A.(C.)+v.+Critchley


 * Facts**: Plaintiffs, when youths, were sent to a wilderness group home for boys in foster care and boys in conflict with the law. They alleged physical & sexual abuse by an operator at the home, made several complaints to Crown employees but these were largely ignored, no investigation.
 * Years later, plaintiffs brought an action vs Crown for damages suffered as result of the abuse by the operator at the home.

//Trial judge//: Allowed plaintiff's action, awarded them: - damages - aggravated damages** (on basis that 3 of the boys were returned to the home before it was cloased, Crown had failed to inform the parents of the boys there that there was a risk they had been abused, and Crown officials at trial failed to accept responsibility for operator's conduct) - **NOT punitive damages**

APPEAL by Crown re aggravated damages: allowed in part CROSS-APPEAL by plaintiffs re no punitive damages: dismissed.


 * Issue:** Is the Provincial Crown liable either for actual breaches of fiduciary duties on the part of Crown servants, for their negligence, or vicariously for intentional torts and criems committed against children in the care of the Crown by a person who was not an employee of the government?
 * HELD: No, not in this case.

Reasoning (Donald CJ)** - Plaintiffs and witnesses provided much evidence as to having put the Crown on notice, at some point, that plaintiffs were at serious risk, but the evidence does not support that these officias failed somehow - nothing in evidence contradicts that they acted **with good faith in what they thought were the best interests of those entrusted to their care**, and they acted without conflict of interest.

2 paths of Crown liability: (1) vicarious liability for operator's conduct (judge not going to deal with it); - by statute, Ministry owed a duty of special diligence in providing suitable facilities for plaintiffs' care (Protection of Children Act) -- historically, this kind of provision taken to mean that Ministry is in place of parents, but in modern context, agencies function such that they operate through officials "many of whom have no opportunity to participate in or even physically to oversee the care of every child committed to the care of the agency" - can Crown be held liable for **every misfortune that befalls a child while under Ministry care?**
 * (2) original fault of Ministry officials**

- Fiduciary duty: has been extended recently to cover many circumstances, and our SCC has been leading the way but "**it has not provided as much guidance as it usually does in emerging areas of law**" - not predictable or incremental development but "quantum leaps" and **no one really knows** whether certain situations are under K, negligence, other torts, or **"fiduciary obligations whose limits are difficult to discern"**; many lawyers plead cases in the alternative "**not knowing where the line should be drawn"**

- Not really desirable to engage fiduciary obligations law where there is no dishonesty or intentional disloyalty.

- //Girardet v. Crease & Co//. seemed to provide "clear statement of the law" on fiduciary duties, but both before and after that case SCC has "**failed to make the law as clear as it should be**".

- SCC has found fiduciary obligations in many different kinds of circumstances [see list p. 217, very handy!] and written hundreds of pages on it, but has made **no coherent statement and we have no way of knowing how SCC would take this case**.

- Judge grasps for some coherence from among the various SCC cases where fiduciary obligations were imposed, and found that with the exception of //Guerin//, defendants **PERSONALLY** failed to discharge a legal duty, for their own benefit (and //Guerin// is a "special" case where aboriginal right in question was "unique")

Justice Ryan (concurring) adds: Conduct like that in //Norberg// (= breach of fiduciary duty) **goes beyond conduct which is simply negligent**. //Girardet// notes that breach of fiduciary duty carries the "**stench of dishonesty**".You breach a fiduciary duty **not simply by failing to obtain the best result** for the beneficiary (fiduciary is not a "guarantor". //Norberg// involved dishonestly acting in patient's interest, placing self interest above duty of loyalty.


 * Ratio (specific)**: Recovery based on fiduciary duties should be confined to "cases of the kind where, **in addition to other usual requirements such as vulnerability and the exercise of discretion**, the **defendant personally takes advantage of a relationship of trust or confidence for his or her direct or indirect personal advantage**."


 * Ratio (general): The law of fiduciary duties is a mess. The SCC is expanding it, but incoherently and perhaps too far. Let's rein it in.** [Again, CML tendency of two steps forward, one step back - cf//. Donoghue//'s seemingly revolutionary revolutionary act of torpedoing the need for categorization, and the subsequent retreat to conservatism and re-categorization.]