Proprietary Estoppel - Hull on Estates #207
Listen to: Proprietary Estoppel – Hull on Estates #207
This week on Hull on Estate Rick Bickhram and Nadia Harasymowycz discuss proprietary estoppel, what it is and the three specific elements that are necessary to establish proprietary estoppel. For more information on proprietary estoppel, please check out an article written by Suzana Popovic-Montag in the latest edition of The Probater.
If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.
Rick Bickhram - Click here for more information on Rick Bickhram.
Nadia M. Harasymowycz- Click here for more information on Nadia Harasymowycz.
Nadia Harasymowycz: Hello and welcome to Hull on Estates. You’re listening to episode 207 on Tuesday, May 18th, 2010.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of
Rick Bickhram: Hi and welcome to another episode of Hull on Estates. I’m Rick Bickhram.
Nadia Harasymowycz: And I’m Nadia Harasymowycz.
Rick Bickhram: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.
How are you doing today, Nadia?
Nadia Harasymowycz: I’m great, Rick. How are you?
Rick Bickhram: Great. I was actually reviewing the Toronto Law Journal and I stumbled upon an article discussing proprietary estoppel that was written by Suzana Popovic-Montag of our firm and I thought maybe we could spend a few moments today to discuss the concept of proprietary estoppel.
Nadia Harasymowycz: Sounds good. It’s a really interesting claim and it’s fairly routed in history, in estates but recently there’s been a few cases that have brought it to the forefront.
Rick Bickhram: That’s correct. I think one of the cases that Suzana talks about in her article is Schwark v. Cutting and this is an appeal from a 2008 case and the appeal was heard on November 20, 2009 and the decision was subsequently released on January 27, 2010. So this is a fairly recent case that discusses, as Nadia indicated, the basic tenants of proprietary estoppel.
Nadia Harasymowycz: I think maybe before we jump into the facts of the case, it may be worthwhile taking a few seconds just to explain what proprietary estoppel is. Proprietary estoppel is, in effect, it’s a manner of the Court providing equity to parties where a party takes action to prevent another party from unjustly benefiting from an act. There are three specific elements that are necessary to establish proprietary estoppel. The first is that the plaintiff must have been encouraged by the defendant owner of a property. There must be detrimental reliance by the plaintiffs to the knowledge of the defendant owner and the defendant owner now seeks to take unconscionable advantage of the plaintiff by reneging on his earlier promise. And I think that leads us into maybe the facts of Schwark and Cutting and we can see how those elements play out.
Rick Bickhram: So in Schwark v. Cutting, this case dealt specifically with the long history of property ownership. Essentially what occurred here is there was a property dispute with respect to a cottage property. And essentially the facts are that the plaintiffs were using the defendant’s property for a long period of time, many years, to obtain access to the beach. The defendant owned a waterfront property so the plaintiffs would use that pathway to get access to the beach. And at some point in the ‘90s, the defendants decided to cut off that access. Given that the plaintiffs were now being denied access to the beach, they became incensed and decided to bring an action. And one of the claims in that action they were seeking from my understanding is on the grounds of proprietary estoppel. They were basically arguing that they were allowed to use the property as an access road to the beach for many years. And from what I understand, it’s even gone through generations where they used that access to the beach and eventually…not eventually but given that they were denied access at some point, they were saying that the defendants could not take that position now given that they were allowed to use it for many years before.
Nadia Harasymowycz: Now I had mentioned before that there are three elements necessary to establish proprietary estoppel and the story here is really interesting and it sounds on its face like it might be able to meet those three elements but when you took a closer look at it, like the Court of Appeal did in this instance, the plaintiffs fell short of meeting the requirements. The judge in this matter specifically mentions that the Cuttings, although they provided access to their property, the other families that were using that access were fully aware of the fact that it wasn’t their right. There was no agreement to that effect. There was no detriment to them in order to allow them to walk across the property. And in fact there’s even a note in the case that one of the previous landowners generations before when the pathway had originally been set up, had actually objected to the pathway or the allowance of access. So you therefore don’t have the encouragement element. There’s no detrimental reliance because the parties lost nothing by doing this. And there was no unconscionable advantage by the plaintiff and he had never made a promise so he couldn’t renege on one.
Rick Bickhram: That’s a really good point, Nadia. And if you look at the rationale, just touching on your point very briefly, if you look at the rationale for this case, the Honourable Justices in this case say there was no evidence of any holding out or inducement on the part of the defendants which could be said to have caused the respondents to believe that they had some right or benefit over the water lots. They were merely granted permission to use it for a time. So there you go. There is no encouragement and that’s the very first prong. So I think you hit the nail right on the head there. And the Courts did a really good analysis of all three prongs.
Nadia Harasymowycz: I think that that basically summarizes the case that we’re speaking about. But if you have any interest in the subject matter, Schwark and Cutting is a fantastic example of use of elements of proprietary estoppel and it does go into the seminal cases on this subject. So if you have any interest in this, I suggest you take a look at The Probater, which is on our website. And Suzana Popovic-Montag’s article is accessible via there also, which provides a great summary about this.
Rick Bickhram: And I think that brings us to an end of this week’s discussion. Thanks for listening and thanks for joining me today, Nadia.
Nadia Harasymowycz: It was a pleasure, Rick, and I look forward to podcasting with you again soon. As a quick reminder, our next Breakfast Series is scheduled for Wednesday, June 16th, 2010. The speakers at the series will be Ian Hull, Suzana Popovic-Montag and Jordan Atin and they’ll be discussing estate accounts and I hope you can join us there.
Rick Bickhram: Now if you guys have any questions, you can send us an email at hull.lawyers@gmail.com. Please be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope that you enjoyed the show. I’m Rick Bickhram.
Nadia Harasymowycz: And I’m Nadia Harasymowycz. Until next week.
Rick Bickhram: So long.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.
Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.
