breach captured the essential nature of Dr. Wynrib’s wrongdo-
ing. She stated, at paras. 63, 65, 67-68 of her decision:
The relationship of physician and patient can be conceptualized in a variety
of ways. It can be viewed as a creature of contract, with the physician’s
failure to fulfil his or her obligations giving rise to an action for breach of
contract. It undoubtedly gives rise to a duty of care, the breach of which con-
stitutes the tort of negligence. In common with all members of society, the
doctor owes the patient a duty not to touch him or her without his or her
consent; if the doctor breaches this duty he or she will have committed the
tort of battery. But perhaps the most fundamental characteristic of the
doctor-patient relationship is its fiduciary nature. All the authorities agree
that the relationship of physician to patient also falls into that special cate-
gory of relationships which the law calls fiduciary.
. . . . .
The foundation and ambit of the fiduciary obligation are conceptually distinct from the foundation and ambit of contract and tort. Sometimes the
doctrines may overlap in their application, but that does not destroy their
conceptual and functional uniqueness. In negligence and contract the parties are taken to be independent and equal actors, concerned primarily with
their own self-interest. Consequently, the law seeks a balance between
enforcing obligations by awarding compensation when those obligations are
breached, and preserving optimum freedom for those involved in the relationship in question. The essence of a fiduciary relationship, by contrast, is
that one party exercises power on behalf of another and pledges himself or
herself to act in the best interests of the other.
. . . . .
The fiduciary relationship has trust, not self-interest, at its core, and when
breach occurs, the balance favours the person wronged. The freedom of the
fiduciary is limited by the obligation he or she has undertaken — an obligation which “betokens loyalty, good faith and avoidance of a conflict of duty
and self-interest”: Canadian Aero Service Ltd. v. O’Malley, [1974] S.C.R.
592, at p. 606. To cast a fiduciary relationship in terms of contract or tort
(whether negligence or battery) is to diminish this obligation. If a fiduciary
relationship is shown to exist, then the proper legal analysis is one based
squarely on the full and fair consequences of a breach of that relationship.
As La Forest J. went on to note in McInerney, supra, at p. 149, characterizing the doctor-patient relationship as fiduciary is not the end of the analysis:
“not all fiduciary relationships and not all fiduciary obligations are the
same; these are shaped by the demands of the situation. A relationship may
properly be described as ‘fiduciary’ for some purposes, but not for others”.
So the question must be asked, did a fiduciary relationship exist between
Dr. Wynrib and Ms. Norberg? And assuming that such a relationship did exist,
is it properly described as fiduciary for the purposes relevant to this appeal?
[ 133] Justice McLachlin went on to conclude that Dr. Wynrib
had breached his fiduciary duties to Ms. Norberg. Justice
McLachlin stated, at para. 83 of her judgment:
I proceed then to consider the matter on the footing that the essential ele-
ments of breach of a fiduciary relationship are made out. Dr. Wynrib, in
accepting Ms. Norberg as his patient, pledged himself to act in her best
