Tort of knowing assistance in breach of fiduciary duty

Harris v. Leikin Group Inc., 2011 ONCA 790 deals with an appeal from a summary judgment. The decision sets out the elements of the tort of knowing assistance in breach of fiduciary duty:


[8]              There is no dispute concerning the constituent elements of the tort of knowing assistance in breach of fiduciary duty: (1) there must be a fiduciary duty; (2) the fiduciary must have breached that duty fraudulently and dishonestly; (3) the stranger to the fiduciary relationship must have had actual knowledge of both the fiduciary relationship and the fiduciary's fraudulent and dishonest conduct; and (4) the stranger must have participated in or assisted the fiduciary's fraudulent and dishonest conduct: Air Canada v. M & L Travel Ltd., [1993] 3 S.C.R. 787; Gold v. Rosenberg, [1997] 3 S.C.R. 767.  The knowledge requirement for liability based on this tort is actual knowledge, which, as the Supreme Court confirmed in Air Canada, at para. 38, includes recklessness and wilful blindness.  As this court observed in Keeton v. The Bank of Nova Scotia, 2009 ONCA 662, 254 O.A.C. 251, at para. 82, "to found liability [on knowing assistance in a breach of fiduciary duty], the stranger to the trust must have actual (as opposed to constructive) knowledge of the misconduct, or be wilfully blind to the breach or reckless in his failure to realize that there was a breach".