scholarly journals Fiduciary Law and the Constructive Trust: Perfecting the Fiduciary Undertaking

2012 ◽  
Vol 49 (3) ◽  
pp. 655 ◽  
Author(s):  
Ciara Toole
Keyword(s):  
Supreme Court ◽  
Fiduciary Duty ◽  
Supreme Court Of Canada ◽  
Best Interest ◽  
The Supreme Court ◽  
Fiduciary Obligations ◽  
Breach Of Duty ◽  
Fiduciary Relationships

Two recent unanimous decisions from the Supreme Court of Canada in Galambos v Perez and Alberta v Elder Advocates of Alberta Society have narrowed and refreshed the requirements for recognizing fiduciary relationships and obligations. All fiduciary obligations must be founded by an undertaking, either express or implied, on the part of the fiduciary to act in the best interest of the beneficiary. At the heart of the fiduciary obligation, the undertaking of a fiduciary may also serve as a foundation for the goals of fiduciary accountability. The developing “Galambos approach” remains incomplete in its application in this regard. In the spirit of Galambos and Elder Advocates, I propose that the undertaking of the fiduciary can provide principled guidance in the availability of gain-based relief for breach of fiduciary duty. Particularly, I suggest that the imposition of a constructive trust as proprietary gain-based relief may be rationalized under the objective of perfecting or enforcing the fiduciary undertaking. To demonstrate my proposal, I investigate three example undertakings and breaches of fiduciary duty in which the fiduciary acquires property through the breach of duty. By grounding this overall discussion towards a conceptual remedial goal of enforcing the fiduciary’s undertaking, Galambos may spark the development of a principled approach to understanding both the making and the breach of fiduciary obligations.

Children's Rights, Paternal Power and Fiduciary Duty: From Roman law to the Supreme Court of Canada

2011 ◽  
Vol 19 (1) ◽  
pp. 21-54 ◽  
Author(s):  
Anne McGillivray
Keyword(s):  
Supreme Court ◽  
Corporal Punishment ◽  
Social Engagement ◽  
Children's Rights ◽  
Fiduciary Duty ◽  
Children’S Rights ◽  
Parental Rights ◽  
Supreme Court Of Canada ◽  
Rights Of The Child ◽  
The Supreme Court

AbstractParental rights originate in patria potestas, the proprietary power of the Roman father, and its incidents of custody, control and corporal punishment. Parental rights as proprietary rights, as rights over another, cannot co-exist with children's rights. What, then, are parental rights in the age of children's rights? This Essay surveys the influence of Roman doctrine on modern law in and through the Supreme Court of Canada. The court acknowledges children's rights, views proprietary rights over children as a thing of the past and recognizes custody as the child's right, not the parent's. Yet the court vitiated the fiduciary standard for parents, limited state parens patriae jurisdiction and upheld two of the three incidents of patria potestas. By making childhood an excuse for avoiding principled rights analysis, conflating adult interests with children's rights and confusing assault with touch, the court upheld the proprietary rights of corporal punishment and control. If parental rights are understood as rights correlative to parental fiduciary duty, and if rights are seen as markers of relationship rather than its antithesis, then the law is rid of archaic notions of parental rights. The way is open to substantive judicial and social engagement with the rights of the child.

scholarly journals Constructive Trusts in Canada

1969 ◽  
Vol 37 (1) ◽  
pp. 173 ◽  
Author(s):  
Robert Chambers
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
Breach Of Duty

In this article, the author discusses the role of constructive trusts in Canada, examining the connection between unjust enrichment and the constructive trust. In particular, the author focuses on the Supreme Court of Canada decision in Soulas v. Korkontzilas and argues that constructive trusts respond to two main categories of events, the acquisition of assets in breach of duty and intentions to benefit others.

scholarly journals Compensation and the Scope of Equity's Remedial and Restitutionary Generosity

1969 ◽  
Vol 37 (1) ◽  
pp. 114
Author(s):  
Paul M. Perell
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Fiduciary Duty ◽  
Supreme Court Of Canada ◽  
Civil Case ◽  
The Supreme Court ◽  
Court Of Appeal

Canson Enterprises Ltd. v. Boughton is a case about equity’s restitutionary remedies, including compensation for breach of fiduciary duty and compensation under the doctrines of knowing assistance and knowing receipt. It was an unusual civil case because it had two distinct phases that yielded two trial level judgments, two judgments of the British Columbia Court of Appeal, and an important judgment form the Supreme Court of Canada. The Canson case was extraordinary because there were significant changes from phase one to phase two in the factual foundation of the case, and these changes provided a novel opportunity to study the nature of equitable remedies and to develop instructive comparisons and contrasts. This article uses the Canson case as a vehicle to explore equitable compensation and the scope of equity’s remedial and restitutionary generosity.

scholarly journals Galambos v Perez, its Critics, and the Equity-Certainty Paradox in Fiduciary Law

2021 ◽  
Vol 11 (1) ◽  
pp. 1-22
Author(s):  
Calvin DeWolfe
Keyword(s):  
Supreme Court ◽  
Ad Hoc ◽  
Current Approach ◽  
Supreme Court Of Canada ◽  
Fiduciary Duties ◽  
The Supreme Court ◽  
Fiduciary Relationships

This paper examines the merits of the current approach to identifying ad hoc fiduciary duties in Canada, which was exposited by the Supreme Court of Canada in its 2009 Galambos v Perez decision. The indicia of fiduciary relationships expressed in Galambos, I argue, are sufficiently comprehensive and certain to overcome popular academic criticisms of the indicia-based ad hoc approach. Specifically, I will challenge the arguments of the contractarian scholar Anthony Duggan and the equity-focused scholar Leonard Rotman -- both of which argue, albeit from different ends of the academic spectrum, that ad hoc fiduciary duties should not be identified using indicia.

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