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48 Can. Bus. L.J. 255 (2009)
BCE and the Peoples' Corporate Law: Learning to Live on Quicksand

handle is hein.journals/canadbus48 and id is 259 raw text is: BCE AND THE PEOPLES' CORPORATE LAW:
LEARNING TO LIVE ON QUICKSAND
Jeffrey G. Macintosh*
I. INTRODUCTION
This article discusses two recent Supreme Court of Canada
holdings: Peoples Department Stores Inc. (Trustee of) v. Wise' and
BCE Inc. (Arrangement relatif d) (Re).: Although much of both
decisions is per incuriam, obiter dictum, or both, these rulings have
thrown the most basic principles of corporate law into a state of
uncertainty and confusion. In my view, only legislative intervention
(in particular, declaring that directors' duties are owed to
shareholders alone) can adequately address the difficulties that
these rulings have created.3
II. THE CONCEPTUAL INDETERMINACY OF THE
SUPREME COURT'S STANDARD
The central question in BCEis no less than the central question in all
of corporate law: to whom are directors' duties owed? The Canada
Business Corporations Act4 (CBCA) and cognate statutes state that
directors (and officers) must act honestly, in good faith, and in the
best interests of the corporation.5 How then, do we interpret the best
interests of the corporation?
The traditional answer to this question in both English and
Canadian common law, as well as both prior and contemporaneous
federal statute law, is that the corporation means the
shareholders. 6 The Supreme Court, however, states that the
*   Toronto Stock Exchange Professor of Capital Markets, Faculty of Law,
University of Toronto.
1. [2004] 3 S.C.R. 461, 244 D.L.R. (4th) 564.
2. [2008] S.C.J. No. 37 (QL), [2008] 3 S.C.R. 560.
3. The issues discussed in this comment are more fully discussed in a longer article
currently in preparation.
4.  R.S.C. 1985, c. C-44.
5. CBCA s. 122(l)(a) (emphasis added).
6. See MacIntosh, supra, footnote 3.

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