Is Eddie Cogan Disentitled to a Fee for Breach of Fiduciary Duty?
[131] The defendants assert that Mr. Eddie Cogan was in breach of fiduciary duty and as such is disentitled to claim a fee or commission. [132] The defendants’ argument is as follows. Mr. Cogan was an agent and fiduciary; he had a duty of good faith, loyalty, avoidance of conflict of duty and self-interest, and an obligation to make full disclosure of everything he knew representing “the subject matter of the contract and likely to influence the principal’s conduct”. In that respect the defendants rely on the well-known cases of Hodgkinson v. Simms, [1994] 3 S.C.R. 377; Canadian Aero Services Ltd. v. O’Malley, [1974] S.C.R. 592 and Ocean City Realty Ltd. v. A&M Holdings Ltd. (1987), 36 D.L.R. (4th) 94 where Wallace J.A. said at pp. 98-99: …The duty of disclosure is not confined to those instances where the agent has gained an advantage in the transaction or where the information might affect the value of the property, or where a conflict of interest exists. The agent certainly has a du
