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Fiduciary - Crown as Fiduciary. Chippewas of Nawash Unceded First Nation v. Canada (Attorney General)
In Chippewas of Nawash Unceded First Nation v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considers whether Ontario was Crown-immune from a claim of breach of fiduciary duty (which is not a tort):(b) Analysis
[226] Ontario argues that it is not liable for any breach of fiduciary duty in this case because “no legislation has clearly and unequivocally removed Crown immunity for claims of breach of fiduciary duty”. In support of its position, Ontario cites Canada v. Thouin, 2017 SCC 46, [2017] 2 S.C.R. 184, in which the court stated, at para. 1, that “Crown immunity is deeply entrenched in our law…. [T]o override this immunity … requires clear and unequivocal legislative language.” Ontario contends that any fundamental reform to the law of Crown immunity is for the legislature to make, citing Mitchell v. Peguis Indian Band, 1990 CanLII 117 (SCC), [1990] 2 S.C.R. 85, per Wilson J., at pp. 120-21. Because the legislature has not yet done so, Ontario submits that the Crown remains immune from claims for breach of fiduciary duty.
[227] At issue in Thouin was whether the Crown in right of Canada was immune from discovery in civil proceedings to which it was not a party. Section 27 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, provides: “Except as otherwise provided by this Act or the regulations, the rules of practice and procedure of the court in which proceedings are taken apply in those proceedings.” The Supreme Court noted, at para. 27, that these words “do not show a clear and explicit intention to bind the Crown in all proceedings in which it is involved” but rather only relate to those proceedings in which the Crown is a party. As a result, the court concluded, at para. 25, that s. 27 did “not indicate a clear and unequivocal intention on Parliament’s part to lift the Crown’s immunity by requiring the Crown to submit to discovery in proceedings in which it is not a party.”
[228] Ontario acknowledges that the enactment of the PACA changed the law with respect to Crown immunity in the province, but argues that the legislation did not remove its immunity because a claim for breach of fiduciary duty could not have been enforced by petition of right prior to September 1, 1963. The same argument has been made – and rejected – in several cases.
[229] Most notably, in Slark, Cullity J. emphatically rejected the argument that the provincial Crown is immune from liability for all claims for breaches of fiduciary duty that arose before September 1, 1963, when the PACA came into force. In Slark, the plaintiffs sought certification for a class action case against the Crown for abuse suffered by them while they were housed in Huronia Regional Centre, a residential facility for individuals with developmental disabilities. In defending the action, Ontario argued that the Crown could not be liable for breaches of fiduciary duty occurring before September 1963, on two bases: first, the law did not recognize claims for breach of fiduciary duty against the Crown before September 1963; and second, the PACA did not purport to create a cause of action against the Crown for breaches of fiduciary duty occurring before September 1963.
[230] Cullity J. rejected Ontario’s argument. He began his analysis by considering the wording of the relevant provisions of the PACA, particularly ss. 3, 28 and 29(1).[10] Those sections provide:3. Except as provided in section 29, a claim against the Crown that, if this Act had not been passed, might be enforced by petition of right, subject to the grant of a fiat by the Lieutenant Governor, may be enforced as of right by proceedings against the Crown in accordance with this Act without the grant of a fiat by the Lieutenant Governor.
28. No proceedings shall be brought against the Crown under this Act in respect of any act or omission, transaction, matter or thing occurring or existing before the first day of September, 1963.
29. (1) A claim against the Crown existing on the first day of September, 1963 that, if this Act had not been passed, might have been enforced by petition of right may be proceeded with by petition of right subject to the grant of a fiat by the Lieutenant Governor as if this Act had not been passed.[11] [231] Based on the language of s. 29(1), Cullity J. asked “whether the claims for declarations in respect of breaches of fiduciary duty would have been permitted if [the PACA] had not been enacted”: Slark, at para. 118. He noted that the PACA does not specifically mention claims for breach of fiduciary duty, and as such, they could only be actionable against the Crown if they fell under the broad umbrella of a claim that “could have been enforced by petition of right if [the PACA] had not been enacted”: at para. 77.
[232] The keystone to Cullity J.’s analysis was his holding that it was not necessary “to treat the evolution of the law governing petitions of right as frozen at the end of August 1963, and to ignore developments in the equitable jurisdiction of the court since that time”: Slark, at para. 118. Instead of considering whether the claim would have been actionable by petition of right on the day the PACA was enacted, he assessed whether the claim would be actionable in a hypothetical world in which the PACA had never been passed at all: at para. 121. He relied on the text of s. 29(1): “A claim against the Crown existing on the first day of September, 1963 that, if this Act had not been passed, might have been enforced by petition of right may be proceeded with by petition of right subject to the grant of a fiat” (emphasis added).
[233] Noting that claims for breach of fiduciary duty against the Crown after September 1963 emerged despite the lack of statutory authorization in the PACA, Cullity J. thought it likely that the common law would have evolved in such a manner that, absent the PACA, claims for breach of fiduciary duty would have become actionable against the Crown by petition of right: Slark, at para. 123. Accordingly, he held that claims for breaches of fiduciary duties occurring before 1963 are now actionable with a petition of right and therefore captured by s. 29(1) of the PACA: Slark, at para. 125.
[234] In reaching this conclusion, Cullity J. rejected an approach adopted in Richard v. British Columbia, 2009 BCCA 185, 93 B.C.L.R. (4th) 487, leave to appeal refused, [2009] S.C.C.A. No. 274, and other British Columbian authorities that more closely aligns with the approach Ontario asks us to adopt in this case. He reasoned, at para. 82, that the cases from British Columbia are not easily reconciled with the language of the PACA. Ontario’s legislation asks whether the claim would be actionable if the PACA had not been passed, whereas British Columbia’s Crown Proceedings Act, S.B.C. 1974, c. 24, asks whether a claim existed prior to its enactment. Therefore, British Columbian courts have instead asked the point in time question as to whether the claim was actionable before the legislation was enacted, leaving no prospect for further development in the common law of Crown immunity. Cullity J. determined that Ontario’s PACA was more disposed to the counterfactual approach to actionability, rather than British Columbia’s point-in-time approach.
[235] Cullity J. held, at paras. 117-18, that it would be artificial to ask how equitable claims that were effectively unknown to the law before Guerin would have been treated if they had been considered by a court before 1963; instead, the correct question is whether a court today would recognize an equitable claim against the Crown for breach of fiduciary duty had the PACA not been passed. He found it “inconceivable that the petition of right procedure … would not have been adapted to accommodate judicial recognition of the new fiduciary duties of the Crown” if the PACA had never been enacted: at para. 124.
[236] We note the Divisional Court denied leave on Slark, seeing “no reason to doubt the correctness of [Cullity J.’s] decision”: 2010 ONSC 6131, 6 C.P.C. (7th) 221, at para. 31 (Div. Ct.).
[237] We further note that Cullity J., sitting as a judge of the Divisional Court, took a similar approach in his dissent in the earlier decision of Cloud v. Canada (Attorney General) (2003), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.), rev’d (2004), 2004 CanLII 45444 (ON CA), 73 O.R (3d) 401 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 50. In Cloud, former residents of an Aboriginal residential school appealed the dismissal of their certification motion for a class action against the Crown in right of Canada to the Divisional Court, which upheld the dismissal by majority. On further appeal, this court certified the action, including a claim for breach of fiduciary duty which included conduct pre-dating the enactment of the federal Crown Liability and Proceedings Act, S.C. 1952-53, c. 30, in 1953. Goudge J.A. noted, at para. 24, that Cullity J., in his dissenting reasons, had “found that the claim against the Crown for breach of fiduciary duty is a claim in equity that could have been brought against the Crown in the Exchequer Court before May 14, 1953, and can therefore now be brought in the Superior Court even if it arises before that date.” At para. 6, Goudge J.A. stated that he agreed with Cullity J.’s conclusion, and “in large measure, with his analysis.”
[238] Indeed, a number of cases have cited favourably to Slark and concluded the Crown may be held liable for breaches of fiduciary duty, including Seed v. Ontario, 2012 ONSC 2681, 31 C.P.C. (7th) 76, Templin v. Ontario, 2016 ONSC 7853, 6 C.P.C. (8th) 410, and Restoule v. Canada (Attorney General), 2020 ONSC 3932, 452 D.L.R. (4th) 604 (“Restoule No. 2”), aff’d 2021 ONCA 779, 466 D.L.R. (4th) 1, leave to appeal granted, [2022] S.C.C.A. No. 5. We review the context of each case.
[239] In Seed, the plaintiffs were seeking certification of a class action against the Crown for abuse while they were residents in a residential school for the visually impaired. Horkins J. noted one of Ontario’s objections, at para. 79, that “[t]here is no cause of action for breach of fiduciary duty prior to 1963.” She explained that Ontario was raising the same arguments as it did in Slark, at para. 80. She held, at para. 81, that “there is no principled reason to disagree with the result in Slark.”
[240] In Templin, Belobaba J. certified a class action against Ontario for abuse suffered by the plaintiffs at the Children’s Psychiatric Research Institute. He noted, at para. 6: “The action alleges negligence and breach of fiduciary duty in the operation and management of an institution operated directly by the provincial Crown. These are the same causes of action that were approved by the Court of Appeal for Ontario in Cloud, and by [the Superior Court] in Slark” (citations omitted).
[241] Restoule No. 2 concerned fiduciary breach claims arising from breach of a treaty. Hennessy J. noted Ontario’s concession, at para. 12: “Ontario concedes that it is liable for breaches of fiduciary duty based on facts in existence post September 1, 1963 and submits that it is not relying upon a defence of Crown immunity for any breach of fiduciary duty post September 1, 1963.”
[242] She then observed, at para. 42, that Ontario put forward the same arguments as in Slark and Seed and as Canada did in Cloud. She accepted the analysis in Slark. She rejected, at para. 56, Ontario’s argument that “the test on certification is so different from the test for summary judgment that the reasoning in Slark and Seed should not be applied in this case.” She cited, at para. 58, the principles of stare decisis and comity, both horizontal and vertical, and concluded, at para. 59, that the Crown “has shown no good basis for their claim that the decision in Slark is plainly wrong, particularly in light of the appellate decisions in Cloud and Carvery [v. Nova Scotia (Attorney General), 2015 NSSC 199, 364 N.S.R. (2d) 63, at paras. 59-61, aff’d 2016 NSCA 21, 371 N.S.R. (2d) 296] which adopt the reasoning” in Slark. Hennessy J.’s respect for stare decisis and comity was reinforced by the Supreme Court in R. v. Sullivan, 2022 SCC 19, 472 D.L.R. (4th) 521, at para. 65.
[243] Ontario nevertheless points to the British Columbia Court of Appeal’s decision in Richard, this court’s decision in Barker v. Barker, 2022 ONCA 567, 162 O.R. (3d) 337, leave to appeal refused, [2022] S.C.C.A. No. 368, and the Supreme Court’s decision in Rudolph Wolff & Co. v. Canada, 1990 CanLII 139 (SCC), [1990] 1 S.C.R. 695, to substantiate its argument. Cullity J. explained in Slark why Richard is not apposite based on the differences in each province’s legislation. We agree.
[244] We also do not think that Barker assists Ontario. In Barker, at para. 91, on the basis that “Guerin is fatal to Ontario’s position”, this court did not accept Ontario’s invitation to review Cullity J.’s decision in Slark. This court took Ontario’s argument at its highest, noting, at para. 93: “But as Ontario’s argument concedes, Guerin entails the conclusion that where legislation imposes an obligation that gives rise to duties of a fiduciary nature on the Crown, it must be taken as waiving Crown immunity for breach of that obligation.” This court found that the imposition of a duty on Ontario by the Mental Health Act, R.S.O. 1990, c. M.7, was sufficient to satisfy any requirement in Thouin for clear and unequivocal language to override Crown immunity, on the basis, at para. 94, that it would “make little sense to conclude that the legislation created that obligation but left the fiduciary immune from the consequences of its breach.” The Barker court left open for another day how Slark might factor into the analysis.
[245] Ontario also relies on Rudolph Wolff, which stands for the proposition that the general jurisdiction conferred on Canadian courts to hear claims against the federal Crown comes from the enactment of statutes such as the Petition of Right Act, S.C. 1875, c. 12, and subsequent federal legislation, and that only Parliament can enact such statutes with respect to the federal Crown. Rudolph Wolff does not address the availability of remedies against the Crown. It does not provide guidance on how to interpret Crown liability legislation, let alone the specific language addressed in Slark.
[246] We agree with Cullity J.’s analysis in Slark and reject Ontario’s argument that it is immune from claims for breach of fiduciary duty in this case, and that reform to the law of Crown immunity should be entirely left to the legislature. The common law still has a role to play, as Slark illustrates.
[247] We accordingly disagree with Ontario that the correct way to interpret the PACA is to consider the state of the law as it was prior to September 1, 1963 and ask whether a claim for fiduciary duty might have been enforced, at that time, by petition of right. Section 29(1) of the PACA permits claims against the Crown that: (1) existed on September 1, 1963; and (2) might have been enforced by petition of right if the PACA had not been passed. Section 28 maintains a bar to such claims which do not meet these conditions. In S.M. v. Ontario (2003), 2003 CanLII 22812 (ON CA), 67 O.R. (3d) 97 (C.A.), at para. 47, this court held that the word “claim” in s. 29(1) does not refer to a cause of action per se, but rather to the basis for the existence of a cause of action. The events giving rise to the claim for breach of fiduciary duty in this case obviously pre-date September 1963. Like Cullity J., however, we conclude that had the PACA not been enacted, the petition of right procedure would have evolved to account for the actionability of the Crown’s fiduciary obligations.
[248] We accordingly conclude that Ontario is not immune from claims for breach of fiduciary duty in this case. We do not consider Thouin to be dispositive of Ontario’s argument for four reasons. First, Thouin focused on an interpretive approach to statutory language in the federal legislation. The statutory language at issue in this case – s. 29(1) of the 1970 consolidation of the PACA – is phrased and framed quite differently, and opens up the prospect of further common law development in the area of Crown immunity, as Cullity J. explained in Slark. Second, no argument was addressed to the Supreme Court in Thouin about the way in which the common law on Crown immunity might have evolved, as noted in this court’s decision in Cloud or in the numerous decisions following Slark. Third, the issue in Thouin was procedural, not substantive. Finally, Thouin did not concern fiduciary duties in an Aboriginal context.
[249] We take seriously the Supreme Court’s statement in Mikisew Cree, at para. 33, that reconciliation “is the ‘fundamental objective of the modern law of aboriginal and treaty rights’” (citing Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, at para. 1) and that “[t]he purpose of s. 35 … is to facilitate this reconciliation”. Ontario asks us to ignore the principles behind Crown immunity and to keep to a technical approach, which is quite inconsistent with the honour of the Crown, in order to dismiss SON’s fiduciary breach claim on the ground of Crown immunity. It would be wrong to apply unyielding and regressive procedural bars to Aboriginal claims for breach of fiduciary duty. Doing so would not further reconciliation.
[250] If SON’s claim for damages for breach of the Crown’s fiduciary duty respecting Treaty 45 ½ were successful, then, in our view, Ontario would not be able to rely on the principles of Crown immunity as a full defence. . Robertson v. Ontario
In Robertson v. Ontario (Ont CA, 2023) the Court of Appeal considered breach of fiduciary duty, here in a class action addressing multiple COVID deaths in long-term care homes:(3) Motion Judge Strikes Breach of Fiduciary Duty Claim
[22] The motion judge noted that the Supreme Court in Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, had made clear that in order to establish the existence of a fiduciary duty, the beneficiaries’ vulnerability must arise from their relationship with the fiduciary, and the fiduciary must have a duty to act solely in the best interest of the beneficiaries.
[23] The motion judge found that the residents of the LTC homes in this case were vulnerable due to the realities of aging, related medical issues, and the risks associated with COVID-19, rather than their relationship with the provincial government. Further, Ontario did not own or operate the LTC homes nor did the language of the LTCHA support an arguable fiduciary duty to act solely in the interests of the residents of LTC homes.
[24] The motion judge thus had “no difficulty” concluding that the breach of fiduciary duty claim, on the facts as pleaded, is plainly and obviously doomed to fail and should be struck in its entirety.
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(4) The Motion Judge Did Not Err in Striking the Fiduciary Duty Claim
[66] The motion judge struck the appellants’ fiduciary duty claim in its entirety, finding that the Supreme Court’s decision in Elder Advocates, which also involved elderly residents of LTC facilities, compelled the conclusion that the claim had no reasonable prospect of success.
[67] The motion judge pointed out that in order to establish that a public authority owes a fiduciary duty to a specific class of persons, there must be an undertaking by the alleged fiduciary to act solely and in the best interests of the alleged beneficiaries. The motion judge found that the duty of care language in the preamble to the LTCHA did not support an arguable fiduciary duty to act solely in the interests of the LTC residents, to the exclusion of all others. In fact, s. 174.1 expressly provides that in issuing directives under the Act, the MLTC may take into account interests other than those of the LTC residents. This negated the possibility of any fiduciary duty to act solely in the interests of the residents of LTC homes.
[68] The appellants claim that there is no evidence of an actual conflict between the alleged fiduciary duty and the government’s obligation to act in the public interest. Relying on this court’s decision in Barker v. Barker, 2022 ONCA 567, 162 O.R. (3d) 337, at paras. 81-82, they argue that the motion judge erred in striking the fiduciary duty claim in the absence of such evidence.
[69] I would not give effect to this ground of appeal. As the motion judge appropriately noted, recognition of a fiduciary duty in this case is plainly inconsistent with the wording of s. 174.1 of the LTCHA, which expressly authorizes the MLTC to consider, in addition to the interests of LTC residents, factors that include “the availability of financial resources for the management and operation of the long-term care home system…” As the Supreme Court in Elder Advocates made plain (at paras. 43-45), a statutory discretion to spread limited resources among competing groups is inherently inconsistent with the recognition of a fiduciary duty, which requires utmost loyalty to the beneficiaries’ interest above all others.
[70] In my view, the motion judge therefore correctly struck the fiduciary duty claim. . Bigeagle v. Canada
In Bigeagle v. Canada (Fed CA, 2023) the Federal Court of Appeal considers elements of a fiduciary relationship, here in an indigenous-government context:[55] Following the principles set out in Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24 (Alberta Elders), the motion judge examined the three elements required for the establishment of a fiduciary relationship: an undertaking, a defined vulnerable person or class of persons, and a legal or practical interest (Alberta Elders at para. 36).
[56] She first noted there was nothing in the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (RCMP Act) or the Criminal Code, R.S.C. 1985, c. C-46 supporting an undivided loyalty towards the Class, as the legislation only supported the interests of all Canadians generally. There was nothing in the statutes that created a trust relationship between the RCMP and the Class. She added that no facts were pled that could establish a private law duty to the Class.
[57] The motion judge then considered the vulnerability of the members of the Class under the second branch of the test. She noted the special relationship between Indigenous peoples and Canada, but was not persuaded that the duty of loyalty set out in Alberta Elders had been extended to all Indigenous peoples in all situations. In her view, it was “unfair to project this antiquated idea that Indigenous peoples are ‘wards of the state’” (Reasons at para. 115).
[58] She concluded that the fact that the Class and the victims were Indigenous was insufficient to automatically establish the existence of a fiduciary duty. She also noted that while the Class may be composed of vulnerable individuals in their own right, neither the statement of claim nor the relevant legislation supported the existence of a special relationship between the RCMP and the Class.
[59] As the first two elements for establishing a fiduciary relationship were not demonstrated, she found it unnecessary to deal with the third element.
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[76] I agree that the circumstances in Alberta Elders did not involve Indigenous peoples. The class in that case consisted of elderly residents in Alberta’s long-term care facilities who alleged that the government artificially inflated their accommodation charges to subsidize the cost of medical expenses. They had initiated a class action against the province of Alberta and several regional health authorities claiming a breach of fiduciary duty, negligence, bad faith in the exercise of discretion, and/or unjust enrichment.
[77] Even so, it remains that one of the questions before the Supreme Court of Canada was whether the pleading of a breach of fiduciary duty disclosed a cause of action, assuming the facts pled to be true. The Supreme Court examined the principles relating to the imposition of a fiduciary duty, including in the governmental context. As the pleadings of Ms. BigEagle contained allegations suggesting a fiduciary relationship between Indigenous peoples and the Crown, the motion judge referred to the principles set out by the Supreme Court to determine if an ad hoc fiduciary duty existed as a result of the relationship, and if so, whether it gave rise to a private law duty of care to the Class. The motion judge acknowledged the special relationship between Indigenous peoples and Canada, including the existence of the Crown’s fiduciary duty to Indigenous peoples with respect to their land, but agreed with the Supreme Court that vulnerability alone was insufficient to ground a fiduciary claim (Alberta Elders at para. 28).
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[98] The Supreme Court of Canada noted in Alberta Elders, “[f]iduciary duty is a doctrine originating in trust. It requires that one party, the fiduciary, act with absolute loyalty toward another party, the beneficiary or cestui que trust, in managing the latter’s affairs” (at para. 22). “The party asserting the duty must be able to point to a forsaking by the alleged fiduciary of the interests of all others in favour of those of the beneficiary, in relation to the specific legal interest at stake” (at para. 31). To hold that the RCMP has a fiduciary duty towards the Class would be incompatible with its duty to the public in general. . Canada (Attorney General) v. Jost
In Canada (Attorney General) v. Jost (Fed CA, 2020) the Federal Court of Appeal considered breach of fiduciary duty in a class action case against the federal Crown:[32] Fiduciary duty is a legal doctrine originating in trust law. It requires that one party (the fiduciary) act with absolute loyalty toward another party (the beneficiary) in managing the latter’s affairs: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261 at para. 22.
[33] Fiduciary obligations have been found to arise in the context of relationships having specific characteristics. These include some discretion or power residing in the fiduciary, the ability of the fiduciary to unilaterally exercise that discretion or power in a way that will affect the beneficiary’s interests, and the vulnerability of the beneficiary to the exercise of power: Elder Advocates, above at para. 27.
[34] The types of relationships that will give rise to a fiduciary duty are not closed. However, for a fiduciary duty to arise outside of previously established categories of fiduciary relationships, the purported fiduciary must clearly undertake to act in the best interests of the beneficiary, whether expressly, or by necessary implication: Elder Advocates, above at paras. 30-32, 36.
[35] There must also be a defined person or class of persons who are vulnerable to the fiduciary’s control, as well as a legal or substantial practical interest on the part of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control: Elder Advocates, above at para. 36.
[36] The Supreme Court has, however, also observed that the Crown’s broad responsibility to act in the public interest means that situations where it will be found to owe a duty of loyalty to a particular person or group will be rare: Elder Advocates, above at para. 44.
[37] According to the Attorney General, the Supreme Court has previously held that a fiduciary duty does not attach to the relationship between the government and members of a public sector pension plan: Professional Institute of the Public Service of Canada v. Canada (AG), 2012 SCC 71, [2012] 3 S.C.R. 660 at para. 142 [PIPSC].
[38] It is true that the Supreme Court concluded that a fiduciary duty did not arise on the facts of the PIPSC case. It is, however, important to note that PIPSC involved claims by various unions and associations seeking relief on behalf of their members that would require Canada to return some $28 billion in actuarial surpluses to government-run pension plans.
[39] It was in that context that the Supreme Court concluded that the Government of Canada did not owe a fiduciary duty to plan members with respect to the actuarial surpluses in the pension plans. In coming to this conclusion, the Supreme Court had particular regard to the requirement that the alleged fiduciary undertake, either expressly or impliedly, to act in accordance with a duty of loyalty. The Court observed that it was "“critical that the purported beneficiary be able to identify a forsaking of the interests of all others on the part of the fiduciary, in favour of the beneficiary, in relation to the specific interest at issue”": PIPSC, above at para. 124. In the absence of any such undertaking on the part of the Government, the Court found that the fiduciary claim could not succeed: PIPSC, above at paras. 124-127.
[40] The Supreme Court reiterated in PIPSC that an alleged duty of loyalty founded on the exercise of government power was "“inherently at odds”" with the Government’s duty to act in the best interests of Canadian society as a whole: above at para. 127. That said, the Court did not determine that a fiduciary relationship could never exist between the Government, as administrator of a pension plan, and the members of the plan. Indeed, the Court expressly stated that it was unnecessary to determine "“the precise ambit of any potential fiduciary duty that might arise between the government, as pension plan administrator, and the beneficiaries of the Plan or whether the relationship inherently carries with it some set of fiduciary obligations”": PIPSC, above at para. 120.
[41] Given that the Supreme Court has expressly left the door open to the possibility that the administrator of a governmental pension plan may, in some cases, owe a fiduciary duty to plan members, and subject to the comments below, it cannot be said at this point that it is plain and obvious that Mr. Jost’s fiduciary claim has no reasonable prospect of success.
[42] There is also jurisprudence from other courts that arguably supports Mr. Jost’s argument that the Crown owes a fiduciary duty to members of the Reserve Plan.
[43] That is, the Ontario Court of Appeal determined that the Crown owed a fiduciary duty to disabled military veterans when administering pension funds that had been paid to veterans and were being administered on their behalf: Authorson (Guardian of) v. Canada (AG) (2000), 2002 CanLII 23598 (ON CA), 215 D.L.R. (4th) 496, 58 O.R. (3d) 417 (C.A.). Authorson involved a class action brought on behalf of veterans whose pensions and allowances were administered for them by the federal Department of Veterans Affairs because the veterans were incapable of doing it for themselves. Although the Ontario Court of Appeal’s decision was subsequently overturned by the Supreme Court on other grounds, it is noteworthy that the Crown conceded before the Supreme Court that it did indeed act as a fiduciary vis-à-vis the veterans: Authorson v. Canada (AG), 2003 SCC 39, [2003] 2 S.C.R. 40 at paras. 2, 8.
[44] The facts in Authorson are admittedly different from the facts in this case. In Authorson, the funds had already been paid to the pensioners and were being administered on their behalf. That said, the decision of the Ontario Court of Appeal nevertheless leaves open the possibility that the Crown may, in certain situations, be found to owe a fiduciary duty to members of government-administered pension plans. This further supports my finding that it is not plain and obvious that the fiduciary claims advanced here have no reasonable chance of success.
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