What is a Fiduciary?

What is a Fiduciary?

The term “fiduciary” is not well understood by the average citizen.

It was probably best stated  in the simple terms of the following:

” If one person undertakes to act in relation to a particular matter in the interests of another, and has been entrusted with a power of discretion to affect the other’s interests, in a legal or practical sense, so that the other is in a position of vulnerability, then a fiduciary duty exists.”

Williams Lake Indian Band v. Abbey (1992), 1992 CarswellBC 1067, [1992] 4 C.N.L.R. 21, K12,13,SkippJ.(B.C. S.C.)

Other  noted comments on the definition are:

“where by statute, agreement, or perhaps by unilateral undertaking, one party has an
obligation to act for the benefit of another, and that obligation carries with it a discretionary
power, the party thus empowered becomes a fiduciary. Equity will then supervise the
relationship by holding him to the fiduciary’s strict standard of conduct.”

Guerin v. R. (1984), 36 R.P.R. 1, 20 E.T.R. 6, [1985] 1 C.N.L.R. 120, 55 N.R. 161,13 D.L.R. (4th) 321, [1984] 2 S.C.R. 335, [1984] 6 W.W.R. 481, [1984] S.CJ. No. 45,1984 CarswellNat 813,1984 CarswellNat 693, 59 B.C.L.R. 301, f98, Dickson J. (Beetz, Chouinard and Lamer J J. concurring) (S.C.C.)

[In Guerin v. ft, [1985] 1 C.N.L.R. 120 (S.C.C.)] … Dickson J. writing for the majority stated at [p. 137] … that:

… where by statute, agreement, or perhaps by unilateral undertaking, one party has an obligation to act for the benefit of another, and that obligation carries with it a discretionary power, the party thus empowered becomes a fiduciary.

Desjarlais v. Canada (Minister of Indian Affairs & Northern Development) (1988), 1988 CarswellNat 184, [1988] 2 C.N.L.R. 62,18 F.T.R. 316, f9, Strayer J. (Fed. T.D.)

– See more at: http://www.disinherited.com/blog/what-fiduciary#sthash.5GPs6Tw5.dpuf

A Fiduciaries Duty Of Trust and Loyalty

Fiduciaries duty is a persons in a position of trust, ranging from doctors, lawyers, accountants, to financial advisors and many others in between.

“Wilson J. offered some guidance on the subject of fiduciary relationships in the leading case of Frame v. Smith, [1987] 2 S.C.R. 99 (S.C.C.). At p. 136, she stated:

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 Supreme Court of Canada considered the concept of loyalty in fiduciary relationships in Hodgkinson v. Simms, [1994] 3 S.C.R. 377 (S.C.C.). At p. 407, Sopinka and McLachlin JJ., writing for the dissent, adopted the language from Keech v. Sandford (1726), 25 E.R. 223 (Eng. Ch. Div.):

At the heart of the fiduciary relationship lie the dual concepts of trust and loyalty. This is first and best illustrated by the fact that the fiduciary duties find their origin in the classic trust where one person, the fiduciary, holds property on behalf of another, the beneficiary. In order to protect the interests of the beneficiary, the express trustee is held to a stringent standard; the trustee is under a duty to act in a completely selfless manner for the sole benefit of the trust and its beneficiaries (Keech v. Sandford (1726), 25 E.R. 223) to whom he owes “the utmost duty of loyalty”. (Waters, Law of Trusts in Canada (2nd ed. 1984), at p. 31). And while the fiduciary relationship is no longer confined to the classic trustee-beneficiary relationship, the underlying requirements of complete trust and utmost loyalty have never varied.

109     In Moffat v. Wetstein (1996), 29 O.R. (3d) 371 (Ont. Gen. Div.), Granger J. canvassed the
duty to avoid conflicts of interest. At p. 390, he stated:

Subsumed in the fiduciary’s duties of good faith and loyalty is the duty to avoid a conflict of
interest. The fiduciary must not only avoid a direct conflict of interest but must also avoid
the appearance of a possible or potential conflict.

The fiduciary is barred from dividing loyalties between competing interests, including self-interest.

– See more at: http://www.disinherited.com/blog/fiduciaries-duty-trust-and-loyalty#sthash.ODGYjz0U.dpuf

Executors of Deceased Substituted For Deceased

substitute executorExecutors of Deceased Substituted For the Deceased In Court Action

Dicken Mechanical Ltd v Nohels Group Inc 2012 BCSC 917 is a good example of the process that the Rules of Court have established to deal with the situation where  one a party dies and how his or her executor can, in  court actions that survive a death, be substituted as the litigation  party in the place of the deceased.

The plaintiff had commenced a court action against the defendant  limited company and a personal director for damages relating to contaminated soil.

The defendant personal director died after the commencement of the proceedings.

The real issue was whether or not the claim was one that survived death or not, as it is only actions that survive death that the rules allow for an executor to be substituted as a party for a  deceased litigant.


The court ruled that claims under the Waste Management legislation do in fact survive death and allowed the deceased defendant’s executors to be joined in as substituted defendants for the deceased director.

Rule 6-2(1) of the Supreme Court Rules provides for a continuation of an action against a deceased person where the claim survives death.

With respect to the type of cases that survive death vs. those that do not, the court cited:

The maxim actio personalis moritur cum persona (“a personal right of action dies with

the person”: Black’s Law Dictionary, 6th Ed., p. 31) was discussed by Southin J.A. in McCulloch v. Green, [1995] B.C.J. No. 567, wherein she wrote at para.

… this maxim “is not applied in the old authorities to causes of actions on contracts, but to those in tort, which are founded on malfeasance or misfeasance to the person or property of another: which latter are annexed to the person, and die with the person, except where the remedy is given to (or by) the personal representatives by the statute law.” And the general rule of the common law was, that if an injury were done either to the person or to the property of another for which unliquidated damages only could be recovered in satisfaction, the action died with the person to whom, or by whom, the wrong was done …

For example, if a person is rear ended and suffers pain and suffering as well as wage loss, and dies before trial, the deceased’s  claim for pain and suffering dies with him or her, but the executors may continue the claim for the lost wages.

– See more at: http://www.disinherited.com/blog/executors-deceased-substituted-defendants-place-deceased#sthash.eECDC6oJ.dpuf

Debt to Estate Survives Bankruptcy Due to Breach of Fiduciary Duty

Debt to Estate Survives Bankruptcy Due to Breach of Fiduciary Duty

Debt to Estate Survives Due to Breach of Fiduciary Duty

Kingston Estate v. Charrette(2011), 2011 ONSC 7126, 2011 CarswellOnt 14834(Ont. S.C.J.) was in favour of the Estate Trustee/Plaintiff and held that the Defendants, the Charrettes, had not been given a gift of $25,000 by the deceased as they had alleged.  The Charrettes were ordered to  pay to the Estate the sum of $25,000 together with pre-judgment interest and costs to the Plaintiff on a substantial indemnity basis.

The Charrettes, however, declared bankruptcy after the proceeding was commenced.

A second application was therefore made by the Estate Trustee seeking an order that these amounts (the “debt”) owed to the Estate by the Charrettes should not be discharged by their bankruptcy.

Because the Charrettes went bankrupt after the proceeding was commenced, the order that  had been made would be worthless unless the debt created by his decision survived their bankruptcy.

The Estate Trustee sought an order that the debt was not discharged by the bankruptcy because it either (a) arose out of fraud, misappropriation or defalcation while they were acting as fiduciaries, or (b) resulted from obtaining the money by false pretences or by fraudulent misrepresentation.

The Estate Trustee, in the original statement of claim, had requested a declaration that the debt or liability owed by the Charrettes arose in circumstances set out in sections 178(1)(d) and (e) of the Bankruptcy and Insolvency Act (the “BIA”) which provides:

178(1) An order of discharge does not release the bankrupt from…(d) any debt or liability arising out of fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity…; (e) any debt or liability resulting from obtaining property by false pretences or fraudulent misrepresentation;


The Estate Trustee’s counsel later requested an opportunity to address the issues under section 178 of the BIA which the Judge granted. Justice Ellies determined that the Court did have jurisdiction to consider the issues raised under section 178(1) of the BIA. Justice Ellies stated that as no formal order had yet been drawn up, he had the jurisdiction to deal with the order requested under section 178. He relied on the Supreme Court of Canada decisions in Paper Machinery Ltd. v. J.O. Ross Engineering Corp.(1934), 1934 CarswellNat 30, [1934] S.C.R. 186, [1934] 2 D.L.R. 239(S.C.C.) and, in particular, Chandler v. Assn. of Architects (Alberta)(1989), [1989] 6 W.W.R. 521, 36 C.L.R. 1, [1989] 2 S.C.R. 848, 70 Alta. L.R. (2d) 193, 40 Admin. L.R. 128, 62 D.L.R. (4th) 577, 99 N.R. 277, 101 A.R. 321, 1989 CarswellAlta 160, 1989 CarswellAlta 620(S.C.C.). Justice Ellies went further to say that even if the final order had been drawn up, issued and entered, it was clear from his earlier decision that the declarations sought were to be determined as a separate matter based upon the facts as he had found them. Therefore, there was no prejudice to the Defendants by granting the Estate Trustee’s request as they had been aware from the commencement of the proceeding that this type of order was going to be sought.

Justice Ellies then had to determine whether or not the debt or liability arose in the circumstances referred to in section 178(1)(d). He concluded that:

It was not necessary that a beneficiary communicate directly or even indirectly with a fiduciary in order to create a fiduciary duty. It is sufficient if the fiduciary is aware that the property in question is being held on behalf of the beneficiary and that the following things are true:

  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; and
  3. the beneficiary is particularly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

The Judge concluded that all three criteria had been met in this case and the award was not discharged by the bankruptcy.

It is therefore important, when commencing any litigation where the defendant is likely or has commenced a bankruptcy proceeding, to ensure that a claim is advanced for any amounts awarded by the courts that  fall within the requirements of section 178 of the BIA.

– See more at: http://www.disinherited.com/blog/debt-estate-survives-bankruptcy-due-breach-fiduciary-duty#sthash.UgmmmoPV.dpuf

Court Refuses to Order Sale Despite Executor Acting Bona Fide

Court Refuses to Order Sale Despite Executor Acting Bona Fide

Acting Bona Fide

Hriczu v Bailey re Estate of Mackey 2011 BCSC 454 the issue before the court was whether a beneficiary could force the executor to sell a parcel of property and distribute the proceeds amongst the beneficiaries, where the executor had been holding the property for 11 years post death without sale.

The deceased died in 2000 and left a will which stated in clause 3(A) –

my said trustee may in their uncontrolled discretion decide upon, or to postpone such conversion of my estate or any part or parts thereof for such length of time as they may think best, “

The aforesaid power to postpone a sale is an almost standard discretion provided in wills by most lawyers.

Most executors will not be willing or feel it is appropriate to delay a sale of property for as long as 11 years unless the property is unusual and has a particular

upside in value. In this particular case the parcel of property was 17.5 acres of undeveloped land in the agricultural land reserve , that had a value of $118,000

at the time of probate, but had since become 10 times more valuable.

The court held that so long as the executor had a bona fide intention to perform his obligation to convert the assets and to distribute them in accordance with the will, the exercise of his discretion should not be interfered with by the court.

In Lottman v. Stanford, [1980] 1 S.C.R. 1065, the Supreme Court of Canada considered a Will which directed the executors and trustees:

To sell, call in and convert into money all of my personal estate at such time and in such manner and upon such terms as my Trustees at their absolute discretion determine, with power to them to postpone such conversion… (at para. 2)

The court found that the executors were not under a duty to convert, and declined to compel the executor to convert the real property.

The following quote is taken form the decision:

[15]    In Re Anthony’s (1977), 17 N.B.R. (2d) 364 (Q.B.), the executor and trustee of a Will which was strikingly similar to the Will before this court, applied for a determination of whether or not she had discretion to postpone the time for sale of property for so long as she deemed advisable. The application was brought 17 years after the testator’s death. The beneficiaries did not appear to speak to the matter.

The court, in holding that the trustee had a discretion to postpone the sale, said:

  • A trustee may exercise all such lawful powers as are expressly reposed in him by the instrument creating the trust and may use such discretion with respect to the time and manner and extent of exercising them as is permitted by the terms of that instrument. He must however, exercise the powers reasonably and in good faith and for the purposes for which they were created, after first making any needed enquiry.
  • The Court will not interfere with the bona fide exercise by a trustee of a discretionary power. Where the exercise of the power is obligatory but the time and manner of its exercise are discretionary, the trustee’s discretion in those respects will not be overridden by the Court.
  • Discretion, though absolute, must be exercised honestly, reasonably, intelligently and in good faith. And discretion must not be allowed to become an absence of responsibility Courts will not as a general rule interfere in the exercise of an absolute discretion by a trustee if the trustee acts honestly and fairly…

10 Subject to this, this Trustee, in my opinion, has a discretion to postpone the time for sale…

[16]    I accept that those principles apply here. The Executor has been given a broad discretion to postpone converting (or selling) the land in question. That discretion must be exercised “honestly, reasonably, intelligently and in good faith”. It cannot be exercised in such a way as to give the executor a personal benefit or put him in a conflict of interest. It must also not be exercised in such a way as to defeat the purpose of the testator, which was to make a gift to each and every one of her five beneficiaries. In other words, the executor is not entitled to refuse to convert, or to postpone conversion indefinitely.”