Estoppel (General)

The Defence of Estoppel

BMO Nesbitt Burns Inc. v. Wellington West Capital Inc., 2004 CanLII 33776 (ON SC)

[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.

Conduct Estopple

Chernoff Developments Ltd. v. Kent (District), 2001 BCSC 1626

76 I turn now to the law. Mr. Selinger said that conduct estopple applies to a local Government where there has been a corporate act and the Petitioner has relied on the act to its detriment. He relies on the decision of Levine, J., as she then was, in Gladiuk Contracting Ltd. v. Richmond (City), 1998 CarswellBC 2297 (B.C. S.C.) in which Her Ladyship relied on the decision of Braidwood, J., as he then was, in Harwood Industries Ltd. v. Surrey (District) (1991), 60 B.C.L.R. (2d) 168 (B.C. S.C. [In Chambers]), and applied the principles of estopple by conduct discussed in Litwin Construction (1973) Ltd. v. Kiss (1988), 29 B.C.L.R. (2d) 88 (B.C. C.A.). It will be seen that in my opinion both Gladiuk and Harwood are distinguishable on their facts.

79 After noting that in Harwood Braidwood, J. held that the principle of estopple could apply to Municipalities where there is unfairness or injustice requiring the exercise of judgment, Her Ladyship then cited and followed the following description of estopple by conduct discussed in Litwin at pg. 179:

Of course, estopple by conduct has been a field of the law in which there has been considerable expansion over the years and it appears to me that it is essentially the application of a rule by which justice is done where the circumstances of the conduct and behaviour of the party to an action are such that it would be wholly inequitable that he should be entitled to succeed in the proceeding.

Promissory Estoppel

Toronto Community Housing Corp. v. Zelsman, 2017 ONSC 5289 (CanLII)

[33] The Supreme Court summarized the elements of promissory estoppel as follows:

The principles of promissory estoppel are well settled. The party relying on the doctrine must establish that the other party has, by words or conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted on.

Furthermore, the representee must establish that, in reliance on the representation, he acted on it or in some way changed his position. see: Maracle v. Travellers Indemnity Co. of Canada, 1991 CanLII 58 (SCC), (1991) 2 SCR 50

[34] In Re Med-Chem Health Care Inc.[(2000) O.J. No. 4009 at para 7] Swinton J. held that there must be a clear and unequivocal promise or assurance that strict legal rights will not be relied upon, an intention to affect legal relations, and reliance on the promise or assurance.

[35] In Deloitte & Touche LLP Hood J. held at paragraph 24 that the “promise” on which the plaintiff relied was so unclear that it could not have affected the legal relationship between the parties. At paragraph 30, he observed that it was not a “final and irrevocable promise”.

Cause of action estoppel

TST-76205-16 (Re), 2016 CanLII 88291 (ON LTB)

16. Cause of action estoppel precludes a litigant from asserting a claim or a defence that: (a) it asserted; or (b) it had an opportunity of asserting and should have asserted in past proceedings.

17. The leading modern case on cause of action estoppel remains the decision of the Supreme Court of Canada in Grandview (Town) v. Doering, 1975 CanLII 16 (SCC), (1976) 2 S.C.R. 621, which adopted the following passage from the seminal case of Henderson v. Henderson (1843) 3 Hare 100 at 114 (P.C.):

In trying this question I believe I state the rule of the court correctly when I say that, where a given matter becomes a subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which was not brought forward, only because they have, from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, in which the parties, exercising reasonable diligence, might have brought forward at the time.

18. The criteria for cause of action estoppel, drawn from the decisions in Angle v. Minister of National Revenue, (1974) 2 S.C.R. 248 and Grandview (Town) v. Doering, supra, are:

i) there must be a final decision of a court of competent jurisdiction in the prior action;

ii) the parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action;

iii) the cause of action in the prior action must not be separate and distinct;

iv) the basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence.

19. Thus, cause of action estoppel will bar a party from asserting not only issues that were raised before the court or tribunal on the previous proceeding, but also issues that could have been decided had they been brought before that court.