Responsible Investment: The Legal Perspective

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by Brittany Greenberg and Apollonia Mastrogiacomo1

Responsible investment (RI) has become an important theme in pension investing over the last 30 years. This article reviews some of the legal issues that arise in the context of RI, particularly as they relate to the fiduciary obligations of pension fund administrators in Canada.


For this purpose, the definition of RI provided under the United Nations Principles for Responsible Investment (PRI) is useful:

“Responsible investment is an approach to investment that explicitly acknowledges the relevance to the investor of environmental, social and governance factors, and of the long-term health and stability of the market as a whole. It recognises that the generation of long-term sustainable returns is dependent on stable, well-functioning and well-governed social, environmental and economic systems.” 2

As of March 2023, UN PRI had over 5,391 signatories, and as of 2021, signatories managed over US$121.3 trillion in assets.3 When viewed as a percentage of all Canadian professionally managed assets, RI assets accounted for 49% of all assets under management in Canada in 2023.4

1) Responsible Investment Strategies

RI strategies come in different forms. However, RI involves considering environmental, social and governance (ESG) issues when making investment decisions and influencing companies or assets. RI strategies complement traditional financial analysis and portfolio construction techniques.5

RI investment can be categorized by the following ESG criteria:

  • Environmental. Issues relating to the quality and functioning of the natural environment and natural systems. These include biodiversity loss; greenhouse gas (GHG) emissions; climate change; renewable energy; energy efficiency; air, water or resource depletion or pollution; waste management; stratospheric ozone depletion; changes in land use; ocean acidification; and changes to the nitrogen and phosphorus cycles.
  • Social. Issues relating to the rights, well-being and interests of people and communities. These include human rights; labour standards in the supply chain; child, slave and bonded labour; workplace health and safety; freedom of association and freedom of expression; human capital management and employee relations; diversity; relations with local communities; activities in conflict zones; health and access to medicine; HIV/AIDS; consumer protection; and controversial weapons.
  • Governance. Issues relating to the governance of companies and other investee entities. In the listed equity context, these include board structure, size, diversity, skills and independence, executive pay, shareholder rights, stakeholder interaction, disclosure of information, business ethics, bribery and corruption, internal controls and risk management and, in general, issues dealing with the relationship between a company’s management, board, shareholders and other stakeholders. This category may also include matters of business strategy, encompassing both the implications of business strategy for environmental and social issues as well as how the strategy is to be implemented. In the unlisted asset classes, governance issues also include matters of fund governance, such as the powers of advisory committees, valuation issues, fee structures, etc.6

ESG criteria may be reflected in one of several ways in RI strategies. Generally, they concern security selection versus asset allocation decisions. But there is some scope for ESG considerations in asset allocation decisions as well. The following are the broad categories of RI strategies, each of which reviews and uses ESG information in the investment decision-making process in one way or another.

Thematic Investing

Thematic investing involves the construction of a portfolio of assets that are expected to benefit from specific medium- to long-term trends. It includes investing in assets focused on ESG considerations and trends.7

Screening of Investments

Screening is a process for defining criteria for determining which investments are permitted in a portfolio. The U.N. PRI defines three types of investment screening:

  1.  Negative/exclusionary screening—Excluding from a fund or portfolio certain sectors, companies or practices based on specific ESG criteria
  2.  Positive/best-in-class screening—Investing in sectors, companies or projects based on positive ESG performance relative to industry peers
  3. Norms-based screening—Vetting against minimum standards of business practice based on international norms.8
Integration of ESG Issues

In principle, integrating ESG issues into investment decision making simply means considering ESG criteria in theanalysis of a security on an ongoing basis. ESG factors should not be treated as more or less important than, say, financial factors in the decision-making process. Instead, integrating ESG factors should provide the investment decision maker with a more comprehensive assessment of all of a security’s risk and return characteristics.

Stewardship

Stewardship refers to the use of investor rights and influence to advance the interests of beneficiaries. In doing so, stewards may use their power to enhance the long-term value of the common environmental, natural, intellectual, social and institutional assets.9

Impact Investing 

Impact investing refers to the practice of investing with the intention to generate a positive, measurable social and/or environmental impact alongside a financial return.10

RI strategies may be active or passive. An example of a passive strategy is investing in an index fund that integrates ESG issues into the selection of securities comprising the index. Active ownership includes proxy voting and the introduction of shareholder resolutions. Active ownership also may take the form of “engagement” with the companies in which the fund holds securities. Regardless of whether a pension fund’s investment strategy is active or passive, it may use its rights as a security holder and its position of ownership to engage in stewardship.11

Approaches to RI are constantly changing. Investment managers regularly offer new forms of RI, pension funds generally assess and reassess their level of RI, and investee companies often seek different ways of responding to ESG initiatives.

2) Legislation and Regulation in Canada

Canadian pension standards legislation is silent on the use of ESG criteria in investment decision making, and there are few statutory or regulatory requirements or prohibitions. 

Federal and provincial pension benefits legislation in Canada imposes fiduciary standards of conduct on pension fund trustees with respect to fund investments. These standards have a bearing on the application of ESG principles to pension investments. Such is not the case for benefit funds that are not pension funds. The following examples of the formulation of the fiduciary obligation and related ESG provisions from Ontario, British Columbia and Manitoba are typical.

Ontario Pension Benefits Act (PBA)

Care, Diligence and Skill

PBA Section 22 (1). “The administrator of a pension plan shall exercise the care, diligence and skill in the administration and investment of the pension fund that a person of ordinary prudence would exercise in dealing with the property of another person.”

Special Knowledge and Skill

PBA Section (2). “The administrator of a pension plan shall use in the administration of the pension plan and in the administration and investment of the pension fund all relevant knowledge and skill that the administrator possesses or, by reason of the administrator’s profession, business or calling, ought to possess.”

British Columbia Pension Benefits Standards Act (PBSA)

Investment requirements

PBSA 60 (1). “Investments, including loans, and financial decisions respecting a pension plan must be made (a) in accordance with this Act and the regulations, and (b) in the best financial interests of plan members and other persons entitled to benefits under the plan.”

(2) “Pension plan assets must be invested in a manner that a reasonable and prudent person would adopt if investing the assets on behalf of a person to whom the investing person owed a fiduciary duty to make investments (a) without undue risk of loss, and (b) with a reasonable expectation of a return on the investments commensurate with the risk, having regard to the plan's liabilities.”

While the language is different, both the Ontario and British Columbia statutes illustrate the fiduciary standard rests on a fundamental “duty of loyalty” that requires investment decisions to be made in the interest of the plan’s beneficiaries rather than those of the plan administrator.

The British Columbia provisions add the requirement that investment decisions be made in the best “financial interests” of the current and former plan members and beneficiaries. While the emphasis on best financial interests is clear in the British Columbia statute, case law suggests that in the case of any trust providing financial benefits, the best interests of the beneficiaries generally include their best financial interests.12 In some cases, particularly in regard to trusts with charitable or social objectives, nonfinancial objectives such as ESG criteria may also be expressed in the applicable trust agreement and form part of a trustee mandate.

Manitoba Pension Benefits Act

The Pension Benefits Act (PBA) of Manitoba adopts a modified approach to the fiduciary obligations of pension administrators in regard to investments. It expressly addresses the use of nonfinancial criteria in investment decision making:

Care, diligence and skill

PBA 28.1(2). “The administrator of a pension plan shall exercise the care, diligence and skill in the administration of the plan and the pension fund that a person of ordinary prudence would exercise in dealing with the property of another person.”

Investing pension assets

PBA 28.1(2.1). “The administrator of a pension plan shall invest the assets of the pension fund, and manage those investments, in accordance with the regulations and in a manner that a reasonable and prudent person would apply in investing and managing a portfolio of investments of a pension fund.”

Nonfinancial considerations

PBA 28.1(2.2). “Unless a pension plan otherwise provides, an administrator who uses a non-financial criterion to formulate an investment policy or to make an investment decision does not thereby commit a breach of trust or contravene this Act if, in formulating the policy or making the decision, he or she has complied with subsections (2) and (2.1).”

By adding Section 28.1(2.2) to its PBA, Manitoba has stipulated that compliance with statutory fiduciary decision-making requirements does not need to preclude consideration of nonfinancial criteria. Under the Manitoba PBA, an administrator must act in a fiduciary capacity, subject to a duty of loyalty and a duty of care (the administrator must invest pension assets “in a manner that a reasonable and prudent person would apply in investing and managing a portfolio of investments of a pension fund.”). But, so long as these requirements are complied with, the administrator may consider nonfinancial criteria in its decision making.

All pension standards statutes in Canada codify the fiduciary “duty of care.” This duty is separate from the duty of loyalty. While the duty of loyalty defines the interests that the fiduciary must protect, the duty of care addresses the manner in which the fiduciary is obligated to protect those interests. Some of the statutes contain a requirement that plan administrators utilize all the skills and knowledge they have, or ought to have, in making decisions in regard to the pension fund (Ontario PBA, S.22(2)). More generally, however, the references in Canadian pension legislation to the prudent person are intended to import the prudent person rule into pension investing. The federal Pension Benefits Standards Regulations, for example, stipulate that pension administrators must formulate a prudent statement of investment policies and procedures “having regard for all factors that may affect the funding and solvency of the plan and the ability of the plan to meet its financial obligations.”13 Among other things, the prudent person rule is considered to include a duty of diversification within an investment portfolio and a duty to construct a portfolio with regard to how the assets within the portfolio are likely to perform not only in an absolute sense, but in relation to other assets in the portfolio and in regard to the plan’s liabilities.

While not specifically directed at RI, Canadian and provincial pension standards legislation requires that pension funds establish a written Statement of Investment Policies and Procedures (SIPP) in accordance with the federal investment regulations (FIR).14 However, in Ontario only, since 2016, the Ontario Pension Benefit Act Regulation requires pension plans to include, in the SIPP, information about whether ESG factors are incorporated and if so, how they are incorporated.15 The Financial Services Regulatory Authority of Ontario provides that where ESG factors have not been incorporated, the SIPP must include a statement to that effect. Where the ESG factors are incorporated into investment policies and procedures, however, the SIPP could include a broad statement explaining that ESG factors, including the particular categories and specific factors that are incorporated, a brief explanation of the approach taken to incorporate the factors, and/or a description of the scope of application of the factors.16

The Canadian Association of Pension Supervisory Authorities (CAPSA) has also issued guidelines in regard to capital accumulation plans (CAP), including defined contribution pension plans (the CAP Guidelines). The CAP Guidelines set out the expectations of Canadian pension regulators in regard to CAPs, including with respect to the selection by CAP Sponsors of investment options to be offered to CAP participants and the disclosure required in respect of investment options by CAP Sponsors to CAP participants. The CAP Guidelines were originally issued in 2004, but CAPSA began the process of revising the guidelines in 2022.17

In addition, on June 9, 2022, CAPSA published an additional Guideline for consultation titled “Environmental, Social and Governance Considerations in Pension Fund Management” (the ESG Guideline).18 CAPSA's ESG Guideline applies to all pension plans. It recognizes the “potential for ESG factors to provide valuable insight on investment risks and opportunities,” and that these may “have a material effect on investment returns over varying time horizons.”19 The guidelines set out general expectations with respect to plan governance, risk management, investment decision-making, and disclosure to relevant stakeholders including members, plan sponsors/employees and unions. 

Legislation and Regulation Outside Canada

In contrast to the regulatory silence on SRI in Canada, the U.S. Department of Labor (DOL) has formally adopted a regulatory policy with respect to “economically targeted investments” by pension funds under the Employment Retirement Income Security Act (ERISA). However, ESG policy and legislation have recently become a contentious topic in the U.S. In 2020, the Trump administration issued a rule that attempted to restrain the ability of ERISA fiduciaries to consider ESG factors when investing. The rule amended ERISA to require plan fiduciaries to select investments solely on financial considerations and “never sacrifice investment returns.”20 

In 2022, the Biden administration published another rule that walked back the proposed 2020 amendments. The rule acknowledges and agrees with the DOP’s longstanding position that ERISA fiduciaries may not sacrifice investment returns for social goals but clarifies that the duty of prudence may require a consideration of ESG factors in investments.21 Since ERISA imposes similar fiduciary standards on plan administrators as Canadian pension legislation, these regulatory policies can be instructive for Canadian pension fund administrators—even though they are not legally binding. 

Since the adoption of the 2022 rule, it has been under considerable attack. On September 21, 2023, Judge Matthew J. Kacsmaryk of the U.S. District Court in Northern Texas rejected a challenge to the legislation by 26 states finding that the law does not violate ERISA and is not contrary to the Administrative Procedure Act.22 

Further, the Safeguarding Investment Options for Retirement Act was recently introduced into Congress, which seeks to prohibit tax-advantaged retirement plan trustees from considering factors other than financial risk and return.23 Similar legislation has also been introduced on the state level. As of February 2024, there were 61 anti-ESG bills pending at state legislatures.24 

As of July 3, 2000, regulations in the United Kingdom required pension fund administrators to disclose their RI policies.25

 In 2018, the regulations were amended to require SIPPs to include in policies the extent to which “nonfinancial matters” are taking into account in the selection, retention and realization of investments.26 Pension plan trustees are also required to publish an implementation statement to demonstrate how principles are being applied in their investment strategies.27 In 2023, the U.K. Pension Regulator launched a campaign to ensure trustees are complying with ESG reporting requirements.28 The ExxonMobil Pension Plan was the first pension scheme to be fined by the Pension Regulator in September 2023 for failure to disclose.29

U.K.-style disclosure requirements have now been adopted in many other countries. The EU has also enacted the Sustainable Finance Disclosure Regulation (SFDR), which requires disclosure of policies on the integration of sustainability risks by financial market participants,30 including by “manufacturers of pension products.”31 As discussed above, similar reporting requirements were adopted in Ontario in 2016. 

Further, legislation in the U.K. recently saw a shift from voluntary to mandatory standards. As of 2021, certain pension plan trustees are required to publish the financial risks of climate change within their portfolios, and as of 2022, they must publish whether their investments align with net-zero emissions goals.32 

Jurisprudence on Responsible Investing

In the absence of specific Canadian statutory or regulatory standards, it is useful to consider the decisions of courts in other jurisdictions regarding trust and fiduciary law and the legal implications of RI policies in the pension context—especially as seen in the U.K. and the U.S.

Cowan v. Scargill.33 The English case of Cowan v. Scargill concerned investment proposals under consideration by a jointly trusteed pension fund established for the employees of the National Coal Board. The union-appointed trustees refused to approve an annual investment plan for the pension fund unless it incorporated screens prohibiting all foreign investments as well as any investments in companies operating in sectors competing with the coal industry (e.g., oil companies). The judge, Vice-Chancellor Robert Megarry, concluded that the union trustees had breached their fiduciary duty to plan beneficiaries by refusing to approve the investment plan because it did not include the restrictive screens.

In his judgment, Megarry considered a number of issues relating to the trustees’ fiduciary obligations to plan members. The salient points are as follows:

  • The same legal principles that courts have applied to the investment of trust funds in general are equally applicable to pension funds, subject to any differences in the provisions of the pension plans themselves
  • This is significant because traditional trust principles are historically conservative, placing primary emphasis for trust fund investments on the preservation of capital and only latterly adopting the prudent person rule
  • Pension fund trustees have a duty to exercise their investment powers in the best interests of present and future beneficiaries, holding the scales impartially between different classes of beneficiaries.

While the court recognized that the investment restrictions advocated by the union trustees might benefit active union members engaged in the coal industry, a significant class of beneficiaries—including deferred pensioners, retirees and member beneficiaries—would have gained little or no advantage from the union’s policies.

In considering investments, trustees are required to put aside their personal interests and views, including social or political opinions, when investments that conflict with these views would be more favourable to the beneficiaries than other investments. The court went so far as to say that trustees may even have to act dishonourably if the interests of their beneficiaries required it.

The court held that, in most cases, the best interests of plan beneficiaries means their best financial interests. This was qualified, however, by adding that in certain trusts with adult beneficiaries holding strict views of certain social or moral issues, financial considerations need not be paramount provided the beneficiaries agree. For that group, the nonfinancial rewards might be preferable to financial benefits that result from an unacceptable activity. Pension fund trustees, however, have a heavy burden of proof. They must show that nonfinancial considerations and policies will lead to direct benefit for the plan beneficiaries and not just the general public. 

While the principles advanced by the court in the Cowan decision appear to prohibit any type of RI policies for pension fund trusts, some factors should be remembered when assessing the implications of this decision. The union trustees, in this case, were attempting to impose a blanket policy that would have significantly limited the potential for investment diversification by screening out all foreign investments and investments in entire industries. More importantly, the union trustees sought to enact the policy without any regard or consideration of its impact on the fund’s financial well-being. The court’s decision may have been very different if the trustees had proposed an investment screening policy that they could demonstrate would not negatively affect the fund’s investment performance, given the availability of comparable competitive investments.

In a subsequent discussion of the case,34 Megarry suggested the result might have been different if the union trustees had not expressed their policy as an absolute prohibition on foreign investments or investments in competing industries, but had rather formulated it as a preference for domestic and non-oil investments where other factors were equal between competing investment choices.

The decision also may have been different if the trustees had proposed social or ethical screens that did not confer any special advantage on one class of beneficiaries—those who were active employees in the coal industry. For instance, if the trustees had proposed favouring investments in coal industry companies where investment risks and rates of return were comparable to oil industry investments, the impact of the economically targeted investment would have been neutral to the nonunion beneficiaries of the pension trust. In these circumstances, it is not likely a court would have concluded the trustees’ fiduciary duties had been compromised by the investment policy.

Withers v. Teachers’ Retirement System of the City of New York.35 In contrast to the Cowan decision, at least one U.S. court has upheld a decision by pension fund trustees to make economically targeted investments where the policy could be justified on the basis it was needed to ensure the viability of the plan as a whole. In Withers v. Teachers’ Retirement System of the City of New York, the court upheld the purchase of nearly $1 billion of New York City bonds by the New York Teachers’ Pension Plan when the city was in the midst of a financial crisis. The bonds were very risky due to the city’s pending bankruptcy, but the city was also the pension plan’s major contributor. Preserving the city as an ongoing contributor was understood to be critical to the plan. This was a principal factor in the decision to purchase the high-risk bonds.

The trustees defended their decision based on their belief that their obligation was to safeguard the interests of all members. The court held that this otherwise imprudent investment was consistent with the trustees’ fiduciary responsibilities given the need to preserve a stream of contributions to the fund.

The Teachers case is a good example of a court endorsing an investment decision by fiduciaries not motivated strictly by considerations of investment return and risk. However, the decision is not likely to be widely applied because of the unique circumstances. The decision in this case may have been different if the investment had not been made to save the city from bankruptcy but rather to, for example, encourage the hiring of more teachers.

Both the Cowan and Teachers cases are primarily directed at “economically targeted investments” by pension funds rather than RI in the broad sense.

The Board of Trustees v. City of Baltimore.36 The City of Baltimore case involved a number of challenges to ordinances passed by the city requiring three Baltimore city employee pension plans to divest holdings in companies doing business in South Africa. The ordinances required divestiture within a two-year period. The trustees, however, retained the discretion to suspend the divestiture during the two-year period if they concluded that continued divestiture under the ordinance would be inconsistent with generally accepted investment standards for pension fund fiduciaries or would cause financial losses to the fund.

The trustees of the plans challenged the ordinances on a number of grounds. They argued that the ordinances were unconstitutional because they altered the trustees’ contractual obligations to their beneficiaries, which incorporated the common law duties of prudence and loyalty.

Based on the rather inconclusive financial evidence presented during the trial, the court found that the ordinances would not impair the pension funds’ performance. The court made a number of evidentiary observations on the impact the ordinances might have on fund performance. The court recognized that the ordinances prohibited investment in 120 of the 500 companies on the Standard and Poor’s 500 Index (S&P 500), representing approximately 40% of the index’s market capitalization. Thus, the ordinances would have required the pension fund portfolios to have more investments in relatively smaller companies whose stock prices tended to be more volatile. The court nevertheless found the trusts were not necessarily disadvantaged—reasoning that such stocks perform as well or better than large company stocks in the long term.

The trustees also argued that the proposed investment restrictions would adversely affect their investment managers’ active styles, which had proven to be very successful. The court acknowledged the ordinances would affect the managers’ options by eliminating potential investments in certain sectors, but the court nonetheless concluded that any interference would be insignificant because replacement stocks could be found for each sector—even though the South Africa–free investments would replace larger companies.

The trustees also argued that the restrictions would diminish the quality of the pension plan portfolios by requiring their investment managers to forego their first choice of investments. The court, while acknowledging that this may be the case, stated it was not certain a manager’s second choice would be inferior to the first. The court reasoned that all money managers ordinarily invest in a limited number of companies with which they are familiar, so the restrictions would merely require money managers to do additional research to locate adequate replacement stocks.

The court recognized that the ordinances would require divestiture of 47% of the pension funds’ equity portfolios and 10% of the fixed income portfolios, creating a one-time cost of approximately $750,000. Because the South Africa–free companies were smaller, there would also be a larger volume of trading in the smaller securities that would add brokerage costs of approximately $300,000. The divestiture costs represented about one-sixteenth of 1% of the funds’ total value. The court calculated the ongoing costs of divestiture would be $1.2 million per year or one-tenth of 1% of the fund’s total value. The court concluded imposing these costs on the funds to implement ethical screens was not inconsistent with the trustees’ duties of prudence and loyalty, as the costs were de minimis.

The court recognized that the ordinances would exclude a not insignificant segment of the investment universe but accepted the city’s evidence demonstrating that economically competitive substitute investments remained available under the divestiture program.

The court concluded the ordinances did not alter or impair the trustees’ duties of prudence, noting in particular that the divestiture program would occur gradually over a two-year period and that the ordinances expressly empowered the trustees to suspend the program at any time for up to 90 days if they found that the divestiture became imprudent.

Finally, the trustees contended that the ordinances altered their duty of prudence by mandating considerations of social factors unrelated to investment performance. The Court of Appeal disagreed with this assertion. The court recited from a highly respected authority on the law of trusts, Professor Austin Scott, who rejected the proposition that trustees are only bound to attempt to secure the maximum return on fund investments. Scott stated:

“Trustees in deciding whether to invest in, or to retain, the securities of a corporation may properly consider the social performance of the corporation. They may decline to invest in, or to retain, the securities of corporations whose activities, or some of them, are contrary to fundamental and generally accepted ethical principles. They may consider such matters as pollution, race discrimination, fair employment, and consumer responsibility.” 37

Scott analogized the trustees’ situation to that of a corporation’s board of directors, which often concludes that charitable contributions are in the corporation’s best interests. This is based on the belief that a corporation with a proper sense of social obligation is more likely to be successful in the long run than those solely driven by obtaining maximum profits.

The Court of Appeal concluded these views are consistent with the position that a trustee’s duty is not necessarily to maximize the return on investments but rather to “secure a just or reasonable” return while avoiding undue risk:

“Thus, the investment should not be deemed imprudent if, as in this case, social investment yields economically competitive returns at a comparable level of risk. Moreover, given the vast power that pension trust funds exert in American society, it would be unwise to bar trustees from considering the social consequences of investment decisions in any case in which it would cost even a penny more to do so. Consequently we conclude that if, as in this case, the cost of investing in accordance with social consideration is de minimis, the duty of prudence is not violated.38 (emphasis added)

In summary, the City of Baltimore’s decision advances several important principles on the issue of RI, which are reformulated as follows.

  • It is perhaps critical that pension plan administrators retain the discretion to withdraw from an RI policy if it appears a continuation is clearly imprudent. The policy should not bind the administrator to one irreversible course of action.
  • Eliminating otherwise prudent investments through screens is not necessarily inconsistent with a plan administrator’s duties to fund beneficiaries, provided prudent alternative investments are available with comparable risk-and-return profiles.
  • Considering nonfinancial factors is not, in and of itself, inconsistent with a plan administrator’s duty of prudence and loyalty. This statement is in direct conflict with the central principle espoused by the English Court in the Cowan decision.
  • Bearing a cost to implement an SRI policy is not imprudent where the cost is insignificant relative to the size of the fund.

Martin v. The City of Edinburgh District Council.39 The City of Baltimore case should be contrasted with the Scottish decision in Martin v. The City of Edinburgh District Council, which also considered the legal implications of a South Africa–free investment policy. This case was concerned with the investment of public and charitable funds held in trust by the City of Edinburgh District Council. The City Council had decided to express its abhorrence of apartheid in South Africa by instructing the council’s investment advisors to report on any council trust fund holdings in South African companies and to propose substitute investments. The court was asked to determine whether this investment policy breached trustee fiduciary duties.

The court did not reach a decision as to whether the policy itself violated trustee fiduciary obligations. Rather, the court focused on the process the trustees used to develop and adopt the divestment policy. The court found that the trustees did not seek the advice of professional ad- visors as to whether it was in the interests of the trust and their beneficiaries to divest in South Africa. This, in the court’s view, constituted a breach of the trust principle that a trustee is required to apply their mind to the best interests of the beneficiaries before any exercise of discretion. The court concluded:

“Accordingly I conclude that the pursuer has proved a breach of trust by the Council in pursuing a policy of disinvesting in South Africa without considering expressly whether it was in the best interests of the beneficiaries and without obtaining professional advice on this matter.”

The City of Edinburgh case illustrates that the standard of prudence against which trustee action is measured is more concerned with the processes utilized by fiduciaries in arriving at their decisions than with the substantive outcomes of any particular decision. The predecessor pension regulator to  Ontario’s Financial Services Regulatory Authority, the Pension Commission of Ontario explicitly stated that the standard of prudence should be measured primarily by the process through which investment strategies and tactics are developed, adopted, implemented and monitored.40 The City of Edinburgh case is a good example of this principle.

In assessing whether pension fund administrators have satisfied the procedural prudence requirements that apply to all investment decisions (including RI policies), a court will likely consider whether the administrator:

  • Employed proper methods to investigate, evaluate and structure the investment
  • Exercised independent judgment when making investment decisions
  • Conducted an impartial study of the advantages and disadvantages of the investment policies and/or the particular transaction under consideration
  • Exercised due diligence in researching all aspects of the investment policy or transaction
  • Retained qualified experts and consultants as appropriate in the circumstances
  • Relied on complete and up-to-date information in reaching the decision.

Harries v. Church Commissioners.41 The English case of Harries v. Church Commissioners considered the duties of the trustees of a charitable trust and, in particular, whether trustees would be in breach of their fiduciary duties by taking into account nonfinancial considerations when making investment decisions. The case involved an application brought by the Bishop of Oxford and other clergy members against the Church Commissioners Board of Governors responsible for investing Church of England assets for religious/charitable purposes. The applicants alleged the Commissioners breached their duty by taking into account only financial considerations when investing trust property. They argued that the Commissioners also were required to give weight to the underlying purpose for which they held the assets—the promotion of the Christian faith through the Church of England. The applicants claimed that the Commissioners should not exercise their investment functions in a manner that would be incompatible with this purpose, even if it involved the risk of financial loss.

The court began its analysis with the basic principle that trustees should be primarily concerned with furthering the purposes of the trust. All the powers vested in the trustees must be exercised for these purposes.

The second primary principle enunciated by the court was that where property is held in trust for investment purposes, prima facie, the purposes of the trust are best served by the trustees seeking to obtain the highest return—whether by way of income or capital growth, which is consistent with commercial prudence.

“In most cases this prima facie position will govern the trustees’ conduct. In most cases the best interests of the charity require that the trustees’ choice of investments should be made solely on the basis of well-established investment criteria, having taken expert advice where appropriate and having due regard to such matters as the need to diversify, the need to balance income against capital growth, and the need to balance risk against return.” 42

The court recognized there may be some exceptions to this general principle but commented that these are likely to be rare. The court noted that if an investment clearly conflicts with the aim or purpose for which a trust was established, then, even though the investment may be the most prudent investment financially, it may be contrary to the trust’s terms to proceed with it. The court cited the example of a cancer research charity holding tobacco shares or trustees of temperance charities owning brewery and distillery shares. In those circumstances where trustees are satisfied that investing in a company engaged in a particular type of business would conflict with the very objects their trust is seeking to achieve, they are duty-bound not to make these investments.

Another instance that may entitle trustees to take into account nonfinancial factors is where the trust document requires trustees to do so. In such a case, a plan administrator would be required to take the stated factors into account as part of the investment decision-making process. It should be noted, however, that pension trust agreement provisions cannot be contrary to a plan administrator’s fiduciary obligations as codified in the applicable pension standards legislation.

The court in Harries noted that the general rule is that trustees cannot properly use assets held as investments for noninvestment purposes. On the other hand, trustees are not prohibited from accommodating the views of those who consider a particular investment conflict with the purposes of the charity on moral grounds as long as the trustees are satisfied the accommodation does not involve a risk of significant financial detriment.

The court’s review of the Commissioners’ existing investment policy also is of interest. What follows are some relevant passages from the policy:

“The primary aim in the management of our assets is to produce the best total return, that is capital and income growth combined. While financial responsibilities must remain of primary importance (given our position as trustees), as responsible investors we also continue to take proper account of social, ethical and environmental issues. . . . As regards our stock exchange holdings this means that we do not invest in companies whose main business is armaments, gambling, alcohol, tobacco and newspapers.

. . .

We do not invest in any South African company nor in any other company where more than a small part of their business is in South Africa. Where we do invest in a company with a small stake in South Africa we try to ensure that it follows enlightened social and employment policies, so far as possible within the system of apartheid of which we have repeatedly expressed our abhorrence.

. . .

On the property side, although we shall continue to seek out development possibilities so as to discharge our duties as trustees, we are conscious of the effect of our actions upon local communities and their perceptions of the Church as a whole. We shall, therefore, continue to ensure that environmental considerations are properly taken into account when development schemes arise . . . ” 43 

In reviewing the investment policy, the court noted the Commissioners did, in fact, have “an ethical investment policy” and stated that nothing in the statement was inconsistent with the general principles enunciated in the case. In this regard, the court noted the Commissioners had demonstrated that they had felt able to exclude certain items from their investments for ethical purposes because there had remained open to the Commissioners an adequate width of alternative investments.

Butler-Sloss and others v. The Charity Commission for England and Wales and another.44 The Butler-Sloss decision interprets Harries v. Church Commissioners exactly ten years later. In this U.K. decision, the court considered whether charities, whose primary purpose is environmental protection and the relief of poverty, should be able to adopt an investment policy that excludes investments not in line with the charity's purpose. The question before the court was whether a charity can prioritize investment pursuant to the purpose of the organization over maximizing financial returns. The two charities were part of a family charitable trust network and managed over 60 million pounds in assets. The claimants, who are trustees of the trust, sought the court’s approval for their new investment policy, which selects investments based on their alignment with the Paris Climate Agreement under the UN Convention on Climate Change. In permitting the claimants to adopt the policies, the court noted that there is no “absolute prohibition” against investments conflicting with the purpose of the charity but rather that trustees must still perform a discretionary balancing exercise weighing the risk of financial detriment from the policy against the conflicting investment.45 Nevertheless, the court found that the claimants had exercised their powers properly, considered all relevant factors in their policy and paid mind to the potential financial effect of the policy.46

McGaughey and another v. Universities Superannuation Scheme Ltd. and others. 47 Here, the claimants brought a derivative action on behalf of a pension scheme offered to university staff against the directors of the scheme. The claimants alleged that the directors breached their statutory and fiduciary duties for, among other actions, failing to divest from fossil fuels contrary to the scheme’s long-term interests.48 The court dismissed the appeal of the decision that denied the claim, noting that there had been no financial loss suffered. The court states:

They may disagree with the Directors’ approach to investments in fossil fuel companies on ethical grounds and, in particular, with their view that divestment is not the appropriate way to reach net zero. But they have not put their case on the basis of those objections but rather that the Company has suffered a financial loss (or will suffer a loss) by holding these investments.49

The court’s suggestion implies that the claimants may have been successful if they had based their claim in ethical beliefs and duties. This case may, therefore, represent an increasing appetite for the consideration of nonfinancial factors in investment decisions the U.K.

Spence v. Am. Airlines, Inc. 50 In the Spence case, the plaintiff was an American Airlines pilot. He brought an action against American Airlines and the American Airlines Employee Benefit Committee (the defendants), who manage the American Airlines 401(k) plan and are therefore fiduciaries under ERISA. The action centres around the defendants’ investment of the 401(k) plan assets in ESG initiatives. The plaintiff put forth two causes of action under ERISA. First, he asserted that the defendants breached their duty of loyalty and prudence, and second, that they breached their duty to monitor. The court refused the motion to dismiss the claim and found that there were sufficient facts to support plausible claims. The court notes that various sources have reported underperformance of ESG funds, thereby supporting the inference that the defendants should have known about these facts and circumstances. The court noted:

Plaintiff has adequately alleged that Defendants breached their duty of prudence by selecting, including, and retaining investment managers who pursue ESG objectives rather than focusing exclusively on maximizing financial benefits. These specific actions—selecting, including, and retaining ESG-oriented investment managers—allow the Court to reasonably infer that Defendants’ process is flawed because it allowed Plan assets to be used to support ESG strategies. 51

While this decision does not represent the court’s ultimate view on the suitability of the consideration ESG factors, it does demonstrate the resistance in the U.S. toward RI and the recent tensions between supporters and critics discussed above.

Legal Commentary

The law and practice with respect to RI have changed considerably over the past 20 years. Initially, RI was driven by a number of social and political concerns that focused on the so-called “sin industries” of tobacco, alcohol and armaments. In the 1980s, university students and social reformers protested against South African apartheid and demanded that the endowment and investment funds of universities, as well as other institutions, divest themselves of shares in companies that did business in South Africa. At the same time, there were significant instances of economically targeted investments—investments whose principal purpose was to create or maintain employment for pension plan members. Many characterized these issues as being outside of the investment paradigm and rejected consideration of them because they were inconsistent with a fiduciary’s primary obligation to invest a portfolio prudently.

Court cases in the 1970s and 1980s reflected the prevailing view of RI as outside of the investment mainstream. In each case, the court began its analysis by considering whether the proposed RI strategy was in the best financial interests of a plan’s active and retired membership. In some instances, emerging social norms also influenced the court—most particularly, in the City of Baltimore case. The 1978 decision in the Withers case also illustrates that a strict emphasis on the risk-and-return characteristics of a portfolio could be broadened to include reference to the plan sponsor’s solvency. The court permitted the New York teachers’ plan trustees to make significant investments in junk bonds issued by the City of New York that would ordinarily have been viewed as imprudent but nevertheless were justified given the financial benefit to the pension fund.

The approach to emerging social issues had begun to change by the early 2000s. Financial scandals at Enron, WorldCom and a number of other public corporations brought home to institutional investors the financial significance of corporate governance, especially in regard to the composition of corporate boards and their accounting committees as well as the relationships between the management of public corporations and their independent auditors. At the same time, concerns regarding the potential impact of climate change on the broader economy and firms operating in economic sectors as diverse as agriculture, insurance, transportation, fossil fuels and real estate began to mount among institutional investors.52

The dichotomy between the traditional fiduciary concerns of risk and return on the one hand and ESG factors on the other hand began to dissolve as ESG issues received more attention among mainstream institutional investors. By 2004, it became plain that prudent investors were not only permitted to consider the impact of ESG issues on risk and return, but they were also arguably required to do so. In a report prepared for the U.N. PRI, the London-based law firm of Freshfields opined as follows:

“Conventional investment analysis focuses on value, in the sense of financial performance. As we note above, the links between ESG factors and financial performance are increasingly being recognized. On that basis, integrating ESG considerations into an investment analysis so as to more reliably predict financial performance is clearly permissible and is arguably required in all jurisdictions.” 53

Two different approaches—the concepts of the universal owner and of the public fiduciary—supporting a broader view of fiduciary obligations, especially for large, institutional investors, have emerged in recent years. Neither has been tested in the courts nor has any government legislated changes to reflect these emerging views. Nevertheless, these concepts have gained some traction among commentators in the debate over IR.

The Universal Owner Hypothesis

The universal owner hypothesis assumes large, institutional investors inevitably own shares in many firms across the entire economy. Because of their size and diversified portfolios, these funds are inevitably exposed not simply to individual companies but to the economy as a whole. Based on this assumption, institutional investors' interest in corporate behavior is somewhat different from that of the investee corporation.

This is especially the case with regard to externalities—costs created by a corporation’s activities that are not borne by the corporation itself. An example of an externality is the emission of pollutants into the atmosphere or a water system. The cost of the emission may be borne by individuals (or their families) who become ill, the corporations that employ those individuals and provide them with health insurance, and/or governments that sponsor health care systems and pay for pollution cleanup. Externalities are a classic problem in economics, as they represent potentially significant costs shifted from polluters—in this example, a shift to the general community.

The universal owner hypothesis suggests that large institutional investors inevitably bear some of a firm’s externalities, because institutional investors own shares in other firms that suffer the consequences of the externalities. If, for example, Firm A emits pollution that imposes costs on Firms B, C and D, then Firm A has an economic advantage because it has shifted costs to Firms B, C and D. But the universal owner, with ownership interests in Firms A, B, C and D, has to pay the cost one way or the other. Thus, the universal investor hypothesis urges institutional investors to take steps to control externalities at the corporate level to protect the interests of their portfolios as a whole.54

One difficulty with the universal owner hypothesis is that decision making at the corporate level is controlled by fiduciary obligations owed by the corporation’s board of directors and its senior officers to the corporation itself. From Firm A’s perspective, there is generally little reason for it to absorb the cost of an externality if it can shift that cost to others. Large institutional owners may indeed have portfolio-driven interests that are separate and distinct from the interests of any one of their investee companies, but the structure of governance at the corporate level reflects the corporation’s own interests, not the institutional owners’ portfolio interests. For this reason, among others, the universal owner hypothesis has not translated into modified behavior at the corporate level.

The Public Fiduciary Hypothesis

A second emerging approach to fiduciary obligations is reflected in the concept of the public fiduciary.55 The public fiduciary hypothesis, like the universal investor hypothesis, presumes that the overall financial returns generated by financial markets are the most important determinant of a pension fund’s financial success. In other words, “. . . most funds’ returns come from general exposure to the market (beta) rather than seeking market benchmark outperformance strategies (alpha).”56

In the public fiduciary hypothesis, institutional investors are part of a network of fiduciaries. Each investor performs specialized and complex functions in an interdependent marketplace. Because of their scale and structure, it is argued that courts should impose obligations of trust on institutional fiduciaries toward not only their beneficiaries but also the public at large.57 Pension fiduciaries are obliged, according to the public fiduciary hypothesis, to pay “close attention to reputational and sustainability concerns, concerns which strike at the heart of investee companies’ ability to generate wealth in the long run, and which often have an intergenerational dimension.”58

In summary, because the public fiduciary occupies a position of social trust and is institutionally concerned with overall market performance, the concept holds that the public fiduciary is obligated to engage in collective and collaborative actions with other public fiduciaries to address broader environmental, social and governance issues. As Waitzer and Sarro, leading academic lawyers, conclude:

“Current imbalances in our economy, if unaddressed, are likely to exacerbate a range of health, educational and social problems in what could easily give rise to a vicious cycle.59 Ultimately, investing is a means for pension fund trustees to ensure the future well-being of beneficiaries. Financial returns are a necessary element but, in considering the interests of beneficiaries, so, too, are other concerns. It is in this context that pension trustees become “public” fiduciaries. Given the mission, size, and systemic significance of pension funds, this suggests a ‘duty to collaborate’ (and consequential behavioural shifts). This goes beyond seeking cost advantages to the heart of effecting systemic reform.”  60

Criticisms of RI

While RI has gained significant prominence and is now front of mind in investing decisions, the priority of ESG issues in investing still attracts many criticisms. One common concern of investment focused on achieving ESG goals is greenwashing. Greenwashing is the practice of issuers misleading investors with regard to sustainability or falsely portraying themselves as adhering to ESG goals to attract investors.61 Along the same lines, critics note the lack of uniformity in ESG-focused investing. There is no universal rating system to measure ESG scores and additionally environmental, social and governance considerations may actually conflict within one investment decision.62 There are also financial concerns associated with RI, some of which have been addressed in this article already. First, ESG mutual funds may charge higher fees.63 Second, critics worry that financial performance may be compromised. ESG initiatives may not improve long-term value and, regardless, such long-term value is difficult to value and may be contrary to short-term benefits.64

3) Summary and Conclusions

RI has become an increasingly significant aspect of the pension and institutional investment landscape. Total assets under management invested under RI mandates have increased significantly over the last decade, reaching trillions of dollars worldwide. As this trend continues, many of the above concerns may be nullified.

RI strategies vary widely. At their most elementary level, they mandate the exercise of proxy voting rights in an informed manner directed to governance improvements, if not to social and environmental issues as well. Increasingly, however, ESG criteria are recognized as relevant to the long-term risk-and-return characteristics of securities and the underlying enterprises. ESG criteria are incorporated directly into investment decision making. In its strongest form, RI strategies entail direct engagement with corporations in which institutional investors hold securities, with a view to exercising influence in the boardroom for the benefit of long-term shareholders.

Overall, RI strategies must conform to fiduciary requirements. Fiduciary obligations direct pension fund administrators to seek the best investment returns available at a level of risk acceptable to the institutional investor considering its liability profile. Increasingly, however, there is an increased social expectation that pension plans will behave as responsible investors and play a constructive role in the general economy as they grow in size and potential influence while benefiting from generous tax incentives. The important and difficult balance between economic and pension funding objectives, on the one hand, and social responsibility, on the other hand, will continue to challenge pension administrators and stakeholders.

Endnotes

  1. Revised from a prior version of this chapter written by Murray Gold.
  2. UN Principles for Responsible Investment, "How Asset Owners Can Drive Responsible Investment" at https://www.unpri.org/download?ac=13983. 
  3. UN Principles for Responsible Investment, "Annual Report 2023" at https://www.unpri.org/annual-report-20234. 
  4. Responsible Investment Association, "Conviction Behind Responsible Investing Grew Stronger Despite Polarization and Economic Disruption" at https://www.riacanada.ca/news/conviction-behind-responsible-investing-grew-stronger-despite-polarization-and-economic-disruption/.
  5. UN Principles for Responsible Investment, "What Is Responsible Investment?" at https://www.unpri.org/introductory-guides-to-responsible-investment/what-is-responsible-investment/4780.article.
  6. UN Principles for Responsible Investment, "PRI Reporting Framework Main Definitions" at https://www.unpri.org/Uploads/i/m/n/maindefinitionstoprireportingframework_127272_949397.pdf.
  7. UN Principles for Responsible Investment,"Definitions for responsible investment approaches" at https://www.unpri.org/investment-tools/definitions-for-responsible-investment approaches/11874.article.
  8. Ibid.
  9. Ibid.
  10. Ibid.
  11. Discussion Paper: How can a Passive Investor be a Responsible Investor? (UN PRI) at 10.
  12. Benjamin J. Richardson, “Do the Fiduciary Duties of Pension Funds Hinder Socially Responsible Investment?” 22 B.F.L.R. 146, at 161.
  13. Pension Benefits Standards Regulations, 1985, SOR/87-19, s. 7.1(1).
  14. Ibid at ss. 6, 7, 7.1 and 7.2 and Schedule III.
  15. Ibid, s. 78(3).
  16. Financial Services Regulatory Authority of Ontario, "Environmental, Social Governance (ESG) Factors" at https://www.fsrao.ca/environmental-social-and-governance-esg-factors.
  17. Canadian Association of Pension Supervisor Authority, "Guideline No. 3, Guidelines for Captial Accumulation Plans" at https://www.capsa-acor.org/Documents/View/2045.
  18. Canadian Association of Pension Supervisor Authority, "CAPSA Guideline Environmental, Social and Governance Considerations in Pensions Plan Management" at https://www.capsa-acor.org/Documents/View/1914.
  19. Ibid at 6.
  20. Financial Factors in Selecting Plan Investments, 85 FR 72846 (2020). 
  21. Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights, 87 FR 73822.
  22. Utah v. Walsh, 2023 WL 6205926 (ND Tex 2024).
  23. US, Bill  HR 7780, Safeguarding Investment Options for Retirement Act, 118th Cong, 2024.
  24. Thomas Reuters, “Anti-ESG legislation seen facing uphill struggle to become law” at https://www.thomsonreuters.com/en-us/posts/esg/anti-esg-legislation/.
  25. Statutory Instrument 2005 No. 3378, The Occupational Pension Schemes (Investment) Regulations 2005.
  26. The Pension Protection Fund (Pensionable Service) and Occupational Pension Schemes (Investment and Disclosure) (Amendment and Modification) Regulations 2018 (S.I. 2018/ 988) – Amendments to the Occupational Pension Schemes (Investment) Regulations 2005, s.4(2).
  27. The Pension Regulator, “The ESG elephant is now in the room” at https://blog.thepensionsregulator.gov.uk/2023/05/17/the-esg-elephant-is-now-in-the-room/.
  28. The Pension Regulator, “The Pensions Regulator increases its focus on climate and ESG non-compliance” at https://www.thepensionsregulator.gov.uk/en/media-hub/press-releases/2023-press-releases/the-pensions-regulator-increases-its-focus-on-climate-and-esg-non-compliance.
  29. The Pension Regulator, “First climate change reporting fine issues by TPR, as use of powers continues” at https://www.thepensionsregulator.gov.uk/en/media-hub/press-releases/2023-press-releases/first-climate-change-reporting-fine-issued-by-tpr-as-use-of-powers-continues.
  30. EU, Regulation 2019/2088 of the European Parliament and of the Council of 27 November 2019 on sustainability‐related disclosures in the financial services sector, [2019] OJ L 317/1; European commission, “Sustainability-related disclosure in the financial services sector” at https://finance.ec.europa.eu/sustainable-finance/disclosures/sustainability-related-disclosure-financial-services-sector_en.
  31. EU, Regulation 2019/2088 of the European Parliament and of the Council of 27 November 2019 on sustainability‐related disclosures in the financial services sector, [2019] OJ L 317/1, s. 1(d).
  32. Janis Sarra, "Effective Governance of Climate and ESG Risks," Plans & Trusts (Brookfield, Wis: International Foundation, 2022) at 12; The Pension Regulator, “Climate change strategy” at https://www.thepensionsregulator.gov.uk/en/document-library/corporate-information/climate-change-and-environment/climate-change-strategy.
  33. Cowan v Scargill, [1984] 2 All ER 750.
  34. Sir Robert Megarry, “Investing Pension Funds: The Mineworkers Case,” in T.G. Youdan, ed., Equity, Fiduciaries and Trusts (Carswell: Toronto, 1989) at 149-159.
  35. Withers v. Teachers’ Retirement System of the City of New York (1978), 447 F. Supp. 1248 (S.D.N.Y.), affirmed 595 F. 2d 1210 (2d Cir. 1979).
  36. Board of Trustees of the Employees’ Retirement System of the City of Baltimore et al. v. Mayor and City Council of Baltimore City (1989), 562 A.2d 720 [City of Baltimore].
  37. A.W. Scott, The Law of Trusts, 4th ed., as cited in City of Baltimore, supra note 36, p. 736 (W. Fratcher, 1988).
  38. City of Baltimore, supra note 36 at 737.
  39. Martin v. The City of Edinburgh District Council, (1989), 1 P.T.R. 9.
  40. PCO Bulletin I, Iss. 2. (May 1990) at 12.
  41. Harries v. Church Commissioners, (1993), 2 All E.R. 301 (Ch D.).
  42. Ibid at 304.
  43. Ibid at 306-307.
  44. Butler-Sloss and others v Charity Commission for England and Wales and another, [2023] 1 All ER 1006.
  45. Ibid at para 85.
  46. Ibid at para 87-88.
  47. McGaughey and another v Universities Superannuation Scheme Ltd and others [2024] 1 All ER (Comm) 319.
  48. Ibid at para 12.
  49. Ibid at para 190.
  50. Spence v. Am. Airlines, Inc., F Supp (3d) (ND Tex 2024).
  51. Ibid at 20.
  52. The IPCC “First Assessment Report” was released in 1990 and was followed by supplementary reports in 1992, the “Second Assessment Report: Climate Change 1995,” “Third Assessment Report: Climate Change 2001,” “Fourth Assessment Report: Climate Change 2007” and a number of technical papers and reports between those assessment reports and subsequent to the fourth report.
  53. “A legal framework for the integration of environmental, social and governance issues into institutional investment (the ‘Freshfields Report’,” produced for the Asset Management Working Group of the UNEP Finance Initiative, (October 2005) at 13.
  54. “Universal ownership—why environmental externalities matter to institutional investors,” UNEP Finance Initiative, 2011.
  55. “The public fiduciary: emerging themes in Canadian fiduciary law for pension trustees,” by Edward J. Waitzer and Douglas Sarro, the Canadian Bar Review, Vol. 91 at 163.
  56. Ibid at 168.
  57. Ibid at 173 and 184.
  58. Ibid at 186.
  59. See e.g., James Manyika et al, “An Economy That Works: Job Creation and America’s Future,” McKinsey Global Institute (June 2011), which discounts the possibility of a recovery to “full employment” (i.e., 5% unemployment) in the United States before 2020 and documents the mismatch of predicted opportunities with available skills and education levels.
  60. Waitzer & Sarro, supra note 55 at 208.
  61. Quinn Curtis, Jill Fisch & Adriana Z. Robertson, "Do ESG Mutual Funds Deliver on Their Promises?" (2021) 120:3 Mich L Rev 393 at 408.
  62. Annette DeSipio, "ERISA Fiduciary Duties and ESG Funds: Creating a Worthy Retirement Future" (2023) 15:1 Drexel L Rev 121 at 133.
  63. Curtis, Fisch & Robertson, supra note 61.
  64. Kasey Wang, "Why Institutional Investors Support ESG Issues" (2021) 22:1 UC Davis Bus LJ 129 at 152.

Brittany Greenberg is an associate in Koskie Minsky’s Pension and Employee Benefits Group, specializing in Pension Fund Investments.

Apollonia Mastrogiacomo is an associate in Koskie Minsky’s Pension and Employee Benefits Group, with a focus on employee benefits, labor law and worker protections.