Public Fiduciary Obligations, Political Trusts, and the Equitable Duty of Reasonableness in Administrative Law

This article analyzes the role of fiduciary relationships in Canadian administrative law, and in so doing, explores more broadly the equitable dimension of administrative law. A central question for administrative law is the extent to which public authorities owe specific and enforceable duties in the exercise of their discretion to those affected by their decision making. Some of these duties arise in what are traditionally seen as public law settings. For example, it is now well-accepted that there is a duty of fairness in administrative law which embraces public decision making. In light of the Supreme Court of Canada's decision in Baker v. Canada (Minister of Immigration and Citizenship), there is arguably now a parallel duty of reasonableness owed by public officials in their discretionary determinations. Other governmental duties arise in what are seen traditionally as private law settings. For example, it is well accepted that public authorities may be held accountable for breaching contractual duties. There is another category of obligations that does not appear to belong strictly to private law or public law settings, such as the fiduciary obligation recognized as a feature of the Crown-Aboriginal relationship in Guerin v. Canada. Recent litigation, such as Authorson v. Canada and Harris v. Canada, has sought to extend this type of fiduciary obligation to other settings. The author suggests that the concern of administrative law for elaborating the rule of law and the corresponding jurisdictional boundaries of public decision makers has overshadowed the development of administrative law duties based on equitable principles. This equitable duty arises from the concept of public authority as a form of public trust, and the corresponding obligation on public officials to discharge this authority reasonably, fairly, and in the public interest. Just as the duty of fairness operates across a spectrum, with more or less onerous procedural obligations arising depending on a range of factors, so too, public fiduciary obligations, to the extent they are recognized, will necessarily vary according to the circumstances. This approach redresses a fundamental problem with administrative law, which is its tendency toward formalism, and toward viewing public action strictly through the narrow dichotomy of what is legal and what is not. The fiduciary model, by contrast, begins from the premise that an equitable relationship exists between administrative decision makers and vulnerable groups affected by their decisions. Questions such as fairness, reasonableness and justice are more properly viewed through the prism of this relationship, than through the one-dimensional lens of legality.

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