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Fiduciary - Sui Generis. Paddy-Cannon v. Canada (Attorney General)
In Paddy-Cannon v. Canada (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from findings that "Canada [was] liable to the respondents for breach of fiduciary duty (both sui generis and ad hoc) and for negligence, and granted declaratory relief to that effect".
The court considered the indigenous sui generis fiduciary duty:(a) Sui Generis Fiduciary Duty
(i) Governing principles
[63] A sui generis fiduciary duty is specific to the relationship between the Crown and Indigenous peoples: Ontario (Attorney General) v. Restoule, 2024 SCC 27, 494 D.L.R. (4th) 383, at para. 233; Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, [2018] 1 S.C.R. 83, at para. 44. It arises when there is 1) a specific or cognizable Aboriginal interest, and 2) a Crown undertaking of discretionary control over that interest: Restoule, at para. 234. Aboriginal rights in Canadian law have always been conceptualized as communal in nature: Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, at pp. 1082-83; R. v. Powley, 2003 SCC 43, 68 O.R. (3d) 255, at para. 24.
[64] The interest in question must therefore be distinctly Aboriginal, and it must be held by an Indigenous rights holding collective rather than individually: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, at paras. 53 and 56.
(ii) Application of the governing principles to this case
[65] While the trial judge’s reasons make it clear that she found Canada owed both an ad hoc and sui generis fiduciary duty to the respondents, with respect to the sui generis duty, she did not engage the above noted longstanding and well settled principles. Furthermore, even if she had engaged with these principles and applied the proper test, the evidence was incapable of establishing a sui generis fiduciary duty.
[66] The trial judge found that Canada owed a sui generis duty on the basis that the respondents had lost their Indigenous cultural identity. This, standing alone, is insufficient to ground a sui generis fiduciary duty. The respondents’ claims do not represent a specific or cognizable Aboriginal interest that is communal in nature. They do not seek to protect an Indigenous culture or language or any communal right to their preservation; rather, their claim corresponds with an individual right to practice their Indigenous culture and to speak their own Indigenous language.
[67] The trial judge erred by relying on Belobaba J.’s class action certification decision in Brown v. Canada (Attorney General), 2013 ONSC 5637, 45 C.P.C. (7th) 186, which held that it was “at least arguable” that an interest in maintaining Indigenous culture and identity could ground a sui generis fiduciary duty. I note that Belobaba J. ultimately concluded, at para. 68 of his reasons on the summary judgment motion post-certification (2017 ONSC 251, 136 O.R. (3d) 497, “Brown summary judgment motion decision”) that a sui generis fiduciary duty could not be established since the class action sought individualized redress.
[68] Canada did not owe the respondents a sui generis fiduciary duty and the trial judge erred in so finding.
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