- 1 The Defence of Estoppel
- 2 Conduct Estopple
- 3 Promissory Estoppel
- 4 Bain v Morton, 2014 CanLII 74053 (ON SCSM)
- 5 Cause of action estoppel
The Defence of Estoppel
 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.,  1 Q.B. 84 at 122 (C.A.) per Denning M.R.
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.
 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
 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.
 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”.
Another leading statement on promissory estoppel is found in the Supreme Court of Canada decision in Maracle v. Travellers Indemnity Co. of Canada, 1991 CanLII 58 (SCC), (1991) S.C.J. No. 43 at par. 13. Sopinka J., for the court, stated:
- “ 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.”
Cause of action estoppel
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.
 The purpose of cause of action estoppel is to prevent the re-litigation of claims that have already been decided. As expressed by Vice Chancellor Wigram in Henderson v. Henderson (1843), 67 E.R. 313, at p. 319, it requires parties to “bring forward their whole case.” The court thus has the power to prevent parties from re-litigating matters by advancing a point in subsequent proceedings which “properly belonged to the subject of the [previous] litigation”.
 For cause of action estoppel to apply, the basis of the cause of action and the subsequent action either must have been argued or could have been argued in the prior action if the party in question had exercised reasonable diligence: Grandview v. Doering, 1975 CanLII 16 (SCC), (1976) 2 S.C.R. 621, at p. 638. That said, I accept Catalyst’s submission that it is not enough that the cause of action could have been argued in the prior proceeding. It is also necessary that the cause of action properly belonged to the subject of the prior action and should have been brought forward in that action: Hoque v. Montreal Trust Co. of Canada, 1997 CanLII 1465 (NS CA), 1997 NSCA 153, 162 N.S.R. (2d) 321, at para. 37, leave to appeal refused, (1997) S.C.C.A. No. 656; Pennyfeather v. Timminco Ltd., 2017 ONCA 369, at para. 128, leave to appeal refused, (2017) S.C.C.A. No. 279.
 Like issue estoppel, cause of action estoppel also requires a final judicial decision and that the parties to that decision were the same persons or the privies to the parties to the present proceeding: Pennyfeather, at para. 128; Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 21, rev’d on other grounds, 2002 SCC 63, (2002) 3 S.C.R. 307. As these requirements were not seriously contested before us, I will not discuss them further.
 Similarly, in this case Catalyst was free to raise its inducing breach of contract and conspiracy claims in the Moyse Action but elected not to do so. I acknowledge, as Sharpe J. did, that Catalyst has raised new legal arguments. However, the motions judge reasonably concluded, at para. 78 of his reasons, that these new legal arguments arose from the same set of facts, namely Catalyst’s failure to acquire Wind and its acquisition by the Consortium. Catalyst’s current claims certainly sought to add certain facts related to VimpelCom and UBS’s conduct and to subtract other facts related to Moyse’s conduct. However, as Sharpe J. held in Las Vegas Strip, attempting to add or subtract facts does not change the reality that the underlying subject matter is the same and all of the facts were available in the earlier action: p. 297.