shorter+version

Reaume & Macklem

Fiduciary obligations are generally a poorly defined area of law. This report argues for the recognition of a fiduciary duty in the context of residential schools. The authors start by arguing that the school scenario is analogous to situations of Aboriginal land rights, so we should recognize the same fiduciary principles. This argument is bolstered by the **recognition and affirmation of Aboriginal rights in s.35(1)** and the general principles highlighted in //Sparrow//. //**The elasticity of a __generalized__ fiduciary obligation**// (resisted by some, as in //Apsassin v. Canada// but promoted by academics such as Slattery) //**provides a necessary flexibility for making fiduciary principles appropriate “yardsticks” with which to assess Crown participation in the residential school system.**//

It is useful to note two distinctions regarding fiduciary duties in the residential school context: (1) difference between fiduciary duties owed to the students versus those owed to parents (harder to justify), and (2) the conduct of individuals in the schools versus more remote parts of the Church hierarchy. **With regards to the duties owed to the students, we can probably argue that there was a //prima facie// fiduciary //relationship// with the children** (schools acting //in loco parentis//, comparable to parents) **–** the **question becomes whether there were particular fiduciary //duties// that arose within that.**


 * The situation does seem to pass the //Frame// test**.
 * Other useful considerations** could include the concept of **//unilateral undertaking//** (did the fiduciary unilaterally //undertake// that position of power and responsibility), with a relaxation of the notion that the violation of the duty was necessarily **self-interested (perhaps better to look for malice or total failure to recognize legitimacy of beneficiary’s interests** … and anyway maybe those responsible did benefit here, i.e. in furthering their mission to civilize and Christianize indigenous people).


 * The authors don’t seem to think that claimants should have to jump through hoops or slot their claim into other (insufficient) tort categories before they can resort to the fiduciary duty claim.** Sopinka in //LAC// and //Norberg// has preferred looking for other classifications (ex. breach of professional duty) before resorting to the fiduciary breach claim. McLachlin’s opposing view is that various other torts don’t fully cover or add up to the enormity of the wrong done. These are more limited in scope and definition, and often provide lower damages. The authors argue for a **recognition of the abuse of power,** and that it **shouldn’t matter that the interests involved are less tangible** (ex. non-economic).

This all takes us back to the **relationship between common law and equity**: when will we recognize new situations in which courts can use their powers to provide an equitable remedy? Does “deliberately depriving a community of its cultural and linguistic heritage and giving them a deficient education a kind of wrongdoing that the courts should use their equitable powers to remedy?” .