Bijural Terminology Records

Common Law

person acting in a fiduciary capacity

Civil Law

administrator of the property of others

Title of the Legislative Text

Canada Business Corporations Act, R.S.C., 1985, c. C-44.

Provision

48. ...

(2) ...

"fiduciary" means any person acting in a fiduciary capacity and includes a personal representative of a deceased person;

Problem

The linguistic versions differ as to content. While the English version refers directly to a person acting "in a fiduciary capacity", the French version refers to a "personne agissant à titre de représentant" (person acting as a representative). The scope of the concept of "représentant" (representative) is not the same as that of a "person acting in a fiduciary capacity" in civil law and in common law in French.

A "fiduciary/représentant" who acts in the context of Part VII of the Act must comply with the standards of conduct (duty of loyalty, no conflict of interest, duty to act honestly and in good faith, etc.) to which the concept of "person acting in a fiduciary capacity" refers in common law. The corresponding civil law standard is a person who, on the basis of a relationship of trust and confidence, has an obligation of good faith and loyalty.

In common law in French, the equivalent of "acting in a fiduciary capacity" is "agir à titre fiducial".

Solution

In the English version, "who acts in a fiduciary capacity or as the administrator of the property of others" is added.

In the French version, "L'administrateur du bien d'autrui ou la personne qui agit à titre fiducial" is added.

Harmonized Provision

48. ...

(2) ...
"fiduciary" means any person who acts in a fiduciary capacity or as the administrator of the property of others and includes a personal representative of a deceased person;

Federal Law-Civil Law Harmonization Act, No. 3, S.C. 2011, c. 21, s. 28(1).

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