Dear Colleagues:

In the newest edition of the McGill Law Journal (2013, Vol. 58 Issue 4,
p969-1023) there is an interesting and detailed article by ODGer Paul
Miller entitled "Justifying Fiduciary Duties ". The theories of Birks,
Conaghen, Edelman, Finn, and host of others (from the USA and elsewhere)
are discussed and probingly analyzed. The thesis of the article is that
a fiduciary relationship (in juridical terms) is one where a person
exercises discretionary power over the practical interests of another
and that the term "power" has a limited meaning of being a form of
(notionally delegated) authority derived from the legal capacity of
another individual. On this analysis, fiduciary duty is not reducible
to other legal institutions (such as contract, property or tort); but an
interesting upshot of this analysis seems to be that one of the most
difficult instantiation of fiduciary duty to justify appears to be the
express trust (eg, why do beneficiaries get rights if the power is
delegated from the settlor?). I will leave the question of whether this
counts for or against the theory to those more expert in the law
relating to fiduciaries but commend the article to those interested in
non-instrumental theories of private law.

The journal also has a series of articles on the Trust in civil law for
those whose interests are farther afield.

Happy reading,

--
Jason Neyers
Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435