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Fiduciary - Statutory

. Canada (Attorney General) v. Nasogaluak

In Canada (Attorney General) v. Nasogaluak (Fed CA, 2023) the Federal Court of Appeal considered when a fiduciary duty may arise from statute:
[62] I agree with the Attorney General on this issue. As the Supreme Court further stated in Elder Advocates (at para. 31), "“[t]he party asserting the [fiduciary] 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.”" Mr. Nasogaluak does not do so.

[63] While a fiduciary duty may arise from a statute (Elder Advocates at para. 32), the relevant statutory framework here also does not provide for the "“forsaking of the interests of all others in favour of those of the beneficiary.”" Rather, as the Attorney General submits, it expressly requires RCMP officers to consider the rights of all persons with whom they interact. Section 37 of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, sets out responsibilities of every member that include
. to respect the rights of all persons,

. to maintain the integrity of the law, law enforcement and the administration of justice,

. to perform the member’s duties promptly, impartially and diligently, in accordance with the law and without abusing the member’s authority,

. to ensure that any improper or unlawful conduct of any member is not concealed or permitted to continue, and

. to act at all times in a courteous, respectful and honourable manner.
[64] The Code of Conduct of the Royal Canadian Mounted Police, a schedule to the Royal Canadian Mounted Police Regulations, 2014, S.O.R./2014-281, elaborates in calling for members of the RCMP to, among other things,
. treat every person with respect and courtesy and […] not engage in discrimination or harassment,

. respect the law and the rights of all individuals,

. act with integrity, fairness and impartiality, and do not compromise or abuse their authority, power or position,

. [be] diligent in the performance of their duties and the carrying out of their responsibilities, including taking appropriate action to aid any person who is exposed to potential, imminent or actual danger,

. use only as much force as is reasonably necessary in the circumstances, [and]

. behave in a manner that is not likely to discredit the Force.
[65] As the Attorney General submits, it is very difficult to square these duties imposed by statute, which apply in the interactions of members of the RCMP with all those with whom they come into contact, with an undertaking to act in the best interests of the putative class in priority to other interests. In any event, the amended statement of claim pleads no such undertaking. While I am mindful of this Court’s statements in Brake and the Supreme Court’s cautionary statement in Imperial Tobacco (see paragraph 19 above), the Supreme Court has also counselled that "“[c]laims against the government that fail to satisfy the legal requirements of a fiduciary duty should not be allowed to proceed in the speculative hope that they may ultimately succeed”": Elder Advocates at para. 54. It is this last proposition, in my view, that applies here.


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