Sunday, October 2, 2011

A THEORY OF FIDUCIARY LIABILITY- Paul B. Miller

McGill Law journal ~ Revue de droit de McGill
A THEORY OF FIDUCIARY LIABILITY
Paul B. Mile?
The law of fiduciaries has been developed
in an unprincipled manner. Consequently, the
common law lacks a clear idea of the nature of
the fiduciary relationship, the justification for
fiduciary duties, and the purpose of fiduciary
remedies. However, according to the author a
principled theory of fiduciary liability may be
derived from the common law. The focal point is
the recent decision of the Supreme Court of
Canada in Galambos v. Perez. The theory of liability
suggested by Galambos and developed by
the author is based on the conventional notion
that fiduciary liability is premised upon the existence
of a fiduciary relationship. The author
argues that a clearer account of the nature and
normative significance of the fiduciary relationship
is critical to developing a sound understanding
of the nature and scope of fiduciary
duties. Under the theory developed by the author,
the fiduciary relationship is treated as a
distinctive kind of legal relationship. It is one in
which one person (the fiduciary) wields discretionary
power over the practical interests of another
(the beneficiary). According to the author,
fiduciary duties are explicable solely in terms of
normatively salient qualities of the fiduciary relationship.
The author explains these qualities
and shows how they support and limit the incidence
of fiduciary duties.
Le droit fiduciaire fut ddvelopp6 sans
principe directeur. Par cons6quent, la common
law n'a pas d'idde claire de ce qu'est la nature
de la relation fiduciaire, de la justification des
obligations fiduciaires et de l'objectif des
remides fiduciaires. Toutefois, selon l'auteur, le
principe thdorique de la responsabilit6
fiduciaire provient peut-6tre de la common law.
L'61ement principal est le jugement rdcemment
rendu par la Cour supr&me du Canada dans
Galambos c. Perez. La thdorie de la
responsabilitd sugg6rde par Galambos et
ddvelopp6e par l'auteur est basde sur la notion
conventionnelle selon laquelle la relation
fiduciaire est la pr6misse sur laquelle
1'existence d'une responsabilit6 fiduciaire est
6tablie. L'auteur tente de ddmontrer qu'une
explication plus claire de la nature et de la
signification normative de la relation fiduciaire
est un 61ment essentiel au ddveloppement
d'une comprehension inform6e de la nature et
de la portde des obligations fiduciaires. Selon la
thdorie d6veloppde par l'auteur, la relation
fiduciaire est traitde comme 6tant une relation
lgale distincte. II s'agit d'une relation dans
laquelle une personne (le fiduciaire) exerce un
pouvoir discr6tionnaire sur les int6rbts d'une
autre personne Ge bdndficiaire). Selon 1'auteur,
les obligations fiduciaires ddpendent
principalement des qualit6s normatives
saillantes de la relation fiduciaires. L'auteur
explique ces qualitds et ddmontre comment ces
dernibres supportent et limitent l'incidence des
obligations fiduciaires.
* Assistant Professor, Faculty of Law, Queen's University. I am grateful to Joshua
Getzler, Lionel Smith, and the Journal's anonymous reviewers for their helpful comments.
I retain responsibility for any errors or omissions.
@ Paul B Miller 2011
Citation: (2011) 56:2 McGill LJ 235 - Rdference : (2011) 56: 2 RD McGill 235
236 (2011) 56:2 MCGILLAWJOURNAL~ REVUE DEDROITDEMCGL.
Introduction 237
I. Approximate Approaches to Fiduciary Liability 239
A. The Nature of the Fiduciary Relatdonship 240
1. Status-Based Fiduciary Relationships 241
2. Fact-Based Fiduciary Relationships 243
3. Problems with the Status- and Fact-Based Approaches 247
B. The Foundation ofFiduciary Obhaton 252
1. The Formation of Fiduciary Relationships 252
2. The Basis of Fiduciary Duties 253
C The Nature and Scope ofFiduciary Obhgtion 256
II. An Emerging Theory of Fiduciary Liability 259
A. The Nature of the Fiduciary Relationship 261
1. The Fiduciary Relationship Defined 261
2. Implications for the Status- and Fact-Based Approaches 263
B. The Foundation ofFiduciary Obhtion 265
1. The Formation of Fiduciary Relationships 265
2. The Basis of Fiduciary Duties 267
C The Nature and Scope ofFiduciary Obgation 269
III. Emendations and Amplification 270
A. The Nature of the Fiduciary Relationship 270
1. Moving Beyond the Status- and Fact-Based Approaches 270
2. Amplifying the Definition of the Fiduciary Relationship 272
B. The Foundation ofFiduciary Obhgation 278
1. The Formation of Fiduciary Relationships: Emendations 278
2. Revisiting the Basis of Fiduciary Duties 279
C The Nature and Scope ofFiduciary Obb tion 280
1. Distinguishing Fiduciary from Non-Fiduciary Duties 281
2. Determining the Scope of Fiduciary Obligation 286
Conclusion 287
ATHEORYOF FIDuGARYLIAMUTY 237
Introduction
Throughout the common law world, the law of fiduciaries has proven
unusually vexing due to prevailing uncertainty on the essential elements
of fiduciary liability. There is some consensus on the basic parameters of
liability, including the kinds of relationships that are fiduciary, the duties
that constrain the conduct of fiduciaries, and the remedies triggered by
breach of fiduciary duty. Put simply, it is generally accepted that fiduciary
relationships give rise to fiduciary duties owed by the fiduciary to the
beneficiary, breach of which vests in the beneficiary remedial rights relative
to the fiduciary.
There is agreement on little else. Thus, the law has evolved absent a
general theory of liability. We lack a clear concept of the fiduciary relationship,
the basis of fiduciary duties, or the purposes served by fiduciary
remedies. This has meant considerable uncertainty and inconsistency in
the authorities, as a result of which fiduciary liability has been condemned
as incoherent. Some have suggested that the incoherence reflects
a flawed fundamental premise in our thinking about the nature of fiduciary
liability. We have been misled in assuming that fiduciary liability is a
distinctive form of private liability; it might better be understood as an
outgrowth of contract or unjust enrichment.,
The predicament facing fiduciary law is not simply the product of neglect.
Several important theoretical analyses of fiduciary liability have
been offered.2 None of them has yet earned significant support. However,
judges have generally been reluctant to address fundamental questions
about fiduciary liability. The jurisprudence reveals a tendency to assert
rather than explain the existence of fiduciary relationships and to assume
rather than justify obligations attendant upon them.
The jurisprudence of the Supreme Court of Canada has departed from
this tendency. The Court has shown rare sensitivity to conceptual problems
and it has attempted to confront some of them. Its efforts have not
been well-received. Indeed, the fiduciary jurisprudence of the Court has
been roundly excoriated. Observers claim that fiduciary law in Canada is
1 Frank H Easterbrook & Daniel Fischel, "Contract and Fiduciary Duty" (1993) 36:1 JL
& Econ 425; Gareth Jones, "Unjust Enrichment and the Fiduciary's Duty of Loyalty"
(1968) 84 Law Q Rev 472.
2 See e.g. Peter Birks, "The Content of the Fiduciary Obligation" (2000) 34:1 Isr LR 3;
Matthew Conaglen, 'The Nature and Function of Fiduciary Loyalty" (2005) 121 Law Q
Rev 452; Robert Flannigan, 'The Boundaries of Fiduciary Accountability" (2004) 83:1
Can Bar Rev 35; D Gordon Smith, 'The Critical Resource Theory of Fiduciary Duty"
(2002) 55:5 Vand L Rev 1399 [Smith, "Resource Theory"]; and Lionel Smith, 'The Motive,
Not the Deed" in Joshua Getzler, ed, Rationalizing Property, Equity and Trusts:
Essays in Honour of Edward Burn (London: Butterworths, 2003) 53 [Smith, "Motive'].
238 (2011) 56:2 McGuL LAwJOURNAL REVUE DE DROITDEMCGIL
particularly unprincipled and incoherent.3 Some think that the parameters
of fiduciary liability are so ill-defined that anyone might unwittingly
become a fiduciary. In A.(C.) v. Critchley, the British Columbia Court of
Appeal amplified a scathing indictment rendered by the Chief Justice of
Australia, as he then was:
In a speech delivered in 1988 to a Canadian-Australian legal-judicial
exchange in Canberra, Mason C.J.A. commented humorously, but
with considerable accuracy, that: "All Canada is divided into three
parts: those who owe fiduciary duties, those to whom fiduciary duties
are owed, and judges who keep creating new fiduciary duties!"
Our Supreme Court of Canada has led the way in the common
law world in extending fiduciary responsibilities and remedies but it
has not provided as much guidance as it usually does in emerging
areas of law. The law in this respect has been extended by our highest
court not predictably or incrementally but in quantum leaps so
that judges, lawyers and citizens alike are often unable to know
whether a given situation is governed by the usual laws of contract,
negligence or other torts, or by fiduciary obligations whose limits are
difficult to discern.4
To an extent, the criticism is justified. The Court has not supplied a
coherent theory of fiduciary liability. It has struggled to articulate the nature
of the fiduciary relationship, the foundation of fiduciary duties, and
the function of fiduciary remedies. The reasoning in many leading judgments
seems ad hoc. Yet, the criticism is unfair given that these failings
are universal. Fiduciary law everywhere has eluded a sound theory of liability.
It is to the credit of the Court that it has been willing to hazard answers
to fundamental questions about fiduciary liability. Despite its failure
to provide decisive answers, the Court has meaningfully contributed
to collective efforts to clarify the foundation, nature, and scope of fiduciary
liability. Perhaps chastened by criticism, the Court had not for a decade
addressed these issues in broad terms.5 That alone makes its recent decision
in Galambos v. Perez momentous.6
3 See e.g. Laura Hoyano, 'The Flight to Fiduciary Haven" in Peter Birks, ed, Privacy and
Loyalty (Oxford: Oxford University Press, 1997) 169; Sarah Worthington, "Fiduciaries:
When is Self-Denial Obligatory?" (1999) 58:3 Cambridge LJ 500 [Worthington, "Fiduciaries'].
4 [1998] 166 DLR (4th) 475 at 496, 60 BCLR (3d) 92.
5 Arguably, the last decision in which the Court paid broad consideration to these matters
was Soulos v Korkontzilas, [1997] 2 SCR 217, 146 DLR (4th) 214. In more recent
decisions, the Court focused on narrower questions, such as the content of particular fiduciary
duties and the implications of fiduciary characterization of particular relationships.
See e.g. Strother v 3464920 Canada lnc, 2007 SCC 24, [2007] 2 SCR 177 (conflict
ATHEORYOF FIDUCiARYLABLnY 239
The history of the Court's entanglements in the fundamental questions
of fiduciary liability, set off against its recent silence, might have
generated expectations that it would shy away from broad pronouncements.
Those expectations are not borne out. Indeed, Galambos offers an
encompassing and generally salutatory reinterpretation and extension of
the Court's fiduciary jurisprudence.
In what follows, I offer a contextual analysis of Galambos in light of
the overriding problem of establishing the theoretical basis of fiduciary liability.
In Part I, I argue that the Court's pre-Galambos jurisprudence
yields approximate approaches to fiduciary liability. Determinations of liability
are approximate in that they are premised not upon principles but
rather upon inexact characterizations of the fiduciary relationship. Despite
this, in Part II, I argue that selected elements of that jurisprudence,
as interpreted in Galambos, are suggestive of a principled theory of liability.
At the core of the theory lies a clear idea of the essential character of
the fiduciary relationship. This idea is critical to the development of a
more robust account of the foundation, nature, and scope of fiduciary obligation.
In Part III, I highlight problems with residuum of the approximateapproach
and suggest how the emerging theory of fiduciary liability might
be usefully emended, amplified, and extended.
I. Approximate Approaches to Fiduciary Liability
Determinations of fiduciary liability are exercises in approximation.
This is true of Canadian fiduciary law as well as that of the United States
and Commonwealth countries. Nowhere is fiduciary liability principled.
Everywhere, it turns on vague notions about the nature and salience of fiduciary
relationships and the function of fiduciary duties. Nevertheless,
conventional determinations of fiduciary liability are not random. Indeed,
they are telling of the character of the fiduciary relationship as well as the
nature, foundation, and scope of fiduciary duties.
Most significant is the revelation that the fiduciary relationship is the
central organizational concept in fiduciary liability. In Canada and elsewhere,
the conventional view is that fiduciary liability is founded upon the
establishment of a fiduciary relationship between a fiduciary and benefiof
duties rule emanating from the duty of loyalty: infra note 74, and accompanyng
text); KLB v British Columbia, 2003 SCC 51, [2003] 2 SCR 403 (importance of distinguishing
fiduciary from non-fiduciary duties in the parent/guardian-child relationship:
infra note 45, and accompanying text)
6 2009 SCC 48, [2009] 3 SCR 247 [Galambos].
240 (2011) 56:2 MCGILLLAWJOURNAL~ REVUE DEDROrr DEMcGiL.
ciary.7 On this view, fiduciary liability is determined by proceeding stepwise
through two questions: First, was the relationship between the parties
fiduciary in nature? Second, did the fiduciary breach a fiduciary
duty?8 The conventional view entails that something in the character of
the fiduciary relationship is necessary and sufficient to explain and justify
fiduciary liability.
While entrenched, the conventional approach to fiduciary liability has
suffered because it lacks a clear account of the character of the fiduciary
relationship and the connection between it and fiduciary duties. The Supreme
Court of Canada has been especially sensitive to these deficits. Its
protracted efforts at resolving them are at once illustrative of the problems
endemic in fiduciary law in other jurisdictions and instructive of the
possibilities for a principled theory of liability of general application.
A. The Nature of the Fiduciay Relaionship
The conventional view on fiduciary liability holds that liability turns
upon breach of duties occasioned by fiduciary relationships. Yet the authorities
reveal widespread uncertainty and confusion on three critical
aspects of fiduciary relationships: their essential character, their formation,
and their structural qualities subsequent to relationship formation.
As Justice La Forest said in Lac Minerals, "There are few legal concepts
more frequently invoked but less conceptually certain than that of the fiduciary
relationship."9
Ultimately two approaches to the identification of fiduciary relationships
have been adopted in the authorities. Under the first, status-based
approach, new categories of relationship are deemed to have fiduciary
7 See Guerin v Canada, [1984] 2 SCR 335 at 384, 13 DLR (4th) 321, Dickson J, as he then
was [Guerin]: "It is the nature of the relationship ... that gives rise to the fiduciary
duty." This view is also conventional elsewhere in the Commonwealth and in the
United States. See e.g. Restatement (Second) of Torts § 874 (1977): "One standing in a
fiduciary relation with another is subject to liability to the other for harm resulting
from a breach of duty imposed by the relation'; Conaglen, supra note 2 at 454-55;
Smith, "Resource Theory", supra note 2 at 1432; John Glover, 'The Identification of Fiduciaries"
in Birks, supra note 3, 269.
8 For an illustration, see Hospital Products Ltd v United States Surgical Corp, (1984) 156
CLR 41, 55 ALR 417 (HCA) [Hospital Products cited to CLR]. In separate judgments
the justices each sought to determine first whether the relationship was fiduciary and
then whether liability had been established for breach of fiduciary duty. See also Frame
v Smith, [1987] 2 SCR 99, 42 DLR (4th) 81, Wilson J [Frame cited to SCR]; Norberg v
Wynrib, [1992] 2 SCR 226, 92 DLR (4th) 449, McLachlin J, as she then was, [Norberg
cited to SCR]; Lac Minerals Ltd v International Corona Resources Ltd, [1989] 2 SCR
574, 61 DLR (4th) 14, La Forest J [Lac Minerals cited to SCR].
9 Ibid at 643-44.
A THEORY OF FIDUCIARY LIABIrTY 241
status by virtue of their similarity to a category with established status.
Under the second, fact-based approach, individual relationships are recognized
as fiduciary on a case-by-case basis by virtue of their possession of
certain indicia of fiduciary relationships.
1. Status-Based Fiduciary Relationships
The status-based approach is the longest-standing and most widely
used method of identifying fiduciary relationships. Under this approach,
status determines whether a relationship is to be recognized as fiduciary.
Confronted with a given relationship, the court will categorize it (e.g., as
debtor-creditor, trustee-cestui que trust, lawyer-client) and determine
whether the category is conventionally recognized as fiduciary. If so, it is
generally treated as fiduciary. If not, it falls to be considered whether the
category ought to be recognized as having fiduciary status. Courts have
proven highly reluctant to anoint new categories of fiduciary relationship
given concerns over undue expansion of the scope of liability.
The status-based approach is not telling of the character of the fiduciary
relationship. Indeed, it is said to have evolved from a line of English
authorities in which the character of the relationship was considered unimportant
to the determination of fiduciary liability. According to Len
Sealy, centuries ago the practice was simply to determine whether a given
kind of relationship was sufficiently similar to that between trustee and
cestui que trust to be recognized as such. Over time, courts "spoke of a
'quasi-trust,' or said that the relationship was 'in some respects' or 'for
limited purposes' one of trusteeship."o No effort was made to articulate
the general kind of legal relationship within which these particular kinds
(trust, and quasi-trust) fell.
This practice gave way to the modern convention of recognizing categories
of relationship as imbued with fiduciary status. Accordingly, relationships
deemed fiduciary are considered exemplars of a distinctive kind
of legal relationship. The process of reasoning that generates status is
purely analogical: new categories of relationship are recognized as fiduciary
simply by virtue of having been found sufficiently similar to a paradigmatic
category-typically, that between trustee and cestui que trust.
As Worthington explains:
[Fliduciary law evolved from Equity's regulation of the relationship
between trustees and beneficiaries. Over time these rules were extended,
with minor modifications, to cover other situations that
seemed analogous. Now it is accepted that relationships between directors
and their companies, agents and their principals, solicitors
10 LS Sealy, "Fiduciary Relationships" [19621:1 Cambridge IJ 69 at 71.
242 (2011) 56:2 MCGll LAWJOURNAL-REVUE DEDRO1TDEMCGILL
and their clients, and partners and their co-partners are all fiduciary.
These are all 'status-based' fiduciary relationships. The status
itself inevitably attracts fiduciary impositions. 1
Problems with the status-based approach have attracted judicial notice.
In Guerin, Justice Dickson eschewed it:
[I]t is sometimes said that the nature of fiduciary relationships is
both established and exhausted by the standard categories of agent,
trustee, partner, director, and the like. I do not agree. It is the nature
of the relationship, not the specific category of actor involved
that gives rise to the fiduciary duty.'2
Justice Dickson further refused to countenance classificatory rigidity, emphasizing
that "the categories of fiduciary, like those of negligence, should
not be considered closed."' In her dissenting opinion in Frame, Justice
Wilson echoed these points and suggested that they bespeak the need for
renewed efforts at theorizing.the fiduciary relationship:
In the past the question whether a particular relationship is subject
to a fiduciary obligation has been approached by referring to categories
of relationships in which a fiduciary obligation has already been
held to be present ... As well, it has been frequently noted that the
categories of fiduciary relationship are never closed ... An extension
of fiduciary obligations to new 'categories' of relationship presupposes
the existence of an underlying principle which governs the imposition
of the fiduciary obligation.'4
Justice Wilson recognized that a general theory of fiduciary liability has
proven elusive:
[There has been a reluctance throughout the common law world to
affirm the existence of and give content to a general fiduciary principle
which can be applied in appropriate circumstances. Sir Anthony
Mason ... is probably correct when he says that "the fiduciary relationship
is a concept in search of a principle." As a result there is no
definition of the concept "fiduciary" apart from the contexts in which
it has been held to arise.1"
11 Sarah Worthington, Equity (Oxford: Oxford University Press, 2003) at 129 [Worthington,
Equity].
12 Supra note 7 at 341.
"s Ibid.
14 Supra note 8 at 134-35. She added: 'The failure to identify and apply a general fiduciary
principle has resulted in the courts relying almost exclusively on the established list
of categories of fiduciary relationships and being reluctant to grant admittance to new
relationships despite their oft-repeated declaration that the category of fiduciary relationships
is never closed" (ibid at 135).
15 Ibid.
A THEORY OF FIDUCIARY LIABwILTY 243
Rather than hazard a theory of liability, or even a definition of the fiduciary
relationship, Justice Wilson championed the fact-based approach
to identifying fiduciary relationships.
2. Fact-Based Fiduciary Relationships
As might be expected, under the fact-based approach, facts rather
than status drive the determination of the nature of the relationship. The
analysis is, in principle, straightforward. A relationship may be identified
as fiduciary by virtue of its possession of certain characteristics or indicia
of recognized fiduciary relationships.16 Stipulation of the indicia has been
the central challenge faced by the Court in developing this approach. An
initial foray is found in Justice Wilson's judgment in Frame:
[There are common features discernible in the contexts in which fiduciary
duties [has] been found to exist and these common features
do provide a rough and ready guide to whether or not the imposition
of a fiduciary obligation on a new relationship would be appropriate
and consistent.
Relationships in which a fiduciary obligation have been imposed
seem to possess three general characteristics:
(1) The fiduciary has scope for the exercise of some discretion or
power
(2) The fiduciary can unilaterally exercise that power or discretion
so as to affect the beneficiary's legal or practical interests.
(3) The beneficiary is peculiarly vulnerable to or at the mercy of the
fiduciary holding the discretion or power.17
In subsequent cases, the Supreme Court affirmed Justice Wilson's list
and sought to refine and expand upon it. Its efforts did not prove terribly
fruitful. In. two landmark cases, the Court was deeply split on the salience,
meaning, and relative priority of a range of indicia.
In the first, Lac Minerals, the Justices disagreed whether a fiduciary
relationship had been established between mining companies negotiating
towards a joint venture. The junior company, Corona, possessed commercially
valuable information concerning the mining prospects of certain
property. It needed to establish a joint venture with a senior mining company
to develop it and commenced negotiations to that end with Lac Min-
16 As McCamus explained, "[F]iduciary relationships may also arise in relationships that
do not come within the prescribed list, provided that, on its facts, the particular relationship
possesses the requisite fiduciary character." John D McCamus, "Prometheus
Unbound: Fiduciary Obligation in the Supreme Court of Canada" (1997) 28:1 Can Bus
LJ 107 at 108.
17 Supra note 8 at 136.
244 (2011)56:2 MCGILLAWJOURNAL~ REVUEDEDROrrDEMCGlL
erals. Lac Minerals subsequently purchased and developed the property
based on information disclosed to it in confidence by Corona during the
negotiations. Lac Minerals was sued for breach of contract, confidence,
and fiduciary duty. A majority of the Court agreed that breach of confidence
had been proved. The question whether the relationship between
the joint venturers was fiduciary, proved far more difficult and divisive.
Justice La Forest for the minority on the issue held that a fiduciary relationship
had been established. In so doing, he identified a range of new
indicia of fiduciary relationships, including influence, ascendancy, disclosure
of confidential information, trust, and confidence.1s He also emphasized
the reasonable expectations of the parties as determined by industry
custom.19 Defining vulnerability as susceptibility to harm,20 Justice La
Forest de-emphasized it, saying "vulnerability is not ... a necessary ingredient
in every fiduciary relationship ... when it is found it is an additional
circumstance that must be considered in determining if the facts give rise
to a fiduciary obligation."21
Justice Sopinka for the majority on the issue denied that the facts disclosed
a fiduciary relationship. In reaching his conclusion, he rejected the
extensive list of indicia proposed by Justice La Forest. Justice Sopinka
endorsed Justice Wilson's list from Frame.22 He also insisted that "dependency
or vulnerability" is the one "indispensable" characteristic of fiduciary
relationshipS23 and held that vulnerability must be "physical or
psychological" in nature.24
The next and last significant effort by the Court to develop the factbased
approach came in Hodgkinson v. Simms.25 Hodgkinson, an investment
professional, sought and obtained the advice of Simms, a tax and investment
advisor, on tax planning and tax-sheltered investmentsmatters
foreign to his expertise. On the basis of that advice, he invested in
a series of real estate developments. Unbeknownst to Hodgkinson, Simms
received referral fees from the developers. The real estate market crashed
and Hodgkinson lost his investment. Hodgkinson sued Simms for breach
1s Lac Minerals, supra note 8 at 648, 656-66.
1o Ibid at 659-62.
20 Ibid at 663.
21 Ibid at 662.
22 Ibid at 598.
23 Ibid at 599.
24 Ibid at 606.
25 Hodgkinson v Simms, [1994] 3 SCR 377, 117 DLR (4th) 161 [Hodgkinson cited to SCRI.
ATHEORYOF FIDUCIARY IABIDTY 245
of fiduciary duty, claiming he would not have invested, and thus suffered
the loss, had he known of Simms' interest.
The Court was again deeply divided. Justice La Forest, now writing
for the majority, held that a fiduciary relationship had been established.
In reaching that conclusion, he questioned the indicia emphasized by the
dissent. First, Justice La Forest again resisted the claim that vulnerability
is essential: "[V]ulnerability is not the hallmark of [the] fiduciary relationship
though it is an important indicium of its existence."26 In his view,
vulnerability is an insufficiently precise indicium of the fiduciary relationship
because it is also characteristic of other relationships treated differently
in law and equity. Second, Justice La Forest disputed the relevance
of equality of bargaining power.27 Lastly, he dismissed the idea that
a contract between individuals is incompatible with the existence of a fiduciary
relationship between them.28
Justice La Forest explained how, in his view, fact-based analysis
ought to be undertaken. He identified several "non-exhaustive examples
of evidential factors", reaffirming the relevance of discretion, influence, reliance,
and trust.29 To this, he added confidentiality and the "complexity
and importance of the subject matter".30 He also said that provision of advice
is a critical characteristic of some ("advisory") fiduciary relationships.
3' Justice La Forest intimated, but did not explain, a distinction between
analyses appropriate respectively to commercial and advisory relationships,
32 Suggesting it should be more difficult to establish the former
as fiduciary.33 Under the rubric of "community or industry standards", he
reaffirmed the relevance of industry and professional custom.34 Finally, he
26 Ibid at 405.
27 Ibid at 406.
28 In his words, "[The existence of a contract does not necessarily preclude the existence
of fiduciary obligations between the parties. On the contrary, the legal incidents of
many contractual agreements are such as to give rise to a fiduciary duty" (ibid at 407).
29 Ibid at 409.
3o Ibid at 410.
31 He cited Shepherd approvingly: "It appears to be settled that any person can, by offering
to give advice in a particular manner to another, create in himself fiduciary obligations
stemming from the confidential nature of the relationship created" (ibid at 417,
citing JC Shepherd, The Law of Fiduciaries (Toronto: Carswell, 1981) at 28). Neither
Shepherd nor La Forest J clarified the "particular manner" in which the provision of
advice generates fiduciary obligations or explained the "confidential nature" of relationships
between advisor and advisee.
32 Hodgkinson, supra note 25 at 417-20.
3 Ibid at 414.
34 Ibid at 411-13, 423-25.
246 (2011) 56:2 MCGH-LIAWJOURNAL.~ REVUE DE DROrr DEMCGIu.
again argued that determination of the "reasonable expectations of the
parties" is essential. 5
In a forceful dissent, Justices Sopinka and McLachlin, as she then
was, denied that the relationship was fiduciary. They were critical of the
ever-expanding list of indicia endorsed by the majority, fearing it would
exacerbate uncertainty over the scope of liability. They rejected the idea
that provision of advice is itself pertinent saying "the cases suggest that
the distinguishing characteristic, between advice simpliciter and advice
giving rise to a fiduciary duty is the ceding by one party of effective power
to the other."36 Justices Sopinka and McLachlin also dismissed the suggestion
that any significance attaches to a distinction between commercial
and advisory relationships.7
Justices Sopinka and McLachlin confined their analysis to commonly
cited indicia. Justice Wilson's list from Frame was again endorsed.38 Also
emphasized were trust, confidence, dependence and reliance.3" Most significantly,
they attempted to bring stability to the fact-based analysis by
adding an assessment of magnitude. Speaking first of trust and confidence,
Justices Sopinka and McLachlin said:
The difficulty lies in determining what measure of confidence and
trust are sufficient to give rise to a fiduciary obligation. An objective
criterion must be found to identify this measure if the law is to permit
people to conduct their affairs with some degree of certainty ...
Accepting that a bright line may be elusive, is there some hallmark
that provides a reliable indicator of the acceptance of a fiduciary obligation?
The vast disparity between the remedies for negligence and
breach of contract ... and those for breach of fiduciary obligation, impose
a duty on the court to offer clear assistance to those concerned
to stay in the former camp and not stray into the latter.40
Shifting focus to reliance, they essentially drew that bright line:
Phrases like "unilateral exercise of power", "at the mercy of the
other's discretion" and "has given over that power" suggest a total reliance
and dependence on the fiduciary by the beneficiary ... Reliance
is not a simple thing. As Keenan J. notes in Varcoe v. Sterling at
p.235, "[t]he circumstances can cover the whole spectrum from total
3. Ibid at 411-13.
3 Ibid at 466.
3 Ibid at 468-70.
38 Ibid at 462, citing Frame, supra note 8 at 136.
3 Ibid at 465.
40 Ibid at 465-66.
A THEORY OF FIDUCIARY LIABILIfY 247
reliance to total independence". To date, the law has imposed a fiduciary
obligation only at the extreme of total reliance.41
The last claim is questionable.42 Clearly the dissenting justices recognized
the need to add a measure of discipline to reasoning under the factbased
approach. Unfortunately it does not admit of discipline.
3. Problems with the Status- and Fact-Based Approaches
The Supreme Court of Canada is clearly aware of difficulties with the
status- and fact-based approaches. However, it appears to have harboured
hope that they might be resolved. In fact, neither approach is salvageable.
Neither affords a principled basis for the ascription of liability. As such,
neither affords the predictability and flexibility expected of liability rules
at common law. Further, neither approach is capable of vindicating the
idea that fiduciary liability is premised upon essential characteristics of
the fiduciary relationship.
Consider first the status-based approach. As mentioned earlier, under
this approach, status drives relationship characterization and is thus the
basis for ascription of liability. The status-based approach is unprincipled
for the simple reason that determinations of status are not conceptually
disciplined. They lack reasoned justification. Courts have failed to say
which similarities justify analogies drawn between a given category of relationship
and a paradigmatic category. 43 Further, they have failed to explain
the process of reasoning by which analogies are to be drawn.
Inconsistency is a predictable consequence of unprincipled mechanisms
for the determination of liability. Inconsistencies of reasoning and
result are found in cases decided under the status-based approach. Inconsistency
of the former variety is found in disagreement over similarities
that justify treating one category of relationship as analogous to another.
In some cases, emphasis is laid upon the extent to which the categories of
relationship invite or require trust and confidence.44 In other cases, pri-
41 Ibid at 467-68 [emphasis added].
42 As Flannigan points out, 'Though the two judges purported to extract this test from the
usual suspects (Dickson in Guerin, Wilson in Frame, Weinrib, Finn, Shepherd,
Frankel), there is simply no jurisprudential or conceptual foundation for it" (supra note
2 at 73).
43 The failure to supply even minimal criteria of relevance to constrain the analogical reasoning
is problematic. As Glover recognized: "Analogical reasoning lies at [the] heart of
equity's development. But we should pause ... Quite irrelevant likenesses can establish
a common link between two things" (supra note 7 at 271).
44 In arguing that the physician-patient relationship ought to be recognized as fiduciary,
McLachlin J noted that "it is readily apparent that the doctor-patient relationship
248 (2011) 56:2 MCIGuLAwJOURNAL -REVUE DE DROlT DE McGuL
mary weight is given to the degree to which the categories of relationship
feature vulnerability, or engender reliance.45 In yet others, the emphasis
is on inequality of power.46 Inconsistencies in result are most clearly reflected
in significant cross-jurisdictional variation in lists of recognized
categories of fiduciary relationship. For instance, Commonwealth .courts
have been divided on the question whether the physician-patient relationship
should be considered fiduciary.47
These inconsistencies have troubling implications for the rule of law
requirement that the common law provide a reliable guide to rightful conduct.
Because the similarities motivating analogical reasoning have been
left undefined, individuals in categories of relationship whose status is
undetermined face uncertainty over the terms governing their relationship.
Parties to a relationship of recognized fiduciary status are only
slightly better off. Worthington overstates in saying that "status itself invariably
attracts fiduciary impositions."48 The Supreme Court of Canada
has repeatedly said that relationships will not always be treated as fiduciary
in spite of their status.49 This compounds existing uncertainty. But
more importantly, it fundamentally undermines the status-based approach,
raising the question: If status does not invariably make a relationship
fiduciary, what does?
shares the peculiar hallmark of the fiduciary relationship-trust" (Norberg, supra note
8 at 272).
45 Vulnerability has been said to justify treating parent-child and guardian-ward relationships
as akin to those of other status categories of fiduciary relationship. See e.g. KLB,
supra note 5 at para 38.
46 See Guerin, supra note 7. Dickson J argued that the discretionary power wielded by the
Crown over property owned by an aboriginal band justified treating the Crownaboriginal
relationship as fiduciary in a manner akin to the relationship between trustee
and cestui que trust.
47 Norberg, supra note 8; Sidaway v Bethlem Hospital Board of Governors, [1984] 1 QB
493, 2 WLR 778 (CA), affd [1985] AC 871 (HL); Breen v Williams, [19961 HCA 57, 186
CLR 71.
48 Equity, supra note 11 at 129.
49 In Lac Minerals, after reviewing accepted categories of fiduciary relationship, Sopinka J
stated, "[Tlhe nature of the relationship may be such that, notwithstanding that it is
usually a fiduciary relationship, in exceptional circumstances it is not" (supra note 8 at
597). Glover echoes the point:
Fiduciaries of the familiar sort are sometimes said to be within "accepted
categories" of fiduciary relationship ... Calling these relationships "accepted"
means no more than that courts habitually invest them with a fiduciary consequence.
Fiduciary characterisation is not presumed. ... Defendants are
brought within the court's range of reliable inference, subject to special circumstances
obtaining (supra note 7 at 269).
ATIHEORYOF FIDUCuRY LuAntrrY 249
The fact-based approach was borne of the recognition that the statusbased
approach is unprincipled and inflexible. Yet it has never supplanted
the status-based approach. Rather, it is has been relegated to use at the
margins of status, in cases where courts prefer to make a one-off decision
rather than rule on the broader-reaching question of status.50 The factbased
approach is an important advance on the status-based approach inasmuch
as it directs attention to general characteristics of fiduciary relationships.
It marks significant progress on the idea that fiduciary liability
is distinctive and coherent, being premised on essential characteristics of
the fiduciary relationship. Nevertheless, the fact-based approach has
foundered because it is inherently incapable of vindicating that idea. Efforts
to identify and list characteristics of a thing, actual or conceptual,
may be of little use ii revealing its essential nature. Furthermore, a clear
concept of a thing is a precondition to accurate evaluation of representations
as to its qualities.
Like the status-based approach, then, the fact-based approach is unprincipled.
It affords flexibility at the cost of predictability. The process of
reasoning employed is direct rather than analogical, yet it remains undisciplined.
Opacity on the character of the fiduciary relationship is at once a
50 The relationship between the approaches has never been well-articulated but in Lac
Minerals La Forest and Sopinka JJ expressed similar views (supra note 8). La Forest J
claims the law would be clearer were it recognized that bona fide fiduciary relationships
are of two broad kinds. For relationships of the first kind (status-based fiduciary relationships),
[t]he focus is on the identification of relationships which, because of their inherent
purpose or their presumed factual or legal incidents, the courts will
impose a fiduciary obligation on one party to act or refrain from acting in a
certain way. ... The presumption that a fiduciary obligation will be owed in
the context of such a relationship is not irrebuttable, but a strong presumption
will exist that such an obligation is present (ibid at 646-47).
Regarding relationships falling within the second (fact-based) kind, La Forest J commented:
The imposition of fiduciary obligations is not limited to those relationships in
which a presumption of such an obligation arises. Rather, a fiduciary obligation
can arise as a matter of fact out of the specific circumstances of a relationship.
As such, it can arise between parties in a relationship in which fiduciary
obligations would not normally be expected (ibid at 648).
According to Sopinka J:
When the Court is dealing with one of the traditional relationships, the characteristics
or criteria for a fiduciary relationship are assumed to exist. In special
circumstances, if they are shown to be absent, the [status of the] relationship
itself will not suffice. Conversely, when confronted with a relationship
that does not fall within one of the traditional categories, it is essential
that the Court consider: what are the essential ingredients of a fiduciary relationship
and are they present? (ibid at 598).
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cause and consequence of the indiscipline. As Worthington has said of the
lists of indicia that guide the fact-based approach, "[T]he difficulty has always
been that these descriptors, although apt to describe relationships
where fiduciary obligations are imposed, are often equally apt when such
obligations are absent. It follows that they cannot adequately and restrictively
define the incidence of fiduciary obligations."1 Peter Birks expressed
similar concerns:
The difficulty with "fiduciary" is that its meaning has been allowed
to become completely uncertain. ... A fiduciary relationship is, or
ought to be, a continuing event, like a marriage. It has a beginning,
and a continuation; and a fiduciary is, or ought to be, a party to that
relationship, just as a spouse is to a marriage. We know how to determine
which relationships are marriages. But the same cannot be
said of fiduciary relationships. It is manifestly impossible to predict
whether a relationship will or will not be accounted fiduciary when a
case comes to court. In many of the leading cases distinguished
judges have been almost equally divided as to whether or not a relationship
was fiduciary. The necessary elements can be spelled out....
But it turns out that this has a very low predictive yield.52
As explained above, agreement on characterization of the fiduciary relationship
proved elusive. Members of the Court failed to reach consensus
on the identification, meaning and relative priority of indicia. Certain indicia
were endorsed by some and disputed by others (e.g., equality of bargaining
power). Others were endorsed by all, but accorded differing degrees
of priority (e.g., vulnerability). Further, the meaning of the indicia
was left unclear.63
As Birks noted, these failings have brought inconsistency in implementation.
The authorities reveal considerable variation in the identification
of particular indicia as pertinent to the determination whether a relationship
is fiduciary on the facts.64 With respect to the relative priority of
51 Worthington, "Fiduciaries", supra note 3 at 505 [emphasis in original, footnotes ommited].
52 Peter Birks, "Equity in the Modern Law: An Exercise in Taxonomy" (1996) 26:1 UWA L
Rev 1 at 17-18 [footnotes omitted].
53 For instance, it has remained unclear whether all forms of trust signal the establishment
of a fiduciary relationship, and if not, which form(s) and why; whether all forms of
inequality of power suggest that a given relationship is fiduciary, and if not, which
form(s) and why; whether all forms of vulnerability suggest that a relationship is fiduciary,
and if not, which form(s) and why; whether all transactions of confidential information
suggest the establishment of a fiduciary relationship, and if not, what kind(s)
and why.
54 For instance, in Frame, Wilson J emphasized scope for discretion, impact upon the
beneficiary's practical interests, and vulnerability (supra note 8 at 136). In Norberg,
McLachlin J focused upon trust, power, and vulnerability (supra note 8 at 271-73). In
A THEORY OF FIDUCARY IABLiYY 251
indicia, some courts take proof of vulnerability to be dispositive, while
others deem the presence of discretionary power decisive.55 With respect
to the meaning of indicia, some understand vulnerability as circumstantial
in nature (i.e., as based on economic, social, or psychological factors),
while others take it to be structural (i.e., as founded by the nature of the
relatiohship).6 Uncertainty over the scope of liability is again a predictable
result of such inconsistency57 and, as noted above, it is problematic in
light of the demands of the rule of law.
The status- and fact-based approaches to the identification of fiduciary
relationships reflect the entrenchment of the conventional position on fiduciary
liability. Some method of identifying fiduciary relationships is necessitated
by the view that fiduciary liability is premised upon the establishment
of a fiduciary relationship. But neither method is capable of vindicating
the implicit idea that the fiduciary relationship is a distinctive
kind of legal relationship that founds a distinctive category of obligation.
It is thus natural to question whether the conventional view rests upon a
mistake. Is it possible that there is nothing distinctive about fiduciary relationships?
Is it possible that the fiduciary relationship is not a legal kind
but a mere saying, the product of careless imagination or unreflective customary
expression?
This is the challenge put by conventional economic analysis of fiduciary
obligation. According to economists, there is nothing distinctive about
fiduciary obligation and talk of fiduciary relationships is nonsensical. Fiduciary
duties are contractual in nature. The most insistent advocates of
this view, Frank Easterbrook and Daniel Fischel, assert that there is
nothing "special about fiduciary relations" and that "[s]earching for the
right definition of a fiduciary duty is not a special puzzle ... there is no
Lac Minerals, La Forest J considered vulnerability, trust and confidence, and industry
practice (supra note 8 at 656-66).
55 Compare the opinions of Sopinka J in Lac Minerals and Dickson J in Guerin (Lac Minerals,
supra note 8 at 606; Guerin, supra note 7 at 385). Sopinka J suggests that proof of
vulnerability is of singular importance to the identification of fiduciary relationships.
Dickson J argued that fiduciary relationships are centered on the exercise of discretionary
power.
56 Compare the statements of La Forest J in Lac Minerals to the effect that proof of vulnerability
requires mere susceptibility to harm, with those of Dawson J in Hospital
Products, who states that the relevant sort of vulnerability is that which inheres in the
fiduciary relationship (Lac Minerals, supra note 8 at 663; Hospital Products, supra note
.8).
57 It is also bred by comments such as the following by Sopinka J in Lac Minerals: "It is
possible for a fiduciary relationship to be found although not all of these characteristics
are present, nor will the presence of these ingredients invariably identify the existence
of a fiduciary relationship" (supra note 8 at 63 at 599).
252 (2011) 56:2 McGL IAWJOURNAL REVUE DE DROIT DE MCGL
subject here, and efforts to unify it on a ground that presumes its distinctiveness
are doomed." 58
Easterbrook and Fischel's assertion is just that, but it presents a bracing
challenge. The conventional view has operated for too long upon approximation.
For the challenge to be met, the jurisprudence must advance.
The required advance is not the generation of a fixed, complete,
and prioritized list of indicia. A perfect set of descriptors would still fail to
supply a coherent idea of the fiduciary relationship. Among the indicia
identified to date are the essential characteristics of the fiduciary relationship.
What is required is an account of the fiduciary relationship in
which these ingredients achieve clear significance. In Part II, I will argue
that such an account is within reach and, in Part III, I shall explain how
it might be elaborated.
B. The Foundadon ofFiducay Obhgadon
The conventional view holds that fiduciary liability turns on breach of
duties occasioned by the fiduciary relationship. Accordingly, a credible
theory of liability requires not merely a clear idea of the fiduciary relationship,
but also an account of relationship formation and an explanation
of how fiduciary relationships found obligations conventionally attributed
to them. These matters have attracted less attention in the authorities.
Nevertheless, the Supreme Court of Canada has ventured opinions on
them.
1. The Formation of Fiduciary Relationships
Justice Dickson in Guerin said that a fiduciary relationship may be established
"by statute, agreement, or perhaps by unilateral undertaking."9
He did not elaborate further. However, it was apparently contemplated
that fiduciary. relationships may be established by law (i.e., by legislative,
perhaps judicial, decree); by mutual consent of the parties to the relationship;
or by unilateral expression of will by the fiduciary. Each mode of relationship
formation accords with a common sense view of the initiation of
relationships of recognized fiduciary status. The relationship between
birth parent and child must be fiduciary as a matter of right, for the parent
need not positively assent to the relationship and the child is incapable
of doing so. Relationships between professionals and clients (e.g., physician-
patient and lawyer-client) are typically the product of mutual consent-
signified by formal consent, contract, or retainer. Other relation-
58 Easterbrook & Fischel, supra note 1 at 438.
59 Supra note 7 at 384.
A THEORY OF FIDUCIARY LIABROY 253
ships (e.g., guardian and ward) are typically established by the unilateral
initiative of the fiduciary.
Regrettably, this still leaves much unclear, including the conditions
under which a given mode of formation will be effective. It must be rare
indeed that a fiduciary relationship will be formed as a matter of right irrespective
of the wishes of the parties to it. Likewise, unilateral establishment
of the fiduciary relationship by the fiduciary must be exceptional.
One would expect that in most cases fiduciary relationships must
be established by mutual consent. In any case, it is important to know
where mutual consent will be required, when an undertaking should suffice,
and what justifies constructive recognition of a fiduciary relationship.
Of course, definitive answers require clarity on the essential character of
the fiduciary relationship. What is the substance of the agreement, undertaking,
or decree that founds a fiduciary relationship? The authorities
have not yet supplied a decisive answer.60
2. The Basis of Fiduciary Duties
Uncertainty over the essential character of the fiduciary relationship
has also obscured the connection between the fiduciary relationship and
fiduciary duties. The Supreme Court of Canada has variously said that fiduciary
duties are founded upon inequality, dependence or vulnerability
or both in fiduciary relationships. However, the meaning of these characteristics
has remained unclear. It is also unclear whether these characteristics
are extrinsic, circumstantial qualities of fiduciary relationships or
intrinsic, structural qualities. On the latter view, the justification for fiduciary
duties may be understood as inhering in the nature of the fiduciary
relationship, and as such, stable and fixed. On the former view, the justification
for fiduciary duties turns upon the exigencies of a given relationship,
in which case it is contingent and variable.
60 Some authorities suggest that the substance lies in the representative character of fiduciary
decision-making. The fiduciary, it is said, agrees, undertakes or is taken to act for
or on behalf of the beneficiary. See the judgment of Mason J in Hospital Products,
wherein it is stated that the fiduciary relationship arises where "the fiduciary undertakes
or agrees to act for or on behalf of ... another person" (supra note 8 at 96-97). See
also Austin W Scott, 'The Fiduciary Principle" (1949) 37:4 Cal L Rev 539 at 540: "A fiduciary
is a person who undertakes to act in the interest of another person. It is immaterial
whether the undertaking is in the form of a contract. It is immaterial that the
undertaking is gratuitous." These statements raise questions about the character of the
fiduciary relationship. Several recognized categories of fiduciary relationship do not implicate
the fiduciary as representative of the beneficiary (e.g., some are advisory). Furthermore,
the nature of representation contemplated is unclear. One can "act for or on
behalf' of another individual in innumerable ways. It cannot be that any representative
conduct attracts fiduciary strictures.
254 (2011) 56:2 McGLLLIAwJOURNAL -RFVUE DE DROIT DE McGu.L
In Norberg, Justice McLachlin offered that fiduciary duties address
inherent inequality of power in the fiduciary relationship. Distinguishing
fiduciary liability from tort and contractual liability, she argued, "[T]he fiduciary
approach, unlike those based on tort or contract, is founded on the
recognition of the power imbalance inherent in the relationship between
fiduciary and beneficiary."61 Later in Norberg she added, "[I]n the absence
of ... a discretion or power and the possibility of abuse of power which it
entails, 'there is no need for a superadded obligation to restrict the damaging
use of the discretion or power'."62 To much the same effect, in a minority
opinion in Blueberry River Indian Band v. Canada (Department of
Indian Affairs and Northern Development) she said: "Where a party is
granted power over another's interests, and where the other party is correspondingly
deprived of power over them, or is 'vulnerable', then the
party possessing the power is under a fiduciary obligation to exercise it in
the best interests of the other."63
In other cases, emphasis has been laid upon the dependence of the
beneficiary upon the fiduciary. Dependence is usually taken to mean that
certain interests of the beneficiary are subject to influence by the fiduciary.
64 The idea is that fiduciary duties mitigate dependence by protecting
the beneficiary from adverse influence. However, there is disagreement
over the salience of varieties of dependence. Some authorities attribute
dependence to circumstantial inequalities.65 Others focus upon intrinsic
dependence.66
61 Norberg, supra note 8 at 289.
62 Ibid at 275-76, citing Frame, supra note 8 at 136, Wilson J.
63 [1995] 4 SCR 344 at para 115, 130 DLR (4th) 193, McLachlin J, as she then was [Blueberry
River].
64 So, for instance, Wilson J stated that a would-be fiduciary must be able to "exercise ...
power or discretion so as to affect the beneficiary's legal or practical interests" (Frame,
supra note 8 at 136). Likewise, La Forest J in Hodgkinson spoke of the fiduciary as one
who enjoys "influence over interests" of the beneficiary (supra note 25 at 409). Similarly,
Mason J in Hospital Products said, "It is partly because the fiduciary's exercise of the
power or discretion can adversely affect the interests of the person to whom the duty is
owed and because the latter is at the mercy of the former that the fiduciary comes under
a duty to exercise his power or discretion in the interests of the person to whom it is
owed" (supra note 8 at 97).
65 For example, Sopinka J in Lac Minerals suggested that "a kind of physical or psychological
dependency [attracts the imposition ofJ fiduciary duty" (supra note 8 at 606).
66 See the opinion of Dawson J in Hospital Products, supra note 8 at 142 [emphasis added,
references omitted]:
There is ... the notion underlying all the cases of fiduciary obligation that inherent
in the nature of the relationship itself is a position of disadvantage or
vulnerability on the part of one of the parties which causes him to place reliance
upon the other and requires the protection of equity acting upon the
A THEORYOF FIDuCiARYLIABILnY 255
It is most commonly said that fiduciary duties are founded upon the
beneficiary's vulnerability to the fiduciary. The meaning of vulnerability,
however, is unsettled. It has been equated with dependence,67 weakness,
and incapacity.68 More commonly, it is said to mean susceptibility to
harm.69 Again, there is disagreement over salience. There is authority for
the view that vulnerability is salient whatever its origin.70 Some cases
specifically indicate that circumstantial vulnerabilities are pertinent7'
Other cases indicate that vulnerability is a structural quality of the fiduconscience
of that other ... From that springs the requirement that a person
under a fiduciary obligation shall not put himself in a position where his interest
and duty conflict or, if conflict is unavoidable, shall resolve it in favour
of duty and shall not, except by special arrangement, make a profit out of his
position.
67 See e.g. the judgment of Sopinka and McLachlin JJ in Hodgkinson, who define vulnerability
as "implicit dependency" (supra note 25 at 467).
68 Here there is apparent conflation of cause with meaning. See especially Wilson J's
judgment in Frame where she said, "[V]ulnerability arises from the inability of the
beneficiary (despite his or her best efforts) to prevent the injurious exercise of the
power" (supra note 8 at 137).
69 See e.g. Lac Minerals, supra note 8 at 40, La Forest J, citing the Oxford English Dictionary,
2d ed, sub verbo "vulnerable": "Persons are vulnerable if they are susceptible to
harm, or open to injury." He later reaffirmed his position in Hodgkinson saying: "Vulnerability
is nothing more than the corollary of the ability to cause harm, viz., the susceptibility
to harm" (supra note 25 at 430).
70 See the judgment of La Forest J in Hodgkinson, in which it is said that vulnerability so
understood underlies the law on undue influence, unconscionability, and negligent misstatement
in addition to fiduciary liability (supra note 25 at 405).
71 For example, in determining that a relationship between a physician and patient was
fiduciary, McLachlin J in Norberg noted of the patient: "[Hier status as a patient rendered
her vulnerable and at his mercy, particularly in light of her addiction" (supra note
8 at 275). Further on she added, "It is only where there is a material discrepancy, in the
circumstances of the relationship in question, between the power of one person and the
vulnerability of the other that the fiduciary relationship is recognized by the law" (ibid
at 278). She later hedged this position:
[A] patient's vulnerability may be as much physical as emotional ... Whether
physically vulnerable or not ... the patient, by reason of lesser expertise, the
"submission" which is essential to the relationship, and sometimes, as in this
case, by reason of the nature of the illness itself, is typically in a position of
comparative powerlessness. The fact that society encourages us to trust our
doctors, to believe that they will be persons worthy of our trust, cannot be ignored
as a factor inducing a heightened degree of vulnerability (ibid at 278-
79 [emphasis added]).
Elsewhere in her judgment, McLachlin J identifies other circumstantial origins of vulnerability,
arguing that "[w]omen, who can so easily be exploited by physicians for sexual
purposes, may find themselves particularly vulnerable" (ibid at 279) and that "the
emotional fragility of many psychotherapy patients [makes] the argument for a fiduciary
obligation resting on psychotherapists ... especially strong" (ibid at 280).
256 (2011) 56:2 McGuLLAWJOURNAL-REVUEDEDROITDEMCGILL
ciary relationship and that only when so understood is it salient for the
purposes of fiduciary law.72
While inequality, dependence, and vulnerability are now routinely
identified as qualities of fiduciary relationships that justify fiduciary duties,
their meaning and salience have not been consistently stated or
properly explained. Clarity on these points is essential to the development
of a sound theory of fiduciary liability.


C The Name and Scope ofFiduciary Obliaton
The authorities are clearer on the nature and scope of fiduciary duties.
The Supreme Court of Canada has hewed to the now-conventional view
that fiduciary law is principally concerned with the faithfulness of fiduciaries
to beneficiaries.73 Faithfulness is exacted by the fiduciary duty of
72 Tamar Frankel has put this view particularly well:
It is important to emphasize that the entrustor's vulnerability to abuse of
power does not result from an initial inequality of bargaining power between
the entrustor and fiduciary ... The relation may expose the entrustor to risk
even if he is sophisticated, informed, and able to bargain effectively. Rather,
the entrustor's vulnerability stems from the structure and nature of the fiduciary
relation. The delegated power that enables the fiduciary to benefit the
entrustor also enables him to injure the entrustor, because the purpose for
which the fiduciary is allowed to use his delegated power is narrower than
the purposes for which he is capable of using that power (Tamar Frankel,
"Fiduciary Law" (1983) 71:3 Cal L Rev 795 at 810).
This point has been expressed in similar ways in several leading cases. In Hospital
Products, three justices of the High Court of Australia were in agreement on this point
(supra note 8). Gibbs CJA, as he then was, struggled to define the principles on which
fiduciary obligations are to be imposed, and suggested in the end that "the reason for
the principle lies in the special vulnerability of those whose interests are entrusted to the
power of another to the abuse of that power" (ibid at 68 [emphasis added]). Mason J explained
that "The relationship between the parties is ... one which gives the fiduciary a
special opportunity to exercise the power or discretion to the detriment of [the beneficiary]
who is accordingly vulnerable to abuse by the fiduciary of his position" (ibid at 97).
Dawson J explained that "There is ... the notion underlying all the cases of fiduciary obligation
that inherent in the nature of the relationship itself is a position of disadvantage
or vulnerability on the part of one of the parties" (ibid at 142 [emphasis added]). In a
statement affirmed by La Forest J for the majority in Hodgkinson, Lambert J explained
that "the concept of vulnerability ... is nothing other than a description of the victim's
situation when he is in a position where the fiduciary can exert influence over him by
abusing his confidence in order to obtain an advantage": Burns u Kelly Peters & Associates
Ltd (1987), 41 DLR (4th) 577 at 600, 6 WWR 1 (BCCA), cited in Hodgkinson, supra
note 25 at 430.
7 There is considerable debate over the content and function of the duty of loyalty. See
generally Conaglen, supra note 2: Deborah A DeMott, "Breach of Fiduciary Duty: On
Justifiable Expectations of Loyalty and Their Consequences" (2006) 48:4 Ariz L Rev
925; Arthur B Laby, "Resolving Conflicts of Duty in Fiduciary Relationships" (2004)
A THEORY OF FIDUCIARY IAABIm 257
loyalty, which in turn consists of the two so-called conflict rules. First is
the requirement that the fiduciary avoid conflicts between pursuit of his
self-interest and fulfilment of his duty to act for the benefit of the beneficiary
(the conflict of interest rule). Second is the requirement that the fiduciary
avoid conflicts between this duty and the pursuit of others' interests
(the conflict of duty rule).74
The Supreme Court of Canada has largely sidestepped the debate on
whether there are additional fiduciary duties. It has regularly invoked the
trite and analytically unhelpful maxim that not every obligation imposed
upon a fiduciary is fiduciary in nature.75 Contrary to the impression given
by some canonical statements on fiduciary obligation, the Court has insisted
that fiduciaries are not positively obligated to act in the best interests
of beneficiaries.76 It has rightly noted that fiduciaries have never been
held accountable for the fate of the interests of beneficiaries.77 More con-
54:1 Am U L Rev 75; John H Langbein, "Questioning the Trust Law Duty of Loyalty:
Sole Interest or Best Interest?' (2005) 114:5 Yale L J 929.
74 The conflict rules are encapsulated by Binnie J's formulation of the duty of loyalty as
one which requires the fiduciary to "avoid situations where he has, or potentially may,
develop a conflict": Strother, supra note 5 at para 51, citing Ramrakha v Zinner (1994),
157 AR 279 (CA) at para 73. In R v Neil, the rules were delineated in the following
statement, wherein it was held that lawyers, as fiduciaries, must avoid conflicts that
generate a "substantial risk that the lawyer's representation of the client would be materially
and adversely affected by the lawyer's own interests or by the lawyer's duties to
another current client, a former client, or a third person" (2002 SCC 70, [2002]
3 SCR 631 at para 31 [Neil], citing Restatement (Third) of the Law Governing Lawyers §
121 (2000)). To the same effect, see Ermineskin Indian Band and Nation a Canada,
2009 SCC 9, [2009] 1 SCR 223 at para 125, Rothstein J: "the duty of loyalty ... requires
the trustee to avoid conflicts of interest. A fiduciary is required to avoid situations
where its duty to act for the sole benefit of the trust and its beneficiaries conflicts with
its own self-interest or its duties to another."
75 See e.g. Lac Minerals, supra note 8 at 597. Sopinka J stated that "not all obligations existing
between the parties to a well-recognized fiduciary relationship will be fiduciary in
nature." More recently, the point was reiterated in Wewaykum Indian Band v Canada,
2002 SCC 7, [20021 4 SCR 245, Binnie J [Wewaykum].
76 Norberg, supra note 8 at 288. McLachlin J casts the scope of fiduciary obligation in
broad terms, stating, 'The essence of trust and all fiduciary relationships is that the
trustee, the person in power, assumes responsibility for the welfare of the cestui que
trust for matters falling within the scope of the trust relationship"[emphasis added].
Compare KLB, supra note 5. The chief justice denies that parents as fiduciaries are obligated
"to 'look after' the best interests of the child" (ibid at para 43), clarifying that
while "[p]arents should try to act in the best interests of their children ... failure to meet
this goal has not itself been elevated to an independent ground of liability at common
law or equity" (ibid at para 44 [emphasis in original]).
7 Ibid. As McLachin CJC explained, this kind of accountability "would seem to be a form
of result-based liability, rather than liability based on faulty actions and omissions. ...
Breach of fiduciary duty, however, requires fault. It is not result-based liability" (ibid at
para 45).
258 (2011) 56:2 McGrLLALwJOURNAL ~ REVUE DE DROIT DE MCGLL
troversially, the Court has gradually come to deny that there is a fiduciary
duty of care.'
Lest it be thought that the Court is of the settled view that fiduciary
obligation is exhausted by the duty of loyalty, it should be noted that it
has contemplated fiduciary duties of confidence and candour. 9 The denomination
of a duty as fiduciary tends not to be supported by extensive
reasoning. If the connection between fiduciary duties and the fiduciary relationship
were made clearer, the justification for taxonomic decisions
might be rendered cogent.
78 Division of opinion on this issue among members of the Court traces at least to Canson
Enterprises Ltd v Boughton & Co, [1991] 3 SCR 534, 85 DLR (4th) 129 [Canson Enterprises
cited to SCR]. The Court-grappling with the implications of the House of Lords'
decision in Nocton v Lord Ashburton and the debate over the advisability of fusion of
law and equity-was split on the relationship between legal and equitable principles
governing liability and compensation for injury due to professional negligence ([1914]
AC 932, 30 TLR 602). La Forest J for the majority spoke of a fiduciary duty of care and
dismissed as "misguided" concerns about doctrinal orderliness (Canson Enterprises, supra
note 78 at 570-89). McLachlin J, as she then was, in a minority opinion joined by
two others demurred, raising concerns about preserving doctrinal boundaries between
tort and fiduciary law and the distinctness of legal and equitable remedies (ibid at 542-
58). Later, in Hodgkinson, La Forest J reiterated that "a fiduciary obligation carries
with it a duty of skill and competence" (supra note 25 at 405). As chief justice, McLachlin
has had the latest, if not necessarily the last, word. In KLB, a case involving fiduciary
relationships between parents and children, the chief justice said that the "traditional
focus of breach of fiduciary duty is breach of trust, with the attendant emphasis
on disloyalty and promotion of one's own or others' interests at the expense of the beneficiary's
interests" (supra note 5 at para 48), noting that "[d]ifferent legal and equitable
duties may arise from the same relationship and circumstances" (ibid). Again caught up
in the broader question of the relationship between law and equity, she expressed the
view that "[e]quity does not duplicate the common law causes of action, but supplements
them" (ibid [emphasis in original]). The chief justice concluded: "Negligence, even aggravated
negligence, will not ground parental fiduciary liability unless it is associated
with breach of trust" (ibid at para 49).
7 On the duty of candour, see Neil, supra note 74 at para 19. See also Lawrence A
Hamermesh, "Calling Off the Lynch Mob: The Corporate Director's Fiduciary Disclosure
Duty" (1996) 49:5 Vand L Rev 1087. On the duty of confidence, see Lac Minerals,
supra note 8. La Forest J argued that fiduciary law originated in the equitable doctrine
of breach of confidence and expressed the view that principles of liability operative in
each are "intertwined". Sopinka J dissented from that view and the Court has since preferred
to say that liability for breach of confidence is not fiduciary in nature. In Cadbury
Schweppes Inc v FBI Foods Ltd, Binnie J clarified that the action for breach of confidence
is sui generis and emphasized that, while fiduciary duties and duties of confidence
may coincide, they enjoy distinct bases ([1999] 1 SCR 142 at paras 31-32, 167
DLR (4th) 577). The duty of confidence is founded on a relationship of confidence generated
by disclosure of confidential information. The relationship in which it arises need
not at the same time be fiduciary.
A THEORY OF FIDuCURYLYATLY 259
It is often said that the duty of loyalty demands that the fiduciary act
selflessly.8o Whether self-abnegation or something less is required, it is
plain that the law imposes a high standard of conduct upon fiduciaries. It
is thus important that the ambit of fiduciary obligation be capable of principled
delineation. The Court has indicated that the ambit of fiduciary obligation
is defined by the parameters and tenure of the fiduciary relationship.
81 This is entirely reasonable, to the extent that the relationship
founds the duties that constrain the conduct of the fiduciary. However, it
entails that the scope of liability will be uncertain until the essential
character of the fiduciary relationship is articulated in the authorities. If
inequality, dependence, vulnerability, or some combination of these characteristics
founds fiduciary obligation, the ambit of fiduciary liability may
be ascertained only when it is made clear to what end and extent the fiduciary
is answerable for these or other asymmetries generated by the fiduciary
relationship.
II. An Emerging Theory of Fiduciary Lability
Galambos finds the Supreme Court of Canada engaged in a momentous,
if overdue, reassessment of its fiduciary jurisprudence. As I shall explain,
the reassessment is significant as it offers a salutatory reinterpretation
of that jurisprudence, one suggestive of a promising theory of fiduciary
liability. However, it bears noting that the judgment stands out from
the jurisprudence in at least two important respects. First, the reasons
are conservative in scope. In previous cases, members of the Court tended
to consider a range of issues ex mero motu, considering it necessary to address
principles of fiduciary liability in the broadest possible terms, along
with problems relating to the classification of obligations and the relationship
between law and equity. The reasons of Justice Cromwell, for the
Court, in Galambos are limited to the issues put before the Court. Thus,
the reassessment of the jurisprudence, while significant, is not wholesale.
Second, the decision was unanimous. Focused reasons likely helped to
80 Birks, supra note 2. See also EDG v Hammer, 2003 SCC 52, [2003] 2 SCR 459 at para
23; Peoples Department Stores Inc v Wise, 2004 SCC 68, [2004] 3 SCR 461 at para 35.
81 On the connection between the ambit of fiduciary obligation and the scope of the fiduciary
relationship, see Peso Silver Mines Ltd (NPL) v Cropper [1966] SCR 673 at 681-82,
58 DLR (2d) 1. See also Strother, supra note 5 at paras 39-44 (the ambit of fiduciary duties
constraining the conduct of lawyers is to be determined by ascertaining the scope of
the fiduciary relationship as defined by client retainers). As for the ambit of liability
and the duration of fiduciary relationships, it should be noted that termination of the
relationship will be ineffective in excluding fiduciary liability where the fiduciary has
evidently ended the relationship to avoid duty or liability for breach. See Canadian
Aero Service Ltd v O'Malley, [1974] SCR 592, 40 DLR (3d) 371. See also Smith, 'Motive",
supra note 2 at 78.
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forestall the deep divisions of opinion that have marred the jurisprudence.
However, the unanimity may also be attributable to the facts of the case.
The facts are not especially compelling, revealing nothing of the dishonest,
sharp, or exploitative conduct typical of leading fiduciary cases. Thus,
they likely did little to excite the conscience of members of the Court. By
contrast, earlier cases are marked by heightened awareness of the distinctively
flexible and discretionary character of equitable intervention.82
While the facts in Galambos are not compelling, they are unusual. The
appellant, Galambos, was the principal of a law firm. The respondent,
Perez, was his bookkeeper. Over time, the firm came under increasing financial
strain. To alleviate the strain, Perez made several cash advances
to the firm from her personal accounts and credit facilities. The advances
totalled approximately $200,000. The advances were made voluntarily by
Perez without the direction or consent of Galambos. Most were also made
without his prior knowledge. Eventually, despite the advances, the firm
went bankrupt without Perez having been repaid. She pursued redress
against Galambos personally for negligence, breach of contract, and
breach of fiduciary duty.
The fiduciary claim was advanced on two grounds. Perez argued that,
apart from their employment relationship, she and Galambos were in an
ongoing lawyer-client relationship. Galambos had provided legal services
to Perez gratuitously on a few occasions on matters unrelated to the firm
or her employment. On that basis, she claimed that their relationship was
fiduciary as a matter of status. Perez also argued that the relationship
was marked by inequality of power and dependence. Accordingly, the relationship
was fiduciary on the facts irrespective of status. Perez argued
breach of fiduciary duty not on the basis of any disloyalty but rather for
want of reasonable care. She held the view that Galambos ought to have
been more vigilant in supervising her management of firm finances and in
protecting her from taking a personal financial interest in the firm.
The fiduciary claim failed at trial. The trial judge rejected the argument
that there was an ongoing lawyer-client relationship and that the
facts otherwise compelled recognition of a fiduciary relationship. He explained
that the legal services provided were in the nature of discrete
transactions rather than an open-ended relationship. The judge also emphasized
that Perez had not ceded any power to Galambos and was not
vulnerable to him. Accordingly, there was not a fiduciary relationship
upon which fiduciary liability might be founded. The Court of Appeal dis-
82 See e.g. Lac Minerals, supra note 8. Sopinka J excuses the Court's imprecision on the
fiduciary relationship saying that "equity has refused to tie its hands by defining with
precision when a fiduciary relationship will arise" (ibid at 596-97). See also Canson Enterprises,
supra note 78.
A THEORY OF FIDuCIARY IABILY 261
agreed. It accepted that there was no ongoing lawyer-client relationship
but held that the relationship was fiduciary on the facts given evidence of
asymmetries-inequality of power, dependence, and vulnerability-to the
advantage of Galambos and detriment of Perez. The Court of Appeal
found breach of fiduciary duty in the form of abuse of trust.
The Supreme Court of Canada reversed the Court of Appeal's judgement.
Justice Cromwell agreed with the trial judge that there was no fiduciary
relationship of status or in fact. Even supposing otherwise, there
was no breach of a recognized fiduciary duty. These findings are unimpeachable
on the facts. Of greater interest are the supporting reasons.
A. The Nature of the FiduciaiyRelationship
As explained in Part I, the Supreme Court of Canada's fiduciary jurisprudence
has been dominated by its development of the fact-based approach
to identifying fiduciary relationships as a complement to the
status-based approach. However, the Court has gradually, if inconsistently,
been moving toward an essentialist view of the fiduciary relationship.
The realization of such a view would represent a remarkable advance,
for it would make good the assumption implicit in the law that the
fiduciary relationship is a distinctive kind of legal relationship and that
fiduciary liability is a distinctive mode of private ordering. The reasoning
in Galambos reveals the most significant steps taken by the Court toward
essentialism to date.
1. The Fiduciary Relationship Defined
Despite its commitment to the status- and fact-based approaches, the
Supreme Court of Canada has repeatedly suggested that the essential
characteristic of fiduciary relationships lies in the discretionary power
wielded by fiduciaries over beneficiaries.83 Thus, in Norberg, Justice
McLachlin said that "the essence of a fiduciary relationship ... is that one
party exercises power on behalf of another."84 In Hodgkinson, Justices
Sopinka and McLachlin argued that "the distinguishing characteristic" of
3 Ernest Weinrib was amongst the first to argue that something akin to discretionary
power is an essential characteristic of all fiduciary relationships: Ernest J Weinrib,
'The Fiduciary Obligation" (1975) 25:1 UTLJ 1. He noted that the fiduciary relationship
is one "in which the principal's interests can be affected by, and are therefore dependent
on, the manner in which the fiduciary uses the discretion which has been delegated to
him" (ibid at 4). He elaborated, 'Two elements thus form the core of the fiduciary concept
and these elements can also serve to delineate its frontiers. First, the fiduciary
must have scope for the exercise of discretion, and second, this discretion must be capable
of affecting the legal position of the principal" (ibid [footnotes omitted]).
84 Supra note 8 at 272.
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the fiduciary relationship "is the ceding by one party of effective power to
the other."85 More recently, in Haida Nation v. British Columbia (Minister
of Forests),86 Chief Justice McLachlin sought to distinguish the concept of
honour of the Crown from Crown-aboriginal fiduciary relationships. She
concluded that it is only "where the Crown has assumed discretionary
control over specific Aboriginal interests [that] the honour of the Crown
gives rise to a fiduciary duty."87 In this, she relied upon Justice Binnie's
identification of "discretionary control" as the essential characteristic of
the fiduciary relationship in Wewaykum. According to Justice Binnie, the
relationship between the Crown and aboriginal peoples is recognized as
fiduciary "to facilitate supervision of the high degree of discretionary control
gradually assumed by the Crown over the lives of aboriginal peoples."
88
In my view, a sound definition of the fiduciary relationship may be
drawn from this line of jurisprudence: a fiduciary relationship is one in
which one party (the fiduciary) enjoys discretionary power over the significant
practical interests of another (the beneficiary). 8 In Galambos, the Supreme
Court of Canada has committed itself more fulsomely to the essentialist
view. When describing "basic principles" of fiduciary liability, Justice
Cromwell explained the character of the fiduciary relationship as follows:
Underpinning all of this is the focus of fiduciary law on relationships.
As Dickson J. (as he then was) put it in Guerin v. The Queen,
[1984] 2 S.C.R. 335, at p.384: "It is the nature of the relationship ...
that gives rise to the fiduciary duty.... The particular relation-
85 Supra note 25 at 466.
86 2004 SCC 73, [2004] 3 SCR 511 [Haida Nation, cited to SCR].
87 Ibid at para 18, citing Wewaykum, supra note 75 at para 79.
88 Wewaykum, supra note 75 at para 79. Canadian courts have dominated the development
of this view, but they have been joined sporadically by courts in other jurisdictions.
Within weeks of Guerin, the High Court of Australia in Hospital Products suggested
a similar approach (supra note 8 at 68, 96-97). In separate opinions, the justices
recognized the problems associated with the status-based approach. Gibbs CJA recognized
that, in overcoming them, "the difficulty is to suggest a test by which it may be
determined whether a relationship ... is a fiduciary one" (ibid at 68). Mason J went further.
Affirming Weinrib, he stated that "[t]he critical feature of these relationships is
that the fiduciary undertakes or agrees to act for or on behalf of ... another person in the
exercise of a power or discretion which will affect the interests of that other person in a
legal or practical sense' (ibid at 96-97). Similarly, in the seminal decision by the Second
Circuit in United States v Chestman the majority stated that a "fiduciary relationship
involves discretionary authority and dependency" (947 F (2d) 551 at para 13 (2d Cir
1991)).
89 I develop this argument further in Paul B Miller, Essays Toward a Theory of Fiduciary
Law (PhD Thesis, University of Toronto Department of Philosophy, 2008) [unpublished].
ATHEORYOF FIDUCIARY LIABILY 263
ships on which fiduciary law focuses are those in which one party is
given a discretionary power to affect the legal or vital practical interests
of the other.90
Flatly rejecting the notion that fiduciary liability may be established
where a would-be fiduciary lacks discretionary power, he elaborated:
It is fundamental to the existence of any fiduciary obligation that the
fiduciary has a discretionary power to affect the other party's legal
or practical interests. In Guerin, Dickson J. spoke of this discretionary
power as "the hallmark of any fiduciary relationship"...
... While what is sufficient to constitute power in the hands of the
fiduciary may be controversial in some cases, the requirement for
the existence of such power in the fiduciary's hands is not.91
The determination that Galambos did not wield discretionary power
over the practical interests of Perez was critical to Justice Cromwell's conclusion
that there was no fiduciary relationship between them:
Mhe finding of the trial judge that Mr. Galambos had no discretionary
power over Ms. Perez's interests that he was able to exercise unilaterally
or otherwise is fatal to her claim that there was an ad hoc
fiduciary duty on Mr. Galambos's part to act solely in her interests
in relation to these cash advances.92
The Court in Galambos has thus clearly resolved that discretionary
power is an essential characteristic of all fiduciary relationships.
2. Implications for the Status- and Fact-Based Approaches
If the essentialist view were taken to its logical conclusion, the Court
would have defined the fiduciary relationship as indicated above and disavowed
the status- and fact- based approaches. Unfortunately, Justice
Cromwell retains the analytical structure of the status- and fact-based
approaches (which he calls per se and ad hoc respectively). Of the former,
Justice Cromwell says:
Certain categories of relationships are considered to give rise to fiduciary
obligations because of their inherent purpose or their presumed
factual or legal incidents ... These categories are sometimes
called per se fiduciary relationships.93
Justice Cromwell does not explain what purposes or incidents a category
of relationship must have to enjoy fiduciary status, though he evi-
90 Galambos, supra note 6 at para 70 [references omitted].
91 Ibid at paras 83-84.
92 Ibid at para 86 [emphasis in original].
93 Ibid at para 36.
264 (2011)56:2 McGula AwJOURNAL~ REVUE DEDROITDEMcGIL.
dently considers that in all categories the fiduciary will wield discretionary
power over the practical interests of the beneficiary. He distinguishes
the status- from the fact-based approach as follows:
[A]part from the categories of relationships to which fiduciary obligations
are innate, such obligations may arise as a matter of fact out
of the specific circumstances of a particular relationship. 4
Justice Cromwell does not elaborate upon the indicia to be considered
in determining whether a fiduciary relationship exists on a case-by-case
basis. However, he is plainly uncomfortable with ill-sorted lists of indicia.
Indeed, he makes a point of questioning ill-defined indicium.
Of power and dependence, Justice Cromwell argues that "powerdependency
relationships"-by which he appears to mean any relationship
characterized by inequality of power and dependence-are not invariably
fiduciary: "[T]his concept borrowed from academic writing may
be useful to describe certain relationships, but it has not been and should
not be used as a tool for categorization."95 He explains that "not all powerdependency
relationships are fiduciary in nature, and identifying a powerdependency
relationship does not, on its own, materially assist in deciding
whether the relationship is fiduciary or not."96
Of vulnerability, Justice Cromwell says that "to assert that the protection
of the vulnerable is the role of fiduciary law puts the matter too
broadly."97 Citing the judgment of Justice La Forest in Hodgkinson, he
explains, "The law's approach to the situation of vulnerable people 'gives
rise to a variety of often overlapping duties' and 'the precise legal or equitable
duties the law will enforce in any given relationship are tailored to
the legal and practical incidents of a particular relationship'."98
Justice Cromwell's concerns are well founded. The indicia are overbroad
and imprecise. But these are problems endemic in the fact-based
approach. The essential character of the fiduciary relationship will never
be clarified through identification of isolated characteristics. One must
discern how characteristics are joined in a clear, well-stipulated idea of
the relationship. It is thus telling that Justice Cromwell did not attempt
to sharpen or supplement existing lists of indicia. His judgment instead
emphasizes that the essential character of the fiduciary relationship lies
9 Ibid at para 48.
9 Ibid at para 73.
96 Ibid at para 74.
9 Ibid at para 67.
98 Ibid at para 73, citing Hodgkinson, supra note 25 at 412-13.
A THEORYOF FIDUCIARY LIABRIIY 265
in the exercise by one person of discretionary power over the practical interests
of another.
B. The Foundadon ofFiduaary ObQadon
The Court in Galambos devoted considerable attention to questions
concerning the foundation of fiduciary duties, particularly those relating
to relationship formation.
1. The Formation of Fiduciary Relationships
It was submitted on behalf of Perez, and accepted by the Court of Appeal,
that a fiduciary relationship may be established on the basis of the
reasonable expectations of one person that another would act in his interests.
This entails that a beneficiary may establish a fiduciary relationship
unilaterally.99 Given that fiduciary duties significantly constrain the freedom
of fiduciaries, the Court understandably rejected this submission.
Counsel for Galambos in turn submitted that fiduciary relationships may
be established only upon mutual agreement by fiduciary and beneficiary.
The Court was not willing to go that far, but it did state that a fiduciary
relationship may be established only upon the free will of the fiduciary.
Justice Cromwell explained:
[W]hile a mutual understanding may not always be necessary ... it is
fundamental to ad hoc fiduciary duties that there be an undertaking
by the fiduciary, which may be either express or implied, that the fiduciary
will act in the best interests of the other party. In other
words, while it may not be necessary for the beneficiary in all cases
to consent to this undertaking, it is clearly settled that the undertaking
itself is fundamental to the existence of an ad hoc fiduciary relationship.
100
Justice Cromwell found support for this requirement in prior decisions of
the Court:
[Iln Hodgkinson, this Court considered competing bases for the imposition
of ad hoc fiduciary duties, opposing to a certain extent mutual
understanding and reasonable expectations of the alleged beneficiary.
While the seven judges sitting on the case were not fully
unanimous in this respect, they all agreed that ad hoc fiduciary obligations
may be imposed when there is a mutual understanding to
this effect, and, following the example of Dickson J. in Guerin, at p.
384, left the door open to such an obligation arising from a unilateral
9 The unilateral establishment of the fiduciary relationship is subject to the requirement
that expectations be proved reasonable in the circumstances-an amorphous but not
insignificant requirement.
100 Galambos, supra note 6 at para 66.
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undertaking by the fiduciary ... Thus, what is required in all cases of
ad hoc fiduciary obligations is that there be an undertaking on the
part of the fiduciary to exercise a discretionary power in the interests
of that other party.101
Justice Cromwell does not elaborate on the means by which a binding
undertaking may be made. However, he suggests that it may be implicit
in the nature of a relationship freely entered into, in the exercise of power
within a relationship, in the terms of an agreement, or otherwise implicit
in the conduct of the fiduciary.102 Thus it seems that formal consent is not
necessary. The subject matter of the undertaking is also left unclear.
Need the fiduciary simply undertake to exercise discretionary power over
the practical interests of another, or must the fiduciary specifically accept
obligations impressed upon the exercise of such power? The former view
seems right as a matter of authority, as I shall explain in Part III. But the
latter view is the apparent implication of Justice Cromwell's approving
reference to the learned works of Paul Finn and Lionel Smith. Finn
claimed, "For a person to be a fiduciary he must first and foremost have
bound himself in some way to protect and/or to advance the interests of
another."103 Smith wrote, "The fiduciary must relinquish self-interest" for
a fiduciary relationship to be established.104 .
Justice Cromwell does not directly consider whether a fiduciary relationship
might be established by legislative or judicial decree. The possibility
is excluded by the claim that a voluntary act is required of the fidu-
101 Ibid at para 76 [emphasis added].
102 Ibid at para 77:
The fiduciary's undertaking may be the result of the exercise of statutory
powers, the express or implied terms of an agreement or, perhaps, simply an
undertaking to act in this way. In cases of per se fiduciary relationships, this
undertaking will be found in the nature of the category of relationship in issue.
The critical point is that in both per se and ad hoc fiduciary relationships,
there will be some undertaking on the part of the fiduciary to act with
loyalty.
See also ibid at para 79:
This does not mean, however, that an express undertaking is required.
Rather, the fiduciary's undertaking may be implied in the particular circumstances
of the parties' relationship. Relevant to the enquiry of whether there
is such an implied undertaking are considerations such as professional
norms, industry or other common practices and whether the alleged fiduciary
induced the other party into relying on the fiduciary's loyalty.
103 PD Finn, Fiduciary Obligations (Sydney: Law Book Company, 1977) at para 15.
104 Lionel Smith, "Fiduciary Relationships-Arising in Commercial Contexts-Investment
Advisors: Hodgkinson v Simms" (1995) 74:4 Can Bar Rev 714 at 717 [Smith, "Fiduciary
Relationship"] [emphasis in original].
A THEORY OF FIDUCIARY LABIGIY 267
ciary. However, the exclusion makes it difficult to account for relationships
established by decree customarily considered to be fiduciary.os
2. The Basis of Fiduciary Duties
The analytical power of the essentialist view of the fiduciary relationship
is evident in the way it structures Justice Cromwell's analysis of the
normative basis of fiduciary duties. Starting from the proposition that discretionary
power is of the essence of the fiduciary relationship, he carefully
stipulates the meaning of normatively salient qualities of the relationship.
The Court had.become mired in unhelpful generalities about the
significance of inequality, dependence, and vulnerability in private law
writ large. Justice Cromwell's analysis indicates how these concepts are
characteristic of the fiduciary relationship and why they are salient for
the purposes of fiduciary liability.
Justice Cromwell begins by reiterating the conventional view that fiduciary
liability is founded upon breach of duties occasioned by the fiduciary
relationship. In his words, "A claim for breach of fiduciary duty may
only be founded on breaches of the specific obligations imposed because
the relationship is one characterized as fiduciary."os
He proceeds to explain that the normatively salient qualities of the fiduciary
relationship are inherent, essential features of the relationship,
not extrinsic, accidental features of particular relationships:
[Fliduciary law is more concerned with the position of the parties
that results from the relationship which gives rise to the fiduciary
duty than with the respective positions of the parties before they enter
into the relationship. 107
The point that fiduciary law is concerned with structural features of
the fiduciary relationship is critical. It means that fiduciary liability does
not turn on how the parties happen to be situated relative to one another
for whatever reason. Rather, fiduciary liability is rooted in the nature of
the fiduciary relationship, understood as a distinctive kind of legal relationship.
But what are the structural qualities of a fiduciary relationship,
and why do they found liability? Justice Cromwell recognizes that the answer
lies in the heretofore unrefined intuition that fiduciary relationships
are marked by inequality, dependence, and vulnerability. Appreciation of
the special significance of these qualities for the fiduciary relationship re-
105 See Evan Fox-Decent, "The Fiduciary Nature of State Legal Authority" (2005) 31:1
Queen's U 259 at 294-98.
106 Galamabos, supra note 6 at para 37.
107 Ibid at para 68, citing approvingly Weinrib, supra note 83 at 6 [emphasis in original].
268 (2011) 56:2 McGiLL LAwJOURNAL ~ REVUE DE DROff DE McGIL
quires that one understand them as structural characteristics necessarily
incidental to the idea of the fiduciary relationship itself. The fact that, by
definition, a fiduciary relationship involves one person exercising discretionary
power over the practical interests of another entails that the parties
are unequally situated, with the beneficiary dependent upon, and
vulnerable to, the fiduciary in the exercise of power by the fiduciary.
This view is implicit in Justice Cromwell's analysis of the significance
of vulnerability to fiduciary liability. Upon rejecting the notion that fiduciary
liability is responsive to brute vulnerability, he indicates that fiduciary
duties are founded upon the inherent vulnerability of the beneficiary
to the fiduciary: "[WIhile vulnerability in the broad sense resulting from
factors external to the relationship is a relevant consideration, a more important
one is the extent to which vulnerability arises from the relationship."
10 Vulnerability in this sense follows from the dependence of the
beneficiary on the fiduciary in the exercise of discretionary power. As
Weinrib explained, as a result of the fiduciary relationship, "the principal's
interests can be affected by, and are therefore dependent upon, the
manner in which the fiduciary uses the discretion which has been delegated
to him."los
This interpretation was integral to Justice Cromwell's finding that
Galambos did not owe a fiduciary duty to Perez. Distinguishing Mustaji v.
Tjin,110 he said:
Mustaji involved a claim by a nanny brought to Canada under the
Foreign Domestic Movement Program. There were findings of fact
that the defendants had taken over her affairs concerning her immigration
and employment in Canada, that they had the opportunity
to exercise power or discretion over her, were capable of using that
power or discretion without her knowledge or consent so as to affect
her legal and practical interests and that she was especially vulnerable
to that exercise of discretion and control ... The trial judge in the
present case found nothing of this sort."
10 Ibid at para 68.
109 Supra note 83 at 4, cited with approval in Galambos, supra note 6 at para 83.
110 (1995), 224 CCLT (2d) 191 (BCSC) (available on QL), aff'd (1996), 25 BCLR (3d) 220
(CA) (available on QL) [Mustaji).
ux Galambos, supra note 6 at para 56. One could quibble with the relevance of some of the
findings of fact in Mastaji (supra note 110). For instance, knowledge or consent of the
beneficiary to exercise of power by the fiduciary is irrelevant, save where it is such as to
erode the discretionary nature of the power. Further, to the extent that vulnerability is
an inherent structural characteristic of the fiduciary relationship, the suggestion that
one must inquire into the degree of vulnerability is misleading.
A THEORY OF FI)UCIARYLIABILTIY 269
The implication is that the vulnerability which matters for the purposes
of fiduciary liability is that occasioned by and inherent in the fiduciary
relationship itself.


C The Natum and Scope ofFiducary Oblp ton
Galambos contributes less to the jurisprudence on the nature and
scope of fiduciary obligation. Justice Cromwell repeats the truism that the
facts of a given relationship may mean the coincidence of fiduciary and
non-fiduciary duties.112 He emphasizes that the core fiduciary duty is that
of loyalty. He also indicates that the content of the duty of loyalty is explicable
in terms of the beneficiary's structural vulnerability to exploitative
misuse of power by the fiduciary. Noting that an "important focus of fiduciary
law is the protection of one party against abuse of power by another,"
Justice Cromwell explained that the fiduciary is considered to
have undertaken discretionary power on the understanding that it is to be
exercised only in the interests of the beneficiary.113 Power is exercised
exploitatively where it is instead used to advance the interests of the fiduciary
or a third party.
The Court was required to consider the scope of fiduciary obligation in
addressing Perez's claim that Galambos owed her ongoing fiduciary duties
by virtue of prior provision of legal services. It proceeded on the footing
that the scope of fiduciary obligation is determined by the ambit and tenure
of the fiduciary relationship. Thus, the obligations imposed upon a fiduciary
arise within and are contained by the fiduciary relationship.
Unless a fiduciary has an open mandate, or retains discretionary power in
respect of interests connected with a closed one, the obligations generated
by the relationship terminate with it. Justice Cromwell does not explain
how this analysis is to be carried out. But he was not required to, for the
conduct in question was clearly beyond the scope of the mandates under
which Galambos acted. The mandates did not encompass Perez's employment
for the firm, let alone her self-directed efforts at ameliorating its
financial position.114 The subject matter was remote, and the mandates
themselves had long been moribund.
112 Ibid at para 37.
113 Ibid at para 67. Cromwell J states that "a critical aspect of a fiduciary relationship is an
undertaking of loyalty: the fiduciary undertakes to act in the interests of the other
party" (ibid at para 69). This is true inasmuch as it is a comment on the status of the
power wielded by the fiduciary-the power may be exercised only in the interests of the
beneficiary. However, it is misleading if taken to imply a requirement that a would-be
fiduciary have notice of the nature of the obligations that constrain the exercise of discretionary
power.
114 1bid at paras 38-39.
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m. Emendations and Amplification
Galambos represents a commendable advance. Decades ago, the Supreme
Court of Canada established itself as an innovator through its
critical engagement with fundamental questions about fiduciary liability.
It failed to develop a coherent theory of liability, but that failure has been
universal. In Galambos, Justice Cromwell has integrated scattered insights
from the existing jurisprudence into a more cohesive approach. The
Court is on the brink of a principled theory of fiduciary liability.
The emerging theory promises vindication of the conventional view
that fiduciary liability is premised upon the fiduciary relationship, understood
as a distinctive kind of legal relationship. It clarifies the essential
character of the fiduciary relationship and explains the foundation, nature,
and scope of fiduciary obligation. The essential character of the fiduciary
relationship lies in the discretionary power wielded by the fiduciary
over the practical interests of the beneficiary. The power wielded by the
fiduciary is properly understood as a means belonging rightfully to the
beneficiary, to be exercised in his interests. The cardinal fiduciary duty of
loyalty arises from the beneficiary's inherent vulnerability to exploitive
misuse of power by the fiduciary. This vulnerability is inherent in the
sense that it is a structural feature consequent upon the establishment of
the fiduciary relationship. The scope of fiduciary obligation is defined by
the ambit and duration of the fiduciary relationship.
While the emerging theory of fiduciary liability is promising it, needs
refinement. In what follows, I confine my attention to the most significant
challenges. Wherever possible, I suggest how they might be resolved.
A. The Natureof the FiduciaryRelationshi
1. Moving Beyond the Status- and Fact-Based Approaches
The essential character of the fiduciary relationship having been identified,
the status- and fact-based approaches to the identification of fiduciary
relationships ought to be abandoned. If it is true that fiduciary relationships
are a distinctive kind of legal relationship, there is no meaningful
distinction to be drawn between per se and ad hoc fiduciary relationships.
Either a given relationship will satisfy the definition of the legal
kind or it will not.
As explained in Part I, the status-based approach suffers the obvious
shortcoming that status has been accorded through undisciplined analogical
reasoning. The comfort drawn from the relative stability of the approach
is false, as the fixity of status is illusory. It has repeatedly been
emphasized that a relationship with fiduciary status may be fiduciary for
A THEORY OF FIDUCIARY LIABILY 271
some intents and purposes and not for others.,15 This implies that fiduciary
status is at most presumptive.
The status-based approach is not for that reason entirely misguided. It
may be that certain social categories of relationship of recognized fiduciary
status (e.g., doctor-patient, lawyer-client) will ordinarily be properly
considered fiduciary because they implicate the exercise of discretionary
power by one person over the practical interests of another. But there is
nothing inevitable in the social categories themselves such that social
categorization may be substituted for legal categorization. Legal categories
of relationship (e.g., director-corporation, trustee-beneficiary) are different
in that a capacity for the exercise of discretionary power over the
practical interests of another may be partly constitutive of the category.
In these circumstances, fiduciary power inheres in the legal category of
relationship. But even here, there is nothing in the categorization that
compels recognition of fiduciary status. After all, a given relationship may
enjoy merely notional membership in a legal category of which fiduciary
power is a constitutive characteristic. Membership will be notional where,
for instance, power has been withdrawn, limited, or subject to direction,
such that it is no longer substantially discretionary. Even legal categorization
may generate faulty inferences about the actual legal nature of a
relationship. Again, recognizing that status is an imperfect proxy, proper
characterization requires a definition of the fiduciary relationship as a
kind unto itself.
Given that such a definition is at hand, there is no merit in continued
reliance upon the fact-based approach either. The fact-based approach
usefully encouraged reflection upon characteristics of fiduciary relationships.
But it has proven conceptually bankrupt. The approach has yielded
contested lists of descriptors that are individually ill-defined and together
amount to little more than a jumble of words and phrases. In law, where
concepts are the object of description, efforts at characterization find mature
expression in definition.
A looser sort of characterization is not necessarily fruitless. It is thus
unsurprising that the fact-based approach informs the emerging essentialist
view of the fiduciary relationship. Indeed, many of the most cited
characteristics of the fiduciary relationship are reinterpreted in Galambos.
Discretion, power, practical interests, inequality, dependence, and
vulnerability each serve an important part in the Court's articulation of
the nature of the fiduciary relationship. Discretion, power, and practical
interests are reflected in the definition of the fiduciary relationship as
that in which one person exercises discretionary power over the practical
u- Lac Minerals, supra note 8 at 597. See also note 49, above.
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interests of another. Inequality, dependence, and vulnerability are understood
as giving manifold expression to the structure of established fiduciary
relationships. They reveal asymmetries inherent in a relationship in
which one person enjoys discretionary power over the practical interests
of another.
Supposing that the status- and fact-based approaches are abandoned,
the definition of the fiduciary relationship ought to serve as the sole criterion
for identifying fiduciary relationships. Wherever fiduciary liability is
asserted, courts ought to focus solely upon the question whether the alleged
fiduciary has wielded discretionary power over practical interests of
the person on whose behalf liability is alleged.
2. Amplifying the Definition of the Fiduciary Relationship
Identification of fiduciary relationships on the basis of a definition will
help to ensure that fiduciary liability is principled. However, the definition
set forth in Part II requires elaboration. In particular, more must be
said about the relative positioning of fiduciary and beneficiary. It is understood
that fiduciaries exercise discretionary power over practical interests
of beneficiaries. But the meaning of "discretionary power" and "practical
interests" must be clarified.
Common usage and scholarship indicate that fiduciary power may be
understood in at least three ways. First, power may be understood as access.
So understood, one enjoys fiduciary power whenever one has access
to the practical interests of another.116 Second, power may be taken to
connote influence.117 If fiduciary power is understood in this way, one enjoys
it wherever one has the capacity to affect the practical interests of
another. Third, power may be understood to mean authority.118 So understood,
one has fiduciary power when one has authority to act relative to
the practical interests of another. Notice that these interpretations are
mutually consistent and successively narrower. Influence (at least of a direct
sort) is usually conditioned upon access. Authority in turn implies influence
and access. Notice as well that the breadth of the definition of the
116 See Flannigan, supra note 2. It is sometimes said that the access must be limited, special,
or extraordinary, but it is not clear what distinguishes ordinary from extraordinary
access. The quality of access could turn on its scope or the conditions upon which access
was granted.
117 For instance, Robert Muir has stated that a fiduciary relationship is established "where
one party has dominance or influence over another party" (Robert C Muir, "Duties Arising
Outside of the Fiduciary Relationship" (1964) 3:3 Alta L Rev 359 at 360).
us See Fox-Decent, supra note 105.
A THEORY OF FDuCIARYLIABnY 273
fiduciary relationship-and thus the scope of liability-is contingent upon
the meaning assigned to the concept of power.
Unsurprisingly, given the unsettled state of fiduciary doctrine, one can
find support for each interpretation in the authorities. Nevertheless, reason
and the balance of authority favour the third, and narrowest, interpretation.
To have fiduciary power is to enjoy authority over the practical
interests of another. The difficulty with the other interpretations lies in
overbreadth, generating inconsistency between the concept of power and
key elements of the conceptual structure of fiduciary liability.
One point of inconsistency arises in respect of the formation of fiduciary
relationships. The law is clear that, whether established by agreement,
undertaking, or decree, fiduciary relationships are initiated purposively.
They do not arise by chance. One might readily chance to have
access to or influence over the practical interests of another. However, authority
over the practical interests of another does not subsist at large. It
must be reposed, undertaken, or prescribed. In short, authority is conveyed
or accepted intentionally. The idea of power as authority is alone
consistent with the law on the means by which fiduciary relationships
may be established.
Another point of inconsistency lies in the qualification-now entrenched
in the authorities-that the power wielded by a fiduciary must
be discretionary in nature. This means that the fiduciary must have scope
for judgment in the exercise of power. It makes little sense to speak of discretion
in respect of access to or influence over the practical interests of
another. One either has access or influence or one does not. Access and influence
are actual capacities susceptible to exercise at will, not legal capacities
that may be subject to terms. Authority, by contrast, is a legal capacity
and it may be subject to terms. Authority may be bare or discretionary
depending on the terms upon which it was granted or undertaken.
Thus, the idea of power as authority is alone consistent with the stipulation
that fiduciary powers are discretionary.
A further point of inconsistency lies in the lack of fit between these
senses of power and the emerging theory of fiduciary liability, according to
which fiduciary duties are rooted in structural qualities of the fiduciary
relationship. If access to or influence over the practical interests of another
might arise purely as a matter of luck, then it follows that any inequality,
dependence, or vulnerability thereby occasioned will pre-exist
rather than arise from the fiduciary relationship. The relationship between
power and these qualities will be contingent on the circumstances.
So understood, inequality, dependence, and vulnerability would reveal
nothing of the distinctive bilateral character of fiduciary relationships.
They would thus be incapable of explaining why, purely as a result of it
having been established, the fiduciary relationship is such that one person
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ought to be deemed particularly responsible for the interests of another. It
may happen that several people have access to and influence over the
practical interests of another, and yet there is nothing in that alone to justify
considering them especially responsible for the fate of the.interests of
that person.
By contrast, interpreting fiduciary power as authority fits with the
conventional view that fiduciary liability responds to something distinctive
about fiduciary relationships. It also clarifies the normative salience
of inequality, dependence, and vulnerability for fiduciary liability. When
fiduciary power is understood as authority, it may be recognized that
these characteristics are salient in that they express the distinctive bilateral
nature of established fiduciary relationships. Wherever one person
enjoys discretionary authority over the practical interests of another,
their relationship will be asymmetrical when considered in light of the
power vested or undertaken. The salient form of inequality of power lies
in enjoyment by the fiduciary of authority that the beneficiary lacks (it is
immaterial for present purposes whether it has been ceded or may be annulled
or reclaimed). The salient forms of dependence and vulnerability
reflect this inequality. If effective,"9 authority entails influence and the
risk of abusive exercise.
Accepting that fiduciary power is best understood as authority, a further
explanation of the nature of the authority wielded by fiduciaries
would be helpful. In this context as in others, most abstractly, authority
goes to the rightful character of conduct. Rightfulness is at stake wherever
one is acting in a manner potentially inconsistent with the legal
status or rights of another. Authority can render conduct rightful that
would otherwise be wrongful. Thus we may say authority enables fiduciaries
to act rightfully, where otherwise they would act wrongfully. As I
shall explain shortly, this affords an important perspective on the position
held by fiduciaries, but it fails to distinguish the fiduciary from other
agents whose legal status is characterized by possession of authority.
The jurisprudence suggests several refinements. The first is supplied
by the usual qualification that the authority wielded by fiduciaries is discretionary.
The discretionary character of authority means that the fiduciary
has scope for judgment in determining how to act under authority.
119 If not effective, the authority wielded is arguably not fiduciary because ineffective authority
undermines the purposive character of the fiduciary relationship. The fiduciary
cannot further the ends of the beneficiary if her authority is ineffective. Furthermore, a
beneficiary is not dependent upon or vulnerable to a fiduciary whose authority is ineffective.
Nevertheless, recognizing that effectiveness may be contingent, waxing and
waning with changing circumstances, it may be inappropriate to consider it determinative.
A THEORY OF FIDUCIARY LIABIUTY 275
Practically speaking, it means that the scope of authority, and thus the
ambit of rightful conduct, is broader than would be the case if authority
were fixed. A second refinement lies in the strictly relational character of
fiduciary authority. Fiduciaries do not enjoy authority at large akin to
that of a sovereign. Rather, they enjoy authority in relation to a specific
individual or class of beneficiaries. Authority renders rightful conduct of
the fiduciary toward the beneficiary that would otherwise be wrongful
(e.g., consent authorizes a physician to perform interventions on a patient;
the Canada Business Corporations Actl20 authorizes a corporate director
to manage the affairs of the corporate person created under the CBCA). A
third refinement lies in the specific character of fiduciary authority. Fiduciaries
do not enjoy unspecified authority relative to beneficiaries.121
Rather, their authority is specified in the grant or undertaking of authority
or otherwise by law.122 In this way, the scope of rightful conduct is at
once open and bounded. Fiduciaries have discretion within the limits of
authority reposed in them or undertaken by them.
With this refined concept of fiduciary power as authority in mind, we
have a clearer sense for the position of the fiduciary. But a more precise
understanding of the fiduciary relationship requires explanation of the
position of the beneficiary as well. I have argued. that the authority
wielded by the fiduciary founds the distinctive asymmetrical character of
established fiduciary relationships, but this is merely to gesture at the position
of the beneficiary.
The jurisprudence is comparatively clearer on the position of the beneficiary.
It is commonly said that fiduciaries wield discretionary power over
practical interests of beneficiaries. But that yields little in itself. More
must be said about what makes an interest "practical" and about the ends
for which fiduciary power may be exercised.
Canadian fiduciary jurisprudence is admirably capacious in its recognition
of the kinds of interests that may be subject to the exercise of fiduciary
power. Elsewhere, it has been said that fiduciary liability requires
engagement of some proprietary or economic interest of the beneficiary.
For instance, Gordon Smith argues that fiduciary duties protect "critical
120 RSC 1985, c C-44, s 115(3) [CBCA].
121 Though their authority may be broad, as is true of the authority parents have over their
children. Broad or poorly-defined authority will still be subject to limits specified by law
even where none are specified in the granting or undertaking of authority.
122 For instance, medical consent authorizes a physician to perform specific interventions
on a patient and the CBCA expressly limits the authority of directors to delegate functions
to officers.
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resources" owned by beneficiaries from misappropriation by fiduciaries.123
Australian jurisprudence has restricted fiduciary liability to claims involving
the exercise of power in relation to economic interests.124 These positions
reflect a valid concern over the limits of fiduciary liability. But the
proposed limits are arbitrary.125 To be sound, categorization of recognizable
interests must accord with underlying principles of fiduciary liability.
Nothing in the nature of fiduciary power suggests that it may be exercised
only in relation to proprietary or economic interests, or that these interests
are more significant or susceptible than others.
The preferable view, entrenched in the Canadian jurisprudence, is
that broadly practical interests may ground the exercise of fiduciary
power. The jurisprudence has not yet articulated criteria by which to
identify practical interests as such. However, I suggest that one might
distinguish practical from other interests on the basis of the character of
the interest and its susceptibility to influence under authority. An interest
is practical where it connotes a real, ascertainable matter of personality,
welfare, or right in relation to which one person may be uniquely and materially
susceptible to the exercise of authority by another. Consistent
with the authorities, matters of personality include aspects of the actual
and legal personality of incapable and artificial persons, including the determination
of the ends or interests of persons as such. Matters of welfare
include decisions bearing upon specific aspects of the personal integrity
and well-being of natural persons, including their physical and mental
health. Matters of right include decisions relating to the legal rights, obligations,
powers and liabilities of natural and artificial persons, including
those in relation to contract and property. This typology is capable of accommodating
and explaining the protection afforded by fiduciary law to a
variety of interests of a range of beneficiaries, from children and patients
to corporations and cestui que trusts.
It remains to be considered how the law specifies the ends governing
the exercise of fiduciary power. The jurisprudence is inconsistent on this
point. Fiduciaries have variously been deemed to hold power to serve, to
protect, or to promote or advance the practical interests of beneficiaries, or
to exercise them for or on behalf of beneficiaries. Indeed, these formula-
123 Smith, "Resource Theory", supra note 2. For a similar view, c.f. Larry E Ribstein, "Are
Partners Fiduciaries?" [20051:1 U Ill L Rev 209.
124 See e.g. Paramasivam v Flynn, [1998] FCA 1711, [1998] 90 FCR 489.
125 For a criticism of the Australian jurisprudence, see Richard Joyce, "Fiduciary Law and
Non-Economic Interests" (2002) 28:2 Monash UL Rev 239; Lisa Zhou, "Fiduciary Law,
Non-Economic Interests and Amici Curiae" (2008) 32:3 Melbourne UL Rev 1158.
ATHEORYOF FIDUcIARY LlABILTIY 277
tions were used interchangeably in Galambos.126 All of these expressions
get at something fundamental, namely, that fiduciary power is understood
in law as a means belonging rightfully to the beneficiary, to be exercised
in service of his ends.127 Nevertheless, the common formulae distort
the manner in which fiduciary power is exercised in service of the ends of
beneficiaries. Formulations of the first variety risk mistaking the ends for
which fiduciary power may be exercised with normative implications for
the conduct of fiduciaries (i.e., they are falsely suggestive of outcomeoriented
fiduciary duties). Formulations of the second variety risk confusing
the general concept of fiduciary power with a variety of such power
(i.e., they falsely suggest that all fiduciary powers are representative in
character).
It would, in my view, be better to focus on the ways fiduciary power
may be exercised as a means to the ends of beneficiaries. It may be exercised
as such in two ways: First, the fiduciary may exercise power in pursuing
specific ends of the beneficiary that engage his practical interests
(e.g., a corporate board of directors may approve a strategic business plan
for realization of stipulated business objectives of a corporation). Second,
the fiduciary may exercise power to set or determine ends of the beneficiary
in a manner that engages his practical interests (e.g., parents will determine
ends for their children in relation to schooling, medical care, and
so forth). In short, fiduciary powers are exercised in pursuit or in determination
of ends of a beneficiary that engage their practical interests.
Typically, the terms upon which power is reposed or undertaken will be
such that the fiduciary is permitted only to pursue specific ends of the
beneficiary (e.g., a patient may specify that medical treatment options be
126 Supra note 6, Cromwell J, citing Finn, supra note 103. (the proposition that fiduciaries
undertake "to protect and/or to advance the interests of another" at para 78). The trial
judge is also cited with approval in interpreting Hodgkinson as requiring an undertaking
"to act solely on behalf of the beneficiary" (ibid at para 64). Cromwell J also states
that there must be an undertaking "that the fiduciary will act in the best interests of
the other party" (ibid at para 66). To the same effect, see ibid at paras 76-81.
127 As McLachlin J explains in Norberg:
The duties of trust are special, confined to the exceptional case where one
person assumes the power which would normally reside with the other and
undertakes to exercise that power solely for the other's benefit. It is as.
though the fiduciary has taken the power which rightfully belongs to the
beneficiary on the condition that the fiduciary exercise the power entrusted
exclusively for the good of the beneficiary (supra note 8 at 292 [emphasis
added]).
This view is also implicit in comments on "ceding' or "transferring" power: see e.g.
Blueberry River, supra note 63 (McLachlin J noted for the minority that the fiduciary
relationship arises where "[a] person cedes (or ... finds himself in the situation where
someone else has ceded for him) his power over a matter to another person" at para 38
[emphasis added]).
278 (2011) 56:2 McGiLLLAwJoURNAL REVUE DE DROIT DE McGiu.
limited to those with palliative purpose). However, particularly where the
authority relates to matters of personality, the fiduciary may be authorized
to determine the ends of the beneficiary.
Drawing back from the detailed analysis of the relative positioning of
fiduciary and beneficiary, a more focused picture of the fiduciary relationship
emerges. Our starting position was that the fiduciary relationship
involves one person exercising discretionary power over the practical interests
of another. The more focused view sees it as that in which one person
exercises discretionary authority to set or pursue practical interests
(including matters of personality, welfare or right) of another.
B. The Foundaion ofFiduciary Oblation
1. The Formation of Fiduciary Relationships: Emendations
Galambos resolves an important question about the formation of fiduciary
relationships. It rightly rejects the notion that a would-be beneficiary
may establish a fiduciary relationship unilaterally. The faithfulness
exacted of fiduciaries ought not to be capable of being commanded upon
the whim, or even upon the reasonably founded trust, of beneficiaries. The
idea of equal freedom that underlies private right entails that one cannot
compel another to serve his ends.128
Nevertheless, the circumstances through which one may be deemed to
have undertaken to serve the ends of another are less clear. Galambos
suggests that a would-be fiduciary must be cognizant of the nature of the
obligations attendant upon the fiduciary relationship. Lionel Smith is
cited for the proposition that, in doing so, the "fiduciary must relinquish
self-interest."129 It may be doubted that positive renunciation of selfinterest
is required because the duty of loyalty does not compel selfabnegation.
130 It is doubtful even that cognizance of the lesser fidelity expected
of fiduciaries should be required. Alternatively, one might say that
discretionary power over the practical interests of another must be freely
128 See generally Arthur Ripstein, Force and Freedom: Kant's Legal and Political Philosophy
(Cambridge, Mass: Harvard University Press, 2009).
129 Smith, "Fiduciary Relationship", supra note 104 at 717, cited in Galambos, supra note 6
at para 78 [emphasis in original].
130 As Smith himself has made clear elsewhere, "We know that the duty of loyalty owed by
a director is not a duty of absolute selflessness: rather, it is accepted that being a director
is not a full-time job, and the director may lawfully devote the bulk of his energy and
ingenuity to other affairs, including the affairs of other companies" ("Motive", supra
note 2 at 57).
A THEORYOF FIDuciARYLiABInY 279
undertaken in circumstances where one knew or ought to have known
that it is a means belonging rightfully to that person.
Accepting that fiduciary relationships are rarely established absent an
undertaking or agreement, it does not follow that they may never be established
constructively. To recognize a capacity in one individual to unilaterally
impose fiduciary terms upon another is an affront to the idea of
equal freedom. But it does not follow that such terms may never justifiably
be imposed upon a relationship. Exceptionally, the nature of a relationship
justifies fiduciary denomination by legislative or judicial decree.
Consider the unwitting or unwilling birth parent who is a fiduciary to a
child as a matter of right (subject to waiver or assignment of parental authority).
Here, the fiduciary does not undertake discretionary power over
the practical interests of the beneficiary. Rather, a subsisting power is declared
fiduciary.
2. Revisiting the Basis of Fiduciary Duties
As I explained in Part II, the Supreme Court of Canada has gradually
developed a promising view on fiduciary liability, whereby the justification
for fiduciary duties is understood to turn on structural qualities of the
fiduciary relationship. From the vague claim that fiduciary duties respond
to inequality, dependence, or vulnerability at large, there has emerged the
more potent claim that fiduciary duties are occasioned by vulnerability
inherent in the fiduciary relationship.
The nascent theory is compelling but the Supreme Court of Canada
has not properly committed itself to it. The Court has repeatedly suggested
that circumstantial vulnerabilities might occasion fiduciary duties.
131 In Galambos, Justice Cromwell distanced himself from this view
but did not repudiate it.132 Clear repudiation is required for realization of
gains in coherence as well as explanatory and justificatory power. One of
the advantages of the emerging theory is that liability will be confined to
relationships that are demonstrably fiduciary as judged by a definition of
the fiduciary relationship as a distinctive category of juridical relationship.
A further advantage is that this determination itself grounds liability,
given that fiduciary liability is premised upon breach of a duty occasioned
by the relationship as such. The nascent theory thus promises
131 Norberg, supra note 71 and accompanying text.
132 Supra note 6 at para 68 (it is suggested that circumstantial vulnerabilities are "relevant"
if less important than structural vulnerability).
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principled circumscription of the scope of fiduciary liability, a point of preoccupation
in the jurisprudence and scholarship.133
These advantages are undermined by the suggestion that fiduciary
duties may be based upon circumstantial vulnerabilities. Justice Cromwell
was, in Galambos, evidently concerned that fiduciary liability not be
considered a blunt instrument with which to deal with problems of vulnerability
at large. That concern is well founded. The mere fact of vulnerability
bears no necessary relationship to established parameters of fiduciary
liability. The conventional view is that fiduciary liability is occasioned
by the fiduciary relationship. The implication is that liability must
be understood in light of characteristics of the fiduciary relationship. But
vulnerability at large is not distinctively characteristic of the fiduciary relationship.
Vulnerabilities arise for many reasons. They may arise due to
personal characteristics of individuals or their circumstances as much as
they may be occasioned by accidental or essential qualities of interpersonal
relationships.
The conventional view implies that fiduciary liability turns on essential
qualities of the fiduciary relationship. The distinctive content of the
fiduciary duty of loyalty is in turn suggestive of the uniqueness of those
qualities. The duty of loyalty conditions the exercise of discretionary
power, requiring it not to be exercised other than for the benefit of the
beneficiary. It responds to and reflects a kind of vulnerability peculiar to
the fiduciary relationship; namely, the inherent susceptibility of the beneficiary
to exploitative exercise of discretionary power by the fiduciary.
There is no compelling reason to think that fiduciary liability ought
also or instead to turn on circumstantial vulnerability. One who undertakes
discretionary power over the practical interests of another assumes
responsibility for that person in the exercise of power, so far as it may
happen to reach. But there is no reason to suppose that the undertaking
contemplates assumption of responsibility for vulnerabilities that subsist
independently of the fiduciary relationship. To hold otherwise would be to
cast the scope of liability in incredibly broad terms, without apparent
purpose or logic.
C The Naure and Scope ofiduciy Oblgation
Some of the Court's positions on the nature and scope of fiduciary duties
merit reconsideration.
' See Smith, "Motive", supra note 2 at 57.
A THEORY OF FIDUCIARY LIABILTY 281
1. Distinguishing Fiduciary from Non-Fiduciary Duties
As to the nature of fiduciary duties, a significant analytical challenge
has been that of distinguishing fiduciary from non-fiduciary duties. The
Supreme Court of Canada has suggested that fiduciary obligation is exhausted
by the duty of loyalty. It has not consistently adopted this view.
Nevertheless, it has come to deny that there is a fiduciary duty of care,
placing it out of step with other jurisdictions.134 Here and elsewhere debates
over the range of fiduciary obligation have had an artificial ring
given the lack of a principled basis upon which to distinguish fiduciary
from non-fiduciary duties. The emerging theory of fiduciary liability resolves
that difficulty.
The theory reveals that fiduciary duties are founded upon inherent,
structural qualities of the fiduciary relationship. By way of illustration, I
have explained that the fiduciary duty of loyalty is best understood as
founded upon the beneficiary's inherent vulnerability to exploitative exercise
of discretionary power by the fiduciary.
Under the emerging theory of fiduciary liability, the determination of
whether an obligation is fiduciary depends on the connection between it
and structural characteristics of the fiduciary relationship. If the content
of the obligation is explicable on the basis of vulnerability that inheres in
the fiduciary relationship, it is properly considered fiduciary. So understood,
the vulnerabilities that found fiduciary duties will arise in every relationship
correctly identified as fiduciary. Truly fiduciary obligations
thus apply universally to fiduciary relationships. The universality of fiduciary
obligation is reflected in consistent application of the duty of loyalty
to fiduciaries exercising power under substantively diverse mandates.
The duty of loyalty is the only obligation considered fiduciary as a
matter of general consensus. However, conventional wisdom ought to be
tested. Some have already sought to broaden it.135 I have argued that the
duty of loyalty is founded upon the beneficiary's inherent vulnerability to
exploitative exercise of discretionary power by the fiduciary. Might other
duties said to be fiduciary likewise be understood as rooted in vulnerability
inherent in the fiduciary relationship? The question is beyond the
scope of the present inquiry. But a cursory analysis suggests a plausible
case for recognition of a fiduciary duty of care. The argument for other duties
commonly denoted fiduciary is less compelling.
134 In the United States in particular, it is commonplace to speak of fiduciary duties of loyalty
and care. For a criticism, see William A Gregory, 'The Fiduciary Duty of Care: A
Perversion of Words" (2005) 38:1 Akron L Rev 181.
135 See Birks, supra note 2.
282 (2011) 56:2 MCGuLLAW)OURNAL~ REVUEDEDROlTDEMCGu.L
The notion that there is a fiduciary duty of care is sometimes challenged
on the basis that there could be nothing distinctive about such a
duty. The "fiduciary" duty of care is said to be indistinguishable in substance
from the tort duty. Thus, the jurisprudence reveals oft-repeated
worries about replication of duties and the integrity of boundaries between
categories of juridical obligations.136
However, the notion that there is nothing distinctive about the duty is
wrong. There is, arguably, a duty of care owed by fiduciaries that is distinctive
in origin, orientation and content.13 7 As for origin, the duty of care
in tort is a general norm of conduct. It requires that each person take due
care to avoid conduct that poses a reasonably foreseeable risk of injury to
another. The duty in tort does not suppose, nor does it establish, a distinctive
kind of legal relationship between the duty- and right-holder respectively.
By contrast, the duty in fiduciary law arises as a matter of course
upon establishment of the fiduciary relationship. Ordinary tort principles
governing recognition of a duty of care do not apply. Of course, so understood,
the duty supposes that a distinctive kind of legal relationship subsists
between duty- and right-holder. The fact that the duty arises in fiduciary
law automatically upon the establishment of the fiduciary relationship
suggests that it is rooted in the distinctive character of that relationship
rather than upon contingent conduct or circumstances of the parties.
As for orientation, in contrast to the duty in tort, which constrains
conduct at large, the duty in fiduciary law operates only to constrain the
exercise of discretionary power. In other words, the duty is focused upon a
particular form of conduct engaged in by fiduciaries as a matter of course
given the nature of the fiduciary relationship. Thus it is that we say that
directors are accountable as fiduciaries to the corporation not for negligence
at large but rather for negligent exercise of discretionary power
over the business and affairs of the corporation.
In terms of content, the duties differ in two significant respects. First,
the duty in fiduciary law is broader in scope. Where the tort duty demands
reasonable care, the fiduciary duty typically also requires reasonable
diligence and skill. The broader scope of the duty makes sense given
its orientation. The diligence requirement reflects the fact that the duty of
care in fiduciary law conditions a positive obligation of fiduciaries;
136 Canson Enterprises, supra note 78.
137 There are still other differences. Legal historian Joshua Getzler has canvassed many in
the course of analyzing the English trend toward fusion of legal and equitable duties of
care. Among the differences is the fact that fiduciary duties of care have not been subject
to limitations on the tort duty, including contributory negligence. See Joshua
Getzler, "Duty of Care" in Peter Birks & Arianna Pretto, eds, Breach of Trust (Oxford:
Hart, 2002) 41.
A THEORY OF FIDUCIARY LIABILIY 283
namely, that they exercise judgment in determining whether and how to
act upon authority. The skill requirement reflects the fact that fiduciaries
are typically vested with authority because they possess certain skill,
knowledge, training, or expertise. There is thus typically an implicit expectation
that authority will be exercised skilfully or knowledgeably. Often,
it would make no sense to invest a fiduciary with authority absent
such an expectation (for instance, it would be folly to grant someone without
medical training and licensure authority to perform an invasive medical
intervention).
Second, the duty of care in fiduciary law is subject to a different standard
of care. The authorities are admittedly inconsistent on this point.138
However, the standard of care is rarely expressed in terms identical to
that of ordinary negligence law. Fiduciaries are sometimes held to subjective
standards of care. This may mean an elevated standard, as where fiduciaries
are required to show a level of care, diligence, and skill when
acting in interests of a beneficiary that they would show when acting in
self-interest. Sometimes it means a lower standard, as when the level of
care, skill, or diligence expected turns on the circumstances or capabilities
of the fiduciary. Fiduciaries have also been held to objective and mixed
standards. But even where the standard is objective, it is oriented to the
character of the fiduciary relationship and the role of the fiduciary within
it. For instance, fiduciaries are sometimes required to exercise the degree
of care, diligence, and skill that a reasonable fiduciary would in the circumstances.
It is plain that the authorities have not settled upon a universal standard
of care for fiduciaries. This indecision may reflect the difficulty of
balancing recognition of the variable capabilities and functions of fiduciaries
against the fact that all fiduciaries have assumed special responsibility
for the interests of beneficiaries. In any event, fiduciary law clearly contemplates
standards of care different from that of ordinary negligence
law.
Accepting that the content of the duty of care in fiduciary law remains
unsettled, it may nevertheless best be understood as a distinctive duty occasioned
by the fiduciary relationship. Like the duty of loyalty, it arises as
a matter of course upon the formation of a fiduciary relationship. Similarly,
the orientation of the duty is explicable in terms of defining characteristics
of the fiduciary relationship. The fiduciary duties of loyalty and
care condition the exercise of discretionary power in specific ways, each of
which makes sense where fiduciary power is understood as a means belonging
rightfully to the beneficiary. The duty of loyalty does not compel a
138 See ibid.
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total or encompassing fidelity. Rather, it compels faithful exercise of discretionary
power in relation to specific practical interests of the beneficiary.
Similarly, the fiduciary duty of care does not issue in the form of a
general edict calling for reasonable care to be observed in one's conduct
toward others. Rather, it requires that fiduciaries exercise discretionary
power over the practical interests of beneficiaries with due care, diligence,
and skill.
Most significantly, like the duty of loyalty, the content of the duty of
care may be understood in light of vulnerability inherent in the fiduciary
relationship. By virtue of the discretionary power enjoyed by the fiduciary
over the practical interests of the beneficiary, the beneficiary is especially
susceptible to having these interests compromised by careless, inept, or
inattentive conduct by the fiduciary. The distinctive quality of the vulnerability
is a matter of degree, not kind. Ineptitude and inattentiveness may
be understood, together with carelessness, as varieties of negligence. As
such, the character of the wrongful conduct constitutive of breach of the
fiduciary duty of care is arguably indistinguishable from that of the tortious
wrong of negligence. Nevertheless, the extent of susceptibility to the
wrongful conduct and the nature of the normative loss occasioned by it
are distinct.
The beneficiary of a fiduciary relationship is extraordinarily vulnerable
to negligent conduct by the fiduciary because the relationship entails
that interests of the beneficiary are directly and unusually exposed to decisions
made by the fiduciary. For the exercise of discretionary power to
be effective, fiduciaries must have proximity and access to, as well as immediate
influence over, interests of the beneficiary. The level and character
of influence mean that the beneficiary faces increased risk of injury
negligently caused by the fiduciary.139
The nature of the normative loss suffered by the beneficiary also differs
from that of an ordinary victim of tortious negligence. Tort law is famously
unfriendly to claims for recovery of economic losses or unrealized
benefits. The limitation on recovery for economic loss has been premised
upon concern over limitation of liability, while the refusal of recovery for
unrealized benefits has been justified on the basis that tort law addresses
wrongs of misfeasance, not nonfeasance. Whatever the justification may
be for these limitations on the kinds of losses that may found liability in
tort, they are notable for their absence in fiduciary law. Fiduciaries may
be held accountable for economic losses incurred through negligent exercise
of discretionary power in relation to intangible economic or proprie-
139 The increased risk is, of course, circumscribed. It is risk relating to the exercise of discretionary
power over specific practical interests.
A THEORY OF FIDUCIARY LIABIrTy, 285
tary interests. To hold otherwise would effectively foreclose liability for
negligently caused injury to interests subject to fiduciary power in certain
fiduciary relationships (e.g., between fund managers and investors). Fiduciary
accountability is fault-based, not outcome dependent. As such, fiduciaries
are not liable merely for failure to provide an expected benefit.
Nevertheless, they may be liable for unrealized benefits where the disappointed
expectation of benefit is attributable to negligence (e.g., trustees
may be liable for failing to exercise stock options that, if exercised, would
increase investment yield).
The significant inconsistencies and prevailing uncertainty in the law
make it somewhat artificial to speak of a fiduciary duty of care of general
application. Nevertheless, the jurisprudence is suggestive of such a duty
and-notwithstanding its unsettled doctrinal evolution-there is reason
to consider it explicable on the basis of essential characteristics of the fiduciary
relationship.
The same cannot be said of other duties commonly identified as fiduciary.
Consider the purported fiduciary duty of confidence. Fiduciary relationships
are routinely loosely called relationships of "trust and confidence."
Undoubtedly fiduciaries are often entrusted with confidential information
to facilitate exercise of discretionary power. Nor can it be
doubted that fiduciaries may be liable for improper use or disclosure of
such information. Fiduciaries may thus be subject to a duty of confidence.
On that footing, it has been supposed that there is a fiduciary duty of confidence.
140
The suggestion that it is proper to speak of a fiduciary duty of confidence
has been roundly criticized.141 However, the suggestion is difficult to
fault absent a principled basis for distinguishing fiduciary from nonfiduciary
duties. I have suggested that the emerging theory of fiduciary liability
fills this void. And just as the theory provides structured support
for recognition of a fiduciary. duty of care so it is capable of explaining why
the duty of confidence is not fiduciary. In short, in light of the theory one
can see that the duty of confidence enjoys no necessary connection with
the fiduciary relationship. More particularly, it cannot be attributed to
any inherent vulnerability of the beneficiary to the fiduciary. The duty of
confidence constrains the use and disclosure of confidential information,
not the exercise of discretionary power. Furthermore, the possession of
140 See Dennis Klinck, 'Things of Confidence': Loyalty, Secrecy and Fiduciary Obligation"
(1990) 54:1 Sask L Rev 73; John Glover, "Is Breach of Confidence a Fiduciary Wrong?
Preserving the Reach of Judge-Made Law" (2001) 21:4 LS 594; 'and Daniel Bayliss,
"Breach of Confidence as a Breach of Fiduciary Obligations: A Theory" (2000-2003) 9
Auck UL Rev 702.
141 See generally Klinck, supra note 140; Glover, supra note 140; Bayliss, supra note 140.
286 (2011) 56:2 McGIILLAwJOURNAL -REVUEDEDROlTDEMcGILL
discretionary power does not of itself attract disclosure of confidential information.
Yet, susceptibility to breach of confidence is contingent on that.
The justification for the duty of confidence is best understood as lying in
the disclosure and knowing receipt of confidential information.142 The
transaction of information requisite to liability is a contingent circumstance
that attends some, but not all, fiduciary relationships. Thus, the
duty of confidence to which some fiduciaries are subjected is properly understood
as arising from the general equitable doctrine of breach of confidence.
The duty is not fiduciary.143
2. Determining the Scope of Fiduciary Obligation
One advantage of the emerging theory of fiduciary liability is that it
provides a principled basis upon which to test assertions about the nature
of obligations. But a theory of liability should be capable of explaining the
scope as well as the basis of liability. Quite apart from the problem of determining
why fiduciaries are subject to the duty of loyalty and whether
other duties are properly considered fiduciary, there is the problem of determining
how far the conduct of fiduciaries is-or should be-constrained
by fiduciary duties. This problem has been especially acute in cases where
disloyalty is claimed on the basis that a fiduciary has taken profits or an
opportunity for the same belonging to the beneficiary. For the beneficiary,
it is sometimes argued that the duty of loyalty commands selflessness of
the fiduciary in serving the interests of the beneficiary. Profits realized by
the fiduciary thus belong rightfully to the beneficiary. Against this, it is
argued that the law demands a lesser form of loyalty, preserving some
latitude for self-interested conduct by fiduciaries.
The authorities do not reveal a consistent strategy for arbitrating such
claims. One approach is to say that the duty of loyalty applies only to conduct
taken in a fiduciary capacity or office. But this merely begs the question
of the nature and scope of the fiduciary relationship. Another involves
determining whether the beneficiary may have passed on the opportunity
or consented to receipt of profits by the fiduciary. This approach
simply avoids the problem of determining the scope of liability by asking
when it may be waived or excluded.
142 Francis Gurry, Breach of Confidence (Oxford: Clarendon Press, 1984).
143 See Lac Minerals, supra note 8. As Sopinka J recognized, "[The fact that confidential
information is obtained and misused cannot itself create a fiduciary obligation. No
doubt one of the possible incidents of a fiduciary relationship is the exchange of confidential
information and restrictions on its use. Where, however, the essence of the complaint
is misuse of confidential information, the appropriate cause of action in favour of
the party aggrieved is breach of confidence and not breach of fiduciary duty" (ibid at
600-601).
A THEORY OF FIDUCIARY LIABILr'Y 287
The emerging theory of fiduciary liability offers a solution. It permits
the scope of liability to be determined through delineation of the ambit of
the fiduciary relationship. Specifically, it suggests that the scope of liability
may be ascertained through fact-driven construction of positioning of
beneficiary and fiduciary respectively within the relationship. Understood
in light of the definition of the fiduciary relationship, the position of the
fiduciary is marked by discretionary power while that of the beneficiary is
denoted by his having practical interests subject to such power. Determination
of the ambit of liability thus requires fact-driven construction of
the discretionary powers wielded by the fiduciary and the practical interests
of the beneficiary. In every case, it is necessary to clearly identify the
specific power(s) wielded by the fiduciary (nature and scope of authority,
as well as the terms, if any, expressly or impliedly attached) and the specific
practical interest(s) of the beneficiary (the particular matters of welfare,
personality or right that ground the exercise of power). Careful construction
will permit delineation of the boundaries of a given fiduciary relationship.
The exercise should be undertaken with mind to the terms of powerconferring
instruments (contractual, statutory, or otherwise) as well as
the circumstances in which power was reposed or undertaken, including
representations made by or on behalf of fiduciary and beneficiary respectively.
The challenge in each case will be to develop an accurate representation
of the sphere of authority accorded to the fiduciary relative to the
beneficiary, recognizing that fiduciary liability constrains the conduct of
the fiduciary only in respect of conduct within that sphere.
Conclusion
Fiduciary jurisprudence throughout the common law world has struggled
in the absence of a coherent general theory of fiduciary liability. It is
everywhere supposed that fiduciary liability is premised upon the existence
of a fiduciary relationship. However, the jurisprudence has not, to
date, adequately developed this conventional view. Disagreement over the
character of fiduciary relationships has generated deep uncertainty about
the nature of fiduciary liability and concern over its scope. It has also fostered
skepticism of the implicit assumption that fiduciary liability is distinctive.
The conventional view on fiduciary liability has thus required vindication.
Of particular importance to successful vindication are a clear concept
of the fiduciary relationship and an explanation of the nexus between it
and the content of fiduciary duties. The Supreme Court of Canada, to its
credit, has shown extraordinary willingness to engage questions central to
the vitality of the conventional view. Recently, and particularly in Galambos,
it has begun to make meaningful progress on these questions. I have
288 (2011)56:2 MCGlLAWJOURNAL~ REVUE DEDROITDEMCGML
argued that a promising theory of fiduciary liability is emerging in the jurisprudence.
The theory suggests that fiduciary liability is based upon inherent
characteristics of the fiduciary relationship. The theory remains in
some measure incomplete and unfocused. However, I have suggested
ways in which it might be amplified and elaborated in the hope of
strengthening its explanatory and justificatory power. The result, I believe,
is a theory of liability that vindicates and thus makes good the assumptions
implicit in practice.