Judicial Ambivalence to Public Fiduciary Duties

Abstract

Chapter VI seeks to explain why Canadian courts have recognised so few public fiduciary duties outside of the Crown-Native context, and why the connection has yet to be drawn between public law duties of fairness and reasonableness, on the one hand, and public fiduciary obligations, on the other. Courts have insisted that the claimant show a pre-existent right to the subject matter of the alleged fiduciary obligation. They have also clung fast to a formal private/public distinction according to which fiduciary duties belong almost exclusively to private law. The reasons that explain the dearth of fiduciary doctrine in public law, however, do not justify its absence. In developing this argument I rely on the work of Paul Finn, and in particular, his careful explanation of how the idea of the state as fiduciary came to be neglected in commonwealth public law.