Fiduciary Accountability Transformed



The Supreme Court of Canada has toyed with the boundaries of fiduciary accountability for three decades. Some of the criteria it has advanced to identify when fact-based accountability will arise (e.g. vulnerability, power differential, reasonable expectation) are vague notions that potentially derail the conventional function of the jurisdiction. Specifically, the criteria may be taken to support the view that fiduciary accountability regulates the merits or fairness of the actions of fiduciaries. In BCE Inc. v. 1976 Debentureholders, the court now appears to have explicitly adopted that view, albeit without recourse to any of the criteria it had previously identified. It also appears to have compromised the strict operation of the conventional regulation. The decision represents yet another novel turn, and a radical one, in the court's mercurial intercourse with fiduciary accountability.

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    ABSTRACT: A conceptual fog has descended on the fiduciary jurisprudence of the Commonwealth. Judges and commentators in Canada, Australia and England have misunderstood or misdescribed the conventional boundaries. The confusion impairs the principled assignment of fiduciary responsibility. The solution is to refocus fiduciary analysis on its rightful singular concern with opportunism in limited access arrangements.


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