I’ve blogged about Barker v. Barker, 2022 ONCA 567, twice this week but this decision still has more nuggets on the fiduciary relationship that I would like to excerpt here. For background on the case, please click here and here.
- As between a fiduciary and beneficiary, the only type of consent that can be effective is informed consent. “Before a beneficiary can be held to have consented to a breach of trust, it must be shown that the beneficiary was fully informed of its rights and of all the material facts and circumstances of the case”: Royal Bank of Canada v. Fogler Rubinoff (1991), 1991 CanLII 7071 (ON CA), 5 O.R. (3d) 734 (C.A.), at p. 744; see also Inglis v. Beaty (1878), 2 O.A.R. 453 (C.A.). (para. 130)
- Obtaining informed consent to do something that would otherwise be a breach of fiduciary duty is all about providing full information and honest and candid disclosure on the part of the fiduciary. (para. 120)
- But just as a trustee may breach the duty of loyalty – the duty to act in the beneficiary’s best interests – by taking the trust property for itself or giving it to someone else, the trustee could equally be in breach of that duty by harming, devaluing, or destroying the trust property, even if no one benefitted from that happening. (para. 121)
- Codes of professional responsibility and behaviour can inform the content of the norms of loyalty and good faith in a fiduciary relationship: Hodgkinson, at p. 423. (para. 119)
- Punitive damages are meant to be just that – a means of punishing a wrongdoer. In Hill, Cory J. explained, at para. 196, that punitive damages are “the means by which the jury or judge expresses its outrage at the egregious conduct”. (See also Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362, at para. 62.) Punitive damages are animated by the objectives of “retribution, deterrence and denunciation”: Whiten, at paras. 43, 68. (para. 283)
Thanks for reading!