Is a physician’s relationship with a patient in exchange for sexual contact a fiduciary relationship?

Ontario, Canada


The following excerpt is from Wawrzyniak v. Livingstone, 2019 ONSC 4900 (CanLII):

In Norberg, a physician gave drugs to a chemically dependent woman patient in exchange for sexual contact. The central issue was whether the defence of consent can be raised against the intentional tort of battery in the circumstances. In her concurring decision, McLachlin J. (as she then was) held at para. 64 that the relationship of physician to patient falls into the special category of relationships which the law calls fiduciary. She also cited at para. 69 the decision of La Forest J. in McInerney v. MacDonald, 1992 CanLII 57 (SCC), [1992] 2 S.C.R. 138 who noted at p. 11 that “not all fiduciary relationships and not all fiduciary obligations are the same; these are shaped by the demands of the situation. A relationship may properly be described as ‘fiduciary’ for some purposes, but not for others.” McLachlin J. identified the question to be asked on appeal as whether, assuming a fiduciary relationship did exist between the doctor and the patient, is it properly described as fiduciary for the purposes relevant to the appeal?

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