What is the test for establishing a fiduciary obligation on a beneficiary?
Ontario, Canada
The following excerpt is from Down Estate v. Racz-Down, 2009 CanLII 72075 (ON SC):
The requirements in establishing a fiduciary obligation are said to involve: i) the fiduciary has scope for the exercise of some discretion or power; ii) the fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; and iii) the beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. See: Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99 (S.C.C.) at paras. 35-46.
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