FIDUCIARY LAW, p. 823, Thomson, 2005
4 Pages Posted: 9 May 2009 Last revised: 25 May 2009
Date Written: June 1, 2005
Fiduciary law is one of those peculiar areas of law that appears to be better understood than it is. Indeed, the frequency of its application and its pervasiveness suggest that its meaning is widely and clearly known. This is true not only of Canadian jurisprudence, but also of that in Australia, England, New Zealand and the United States. Yet, even a cursory examination of fiduciary jurisprudence reveals that the fiduciary concept is not well understood or properly implemented. While there has been a proliferation of cases argued and decided on fiduciary principles and fiduciary rhetoric abounds in pleadings, judgments and legal commentaries, the understanding of the fiduciary concept possessed by judges, legal practitioners and academics is incommensurate with the continued effusion of fiduciary case law and commentaries. While the importance and widespread use of fiduciary law is now an accepted fact, a number of questions remain. Among the most basic of these are: Where did fiduciary law come from? What are the rules that govern its application? And where is it, in fact, going? These are all important questions. Significant insight into these queries may be obtained by looking to the equitable origins of the fiduciary concept. However, it is also necessary to step back from the fiduciary concept's application to uncover the rationale behind its existence.
The purpose of this book is to identify the theory and function of the fiduciary concept in order to facilitate an enhanced appreciation of the fiduciary concept's purpose and how it is effected. While it is not possible to cover all the relevant areas in which the fiduciary concept may manifest itself, this book attempts to address those most salient to forging a sophisticated understanding of the fiduciary concept. Thus, it will uncover the governing principles of the fiduciary concept so that it may be better understood and more appropriately used by judges, legal practitioners and academics. This will be accomplished through reference to existing case law and the development of a new vision of the fiduciary concept. The theoretical aspects of the fiduciary concept illustrated in this new vision will be complemented by the development of a functional approach to the fiduciary concept. The method by which the fiduciary concept will be uncovered begins with the identification of existing difficulties associated with the use of the fiduciary concept in Part I, including the identification of what is described as the fiduciary "paradox," which have inhibited its doctrinally-appropriate application. Part II is dedicated to developing a greater understanding of the fiduciary concept by examining its ideological, historical, and jurisprudential foundations. This is accomplished by providing the context in which to appreciate the fiduciary concept's raison d'ètre. In this environment, a new vision of the fiduciary concept and a functional method for its implementation are developed. Part III illustrates two instances of fiduciary obligation - directors' and officers’ fiduciary duties and Crown-Aboriginal fiduciary relations - which provide their own unique challenges for the application of fiduciary concept. In Part IV, discussion centres on ascertaining where breaches of fiduciary duty occur and issues pertaining to the attribution of harm or loss, followed by the measures of relief available for breaches of fiduciary duty. The reader may notice that there is a considerable amount of overlap in the various chapters in the book. This is purposeful, since each chapter is intended to be as free-standing as possible, notwithstanding the fact that they each build towards a larger whole. Thus, in some instances, quotes or references will be repeated entirely, while on other occasions, references will be made to discussions in other chapters. The idea is to make the book as user-friendly as possible and the references that are contained within it are designed with this goal in mind.
This book certainly cannot answer all of the outstanding questions about the fiduciary concept and its application. Nonetheless, it seeks to provide the means to respond to specific queries through an examination of fiduciary theory and jurisprudence. It will address many of the problems in the contemporary application of the fiduciary concept, initially in a general fashion, followed by more specific consideration of specific types of relations that are said to be fiduciary.
Although efforts have been made to maintain currency with the most recent developments in fiduciary jurisprudence, this book has placed its primary emphasis on principles rather than precedent. Thus, while most of the major cases in fiduciary jurisprudence have received attention, the cases and commentaries relied upon herein have been used primarily towards identifying and pulling together the various principles of the fiduciary concept in order to construct the conceptual vision and functional theory in Part II of the book.
Keywords: fiduciary, equity, corporate, trusts, remedies, theory, indigenous law
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