| Summary: | At present the law of fiduciary obligations is at a
crossroads in Canada. An expansionist approach advocates
recourse to this doctrine whenever a remedy is desired. The
opposing argument, which perceives the fiduciary obligation
in a traditional way, suggests that the fiduciary
relationship is only the highest in a series of ever
increasing standards of honesty required between parties. A
brief examination of these contending positions will lead to
the important question of permitting this equitable doctrine
to operate within the parameters of a commercial context.
The courts have traditionally been reluctant to extend
general equitable doctrines into the commercial world. The
underlying reasons for this disinclination will be sought.
If any of these reasons are found to contain any justifiable
concerns, alternatives to the total exclusion of the
fiduciary relationship will be sought.
The methodology for this thesis is clear; it is the
close analytical examination of cases to decide in which
direction the law should develop and what have been the
points of departure for this area of law. This emphasis
upon the past and future of the law of fiduciaries within
the commercial context must be complemented with a detailed
examination of the present Australian and Canadian legal
positions. Particular attention must be paid to any test
suggested by the recent caselaw for the determination of the
presence of a fiduciary relationship.
Finally the various remedies available to the court
upon the determination that a fiduciary duty has been
breached needs to be examined, as the various remedies which
may be ordered can have differing consequences, particularly
upon third parties, especially when the fiduciary
relationship is within a commercial context. === Law, Peter A. Allard School of === Graduate
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