Neighbour Found to Be a Fiduciary

Janz v. McIntosh [1999] S.J. No. 121 is an excellent example of a court finding a breach of fiduciary duty where the alleged fiduciary was not a professional .

In fact he was simply a neighbor.

The Plaintiff was 58 years old female with Grade VIII education, who had never worked outside home, and lived at home with her parents until she married. The Plaintiff’s husband asked the defendant neighbour to assist plaintiff after his death.

Soon after the husband’s death, the defendant began to assist plaintiff with financial affairs to prevent the plaintiff squandering her inheritance.

Defendant borrowed $4,400 from plaintiff, then borrowed additional $10,000

Plaintiff received further inheritance after her father’s death, and defendant borrowed substantial sums from that amount to discharge his mortgage.

On her sister’s advice, the plaintiff brought action for repayment and damages from breach of trust, and the action was allowed.

While the relationship was not within recognized classes of fiduciary relationships, but defendant never the less acted in a fiduciary capacity with respect to financial advice.

The Plaintiff was vulnerable, defendant recognized plaintiff’s vulnerability and plaintiff trusted defendant to act in her best interests .

The defendant never disclosed to the plaintiff the benefits he derived from borrowing on her inheritance.

The Defendant never advised plaintiff to seek independent legal advice.

Defendant was in breach of fiduciary obligation

Plaintiff awarded outstanding amount of $58,111.40.

The defendant repaid most of the funds, but ultimately went bankrupt. The court imposed a constructive trust on the defendant’s home to the extent that the money that the neighbor obtained from the plaintiff was used to pay off the mortgage. The court further ordered that the plaintiff was entitled to bring legal action against the neighbor’s pension to the extent of the monetary compensation the court awarded the plaintiff.

A. Fiduciary Relationship

(1) The nature of a fiduciary relationship

20 In Frame v. Smith, [1987] 2 S.C.R. 99 (S.C.C.), at 136, Wilson J. in dissent identified criteria indicative of the existence of fiduciary relationships:

Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics:

(1) The fiduciary has scope for the exercise of some discretion or power.

(2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests.

(3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

The criteria were adopted by the majority of the Supreme Court of Canada in International Corona Resources Ltd. v. LAC Minerals Ltd. (1986), 53 O.R. (2d) 737 (Ont. H.C.).

21 In Hodgkinson v. Simms, [1994] 3 S.C.R. 377 (S.C.C.), at 408-09, LaForest J. described the criteria as a useful rough and ready guide, but clearly indicated that the criteria were not definitive. In that case, a stock broker approached an accountant for tax planning advice in what was apparently a commercial arm’s length transaction. The accountant was held to be a fiduciary. Because the accountant was also acting for the developers of a real estate project, the majority found that he breached his fiduciary duty to the appellant when he advised the appellant stock broker to invest in the project and failed to disclose his pecuniary interest in the project. Writing for the majority about fiduciaries and their duties, LaForest J. stated at p. 405:

… From a conceptual standpoint, the fiduciary duty may properly be understood as but one of a species of a more generalized duty by which the law seeks to protect vulnerable people in transactions with others. I wish to emphasize from the outset, then, that the concept of vulnerability is not the hallmark of fiduciary relationship though it is an important indicium of its existence. Vulnerability is common to many relationships in which the law will intervene to protect one of the parties. It is, in fact, the “golden thread” that unites such related causes of action as breach of fiduciary duty, undue influence, unconscionability and negligent misrepresentation.

At p. 406, LaForest J. stated that undue influence and inequality of bargaining power are not elements which must be present to make a finding that a fiduciary relationship exists. He stated:

… Indeed, all three equitable doctrines are designed to protect vulnerable parties in transactions with others. However, whereas undue influence focuses on the sufficiency of consent and unconscionability looks at the reasonableness of a given transaction, the fiduciary principle monitors the abuse of a loyalty reposed. …

With reference to factual situations which fall within the guidelines provided by Wilson J. in Frame, supra, La Forest J. noted that there are three uses of the term fiduciary, only two of which he considers truly fiduciary. He stated at p. 409-10:

… The first is in describing certain relationships that have as their essence discretion, influence over interests, and an inherent vulnerability. In these types of relationships, there is a rebuttable presumption, arising out of the inherent purpose of the relationship, that one party has a duty to act in the best interests of the other party. Two obvious examples of this type of fiduciary relationship are trustee-beneficiary and agent-principal. In seeking to determine whether new classes of relationships are per se fiduciary, Wilson J.’s three-step analysis is a useful guide.

As I noted in Lac Minerals, however, the three-step analysis proposed by Wilson J. encounters difficulties in identifying relationships described by a slightly different use of the term “fiduciary,” viz., situations in which fiduciary obligations, though not innate to a given relationship, arise as a matter of fact out of the specific circumstances of that particular relationship; see at p. 648. In these cases, the question to ask is whether, given all the surrounding circumstances, one party could reasonably have expected that the other party would act in the former’s best interests with respect to the subject matter at issue. Discretion, influence, vulnerability and trust were mentioned as non-exhaustive examples of evidential factors to be considered in making this determination.

Thus, outside the established categories, what is required is evidence of a mutual understanding that one party has relinquished its own self-interest and agreed to act solely on behalf of the other party. This idea was well-stated in the American case of Dolton v. Capitol Federal Sav. & Loan Ass’n, 642 P.2d 21 (Colo. App. 1982), at pp. 23-24, in the banker-customer context, to be a state of affairs

… which impels or induces one party “to relax the care and vigilance it would and should have ordinarily exercised in dealing with a stranger.” … [and] … has been found to exist where there is a repose of trust by the customer along with an acceptance or invitation of such trust on the part of the lending institution.

In relation to the advisor context, then, there must be something more than a simple undertaking by one party to provide information and execute orders for the other for a relationship to be enforced as fiduciary. …

22 The hallmark of a fiduciary duty would appear to be loyalty reasonably reposed in another, abuse of which would constitute a breach of the duty of loyalty or the fiduciary duty. To determine whether loyalty had been reasonably reposed in another one would have to examine the circumstances to see whether “one party could reasonably have expected that the other party would act in the former’s best interests with respect to the subject matter at issue.”

(2) Was Sam in a fiduciary relationship with June Ann?

23 Sam and June Ann’s relationship does not fit into any of the recognized classes of fiduciary relationships such as trustee — beneficiary, agent — principal, or solicitor — client. That, however, does not determine the question. The existence or absence of a fiduciary relationship is a question of fact to be determined by examining the circumstances and characteristics of the relationship.

24 There are several factors which point to the early formation of a fiduciary relationship. These include the following:

a) the request by June Ann’s husband that Sam look after June Ann;

b) June Ann’s request for help in dealing with her affairs;

c) June Ann’s reliance on Sam’s advice;

d) Sam’s knowledge that June Ann had difficulty managing her affairs;

e) Sam’s intervention when he believed June Ann was spending her inheritance recklessly;

f) Sam’s acceptance of an obligation to care for June Ann.

25 June Ann would appear to be vulnerable. This was evident from the manner in which she testified. She had only a grade eight education, had never managed her own affairs and had never taken care of herself until Jake died. Sam recognized her vulnerability. He referred to her as being mentally challenged and also described her as being a dependent adult. He said that on a scale of 1-10, June was a “2” as a financial person. He said he began acting as her advisor — not only on financial matters, but also on emotional matters. Sam knew June Ann trusted him and that she believed he was looking out for her interests.

26 All of these factors support a finding that Sam accepted a fiduciary obligation early on in the relationship and acted in a fiduciary capacity when advising June Ann with respect to the administration of her affairs.

27 June Ann had the right to expect that Sam would act in her best interests, as that appeared to be the basis of their relationship. Sam agreed to intervene for her to manage her financial affairs. Their agreement went beyond Sam simply providing information to June Ann and carrying out her orders. June Ann relied on Sam’s advice and Sam knew that she did and encouraged her to do so. The circumstances support a finding that Sam owed a fiduciary duty to June Ann with respect to the advice he gave regarding the management of her affairs. Sam cannot act as an advisor and expect to receive benefits from his role as advisor (other than any remuneration for his services agreed to by the parties) without risking the scrutiny of the court and possible sanctions for breach of fiduciary duty.