Promissory Estoppel and Equitable Easements

Purdy v Pighin 2022 BCSC 14099 followed Young v. Beck, 2017 BCCA 248 and reviewed the law relating to an equitable easement based upon the doctrine of proprietary estoppel.

The Young decision held that the owners of third lot were entitled to an equitable easement on the basis of proprietary estoppel: Young v. Beck, 2016 BCSC 562. As recounted by the Court of Appeal at para. 7 in upholding his decision the trial judge had relied upon the decision of Dykes v. Nagel, 2011 BCSC 1549, where the court stated the following about equitable easements at paras. 58-60:

[58] The legal principles governing the recognition of equitable easements have been extensively canvassed in the recent decision of Sherbinin v. Jackson, 2011 BCSC 74. It would serve no useful purpose to repeat the thorough analysis undertaken by Madam Justice Fitzpatrick in that case.

[59] It is clear that recognition of an equitable easement is rooted in the principles of proprietary estoppel. In recent years, the courts have taken a broader and more flexible approach to proprietary estoppel. The courts will give effect to proprietary estoppel in circumstances where parties have conducted themselves on an assumption about their rights and where it would be unfair or unjust to allow a party to go back on that assumption. So for example, where there has been an implied promise by conduct and acquiescence, coupled with detriment, it may be inequitable to allow a party to assert rights inconsistent with that implied promise.

[60] Fitzpatrick J. summarized the current law in the following way at para. 47:

[47] The judgment of Scarman L.J. in Crabb at 192-199 provides that in assessing any claim for proprietary estoppel, the Court must ask itself three questions:

(a) Is there an equity established? By this, there must be a belief by the plaintiff in the existence of a right created or encouraged by the words or the actions of the defendant such that it would be unconscionable and unjust to allow the defendants to set up their undoubted rights against the claim of the plaintiff;

(b) What is the extent of the equity? The Court must provide for the “minimum equity to do justice to the plaintiff as a right either as an easement or a license upon terms to be agreed”; and

(c) What is the relief appropriate to satisfy the equity?

An equity will be established where:

a. There was an assurance or representation, attributable to the owner, that the claimant has or will have some right to the property, and

b. The claimant relied on this assurance to his or her detriment so that it would be unconscionable for the owner to go back on that assurance.

2. If an equity is established, the court must determine the extent of the equity and the remedy appropriate to satisfy the equity.

The elements of the modern doctrine of proprietary estoppel require:

(i) an assurance or representation by the defendant that leads the claimant to form a mistaken assumption or misapprehension that he or she has an interest in the property at issue;

(ii) a causative connection between the assurance or representation and the claimant’s reliance on the assumption such that the claimant changes his or her course of conduct;

(iii) a detriment suffered by the claimant that flows from his or her reliance on the assumption, which causes the unfairness and underpins the proprietary estoppel;

and (iv) a sufficient property right held by the defendant that could be transferred to satisfy the right claimed by the claimant. See Professor Bruce MacDougall’s Estoppel (Markham, ON: LexisNexis Canada Inc., 2012) at pp. 446, 462-3, 479, and 486.

[17] The enquiry, in the end, considering these elements, reduces to the ultimate issue of unconscionability.

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