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Estoppel - Proprietary Estoppel. Metske v. Metske
In Metske v. Metske (Ont CA, 2025) the Ontario Court of Appeal considered "whether comments made about future ownership gave rise to an assurance or representation that is enforceable through the equitable doctrine of proprietary estoppel":(b) The governing principles
[43] The doctrine of proprietary estoppel applies when the following conditions are present (Cowper-Smith v. Morgan, 2017 SCC 61, [2017] 2 S.C.R. 754, at para. 15):1. a representation or assurance is made to the claimant, on the basis of which the claimant expects that he will enjoy some right or benefit over property;
2. the claimant relies on that expectation by doing or refraining from doing something, and his reliance is reasonable in all of the circumstances; and
3. the claimant suffers a detriment as a result of his reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on her word and insist on her strict legal rights. [44] Like all estoppels, proprietary estoppel protects against the “inequity of allowing the other party to resile from his statement where it has been relied upon to the detriment of the person to whom it was directed”: Trial Lawyers Association of British Columbia v. Royal & Sun Alliance Insurance Company of Canada, 2021 SCC 47, [2021] 3 SCR 490, at para. 16, quoting Fort Frances v. Boise Cascade Canada Ltd., 1983 CanLII 47 (SCC), [1983] 1 S.C.R. 171, at p. 202.
(c) The principles applied
(i) Representation or assurance
[45] The first element of proprietary estoppel requires the claimant to show that the defendant made them a representation or assurance regarding an interest in property. This is the lynchpin of the analysis. If there is no representation or assurance, there can be no detrimental reliance, and the claim must fail.
[46] The representation or assurance can be express or implied, but it must be clear, unambiguous, and intended to be taken seriously: Cowper-Smith, at para. 26. The question is whether the meaning conveyed “would reasonably have been understood as intended to be taken seriously as an assurance which could be relied upon”: Cowper-Smith, at para. 26, quoting Thorner v. Major, [2009] UKHL 18, [2009] 1 W.L.R. 776, at para. 5 (internal quotation marks omitted)
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[61] This is not to say a representation or assurance must be express, or that it must tie every loose thread. A representation might be implied, and it might be less than comprehensive as to detail. An example of an implied promise is found in Thorner, also relied upon by the trial judge (and cited in Cowper-Smith) [SS: 'Cowper-Smith v. Morgan, 2017 SCC 61, [2017] 2 S.C.R. 754']. In that case, the House of Lords concluded that the claimant reasonably understood the defendant’s words and conduct to convey an assurance that the claimant would inherit a farm.[2] As Lord Hoffman put it, “a representation was never made expressly but was a matter of implication and inference from indirect statements and conduct”: Thorner, at para. 2 (internal quotation marks omitted). Despite the implicit character of the assurances, the two men “were well able to understand one another”, so in the circumstances, “standing by in silence serve[d] as the element of assurance”: Thorner, at para. 26, per Lord Rodger of Earlsferry, and at para. 55, per Lord Walker of Gestingthorpe.
[62] It will generally be more difficult to prove an implicit than an explicit assurance. Such determinations are inherently case-specific and fact-dependent. Yet even where a promise is said to be implied, it must be sufficiently clear to ground a common understanding between the parties. In this case, the common understanding, as found by the trial judge, was that there would be further discussions about the possibility of succession; that there was an agreement to pursue agreement in the future. That was not an assurance that could, in this case, properly ground a finding of proprietary estoppel.
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(iii) Detriment
[74] Given the absence of a clear promise, representation or assurance, the analysis need not reach the third question, which asks whether the claimant relied on the representation or assurance to his or her detriment. Suffice it to say that if, as here, the reliance was not reasonable, any detriment flowing from the reliance is not actionable. I note, additionally, that the trial judge’s findings about lost opportunities and lost income were largely speculative. There was no evidence that Tim and Amanda would have had more success working for Amanda’s family, or that they would have ever been in a position to purchase a different farming business. . Madi v. King
In Madi v. King (Ont CA, 2023) the Court of Appeal considered proprietary estoppel, here in a family separation case where the value of the matrimonial home increased from the date of separation to the actual sale:[25] The leading case governing proprietary estoppel is the Supreme Court’s decision in Cowper-Smith. That decision, which was not a family law case, set out the following test, at para. 15:An equity arises when (1) a representation or assurance is made to the claimant, on the basis of which the claimant expects that he will enjoy some right or benefit over the property; (2) the claimant relies on that expectation by doing or refraining from doing something, and his reliance is reasonable in all the circumstances; and (3) the claimant suffers detriment as a result of his reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on her word. [Citations omitted.] [26] The claimant must establish all three elements of the test: Cowper-Smith, para. 23.
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[34] There is no evidence of any detriment suffered by the respondent by reliance on the assurance or expectation that she was an equal owner. She did not contribute either to the mortgage or to the expenses of running the home, nor did she change her position in any other material way. Notably, in the only Ontario case which appears to have applied the doctrine of proprietary estoppel to a post-valuation date increase in the value of the matrimonial home, the wife, who had thought she was on title, was registered on the mortgage and had contributed $120,000 to the purchase of the home, which the court found to have constituted detrimental reliance: Spadacini-Kelava v. Kelava, 2020 ONSC 7907, 52 R.F.L. (8th) 143, leave to appeal to Ont. C.A. refused, M52096.
[35] Here, not only was there no evidence of detrimental reliance, but the respondent received countervailing benefits in the sense applied in the case of Scholz v. Scholz, 2013 BCCA 309, 46 B.C.L.R. (5th) 98, at para. 33. Specifically, the appellant allowed her to continue to live in the house without paying rent or contributing to the mortgage for several months after they separated.
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