![handle is hein.journals/wesjalals11 and id is 1 raw text is: GALAMBOS VPEREZ, ITS CRITICS, AND THE EQUITY-
CERTAINTY PARADOX IN FIDUCIARY LAW
CALVIN DEWOLFE *
INTRODUCTION
In the legal context, certainty and equity are often perceived as opposite concepts.
The academic commentary on fiduciary law, perhaps Canada's most controversial area
of jurisprudence, embodies that perception. This paper rejects it: by analyzing and
juxtaposing two popular critiques of Canada's leading fiduciary law decision, Galambos
v Perez,1 I will argue that ostensibly opposite legal principles can function best when
combined.
Canadian law once defined fiduciary relationships2 according to categories. When
a court questioned whether a particular relationship was fiduciary, its analysis primarily
involved cross-referencing the relationship at hand against a list of per se relationships
that were generally understood to be fiduciary in nature.3 In 1984, the Supreme Court of
Canada's Guerin decision shifted the jurisprudence. Here, the Court recognized the
relationship between the Crown and Canada's Indigenous peoples as fiduciary after
emphatically stating that it is the nature of the relationship, not the specific category of
actor involved that gives rise to the fiduciary duty.4 Three years later, in Frame v Smith,5
Justice Wilson gave structure to the Court's newfound ad hoc approach by enumerating
Copyright C 2021 by Calvin DeWolfe.
* Calvin DeWolfe holds a BA in Philosophy and is a recent graduate of Dalhousie's Schulich School of
Law. After articling at the law firm Stewart McKelvey in Halifax, Nova Scotia, he intends to pursue a
practice in commercial litigation and administrative law. Calvin wishes to acknowledge the helpful
comments of Kim Brooks on an earlier version of this paper as well as the mentorship and advice of Steven
Baldner and Doug Al-Maini.
1 2009 SCC 48 [Galambos].
2 This paper uses the term fiduciary relationship to refer to a particular set of interactions between one
individual (the fiduciary) and another individual (the beneficiary), which, according to fiduciary law,
must be conducted in the best interest of the beneficiary, without regard to the self-interest of the fiduciary.
It is well-established that fiduciary interactions do not always encompass every interaction between a
fiduciary and a beneficiary, however. In this sense, the term relationship is not strictly accurate but is
used in this paper for simplicity. See e.g. Guerin v Canada, [1984] 2 SCR 335 [Guerin].
3 Classic per se fiduciary relationships include solicitor-client, doctor-patient, and trustee-beneficiary.
4 Guerin, supra note 2 at 384.
5 Frame v Smith, [1987] 2 SCR 99, [1987] SCJ No 49 (QL) [Frame].](ViewImageLocal?handle=hein.journals/wesjalals11&div=1&collection=&method=preview&ext=.png&size=3)
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