Case: Canadian Aero Service Ltd v O'Malley (1973) 40 DLR (3d) 371
Outcome: followed
The next claim is for breach of fiduciary duty. The particular duties which are said to have been breached are the traditional duties owed by an employee to his employer. These were: (a) to act in all her dealings with clients in the best interests of Arrive; (b) to protect Arrive's business; (c) in the course of her employment, not to favour her own interests or the interests of any other party over the interests of Arrive; (d) not to induce, suggest or otherwise entice any client to take business away from Arrive; (e) to act in the course of all her dealings with other Arrive employees in the best interests of Arrive; and (f) not to induce, suggest or otherwise entice any employee of Arrive to leave his or her employment. It should be observed that the duties came to an end when Ms Manning's employment was terminated. Loyalty cannot be demanded of a former employee: Canadian Aero Service Ltd v O'Malley (1973) 40 DLR (3d) 371. As Ms Manning was not an employee of Arrive, the fiduciary duties could not arise out of her contract of employment. She was, however, retained by AMP Services to work for Arrive and so the usual conditions which would give rise to the fiduciary obligations claimed here do subsist. For example: Ms Manning was appointed as the head of Arrive's Victorian office and thus undertook to act in its interests; she was given powers which would affect the interests of Arrive; there was a relationship of trust and confidence between herself and Arrive. The absence of a contract of employment does not deny the fiduciary character of the relationship between Arrive and Ms Manning. In the end I do not think that this was seriously contested. 56 Having accepted the existence of the duties for which the plaintiffs contend the question is whether those duties were breached. Much of the conduct which I have found to have been engaged in by Ms Manning was not in breach of duty. For example, informing her group that she was going to leave, telling the group who to contact at GSJBW and even settling some of their terms of employment are not inconsistent with any duty owed to Arrive. Further, merely advising a client that she had resigned would not breach any duty. Nor would informing a client that she was proposing to leave Arrive and that she was going to join or had joined GSJBW. 57 It is true that in some circumstances the use of client contact details to solicit business can amount to a breach of duty if the client contact details are confidential. This is not, however, one of those cases. At the meeting on 21 January Ms Manning handed over her mobile telephone. However she asked that she be permitted to retain the SIM card on which all client details were stored. She explained that she wanted the SIM card to place into her new mobile telephone. The request was granted. Mr Furness removed the SIM card himself and handed it to Ms Manning. It is simply not possible for Arrive now to complain about the use of the information on the SIM card. Clearly Arrive did not regard client contact details as part of its confidential information. 59 The claim that Ms Manning breached her duty not to make use of any business opportunity obtained during the course of her employment must also be rejected. This kind of claim cannot be brought against an employee in Ms Manning's position. It is reserved for those in "top management" such as directors or senior officers: Canadian Aero Service Ltd v O'Malley (1973) 40 DLR (3d) 371, 381-382. See also Aberdeen Railway Co v Blaikie Bros (1854) Macq 461, 472.