What is the test for establishing a new fiduciary relationship?
Ontario, Canada
The following excerpt is from Lemberg v. Perris, 2010 ONSC 3690 (CanLII):
At p. 408, La Forest J. noted with approval the dissenting reasons of Wilson J. in Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, at p. 136, who proposed a three-step analysis to guide the courts in identifying new fiduciary relationships: She [Wilson J.] stated that relationships in which a fiduciary obligation has been imposed are marked by the following three characteristics: (1) scope for the exercise of some discretion or power; (2) that power or discretion can be exercised unilaterally so as to effect the beneficiary’s legal or practical interests; and (3) a peculiar vulnerability to the exercise of that discretion or power.
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