The Fiduciary Duty of Departing Employees

Abstract:     
In conventional terms, because employment relations are limited access arrangements, employees attract status fiduciary accountability. That conventional view has been sidelined in certain respects in Canada. Courts and commentators have asserted that ordinary employees do not have fiduciary obligations. Instead, employees are said to have distinct duties of fidelity (good faith) and confidence. Those duties, however, are but linguistic mutations of conventional fiduciary accountability. The Supreme Court of Canada recently had an opportunity to clarify the law in this area in RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc. (RBC). The opportunity was not taken. Clarification was put off to another day. Still, the decision essentially confirms that employees are subject to status fiduciary accountability, whatever terminology is used to describe that accountability.

Keywords: employment, fiduciary duty, loyalty, departing employee, competition, solicitation, good faith, fidelity

Accepted Paper Series