Why Claim a Breach of Fiduciary Duty When a Breach of Confidentiality Already Exists ?

In England Securities Ltd. v. Ulmer, 2023 BCCA 241 (CanLII) Mr Ulmer worked for England as an Investor Relations Manager. In this role he had access to an extensive list of his employers clients, namely people who invested in their property syndication arrangement .

As England decided to wind down his company, Ulmer worked at another similar company called Churchill. This was done with England’s consent.

Churchill wanted access to England’s investor list but the parties failed to come to a deal. Ulmer however delivered to Churchill a complete list of England’s investors. Ulmer claimed he thought that the parties had reached a deal but apparently never confirmed that with England.

England then sued Ulmer for breach of fiduciary duty which both the trial judge and the Court of Appeal found to be not viable because Ulmer was not a fiduciary. England lost the case.

My thought is however is why didn’t England also just plead a breach of the duty of confidentiality? This duty is an implied term of all employment agreements, no matter the status of the employee. Moreover, this duty survives beyond the term of the employment.

The measure of damages would be similar. In this case there was clearly a value to the investor list as there was a very interested potential purchaser.

Sometimes the easy argument is the better argument .

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