Norberg+v.+Wynrib

- Laura Norberg was addicted to painkillers, and sought the drugs from Dr. Wynrib under the pretext of an ankle injury. - Dr. Wynrib demanded sexual favours in exchange for more drugs. - Norberg brought an action against him for sexual assault.
 * Facts:**

- Should this be dealt with under the tort of battery? If so, is there a defence of consent? - Should this be dealt with as breach of a fiduciary duty?
 * Issue:**

__**Majority Reasoning (La Forest J. + 2):**__ This should be dealt with under the tort of battery - infliction of unlawful force on another person. There may have been a fiduciary relationship, but La Forest is dealing with the case under tort. Consent, express or implied is a defence to battery. But the consent must be genuine, not be obtained by force or threat. Consent may be vitiated by fraud or deceit. The courts below saw these as the only factors to vitiate consent. La Forest sees this approach to consent as too limited. Consent should include: free choice, free of a feeling of constraint. The power imbalance should be appreciated. Consent must be voluntary. Torts can borrow from the K principle of 'unconscionability' - must prove (1) inequality in bargaining power (2) an improvident bargain. In the tort situation, must prove (1) power dependency relationship (2) exploitation. - Was Norberg in a position to make a free choice? She was young, limited education, addicted to painkillers. Her drug addiction diminished her ability to make a real choice. Her reluctance to sleep with Dr Wynrib was overwhelmed by the driving force of her addiction. - There is an unequal distribution of powers between patients and doctors, because doctors have more knowledge and are trusted by their patients. - Dr Wynrib's medical knowledge and knowledge of Norberg's addiction gave him power over her. - There was exploitation. A reasonable doctor would help Norberg overcome her addiction. A sex-for-drugs relationship is divergent from what the community would consider acceptable. - Dr Wynrib argues that Norberg exploited the weakness and loneliness of an old man to obtain drugs. La Forest says the determining factor here is that Dr Wynrib suggested the relationship - Dr Wynrib argues that La Forest's decision is tantamount to saying an addict cannot give consent, and is not responsible for her actions. La Forest responds that there needs also to be exploitation. An addict is not resolved from all responsibility; rather an addict is protected from abuse by people with more power. - In this case, the defence of consent cannot succeed.

__Damages__ - Norberg asks for (a) compensation for wrongful supply of drugs and prolongation of addiction (b) damages for remorse, shame, etc (3) punitive damages for breach of trust. - La Forest awards general damages of $20,000 for (a) and (b). - Drugs-for-sex is conduct that cries out for deterrance. It offends the standard of conduct in the community. La Forest awards $10,000 in punitive damages (c).

__**Dissent Reasoning (McLachlin J. + 1 (LHD) )**__ - Only breach of a fiduciary relationship, not contract or tort, encompasses the true relationship between the parties and the gravity of the wrong done by Dr Wynrib. - A doctor-patient relationship is a contract (professional duty) as well as it gives rise to a duty of care not to touch the patient (which can result in a tort of battery). But everyone agrees a doctor-patient relationship is also fiduciary. - Doctor-patient relationship has the hallmark of a fiduciary relationship: **"trust, the trust of a person with inferior power that another person who has assumed superior power and responsibility will exercise that power for his or her good and only for his or her good and in his or her best interests."** Recognizing this fiduciary duty holds physicians to the high standards of dealing with their patients which the trust accorded them requires. - The foundation of K and tort is that parties are independent and equal actors, concerned with their own self-interest. The essence of a fiduciary relationship is that one party exercises power on behalf of another and pledges himself to act in the best interests of the other. - A fiduciary relationship is unlike a status contract (e.g. - parent-child relationship) because the beneficiary entrusts the ficuiary with information or power only __within a circumscribed area__ (ex: legal affairs for a lawyer; her body for a doctor). Fiduciary relationship are often the product of an agreement that the beneficiary will ceded to the fiduciary some power, and the fiduciary will act in the beneficiary's best interests. - Fiduciary relations don't satisfy both parties' needs, just the beneficiary's. - The freedom of the fiduciary is limited by loyalty, good faith and avoidance of a conflict of duty and self-interest. - Seeing a fiduciary relationship in terms of contract or tort is to diminish the obligation.

Question (1): did a fiduciary relationship exist between Dr Wynrib and Norberg? Question (2): if yes, is it properly characterized as fiduciary for the purposes of the present appeal? (ie: within a fiduciary relationship, not all breaches are fiduciary.)

- The three characteristics of a f'y [from now on "f'y" = fiduciary] relationship from Wilson J.'s //Frame v. Smith// are met. Dr Wynrib was on unequal footing with Norberg; he pledged (by accepting Norberg as a patient) that he would act in her best interests. Dr Wynrib possessed power and discretion. (a) discretion or power and possibility of abuse of power (b) power or discretion may be used to affect the beneficiary in a damaging way (not confined to affecting legally, but also non-legal and practical interests). All patients hope to receive medical care free of exploitation for the physician's private purposes. (c) vulnerability. It rarely applies to experienced businesses - they could have prevented vulnerability through better bargaining. Patients are vulnerable - sometimes undressed; doctor can make them unconscious, etc. Visits are in private, with a closed door. The gender dynamic can't be ignored - most of the cases of sexual exploitation were male doctors and female patients.

- Why then do so many judges (trial judges, all Court of Appeal judges, La Forest, Sopinka) decline to consider this case as breach of fiduciary duty? - Dr Wynrib and Norberg's relationship was f'y - he undertook a duty of loyalty by taking her as his patient. He breached the relationship by (1) prescribing drugs that would not help her (2) failing to help her overcome addiction (3) putting his own sexual interests before her needs.

A few factors are said to prevent the application of a f'y duty. McLachlin will show why they don't apply here: Objection (A): Equitable principle: he who comes into equity must come with clean hands. Legal principle: [|ex turpi causa non oritur actio] Response: Norberg was sick. Her hustling of Dr Wynrib for drugs was a symptom of her illness. Legislation says that, no matter who seduced who, a doctor is responsible (and his permit revoked for a minimum of 5 years) if there is sex between a doctor and patient. Where such a power imbalance exists - no matter what Norberg did, how seductively she dressed, how compliant she was, how self-interested her conduct was - the doctor is at fault. "Abuse is abuse, no matter the reason the patient walked into the office."

Objection (B): A f'y obligation adds nothing to K or tort except a duty of confidence and non-disclosure. Response: McLachlin disagrees that f'y duty should be restricted to duty not to disclose confidential information, like in Lac Minerals. The Frame test here is satisfied. - Advantages of f'y obligation over tort: no defense of consent; a more generous approach to remedies (no need to prove foreseeability of the loss, defenses of mitigation of loss don't apply, etc) - Tort and K provide remedy for a physician's failure to provide proper treatment. But hard to bend them for a doctor abusing his position to obtain sexual favours. La Forest uses unconscionability, but there are problems with that (the problems are dealt with by Sopinka). Sopinka says the sex was causally connected to the failure to treat. But can damages flow from acts the law finds lawful simply on the ground that they are connected to damages for an actionable wrong? What about a patient whose medical needs are fully met but who is sexually exploited? - The molds of K and tort are ill-fitting.

Objection (C): Viewing the relationship as f'y will open the floodgates to unfounded claims based on the basue of real or perceived inequality of power. (Ex: children suing parents, wives suing husbands, etc.) Response: fiduciary must have undertaken to look after the interest of the beneficiary. Most people are motivated by mutual self-interest. A f'y must take the power that rightfully belongs to the beneficiary on the condition that the f'y exercise the power foor the good of the beneficiary. A doctor takes over the power a patient normally has in her body, which she cedes for the purpose of treatment. - The governing principles offer assurance against unlimited liability while promising more justice for the exploited.

__Damages:__ - The goal of equity is to restore the plaintiff as fully as possible in the position she would have been in had the equitable breach not occurred. Ex: defaulting trustee who mismanaged a fund ahd to restore the entire fund. - Restoration is not possible here as the loss is not economic. - Dr Wynrib's breach caused (1) prolongation of addiction (2) sexual violation. McLachlin awards $20,000 for (1). McLachlin would award $25,000 under (2). Where actions are purposefully repugnant to a beneficiary's best interest, punitive damages can be awarded. Has damaging effect on persons harmed and on the image of the medical profession. McLachlin would award punitive damages of $25,000.

__**Partial Dissent** **Reasoning (Sopinka J.)**__ Agrees with La Forest to dispose of issue using tort of battery, but disagrees with issue of consent. - Norberg's consent was not vitiated by her drug addiction. She was able to reason and her capacity to consent was not affected. She was not under the influence of painkillers at the time of the sex. - Norberg's consent was not vitiated by the doctor-patient relationship. The existence of a particular relationship is not determinative; it can alert the judge to the possibility that consent was not genuine, but that is all. Norberg acknowledge she played on Dr Wynrib's loneliness to obtain drugs. Sopinka finds that she consented.

- The unconscionability approach used by La Forest is not helpful here. In a contractual situation, a court can refuse to recognize the validity of a transaction voluntarily entered into by the use of power by the strong against the weak. In a tort sitaution, a court saddles a party with damages for a wrong inflicted. For tort, there is nothing wrong if there was consent. In contracts, the issue is not consent but whether it was fairly obtained. Unconscionability does not so much vitiate consent so much as fairness requires setting the contract aside. - Sopinka objects to La Forest bringing in the fact that the relationship was sufficiently divergent from community standards of conduct. Sopinka stresses that community standards have no bearing on the question of whether or not there was consent in a particular case.

- **Sopinka sees the matter as a breath of Dr Wynrib's professional duty towards his patient, Norberg.** - The duty arises out of doctor-patient relationship, based in contract. - Breach of the duty can be subject of an action in contract or negligence. - **"While ... [t]his relationship in some of its aspects involves fiduciary duties, not all facets of the obligations are fiduciary in nature."(cb189)** - Sopinka quotes himself in Lac Minerals: "[fiduciary obligation] must be reserved for situations that are trulyl in need of the special protection that equity affords"; "the nature of the relationship may be such that, notwithstanding that it is usually a fiduciary relationship, in exceptional circumstances it is not"; "not all obligations existing between the parties to a well-recognized fiduciary relationship will be fiduciary in nature". - The relationship between doctor-patient is of this hybrid genre. Certain obligations in doctor-patient relationship are fiduciary; others are contractual; others are tortuous. - "it was a breach of the duty which a physician owes to his patient to treat her professionally and, unless the breach relates to an improper disclosure of confidential information or something like that, it adds nothing to describe the breach as a fiduciary one." - A physician must never allow his personal interests to conflict with his profesional duty. He was legally and ethically bound to treat his patient's drug addiction. - Norberg consented to the sexual encounters but did not consent to the breach of duty that resulted in the continuation of her addiction. The fact that Norberg agreed did not absolve Dr Wynrib of his duty to treat her.

__Damages__ - Norberg should receive $20,000 (what La Forest awarded) because Dr Wynrib prolonged her addiction, and the sexual acts were connected to the failure to treat. - No punitive damages.