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Date:
Thu, 16 Jun 2005 14:00:05 -0400
From:
Jason Neyers
Subject:
Estoppel by Convention
Dear
Colleagues:
Those
who support the detrimental reliance theory of estoppel, over the
promissory or conscience version, will find some useful ammunition
in the decision. For example:
¶
67 The appellants submit that detrimental reliance is a requirement
that must be proven in order to find convention estoppel. I agree.
The Court of Appeal erred in finding this condition fulfilled
by simple proof that a detriment would flow to the party asserting
the estoppel if the other party were permitted to resile from
the assumed stated facts, without a finding of reliance.
¶
68 The jurisprudence and academic comments
support the requirement of detrimental reliance as lying at the
heart of true estoppel ...
¶
69 Detrimental reliance encompasses two
distinct, but interrelated, concepts: reliance and detriment.
The former requires a finding that the party seeking to establish
the estoppel changed his or her course of conduct by acting or
abstaining from acting in reliance upon the assumption, thereby
altering his or her legal position. If the first step is met,
the second requires a finding that, should the other party be
allowed to abandon the assumption , detriment will be suffered
by the estoppel raiser because of the change from his or her assumed
position (see Wilken, at p. 228; Grundt v. Great Boulder Proprietary
Gold Mines Ltd (1937), 59 C.L.R. 641 (Austl. H.C.), at p.
674).
...
¶
74 This final requirement of estoppel
[detriment] has been described as proving that it would be "unjust",
"unconscionable" or "unfair" to permit a party to resile from
the mutual assumption (see, e.g., Bower, at p. 181; John;
The "Indian Grace"; The "Vistafjord"). However,
it may be preferable to refrain from using "unconscionable", in
order to avoid confusion with this last concept which has developed
a special meaning in relation to inequality of bargaining power
in the law of contracts (where we speak of unconscionable transactions,
for instance) (see Litwin Construction, at p. 468).
Cheers,
Jason
Neyers wrote:
Colleagues:
Those
interested in Estoppel by Convention will be interested in the
case of Ryan
v. Moore just released by the SCC, which is the first
time the SCC has ever dealt with the issue.
--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
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