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| ===[http://canlii.ca/t/1j0dz BMO Nesbitt Burns Inc. v. Wellington West Capital Inc., 2004 CanLII 33776 (ON SC)]=== | | ===[http://canlii.ca/t/1j0dz BMO Nesbitt Burns Inc. v. Wellington West Capital Inc., 2004 CanLII 33776 (ON SC)]=== |
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| [21] Second, in paragraph 42 of the Wellington pleading (Wellington amended statement of defence and counterclaim para. 46) and paragraph 23 of the Sherven pleading (Sherven amended statement of defence and counterclaim para. 27) the defendants claim that the conduct of Nesbitt pleaded creates an estoppel in law and equity. See generally Fridman, supra at 139-147 as to the law of promissory estoppel.
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| [22] The amended statements of defence do not make a specific allegation or plead material facts in support of an assertion of promissory estoppel. A legal relationship is required as a prerequisite to estoppel but none is pleaded in respect of Wellington.
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| [23] While there was a legal relationship through the employment of the Nesbitt employees, there is no allegation of an unambiguous promise in words or conduct by Nesbitt to the employee defendants intended to affect the legal relationship, to be acted upon and that there was reliance thereon. At most the general assertion is that Nesbitt acted in a certain way in the recruitment of persons other than the individual defendants.
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| [24] To assert estoppel by convention, a party must demonstrate that both parties embarked upon a course of conduct based upon the same premise or assumption. See Amalgamated Investment & Property Co. Ltd. (in liquidation) v. Texas Commerce International Bank Ltd., [1982] 1 Q.B. 84 at 122 (C.A.) per Denning M.R. | | [24] To assert estoppel by convention, a party must demonstrate that both parties embarked upon a course of conduct based upon the same premise or assumption. See Amalgamated Investment & Property Co. Ltd. (in liquidation) v. Texas Commerce International Bank Ltd., [1982] 1 Q.B. 84 at 122 (C.A.) per Denning M.R. |
| [25] Wellington does not plead any existing relationship to be altered by convention. The Nesbitt employee defendants do not plead a shared assumption by them and Nesbitt, or a misrepresentation relied upon, or a common mistake relied upon or anything otherwise suggesting the adoption of a conventional basis for dealings between Nesbitt and themselves.
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| [26] Again, it is noted that the defendants’ pleadings are only general in the allegations of alleged conduct on unspecified occasions by Nesbitt with persons other than the defendants.
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| [27] In my view, the defendants’ pleadings do not disclose a reasonable defence of promissory estoppel or estopel by convention, as drafted.
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| [28] Paragraph 42 of the Wellington pleading (Wellington amended statement of defence and counterclaim para. 46) and paragraph 23 of the Sherven pleading (Sherven amended statement of defence and counterclaim para. 27) are struck with leave to amend to assert the defence of estoppel, properly pleaded, and with the allegations recast to reflect the abovementioned deletions to the cross-referenced paragraphs in paragraph 42 of the Wellington pleading (Wellington amended statement of defence and counterclaim para. 46), and in paragraph 23 of the Sherven pleading (Sherven amended statement of defence and counterclaim para. 27), relating to Nesbitt’s general recruitment practices of persons other than the defendants, as discussed above under (a).
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