[ 137] Outside of the context of physician-client fiduciary relations, there are cases where the courts have treated the breach
of fiduciary duty claim as separate from the tort claim with different limitation provisions, although the claims both arise from
the same underlying facts. One of those cases is M. (K.) v.
M. (H.),  3 S.C.R. 6,  S.C.J. No. 85, which case supports the conclusion that I have reached in the case at bar.
[ 138] The facts of M. (K.) v. M. (H.) were that between the ages
of eight and 16, K.M. was sexually assaulted by her father. She
reported the incest to her mother and others but, alas, she was
not believed. Years later, after attending a self-help group for
incest victims, K.M., then 26 years old, sued her father for damages arising from the incest. She sued in tort and also for breach
of fiduciary duty. The jury found that the she had been sexually
assaulted and awarded her $50,000, but the trial judge, in a
decision upheld by the Ontario Court of Appeal, dismissed her
action as statute-barred. The Supreme Court of Canada
reversed the judgments of the courts below. Justice La Forest
([Justices] Gonthier, Cory and Iacobucci concurring) held that
incest is a tortious assault and a breach of fiduciary duty.
[ 139] In the view of Justice La Forest, the tort claim in M. (K.)
v. M. (H.), although subject to a limitation period, was not
statute-barred because the limitation period did not begin to run
until K.M. was reasonably capable of discovering the wrongful
nature of the defendant’s acts and the nexus between those acts
and the her injuries, which presumptively occurred only when
K.M. entered therapy. The breach of fiduciary duty claim was
not limited by statute in Ontario, and this breach stood with the
tort claim as a basis for recovery by the appellant.
[ 140] Justices McLachlin and L’Heureux-Dubé agreed with
Justice La Forest with the qualification that discovery of the tort
claim was a question of fact and a presumption that the claim
was discovered when a therapeutic relationship began was not
necessary. Justice Sopinka agreed with Justice La Forest with
the same qualification as Justices McLachlin and L’Heureux-Dubé and with a qualification with respect to any shifting of the
burden of proof. Thus, the court in M. (K.) v. M. (H.) was unanimous about Justice La Forest’s approach to the breach of fiduciary duty claim.
[ 141] In a passage that is particularly pertinent to the issues
in the case at bar and that reiterates the theme that the claim in
equity may add rights and remedies not available in tort, at
paras. 70-71 of his decision, Justice La Forest explained why it
was necessary to treat the breach of fiduciary duty claim as