliation:
ICMA Centre, Henley Business School, University of Reading
Keith L. Johnson
Affiliation:
University of Wisconsin, Madison
Joakim Sandberg
Affiliation:
University of Gothenburg
Edward J. Waitzer
Affiliation:
York University, Toronto
Get access

Summary

Introduction

Fiduciary duty is a dynamic concept – one that has responded to changing contexts and worldviews but is firmly rooted in clear and enduring legal principles. As society faces governance challenges, there is a growing recognition of the need to take a longer-term and more systemic view of fiduciary obligations. This challenge is particularly acute in the financial services sector.

The Supreme Court of Canada (the “Court”) has focused on developing a coherent view of the nature of fiduciary relationships and the consequences thereof. In doing so, it has extended the scope for fiduciary duties and consequential remedies. After a summary discussion of how fiduciary duties have been applied in the pension fund context, this chapter reviews the efforts of the Court to develop this broader conceptual framework. We then consider, in the context of pension fund administration, steps that might be taken to address and mitigate liability in respect thereof. We conclude by considering the trajectory of the law – why pension fiduciaries are increasingly required to look beyond the immediate “imperatives” of the market to longer-term, systemic concerns, such as intergenerational equity and sustainable development. So positioning fiduciaries with public responsibilities will further alter legal and governance precepts.

Type
Chapter
Information
Cambridge Handbook of Institutional Investment and Fiduciary Duty , pp. 9 - 19
Publisher: Cambridge University Press
Print publication year: 2014

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Allen, W. T. 1992. “Our Schizophrenic Conception of the Business Corporation,” Cardozo Law Review 14: 261–81.Google Scholar
Ascher, M. L., Scott, A. W. and Fratcher, W. F.. 2006. Scott and Ascher on Trusts, 5th edn. New York: Aspen Law & Business.Google Scholar
Brown Weiss, E. 1989. In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity. Dobbs Ferry, NY: Transnational Publishers.Google Scholar
Clarkson, L., Morissett, V. and Régallet, G.. 1992. Our Responsibility to the Seventh Generation. Winnipeg: International Institute for Sustainable Development. .Google Scholar
Commonwealth of Australia. 2010. Australia to 2050: Future Challenges. Canberra: Commonwealth of Australia.Google Scholar
Drucker, P. F. 1996. The Pension Fund Revolution. New Brunswick, NJ: Transaction Publishers.Google Scholar
Frankel, T. 1983. “Fiduciary Law,” California Law Review 71: 795–836.CrossRefGoogle Scholar
Gallanis, T. P. 2007. “The Trustee’s Duty to Inform,” Northern Carolina Law Review 85: 1595–628.Google Scholar
Getzler, J. 2009. “Fiduciary Investment in the Shadow of Financial Crisis: Was Lord Eldon Right?” Journal of Equity 3: 219–50.Google Scholar
Gilson, R. J. and Gordon, J. N.. 2013. “The Agency Costs of Agency Capitalism: Activist Investors and the Revaluation of Governance Rights,” Columbia Law Review 113: 863–928.Google Scholar
Gold, A. S. 2009. “The New Concept of Loyalty in Corporate Law,” UC Davis Law Review 43: 457–528.Google Scholar
Grossman, N. 2013. “The Duty to Think Strategically.” Louisiana Law Review 73: 449–508.Google Scholar
Hall, G. M. 2003. 20 Questions Directors Should Ask about their Role in Pension Governance. Toronto: Canadian Institute of Chartered Accountants.Google Scholar
Hawley, J. P., and Williams, A. T.. 2000. The Rise of Fiduciary Capitalism: How Institutional Investors Can Make Corporate America More Democratic. Pittsburgh: University of Pennsylvania Press.Google Scholar
Hawley, J. P., Johnson, K. L. and Waitzer, E. J.. 2011. “Reclaiming Fiduciary Duty Balance,” Rotman International Journal of Pension Management4–17.Google Scholar
Huberman, G., Iyengar, S. S. and Jiang, W.. 2007. “Defined Contribution Pension Plans: Determinants of Participation and Contributions Rates,” Journal of Financial Services Research 31 (1): 1–32.CrossRefGoogle Scholar
Ibbotson, R. G. 2010. “The Importance of Asset Allocation,” Financial Analysts Journal 66 (2): 18–20.CrossRefGoogle Scholar
Laby, A. B. 2004. “Resolving Conflicts of Duty in Fiduciary Relationships,” American University Law Review 54: 75–149.Google Scholar
Lydenberg, S. 2013. “Reason, Rationality and Fiduciary Duty.” Journal of Business Ethics. Published electronically February 4, 2013. .Google Scholar
Martin, R. L. 2012. “The Gaming of Games,” Drucker Society Europe Blog, October 17. .Google Scholar
Mitchell, O. S. and Utkus, S. P.. 2006. “How Behavioral Finance Can Inform Retirement Plan Design,” Journal of Applied Corporate Finance 18: 82–94.CrossRefGoogle Scholar
OECD. 2004. Recommendation on Core Principles of Occupational Pension Regulation. Paris: OECD.Google Scholar
Olson, M. 1965. The Logic of Collective Action. Cambridge, MA: Harvard University Press.Google Scholar
Ontario Expert Commission on Pensions. 2008. A Fine Balance: Safe Pensions, Affordable Plans, Fair Rules. Toronto: Queen’s Printer for Ontario.Google Scholar
Palmiter, A. R. 2010–11. “Duty of Obedience: The Forgotten Duty,” New York Law School Review 55: 457–78.Google Scholar
Richardson, B. 2011. “Fiduciary Relationships for Socially Responsible Investing,” American Business Law Journal 48 (3): 597–640.CrossRefGoogle Scholar
Rodrik, D. 2008. “Second-Best Institutions,” American Economic Review 98 (2): 100–4.CrossRefGoogle Scholar
Ruce, P. J. 2010. “The Trustee and the Trust Protector: A Question of Fiduciary Power. Should a Trust Protector be held to a Fiduciary Standard?” Drake Law Review 59: 67–96.Google Scholar
Singer, J. W. 2008. “Corporate Responsibility in a Free and Democratic Society,” Case Western Reserve Law Review 58: 1–11.Google Scholar
Sterk, S. 2006. “Trust Protectors, Agency Costs and Fiduciary Duty,” Cardozo Law Review 27 (6): 2761–806.Google Scholar
Sunstein, C. 2007. Worst Case Scenarios. Cambridge, MA: Harvard University Press.CrossRefGoogle Scholar
Waitzer, E. and Jaswal, J.. 2009. “Peoples, BCE and the Good Corporate ‘Citizen’,” Osgoode Hall Law Journal 47: 439–96.Google Scholar
Watt, G. 2006. Trusts and Equity, 2nd edn. New York: Oxford University Press.Google Scholar
Wright, R. 2001. Nonzero: The Logic of Human Destiny. New York: Vintage Books.Google Scholar

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×