THE PUBLIC FIDUCIARY: EMERGING THEMES IN CANADIAN FIDUCIARY LAW FOR PENSION TRUSTEES

Abstract

As society increasingly faces governance challenges at all levels, there is a growing recognition of the need to take a longer term and more systemic view of fiduciary obligations. We begin this article with a summary discussion of how fiduciary duties have developed and been applied in the pension fund context. We then review the efforts of the Supreme Court of Canada to develop a broader conceptual framework for fiduciary duties and consider steps that might be taken to address and mitigate liability in respect of these duties in the context of pension fund administration. We conclude by considering the trajectory of the law and how it appears to be positioning fiduciaries with public responsibilities and, in doing so, could alter legal and governance precepts.