To me, the problematic issue is the requirement of undertaking before a finding of fiduciary obligation is made, as was proposed in Galambos v. Perez. This is certainly an effective way to limit the number of potential fiduciary actions in Canada (if that was what one wanted to do), but it is neither necessary or appropriate. We should be wary of courts relying on shorthands or proxies that may exist in a given fiduciary interaction, but need not exist in all fiduciary relations. No mention of reasonable expectations either, despite its status in Hodgkinson. Perhaps that makes reasonable expectations the "Peso Silver Mines" to undertaking's "CanAero" in the eyes of the SCC?
I was hoping Galambos would be ignored or recognized as a false step, but no such luck.
Regards,
Len
Dr. Leonard I. Rotman
Professor
Faculty of Law, University of Windsor
Phone: (519) 253-3000, ext. 2947
Fax: (519) 973-7064
e-mail: LROTMAN@UWINDSOR.CA
website: http://www.uwindsor.ca/law/lrotman
SSRN: http://ssrn.com/author=380953
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A brief but important judgment of the Supreme Court of Canada was released
today:
Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24
http://scc.lexum.org/en/2011/2011scc24/2011scc24.html
Among other things, the court restates the test for the finding of a
fiduciary obligation, confirming that vulnerability alone is never enough
and in general expressing scepticism about the appropriateness of finding
that such a duty is owed by the Crown. A duty of care is also rejected. A
claim for unjust enrichment was allowed to go to trial, with the rejection
of an argument by the Crown in right of Alberta that the Kingstreet case
decided that unjust enrichment claims could not be brought against the
Crown:
"91. In my view, Kingstreet stands for the proposition that public law
remedies, rather than unjust enrichment, are the proper route for claims
relating restitution of taxes levied under an ultra vires statute, on the
ground that the framework of unjust enrichment is ill-suited to dealing with
issues raised by a claim that a measure is ultra vires. However, Kingstreet
leaves open the possibility of suing for unjust enrichment in other
circumstances. The claim pleaded in this case is not for taxes paid under
an ultra vires statute. It is not therefore precluded by this Court¹s
decisions in Kingstreet."
Lionel
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