Solicitors’ Conflict of Interest and the Wider Fiduciary Question

This article addresses the 2007 Supreme Court of Canada ruling in 3469420 Canada Inc. v. Strother, with particular reference to the difference of views in the majority and minority judgments on the relationship between contract and fiduciary obligations and on the function of the account of profits remedy. The article argues that the minority was right in saying that the fiduciary relationship between solicitor and client is subject to the terms of the contract between them and, conversely, that the majority was wrong in suggesting that fiduciary obligations are imposed as a matter of law and may go beyond what the parties have agreed. The article also argues that he majority was right in holding that the account of profits remedy may be used for deterrence purposes and that the minority was wrong in suggesting that the remedy should not be imposed unless the plaintiff has suffered loss