''Norberg v Wynrib'',
992
Year 992 ( CMXCII) was a leap year starting on Friday (link will display the full calendar) of the Julian calendar.
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2 SCR 226 is a leading
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
decision on the
fiduciary duty
A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, for exampl ...
between doctors and patients, and on the limits of consent as a
defence
Defense or defence may refer to:
Tactical, martial, and political acts or groups
* Defense (military), forces primarily intended for warfare
* Civil defense, the organizing of civilians to deal with emergencies or enemy attacks
* Defense industr ...
in
sexual assault
Sexual assault is an act in which one intentionally sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence, which ...
.
Background
Laura Norberg had severe pains in her jaw and frequent headaches in 1978. To remedy this problem, her sister offered her
Fiorinal
Butalbital is a barbiturate with an intermediate duration of action. Butalbital is often combined with other medications, such as paracetamol (acetaminophen) or aspirin, for the treatment of pain and headache. The various formulations combined wi ...
. After the source of her pain, an abscessed tooth, was found and treated, her addiction to painkillers remained. After breaking her ankle in 1981, she found a doctor who would prescribe Fiorinal. After this doctor retired, she sought out another who would provide the drug. Starting in 1982, she began seeing Dr. Wynrib, an elderly physician, and he began giving Norberg Fiorinal under the pretext of an ankle injury. In exchange, Wynrib demanded
sexual favours. She eventually brought an action against him for sexual assault.
Issues
There are two main issues in this case. First, the sexual assault falls under the
tort
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
of
battery
Battery most often refers to:
* Electric battery, a device that provides electrical power
* Battery (crime), a crime involving unlawful physical contact
Battery may also refer to:
Energy source
*Automotive battery, a device to provide power t ...
. Second, can the relationship between Norberg and Wynrib be characterized as fiduciary and therefore give rise to a
fiduciary obligation
A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, for exampl ...
? The
British Columbia Court of Appeal dismissed the case on the basis that she consented. The case was given leave to the Supreme Court. The
Women's Legal Education and Action Fund acted as an intervener in this case.
Decision
Writing for the majority,
La Forest J found an award of
punitive damages on behalf of Norberg, but stops short of recognizing a fiduciary duty. The majority does not believe that sex is a power that can be transferred. Even though the majority discusses consent and its vitiation, they still treat the facts as an exchange between two parties.
Concurring in the result,
McLachlin J (as she then was) characterized the duty differently:
:''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 constitutes 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 category of relationships which the law calls fiduciary.''
[p 270–71 ited to SCR/ref>
]
See also
* List of Supreme Court of Canada cases (Lamer Court)
This is a chronological list of notable cases decided by the Supreme Court of Canada from appointment of Antonio Lamer as Chief Justice of Canada to his retirement. 19901994
19951999
See also
* List of notable Canadian Courts of Appeals cases ...
* Fiduciary Duty
A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, for exampl ...
Notes
External links
full text from Supreme Court Reports
Canadian tort case law
Supreme Court of Canada cases
1992 in Canadian case law