Defining the Scope of Fiduciary Liability
Supreme Court Law Review, 2017, Forthcoming
32 Pages Posted: 1 Jun 2017
Date Written: May 30, 2017
This essay highlights and pays tribute to Justice Thomas Cromwell’s contributions to Canadian fiduciary jurisprudence on the occasion of his retirement from the Supreme Court of Canada. The essay situates these contributions in the context of points of uncertainty in the Court’s earlier fiduciary jurisprudence. Justice Cromwell has left the Court with a much-improved conception of the nature of fiduciary relationships and, in turn, a principled method for defining the scope of fiduciary liability. The net result is a body of law that is more stable and predictable yet also dynamic and adaptive. In reviewing Justice Cromwell’s contributions, I highlight three particularly important advancements: first, his clarification of the definitive properties of fiduciary relationships; second, his emphasis on mandates in defining the scope of fiduciary relationships; and third, his explanation of conditions requisite to the formation of fiduciary relationships.
Keywords: Fiduciary law, fiduciary duty, duty of loyalty, scope of liability, Supreme Court of Canada, private law, private law theory, legal theory
JEL Classification: K00, K10, K11, K12, K13, K20, K22
Suggested Citation: Suggested Citation