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Fiduciary - General. Del Giudice v. Thompson
In Del Giudice v. Thompson (Ont CA, 2023) the Court of Appeal considered whether various causes of action for data hacking claims were made out, here in determining whether causes of action where pleaded in class certification purposes.
Here the court considers breach of fiduciary duty:[42] ... As the motion judge found, the facts pleaded do not establish a fiduciary relationship between Capital One and the putative class members. A financial institution acting as a lender does not ordinarily owe its borrowers a fiduciary duty: Baldwin v. Daubney (2006), 2006 CanLII 32901 (ON CA), 83 O.R. (3d) 308, at para. 15 (C.A.). The rationale for this principle is apposite: ad hoc fiduciary duties only arise where “the alleged fiduciary gave an undertaking of responsibility to act in the best interests of a beneficiary”: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, 331 D.L.R. (4th) 257, at para. 30. A lending financial institution ordinarily gives no such undertaking. The relationship of a lender-borrower is “a typical commercial relationship in which the interests of the parties are not the same and each party seeks to ensure its own interest”: Baldwin, at para. 15. The appellants do not allege facts that distinguish this case from the ordinary lender-borrower scenario. The appellants’ argument that Capital One is a regulated bank is of no moment. The Bank Act, S.C. 1991, c. 46 imposes no fiduciary duty on Capital One and the mere practice of lending in Canada does not, as the pleadings suggest, constitute an undertaking of fiduciary responsibility. . Fowler v. Family and Children’s Services of the Waterloo Region
In Fowler v. Family and Children’s Services of the Waterloo Region (Ont CA, 2023) the Court of Appeal considered the fiduciary duty liability of a child welfare agency, here to a contractual foster parents:[39] In addition to claiming a duty of care in negligence, the appellants also suggest that FCS owed them a fiduciary duty. They suggest that certain hallmarks of a fiduciary duty exist in this relationship. A fiduciary duty is a duty in equity for one party to act in the best interests of another: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at paras. 29-30. But again, FCS owes a duty of loyalty mandated by the CFSA to act in the best interests of the child. Given the clear potential for the child and the foster family’s interests to conflict, FCS’s fiduciary duty must only be to the children in its care. As the motion judge noted, any fiduciary duty that would require FCS to weigh competing interests would be improper. Indeed, this court held as such in J.B., at para. 71. We therefore agree with the motion judge that there is no reasonable cause of action based on a claim for breach of fiduciary duty in this case. . Chippewas of Nawash Unceded First Nation v. Canada (Attorney General)
In Chippewas of Nawash Unceded First Nation v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal reviews basics of fiduciary duties, here while considering whether such duty arose in indigenous treaty negotiations:[185] An ad hoc, or conventional, fiduciary duty arises where there is: (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiaries; (2) a defined class of beneficiaries vulnerable to the fiduciary’s control; and (3) a legal or substantial practical interest of the beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control: Manitoba Metis Federation, at para. 50; Restoule (ONCA), at para. 586.
[186] As observed in Manitoba Metis Federation, at para. 61, a conventional fiduciary duty requires that the alleged fiduciary undertake to act in the beneficiaries’ best interests and forsake the interests of all others:The first question is whether an undertaking has been established. In order to elevate the Crown’s obligations to a fiduciary level, the power retained by the Crown must be coupled with an undertaking of loyalty to act in the beneficiaries’ best interests in the nature of a private law duty: Guerin, at pp. 383-84. In addition, “[t]he party asserting the duty must be able to point to a forsaking by the alleged fiduciary of the interests of all others in favour of those of the beneficiary, in relation to the specific legal interest at stake”: Elder Advocates, at para. 31. Fundamental to a conventional fiduciary duty is the obligation to act only with regard to the interests of the beneficiaries and to disregard the interests of all others: Guerin, at p. 387; Restoule (ONCA), at para. 601. . Aiello v. Bleta
In Aiello v. Bleta (Ont CA, 2023) the Court of Appeal holds that a fiduciary duty need not be express, it may be implied:[30] The trial judge noted that a fiduciary duty may be found without an express undertaking where the alleged fiduciary (i) had some scope to exercise discretion or power; (ii) could exercise that power unilaterally to the detriment of the other party’s legal or practical interests; and (iii) the other party was vulnerable to the exercise of that power or discretion: Waxman, paras. 511-512, 720; see also Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at paras. 29-36.
[31] For there to be a fiduciary duty, the existence of a fiduciary undertaking on the part of the alleged fiduciary remains a necessary condition: Galambos v. Perez, 2009 SCC 48, [2009] 3 S.C.R. 247, at para. 75. “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”: Galambos, at para. 79. . Falsetto v. Falsetto
In Falsetto v. Falsetto (Ont CA, 2023) the Court of Appeal held that when an attorney (under a power of attorney) acts with the informed consent and at the direction of the donor, they are thereby not acting in a fiduciary capacity:[48] For these reasons, I accept Salvatore’s submission that Sam was a fiduciary both in respect of Salvatore’s bank accounts and in his use of the Power of Attorney, and the trial judge erred in law in finding otherwise.
[49] However, in my view, the trial judge made no error in concluding that Sam did not act in breach of his fiduciary obligations. On the trial judge’s findings, Salvatore authorized all of the impugned transfers. Therefore, when Sam acted as attorney to transfer assets to himself, he was fulfilling Salvatore’s instructions. Where a donor has capacity, the attorney is primarily informed by the donor’s instructions, and the attorney is not in breach of their obligations if they follow those instructions.
[50] In Richardson (Estate Trustee of) v. Mew, 2009 ONCA 403, 96 O.R. (3d) 65, at para. 49, this court referred to the following description of the prohibition against using a power of attorney for personal profit, citing Egli v. Egli, 2004 BCSC 529, 28 B.C.L.R. (4th) 375, at para. 82, aff’d 2005 BCCA 627, 262 D.L.R. (4th) 208:It is the attorney's duty to use the power only for the benefit of the donor and not for the attorney's own profit, benefit or advantage. The attorney can only use the power for his or her own benefit when it is done with the full knowledge and consent of the donor. [Emphasis added; citations omitted.] [51] In this case, as the trial judge found, Salvatore had full capacity and knowledge, and he consented to the impugned transfers. In fact, Salvatore instructed his attorney, Sam, to make the transfers.
[52] In these circumstances, despite being a fiduciary, Sam was entitled to use his powers as attorney to effect the transfers for his own benefit. . Bigeagle v. Canada
In Bigeagle v. Canada (Fed CA, 2023) the Federal Court of Appeal considers elements of a fiduciary relationship, here in an indigenous-government context:[55] Following the principles set out in Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24 (Alberta Elders), the motion judge examined the three elements required for the establishment of a fiduciary relationship: an undertaking, a defined vulnerable person or class of persons, and a legal or practical interest (Alberta Elders at para. 36).
[56] She first noted there was nothing in the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (RCMP Act) or the Criminal Code, R.S.C. 1985, c. C-46 supporting an undivided loyalty towards the Class, as the legislation only supported the interests of all Canadians generally. There was nothing in the statutes that created a trust relationship between the RCMP and the Class. She added that no facts were pled that could establish a private law duty to the Class.
[57] The motion judge then considered the vulnerability of the members of the Class under the second branch of the test. She noted the special relationship between Indigenous peoples and Canada, but was not persuaded that the duty of loyalty set out in Alberta Elders had been extended to all Indigenous peoples in all situations. In her view, it was “unfair to project this antiquated idea that Indigenous peoples are ‘wards of the state’” (Reasons at para. 115).
[58] She concluded that the fact that the Class and the victims were Indigenous was insufficient to automatically establish the existence of a fiduciary duty. She also noted that while the Class may be composed of vulnerable individuals in their own right, neither the statement of claim nor the relevant legislation supported the existence of a special relationship between the RCMP and the Class.
[59] As the first two elements for establishing a fiduciary relationship were not demonstrated, she found it unnecessary to deal with the third element.
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[76] I agree that the circumstances in Alberta Elders did not involve Indigenous peoples. The class in that case consisted of elderly residents in Alberta’s long-term care facilities who alleged that the government artificially inflated their accommodation charges to subsidize the cost of medical expenses. They had initiated a class action against the province of Alberta and several regional health authorities claiming a breach of fiduciary duty, negligence, bad faith in the exercise of discretion, and/or unjust enrichment.
[77] Even so, it remains that one of the questions before the Supreme Court of Canada was whether the pleading of a breach of fiduciary duty disclosed a cause of action, assuming the facts pled to be true. The Supreme Court examined the principles relating to the imposition of a fiduciary duty, including in the governmental context. As the pleadings of Ms. BigEagle contained allegations suggesting a fiduciary relationship between Indigenous peoples and the Crown, the motion judge referred to the principles set out by the Supreme Court to determine if an ad hoc fiduciary duty existed as a result of the relationship, and if so, whether it gave rise to a private law duty of care to the Class. The motion judge acknowledged the special relationship between Indigenous peoples and Canada, including the existence of the Crown’s fiduciary duty to Indigenous peoples with respect to their land, but agreed with the Supreme Court that vulnerability alone was insufficient to ground a fiduciary claim (Alberta Elders at para. 28).
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[98] The Supreme Court of Canada noted in Alberta Elders, “[f]iduciary duty is a doctrine originating in trust. It requires that one party, the fiduciary, act with absolute loyalty toward another party, the beneficiary or cestui que trust, in managing the latter’s affairs” (at para. 22). “The party asserting the duty must be able to point to a forsaking by the alleged fiduciary of the interests of all others in favour of those of the beneficiary, in relation to the specific legal interest at stake” (at para. 31). To hold that the RCMP has a fiduciary duty towards the Class would be incompatible with its duty to the public in general. . Boyer v. Callidus Capital Corporation
In Boyer v. Callidus Capital Corporation (Ont CA, 2023) the Court of Appeal considered the nature of a fiduciary relationship:[44] The nature of a fiduciary relationship was set out in Galambos v. Perez, 2009 SCC 48, [2009] 3 S.C.R. 247. The Supreme Court confirmed that there must be an undertaking, either express or implied, that the fiduciary will act in the best interests of the other party, in accordance with the duty of loyalty reposed on him or her. The fiduciary’s undertaking may be the result of the exercise of statutory powers, the express or implied terms of an agreement, or simply an undertaking to act in this way. 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. . 2264052 Ontario Inc. (Louch & Louch) v. Brockville Centre Development Corp.
In 2264052 Ontario Inc. (Louch & Louch) v. Brockville Centre Development Corp. (Ont CA, 2022) the Court of Appeal considered the indicia of a fiduciary duty:[27] The factors that are to be examined in deciding whether a fiduciary duty arises are set out in Hodgkinson v. Simms, 1994 CanLII 70 (SCC), [1994] 3 S.C.R. 377, at p. 408. They are: (1) the scope for the exercise of some discretion or power; (2) that the power or discretion can be exercised unilaterally so as to affect the beneficiary's legal or practical interests; and (3) a peculiar vulnerability to the exercise of that discretion or power. . Valard Construction Ltd. v. Bird Construction Co.
In Valard Construction Ltd. v. Bird Construction Co. (SCC, 2018) the Supreme Court of Canada considered a trust bond arrangement which provided as-yet-unknown service providers with indemnity for payment for those services. One such provider didn't know of the existence of the trust and when they did it was past a contractual limitation period. The issue was whether the trustee had a duty to advise the beneficiary of the existence of the trust:A. The Duty to Disclose the Existence of the Trust
[14] The bond was issued in standard form CCDC 222-2002, which was published by the Canadian Construction Documents Committee. It has been in use since 2002. Its text creates an express trust, naming Bird as trustee of the trust property, which is the beneficiaries’ ability to claim and recover from the Guarantee Company such sums owed to them under a contract with Langford.
[15] It is true, as the trial judge observed, and as the Ontario cases upon which he relied emphasized, that the bond did not expressly impose a duty on Bird as trustee “to protect the interests of [beneficiaries]” by, for example, disclosing the bond’s existence to them. The absence of an express term imposing a duty on Bird to disclose the trust’s existence is not, however, fatal to Valard’s appeal. While the “main source” of a trustee’s duties is the trust instrument, the “general law” which sets out a trustee’s duties, rights and obligations continues to govern where the trust instrument is silent.[7]
[16] As to that general law, first principles are instructive. At its core, a “trust” refers to:. . . the relationship which arises whenever a person (called the trustee) is compelled in equity to hold property . . . for the benefit of some persons . . . or for some object permitted by law, in such a way that the real benefit of the property accrues, not to the truste[e], but to the beneficiaries or other objects of the trust.[8] [17] Because a trust divides legal and beneficial title to property between a trustee and a beneficiary, respectively, the “hallmark” characteristic of a trust is the fiduciary relationship existing between the trustee and the beneficiary, by which the trustee is to hold the trust property solely for the beneficiary’s enjoyment.[9] As a matter of law, this fiduciary relationship, in turn, impresses the office of trustee with certain duties. In particular, three duties have been recognized in Canadian law as fundamental. First, a trustee must act honestly and with that level of skill and prudence which would be expected of the reasonable person of business administering his or her own affairs. Secondly, a trustee cannot delegate the office to another. And thirdly, a trustee cannot profit personally from its dealings with the trust property or with the beneficiaries of the trust.[10]
[18] Correspondingly, the beneficiary of a trust has a right to hold the trustee to account for its administration of the trust property and to enforce the terms of the trust.[11] Absent such a right, both the trustee’s obligation to act in accordance with its fiduciary duty and the terms of the trust itself would be substantially unenforceable. In effect, the trustee would hold beneficial as well as legal ownership of the trust property[12] — which would, of course, be contrary to the division of legal and beneficial ownership upon which the trust relationship is premised.[13]
[19] The extent of a trustee’s duty to account is usually considered in circumstances where a beneficiary who is already aware of the trust’s existence requests disclosure of information pertaining to the terms or administration of the trust.[14] In some cases, however, the beneficiary’s right to enforce the terms of the trust can be meaningfully exercised only if he or she is first informed of the trust’s existence. While this arises most frequently in cases where the beneficiary’s interest under the trust is conditional upon attaining the age of majority,[15] equity imposes upon trustees a duty to disclose to beneficiaries the existence of the trust in a variety of circumstances.[16] In general, wherever “it could be said to be to the unreasonable disadvantage of the beneficiary not to be informed” of the trust’s existence,[17] the trustee’s fiduciary duty includes an obligation to disclose the existence of the trust. Whether a particular disadvantage is unreasonable must be considered in light of the nature and terms of the trust and the social or business environment in which it operates,[18] and in light of the beneficiary’s entitlement thereunder. For example, where the enforcement of the trust requires that the beneficiary receive notice of the trust’s existence, and the beneficiary would not otherwise have such knowledge, a duty to disclose will arise.[19] On the other hand, “where the interest of the beneficiary is remote in the sense that vesting is most unlikely, or the opportunity for the power or discretion to be exercised is equally unlikely”,[20] it would be rare to find that the beneficiary could be said to suffer unreasonable disadvantage if uninformed of the trust’s existence. . DBDC Spadina Ltd. v. Walton
In DBDC Spadina Ltd. v. Walton (Ont CA, 2018) the Court of Appeal considered the necessary elements for a fiduciary relationship:[48] A contractual relationship does not necessarily give rise to fiduciary duties, obviously, but it may, depending on the nature of the relationship and the overall relationship between the parties. In Korea Data Systems (USA), Inc. v. Aamazing Technologies Inc., 2015 ONCA 465, 126 O.R. (3d) 81, at para. 74, this Court reiterated the criteria for a fiduciary relationship, as set out by the Supreme Court of Canada in Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, at p. 136, Hodgkinson v. Simms, 1994 CanLII 70 (SCC), [1994] 3 S.C.R. 377, at p. 462, and Galambos v. Perez, 2009 SCC 48, [2009] 3 S.C.R. 247, at para. 66: (i) the fiduciary has scope for the exercise of some discretion or power; (ii) the fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; (iii) the beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power; and (iv) there exists an express or implied undertaking by the fiduciary to act in accordance with the duty of loyalty reposed in him or her. . Plate v Atlas Copco Canada
In Plate v. Atlas Copco Canada Inc. (Ont CA, 2019) the court defined fiduciaries as follows:[65] At the outset, it is important to emphasize that the characterization of an individual as a “fiduciary” carries a particular meaning at common law, and reflects a conclusion of mixed fact and law: Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201, at para. 716 (C.A.), leave to appeal dismissed [2005] 1 S.C.R. xvii (note). A fiduciary relationship arises where: (1) there is an undertaking by the fiduciary to act in the best interests of the beneficiary; (2) the beneficiary is vulnerable to the fiduciary’s exercise of discretion or control; and (3) an identifiable legal or practical interest of the beneficiary stands to be adversely affected by the fiduciary’s exercise of discretion or control: Elder Advocates of Alberta Society v. Alberta, 2011 SCC 24 (CanLII), [2011] 2 S.C.R. 261, at para. 36. With respect to certain traditional, or per se, fiduciary relationships, these elements are presumed to exist. In other circumstances, they will arise on case-by-case, or ad hoc, basis: Hodgkinson v. Simms, 1994 CanLII 70 (SCC), [1994] 3 S.C.R. 377, at pp. 408-410; Elder Advocates, at paras. 29-36. . Professional Institute of the Public Service of Canada v. Canada (Attorney General)
In Professional Institute of the Public Service of Canada v. Canada (Attorney General) (SCC, 2020) the Supreme Court of Canada comments on some basics of fiduciary relationships, including a complete list of per se (fixed) fiduciary categories:[113] Fiduciary relationships may be either per se or ad hoc. The former refers to those relationships that the law presumes to be — and characterizes as — fiduciary (Galambos v. Perez, 2009 SCC 48, [2009] 3 S.C.R. 247, at paras. 36-37). The recognized categories give rise to fiduciary duties “because of their inherent purpose or their presumed factual or legal incidents” (para. 36). The existence of an ad hoc fiduciary relationship, on the other hand, is determined on a case-by-case basis. Whereas the per se categories describe relationships in which the fiduciary character is “innate”, ad hoc fiduciary relationships arise from the specific circumstances of a particular relationship (Galambos, at para. 48).
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[115] Chief Justice McLachlin recently listed the per se fiduciary relationships in Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, identifying the following: trustee-cestui que trust, executor-beneficiary, solicitor-client, agent-principal, director-corporation, guardian-ward, and parent-child.
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