Attempt to obtain secret commission not always a breach of fiduciary duty

Today’s striking decision in Mian v. Girdhar, 2009 ONCA 356 holds that an attempt to obtain a secret commission (more commonly known as a bribe) does not always amount to a breach of fiduciary duty. 

 

While the case has some peculiar facts (pleading were defective and not amended until late in the trial) it is somewhat surprising, at least to this writer, that an attempt to obtain a secret commission is not seen as a fundamental breach of a fiduciary duty.  Regardless, the case may be useful in wrongful dismissal matters when acting for an employee. 

 

The Court writes:

 

It is clear that the trial judge’s decision that there was no breach of fiduciary duty turned on the fact that the request for the secret commission went nowhere from the outset, as well as on the fact that the appellants did not raise this issue in the proceedings until late in the trial.