F.S.M.+v.+Clarke

- Clarke is in prison serving a sentence for the sexual assault of boys at this residence. - The plaintiff is claiming against the Anglican Church of Canada and the Government of Canada for negligence, breach of fiduciary duty, and vicarious liability arising from the parental role of those responsible in the school. Note: all defendants have been #|found liable in either assault, vicarious liability or negligence.
 * __Facts:__** The plaintiff was a resident at a Residential School in B.C from 1969 to 1976.For a three year period beginning when the plaintiff was 9, he was repeatedly assaulted by Clarke, a dormitory supervisor.


 * __Issue:__** Did the parties listed above have a fiduciary duty towards F.S.M.?


 * __Holding:__**The Anglican defendants breached their fiduciary duty towards F.S.M.

· Testimony indicates that Clarke’s sexual assault was purposefully covered up by his supervisor and certain other diocesan #|personnel in order not to draw attention to the problems at the school
 * __Reasoning:__**

· Breach of fiduciary duty carries with it the “stench of dischonesty” that goes beyond carelessness or negligence (see A.(C.)). · There is a breach of fiduciary duty in the failure to report and investigate the sexual abuse and care for the victim after.This failure benefitted Harding and the Anglican Church by protecting their interests.However, failure to supervise is negligent but is not a breach of fiduciary duty.The Crown was deliberately not told of Clarke’s conduct. · The //**Frame**// **test** must be applied to determine whether the Anglican defendants were, in fact, in a fiduciary relationship (**taken from //Frame//, not the casebook): 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 peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power." · The plaintiff trused the institution to care for him, particularly because it was Anglican.The Bishop knew the dorm supervisors were in a position of trust that could affect the plaintiff’s #|personal interests.However, when the matter came to light, nothing was done by the Church despite its duty to act on the #|information it had.The Church was therefore in a fiduciary relationship with the plaintiff.
 * Fiduciary duty:**