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Estoppel - Promissory Estoppel (2). Canada (Privacy Commissioner) v. Facebook, Inc.
In Canada (Privacy Commissioner) v. Facebook, Inc. (Fed CA, 2024) the Federal Court of Appeal considers 'promissory estoppel' in a regulatory offence context:[126] .... Similarly, promissory estoppel can be raised against a public authority (Malcolm v. Canada (Minister of Fisheries and Oceans), 2014 FCA 130, 460 N.R. 357 at para. 38 [Malcolm]).
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[134] Finally, estoppel in a public law context has narrow application, and "“requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be estopped”" (Malcolm at para. 38). The Commissioner cannot be prevented from carrying out its statutory duty today because of an equivocal representation made over a decade prior. . Lalani Properties International Inc. v. Intact Insurance Company
In Lalani Properties International Inc. v. Intact Insurance Company (Ont CA, 2024) the Ontario Court of Appeal dismisses an appeal of an insurance case, here involving the historic Empress Hotel in Toronto.
Here the court considers both 'estoppel by representation' and 'promissory estoppel':[97] As Professor Bruce MacDougall explains in his text on the law of estoppel (Bruce MacDougall. Estoppel, 2nd ed. (Toronto: LexisNexis, 2019), at §5.32), these two forms of estoppel have “a close kinship”, but also have some important differences. Most notably, estoppel by representation arises when a party makes a representation about some existing fact, whereas promissory estoppel arises when a party makes a representation about its own future intentions. As Professor MacDougall explains at §§5.34-5.35:Promissory estoppel has a fundamental difference from estoppel by representation in that the latter estoppel is used by the representee to hold the representor to the validity of what is a false statement. Promissory estoppel does not hold the promisor to the “truth” or “falsehood” of the promise or assurance; such a judgment of the veracity contents of the statement (promise or assurance) is unusual in promissory estoppel because it is unnecessary. Rather, the promisor is simply held to the promise or assurance given.
Estoppel by representation is often referred to as a “rule of evidence”. … Because estoppel by representation is about a statement of fact(s), its evidentiary nature is more obvious and the evidentiary characterization is more defensible. It is more difficult to characterize promissory estoppel in that way, as it is not about facts but the obligations that exist between the parties. [98] In this case, Intact’s expressed or implied assertions about its intention to not enforce the vacancy exclusion clause in the June 2010 renewal policy are better viewed as promises about its own future conduct, rather than representations about some material fact.
[99] Promissory estoppel is also a better fit here for a second reason. As Professor MacDougall notes at §4.493 and §5.329, “[t]he effect of estoppel by representation is permanent”, whereas with promissory estoppel:The promisor will be held to the promise or assurance until the promisee is given reasonable notice that the promisor intends to revert to the rights and legal stipulations that apply without the effect of the estoppel. .... . Binance Holdings Limited v. Ontario Securities Commission
In Binance Holdings Limited v. Ontario Securities Commission (Div Court, 2023) the Divisional Court considered a JR against a Capital Markets Tribunal (CMT) decision that it lacked jurisdiction to order the revocation of an "(i)nvestigation Order under s. 144(1) of the Securities Act" (which was initiated "under s. 11(1)(a) of the Securities Act, R.S.O. 1990, c. S.5").
In these quotes, the court considers whether an 'undertaking' by the applicant (entered into before the CMT investigation order) operated as a promissory estoppel to bar such an order (it didn't):[49] Nor is the investigation barred by the doctrine of promissory estoppel. Binance accepts the high threshold it must meet to establish promissory estoppel in the public law context and accepts that, even if met, it is subject to an overriding public interest: Immeubles Jacques Robitaille inc. v. Québec (City), 2014 SCC 34, [2014] 1 S.C.R. 784, at paras. 19-20. Given the express reservation of rights in the Undertaking, discussed above, this submission does not assist Binance. . Chowdhury v. Chowdhury
In Chowdhury v. Chowdhury (Div Court, 2023) the Divisional Court considered briefly the law of prommissory estoppel:[9] In her reasons, the trial judge correctly stated the law on promissory estoppel as set out in Scotsburn Co-op. Services v. W.T. Goodwin Ltd., 1985 CanLII 57 (SCC), [1985] 1 SCR 54, and applied the facts to the three elements that the plaintiff was required to establish: “(a) the content of the alleged representation; (b) that Ashif relied on the representation when he took out the loan; and (c) that taking the loan was to Ashif's detriment.” . Aiello v. Bleta
In Aiello v. Bleta (Ont CA, 2023) the Court of Appeal notes that promissory estoppel cannot be used as a 'sword', that is to ground of positive cause of action - only a defence (as a 'shield'):[38] The appellants correctly note that a promissory estoppel claim cannot be used as the basis of a cause of action to enforce a promise as it is to be used as a shield not a means to establish contractual rights in the absence of an agreement: Combe v. Combe, [1951] 2 KB 215 (E.W.C.A.); Cowper-Smith v. Morgan, 2017 SCC 61, [2017] 2 S.C.R. 754, at para. 23. ...
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