Fiduciaries in a commercial context

At present the law of fiduciary obligations is at a crossroads in Canada. An expansionist approach advocates recourse to this doctrine whenever a remedy is desired. The opposing argument, which perceives the fiduciary obligation in a traditional way, suggests that the fiduciary relationship is only the highest in a series of ever increasing standards of honesty required between parties. A brief examination of these contending positions will lead to the important question of permitting this equitable doctrine to operate within the parameters of a commercial context. The courts have traditionally been reluctant to extend general equitable doctrines into the commercial world. The underlying reasons for this disinclination will be sought. If any of these reasons are found to contain any justifiable concerns, alternatives to the total exclusion of the fiduciary relationship will be sought. The methodology for this thesis is clear; it is the close analytical examination of cases to decide in which direction the law should develop and what have been the points of departure for this area of law. This emphasis upon the past and future of the law of fiduciaries within the commercial context must be complemented with a detailed examination of the present Australian and Canadian legal positions. Particular attention must be paid to any test suggested by the recent caselaw for the determination of the presence of a fiduciary relationship. Finally the various remedies available to the court upon the determination that a fiduciary duty has been breached needs to be examined, as the various remedies which may be ordered can have differing consequences, particularly upon third parties, especially when the fiduciary relationship is within a commercial context