What is the test for determining whether a party is a fiduciary?
British Columbia, Canada
The following excerpt is from Zoic Studios BC Inc. v. Gannon, 2012 BCSC 1322 (CanLII):
The basic principles for determining whether a party is a fiduciary can be found in Wilson J.’s dissenting reasons in Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99 at para. 60: 60. Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics: (1) The fiduciary has scope for the exercise of some discretion or power. (2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests. (3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.
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