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Information - Confidential Information. Coscarella Dentistry Professional Corporation v. Harvey
In Coscarella Dentistry Professional Corporation v. Harvey (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from the dismissal of an action between two dental enterprises "alleging the conversion and improper solicitation of Clinic patients and Clinic employees, the appropriation of confidential information, and breach of fiduciary obligation against Dr. Harvey alone relating to the misuse of confidential information."
Here the court characterizes 'fiduciary duties', on the unusual 'confidential information' facts of this case:[10] Third, we see no reversible error in the trial judge’s failure to give more complete reasons for rejecting the fiduciary breach claim. The appellants’ theory is that Dr. Harvey breached his fiduciary duty by abusing confidential information. The trial judge’s finding that the information was not confidential put an end to this claim. There was no need to say more.
[11] In any event, the trial judge explained why Dr. Harvey did not fall within a presumptive fiduciary class, and she did not need to address the ‘case-by-case” analysis, given that, on its face, this claim is thoroughly untenable. For a fiduciary duty to be found on a case-by-case basis, the fiduciary must have the “scope for the exercise of some discretion or power”, the exercise of which can “affect the beneficiary’s legal or practical interest”, in circumstances where the beneficiary is “peculiarly vulnerable to the fiduciary holding the discretion”: Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), [1989] 2 S.C.R. 574 at p. 581. Dr. Harvey’s practical ability to access patient records does not amount to “the exercise of some discretion or power” to affect the legal or practical interests of the appellants or make them peculiarly vulnerable. If it did, the simple power of anyone to access the property of another would convert them into fiduciaries.
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