Power, Discretion, and Vulnerability, Justice Wilson and Fiduciary Duty in the Corporate/Commercial Context

Justice Bertha Wilson, the first woman appointed to an appellate court in Canada and the first woman appointed to the Supreme Court of Canada, recognized at the outset of her judicial tenure that the law develops incrementally with measured and balanced response to changing social norms. She found a number of commercial law principles fundamentally sound and was not persuaded of a need for a change when viewed from the perspective of gender. Yet where Justice Wilson concluded that commercial law was in need of adjustment, she did not hesitate to express her opinions, whether writing fro the court, or in a dissenting judgment.

This chapter deals with two aspects of her contribution. First, development of the concept of fiduciary obligation in the corporate and commercial context, and the need for an equitable remedy where such obligations are breached. Justice Wilson's approach was novel as it recognized that, beyond the historically defined categories of fiduciary relationships, other circumstances may also give rise to fiduciary obligations without creating broad new categories. Her approach also acknowledged the importance of drawing out broad principles in respect of power and vulnerability and applying them to areas of law one might not have intuitively considered. The second aspect of her contribution to be examined is her recognition of the