resulted in great harm but the degree of discretionary control
that is required before a fiduciary duty can be imposed is not
present on the evidence before the court.
 Fiduciary duty has meaning as a legal term and should
not be used “as a conclusion to justify a result”.33 I therefore find
on the applicable law that a fiduciary duty of care has not been
Common Law Duty of Care
 A duty of care at common law, however, has been established. In my view, s. 2(2) and the obligation to consult creates a
common law duty of care and provides a basis in tort for the
class members’ claims.
 The common law duty of care arises out of the fact that
the 1965 agreement is analogous to a third party beneficiary
agreement. Canada undertook the obligation to consult in order
to benefit Indian bands (and by extension, Indians living on the
reserves, including children). The Indian bands are not parties
to the agreement. But a tort duty can be imposed on Canada as
a contracting party in these circumstances. As a leading con-
tracts scholar explains:
There are . . . cases in which the tort duty owed to the third party appears to
arise directly from the breach of contract. In recent English cases, for exam-
ple, solicitors have been held liable to prospective beneficiaries for their fail-
ure to draw up a will or execute it properly. Such failures would constitute
breach of contractual duties owed to their clients that could not be enforced
in a contract claim by the prospective beneficiaries because of the third-
party beneficiary rule. Their claim in tort, which avoids the third-party ben-
eficiary rule, appears to flow directly from the initial breach of contract.34
 Similarly here, the plaintiff’s claim in tort (the existence
and breach of a common law duty of care) flows directly from the
fact that at the time of entering the 1965 agreement, Canada
assumed and breached the obligation to consult with the third
party Indian bands. If the circumstances of a solicitor drafting a
will for the benefit of a third party beneficiary is “sufficient to
create a special relationship to which the law attaches a duty
of care”,35 the same should follow even more where there is not
33 Lac Minerals, supra, note 29, at p. 652 S.C.R.
34 McCamus, The Law of Contracts, 2nd ed., at 315. And see Waddams, The
Law of Contracts, 5th ed. (Aurora, Ont.: Canada Law Book, 2005), at 198;
and Whittingham v. Crease & Co.,  B.C.J. No. 1229, 88 D.L.R. (3d)
353 (S.C.); Ross v. Caunters,  Ch. 297,  3 All E.R. 580; and
White v. Jones,  2 A.C. 207,  1 All E.R. 691 (H.L.).
35 White v. Jones, ibid., at p. 276 A.C.