Fiduciary Obligations and Exculpatory Clauses

This article considers the relationship between fiduciary and contract law; particular attention is paid to the question of whether exculpatory clauses can limit fiduciary obligations. The article begins with a critical review of recent Supreme Court of Canada cases dealing with fiduciary law in the commercial context and identifies a departure from the Court's earlier contract-dependent mode of analysis. The author then discusses the possibilities and limits of exculpatory clauses in restricting fiduciary obligations between contracting parties. Finally, the article focuses on the practical use of exculpatory clauses in limiting fiduciary liability in commercial joint ventures. Oil and gas Joint Operating Agreements serve as a model for this discussion.