Law Week 8

When does a Fiduciary relationship exist

Exists when the fiduciary has power that can affect the economic, legal, or practical interests of the beneficiary

What are the 6 duties of a Fiduciary

Duty of care

• Fiduciaries must act with reasonable care in their tasks

• Professionals must act with higher degree of skill

Duty of good faith (good faith and honesty)

Duty of loyalty (Make decisions in the best interest of the beneficiary)

Duty of confidentiality (Must be confidential with their affairs with the beneficiary)

Duty of accounting (Safeguard the beneficiary’s assets/property)

Duty of Obedience (Fiduciaries must obey the guidelines/instructions set by the beneficiary)

4 elements to a Fiduciary breach claim

Plaintiff must show that legal fiduciary duty existed

Plaintiff must show that legal fiduciary duty was breached

Plaintiff must show breach caused damage

Plaintiff must show that it was the fiduciary breach that caused the damage

What is a fact-based fiduciary relationship + 2 characteristics

Parties in the “fiduciary relationship” don’t fit into any established categories

The fiduciary has discrecion/power

The fiduciary can use this power to affect beneficiary’s interest

Fiduciary duty effects on contract or tort liability

If there is a fiduciary relationship, the law imposes obligations that go beyond whats stated in the contract or required under tort

2 requirements of Duty of Care for professionals to claim negligence

Was the relationship between the professional and the plaintiff close enough

Was the damage to the plaintiff reasonably foreseeable from the proffesionals’ negligent misrepresentation

4 elements of Fraudulent misrepresentation (Professional Liability)

A false representation was made by proffesional

Professional has some level of knowlege of the falseness

The false representation influenced the benficiary to act

The beneficiary’s actions resulted in a loss

5 Elements of negligent misrepresentation (Professional Liability)

Special relationship between the two parties

Representation must be false or misleading

Representor acted negligently, and fell under the standard of care required as a professional

Representee must have relied on the negligent misrepresentation

Misrepresentation resulted in damages

4 ways to manage the Legal Risks for Professionals

Have third-party liability coverage

Have a contract that specifies the professional’s scope of work

Stay up-to-date with professional standards

Screen check your clients for any potential risks

4 characteristics of independent contractors

Hired to complete a task for a fee

Controls their work

Pays their own expenses

Dont get employee protections like vicarious liability

What are 2 ways Employer can have third-party liability

Contract liability - Employer is responsible for contracts their employee makes

Tort liability - Employers can be vicariously liable for employees torts commited during their employement

3 rules of Notice of termination

If your job has a fixed end, theres no notice needed when the term ends

If your job does not have a fixed end, reasonable notice is necessary (set by contract or statute)

If reasonable notice is not given, employee must be paid “lieu of notice”

3 reasonable notice factors (Bardal factors)

Length of employment

Employee profile

Job market

Notice is not required for dismissal with cause (3)

Employee violates an essential term of their employment

Employee breaches good faith

Employee works against the employer’s interests

What can an employee claim against an employer that dismisses them to early or without proper cause

Wrongful Dismissal

2 facts about non-compete clauses

they must be reasonable

banned from employment agreements in ontario

2 exceptions to banned ontario non-compete clauses ban

If you sell your business to an employer and then become an employee of that business

If employee has a top executive role

2 Trade secret protections

Non-solicitation covenants (States you can work somewhere else but can’t take old companees’ clients or employees)

Confidentiality clause (States you can’t not share or use the company’s confidential info)