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Simon Shields, Lawyer

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Equity - Breach of Fiduciary Duty - Remedies - Knowing Assistance of Third Party Actionable

Locking v McCowan (Ont CA, 2016)

The Court of Appeal cited the remedial doctrine of 'knowing assistance' of fiduciary breach by a third party as follows:
[15] Relying on the Supreme Court’s decisions in Citadel General Assurance Co. v. Lloyds Bank Canada, [1997] 3 S.C.R. 805, 1997 CanLII 334 (SCC), 1997 CanLII 334, Air Canada v. M&L Travel Ltd., [1993] 3 S.C.R. 787, 1993 CanLII 33 (SCC), 1993 CanLII 33, and Gold v. Rosenberg, [1997] 3 S.C.R. 767, 1997 CanLII 333 (SCC), 1997 CanLII 333, the motions judge correctly stated that for a knowing assistance claim to succeed, the plaintiff must establish:
(i) an act of fraud or dishonesty on the part of the trustee;

(ii) that the defendant had knowledge of the trustee’s dishonest conduct; and

(iii) that the defendant assisted the trustee in perpetrating the dishonest conduct.

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