The Fiduciary Duty of Departing Employees

Canadian Labour & Employment Law Journal, Vol. 14, p. 355, 2009

22 Pages Posted: 16 Apr 2009 Last revised: 4 Jun 2009

Date Written: April 15, 2009


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

Suggested Citation

Flannigan, Robert, The Fiduciary Duty of Departing Employees (April 15, 2009). Canadian Labour & Employment Law Journal, Vol. 14, p. 355, 2009. Available at SSRN:

Robert Flannigan (Contact Author)

University of Saskatchewan ( email )

15 Campus Drive
Saskatoon, Saskatchewan S7N 5A6
306-966-5876 (Phone)
306-966-5900 (Fax)

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