This week on Legally Speaking with Michael Mulligan:
Promissory estoppel is an equitable doctrine that can protect a claimant’s reasonable reliance on another person’s word. It is intended to avoid unfairness by enforcing promises.
In a case discussed on the show, a judge needed to determine if either promissory estoppel or another equitable doctrine called unjust enrichment should result in a farm being given to a man who had worked on it for many years with the expectation that he would receive it when the owner passed away.
Starting in the 1970s, the farm owner made various remarks that caused the man who worked on the farm without formal pay to believe he would inherit it when the owner passed away. The remarks included things such as anyone who worked on the farm would get a piece one day and that he hoped the man who worked on the farm would be ready to fight for it one day.
Ultimately, the owner of the farm, who never married and had no children, decided to leave it to a neighbour with whom he had a long-term friendship.
To succeed with a claim of promissory estoppel, there are three starting requirements:
1. a representation or assurance is made to the claimant, on the basis of which the claimant expects to enjoy some right or benefit over property;
2. the claimant relies on that expectation by doing something or not doing something, and that reliance is reasonable in all the circumstances; and
3. the claimant suffers a detriment from this reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on their word.
While the representation or assurance can be express or implied, the judge hearing the case concluded that the remarks made by the farm owner over the years were too ambiguous to make out the claim.
The judge also dismissed the claim based on unjust enrichment. This kind of claim also has three initial requirements:
1. the respondent was enriched;
2. the claimant suffered a corresponding deprivation; and
3. the respondent’s enrichment and the claimant’s corresponding deprivation occurred in the absence of a juristic reason.
The judge concluded that the man who worked on the farm did so based on an informal arrangement whereby the man would provide labour, and the farm owner would reciprocate with occasional gifts or payments without any expectation that the value of the work or gifts would be commensurate.
Also, on the show, a successful claim for defamation based on Google and Yelp reviews is discussed.
The case involved a customer who had a dispute with a small cedar products company concerning the purchase of some building material.
The unhappy customer posted negative reviews on Google and Yelp, making false allegations that the company had defrauded and scammed him when this was not true.
The judge concluded that all the elements of defamation had been proven and awarded that cedar products company $90,000 in damages.
Au automated transcript of the show:
Legally Speaking Sep 1, 2022
Adam Stirling [00:00:00] Well, as Politics seemingly continues to trend to the theatric, the exaggerated and at times the absurd. I am never more thankful than I am now that we still have Canada’s courts as areas where reason, logic and truth shall always be preferred and prevail. Legally Speaking, during the second half of our second hour on a Thursday here at CFAX1070. Time now to speak with Barrister and Solicitor with Mulligan Defence Lawyers Michael Mulligan. Morning, Michael. How are you doing?
Michael T. Mulligan [00:00:29] Good morning. I’m doing great. Good to be here.
Adam Stirling [00:00:31] Interesting stories on the docket this week, including one involving a promise of a farm in Metchosin that turned out to be complicated.
Michael T. Mulligan [00:00:41] Yes, indeed. So, this is a case that, as you said, comes Mechosin and it deals with a couple of concepts, one called ‘promissory estoppel’ and another concept called unjust enrichment.
Adam Stirling [00:00:55] Hmm.
Michael T. Mulligan [00:00:55] And both of those are legal concepts in equity which are intended to sort of alleviate sort of an unfair outcome that might otherwise occur. And they were the basis for the claim brought by a person in this case, to claim some right to ownership in a farm. And the basis for that is that the fellow who passed away, at the age of ninety-four, owned a large hundred-acre farm in Mechosin. He had never married. He didn’t have any children. And over many years, starting from back in the 1970s, the plaintiff in this case, who was otherwise a commercial fisher, spent a lot of time working on the farm, helping the owner of the farm. The owner of the farm, I must say that a charming description by the judge described him as known to be stubborn, but also clear that he was well-liked by people in the community and had a quirky sense of humour. So, it sounds like he was a really decent person. And in any case, the fellow who was a plaintiff worked for many years, for many hours, helping this fellow out on his large farm. And over the years, the owner of the farm made various comments to the plaintiff, which suggested that he might inherit the farm and the in the case there was evidence of those which the judge accepted, and they went all the way back to like 1979. And the remarks included things that were reasonably general, he said things like anyone who works on the farm will get a piece of it one day.
Adam Stirling [00:02:46] hmm.
Michael T. Mulligan [00:02:46] And made comments about how he hoped that the plaintiff was ready to fight for the farm one day and various other comments over the years, including one about how one person is going to inherit the farm, suggesting that that might be the plaintiff, right.
Adam Stirling [00:03:02] Yeah.
Michael T. Mulligan [00:03:03] The plaintiff, after many years of helping out on the farm, was then informed that about a year and a bit before the death of the person who owned it that he had he, the owner of the farm, had done up his will to leave the farm to his neighbour, not to the plaintiff. And indeed, the owner of the farm had a very good relationship with his neighbour. She had helped him. She would help them out. She knew them as like a third grandparent, they would go out for dinner. She’d help them with tasks, drive them to meetings and appointments and so on. They had a long, positive relationship as well. But the case came to court on the basis that the will wasn’t changed, and the entire farm was left to the helpful neighour who had a good relationship with the farmer who passed away. And so, the judge had to analyze those equitable concepts that I mentioned at the outset to determine whether the person who had done all this work on the farm, in part in reliance on various comments over the years, but at least implied that he might receive a portion of the farm or the old farm for his efforts. And so those concepts, the first one, promissory estoppel. There are three conditions for that.
Adam Stirling [00:04:23] mm hmm.
Michael T. Mulligan [00:04:23] First of all, there have to have been representations or assurances that a person would receive some benefit or ownership of property. Secondly, the person making the claim must have relied upon the expectations of doing something or not doing something. So, in this case, the argument being he did all this work on the farm for many years and three, that the claimant suffered a detriment as a result of the reliance. Now the law is that representations of that kind can be expressed or implied. However, the law is also that the representations must be unambiguous.
Adam Stirling [00:04:59] Hmm.
Michael T. Mulligan [00:05:00] And here, even though there was a circumstance where the judge accepted that over the years, the farm owner had made various comments, which certainly caused the plaintiff to believe that he was going to one day inherit the farm or a portion of the farm. For all of his efforts that he found that the comments that were made were just too ambiguous in order to find this kind of a claim in promissory estoppel. It just wasn’t clear enough. I mean, that’s one of the requirements.
Adam Stirling [00:05:34] Hmm.
Michael T. Mulligan [00:05:35] The judge then went on and analyzed this concept of unjust enrichment, which was also an equitable doctrine. And the purpose of that doctrine would be to prevent a result, which would be through the languages against all conscience, where the law wouldn’t otherwise recognize there to be, for example, a contract, right. For there to be a contract as a matter of law. Right. You’d have to be sort of the offer, acceptance, consideration, the various requirements for it. And so, part of the concept of unjust enrichment would be to alleviate real unfairness that might occur if that doctrine didn’t exist. Like, for example, sometimes that might be used where, you know, you had two people who were living together in a home for many years as a couple, and one of them paid half the mortgage or it wasn’t on title. You might then have an argument that person has it would be unjust, but then there’d be unjust enrichment of the other individual to just after many years say the house is all mine, it is in my name. ha ha. There’s no contract here. Right.
Adam Stirling [00:06:50] mm hmm.
Michael T. Mulligan [00:06:51] So the judge analyzed that as well, but once again found that the all the requirements for that hadn’t been met, including that there were other reasons why the man who eventually became the plaintiff would have been doing the work, including friendship. And there was some benefit that was paid in over the years. The farmer had bought him a couple of used cars, taken him out for lunch, and paid him some money from time to time for things that he had done.
Adam Stirling [00:07:17] I see.
Michael T. Mulligan [00:07:17] So again, that wasn’t made up. But these principles, I think, are important things for people to know about because they exist as a matter of law, and they can be used to avoid unfairness that might otherwise exist. And you can also imagine how you might produce a result or leave litigation in the context of a will, which is what this amounted to through a dispute between the man who did the work of the firm from the 1970s onwards. If you had an individual who was, you know, saying things like, you know, you’re going to get the house or you’re going to give the farm, but then at the end of the day does something different. And so, it can be more complicated than simply what is in somebody’s will. And there indeed if the circumstances here had been slightly different, right? If the farmer had been more clear in the promises made to the plaintiff, there could very well have been a different result. And so, in circumstances like that, it’s not always going to be as simple as what does the will say. There could be circumstances where if there were clear representations made that somebody relied upon, like in this case, if they were just a bit clearer, there could very well have been a different outcome. But here, the remarks made just didn’t get the plaintiff across the line and so the farm, all of it will go to the neighbour who the deceased farmer also got along with well, and at least his wishes, as indicated in as well, will be carried out.
Adam Stirling [00:08:54] All right. Let’s take our first break here. Legally Speaking, we’ll continue in just a moment with Michael Mulligan from Mulligan Defence Lawyers. Don’t go anywhere.
Adam Stirling [00:09:01] All right. We’re back on the air here at CFAX1070, legally speaking with Michael Mulligan with Mulligan Defence Lawyers. Michael, what’s next on our agenda?
Michael T. Mulligan [00:09:09] Next on our agenda is a former lawyer who has found himself back in front of the Court of Appeal after a number of years. And it’s a case which is about a lawyer, former lawyer, who has an interesting background. And there are some important principles that come out of it. People will be interested in. The lawyer in question was practiced in Vancouver when he was 35 years old for a very long time, and when he was practicing, he had a bit of a challenging reputation for doing things which were not in accordance with how lawyers ordinarily conduct themselves. One of the things that he was known for, for example, was refusing to acknowledge receipt of documents. Right. Sort of a basic function that will occur between lawyers. One would be trying to serve something on a, provide paperwork or documentation for another individual, ordinarily we would receive it. Yes, I’ve got that. You have an argument about what it means, but that usually wouldn’t be an issue. This particular lawyer would refuse to do that, and he would often also not show up in court, which didn’t win him many friends. And so, after many years of this, back in, what was the year, 2003.
Adam Stirling [00:10:33] mm hmm.
Michael T. Mulligan [00:10:33] He had eventually wound up arguing a series of cases in the Court of Appeal that were heard together, some murder appeals, where after many days of hearing the and the appeals, which were founded on this lawyer claiming that the lawyer who had acted with the other people was an incompetent and drug addict, claims which had no evidentiary foundation. The Court of Appeal at the end of their decision, dismissing all of these various appeals that were heard together, made a whole bunch of comments, talking about things like the lawyer’s zeal, blinded him to his professional responsibilities, described in very unflattering terms how the lawyer had conducted himself during the hearings of the appeal. All of which eventually led to the lawyer being disciplined by the Law Society and eventually resigning back in 2009. And many of us thought, well, that’s the end of that saga, but apparently not.
Adam Stirling [00:11:33] Hmm.
Michael T. Mulligan [00:11:33] So the lawyer was recently back in the Court of Appeal dealing with two different arguments. One argument being that an effort to try to get the Law Society file on that lawyer who many years ago he was claiming, without evidence, was drug addict, and not competent, and also trying to appeal the decision, not allowing him to appear and argue an appeal on $100 red light ticket where he was trying to show up in court as agent for the person who received the ticket. And the particular decision which just came out was an effort by the former lawyer to try to have the Court of Appeal judge who was managing this collection of things removed on the nominal argument. But the Court of Appeal judge should be it would be unfair for him to continue because the Court of Appeal judge was aware of the lawyer’s reputation. So, what amounted to the argument saying, you, judge, are aware that I’ve got a problematic reputation, therefore you shouldn’t be a judge hearing this case. And so the Court of Appeal judge had to go through all of this history into the lawyers background and concluded ultimately that to accept the lawyer’s claim, former lawyers claim, that the judge had to not hear anything more to do with the case would lead to the absurd result of anyone who had been a member of the profession and was aware of this lawyer’s reputation in the past would be unable to be a judge deciding things. And so, as you might expect, that that application to have the judge removed himself was utterly unsuccessful. And we were treated again to a decision from the Court of Appeal outlining the challenging background of this former lawyer. And again, I think a reminder to those of us in the profession about sort of what lawyers’ responsibilities are that go, of course, beyond simply showing up and saying and anything that might be potentially helpful to their client. But lawyers have obligations that go beyond that, including obligations to the court not to make unfounded allegations or to be casting aspersions on people without some basis for doing so. So, I thought it was a useful reminder to everyone about how lawyers are required to conduct themselves and the fact that somebody has resigned might mean that we are not necessarily at the end of the road. So, for leaders of the Court of Appeal.
Adam Stirling [00:14:32] All right. And what’s next on the agenda? There’s a third story here, an unhappy customer I’m reading.
Michael T. Mulligan [00:14:37] Indeed. And so, this actually in some ways connects to that last case that I mentioned, where the lawyer had been making allegations without foundation, claiming somebody else was incompetent and addicted to drugs and so forth. Those allegations were made in court, which means that there would be privilege attaching to them. And you can’t sue somebody for defamatory comments made in court. One of the areas where there is no protection, however, are defamatory comments that people might make on the Internet.
Adam Stirling [00:15:13] hmm.
Michael T. Mulligan [00:15:13] And this is, I think, a really important reminder because I think for some people, it can be easier and quicker for people to do things online, you know, from their, you know, in their kitchen or something that you might not do if you had to sort of sit down and sign that letter that we’re emailing in to the newspaper or something, right? You might reflect upon what you’re doing in a different format. So, this case, it is a BC case, involves a man who had a dispute with a company that produced cedar products. He had a dispute about the cedar soffits for a house he was building. Right. And there was an underlying dispute about the soffits. But in response to that, the disgruntled soffit, cedar soffit purchaser posted reviews on Google and Yelp, negative reviews, claiming that the company that he was doing business with engaged in fraudulent and deceitful behaviour. Really negative comments designed to damage the reputation of the company as a sort of revenge for his unhappy, unhappiness with his business dealings. And the company sued the man and they’ve succeeded. And the case sets out what the requirements are for a defamation claim. And it can give you some sense of how large the awards can be because of how much damage somebody could do to another person’s reputation by posting things online that aren’t true. And so, the approach taken by the court to assessing a defamation claim is going to be the same, whether it’s something posted online or published in the newspaper or in any other format. And the way it works is that in order to establish defamation, the plaintiff is going to need to show three different things. First of all, that the words were defamatory, like damaging somebody’s reputation. Secondly, that they referred to the plaintiff. And third, that they were published and published means, and this is important, they were communicated to at least one other person. It doesn’t require anything more than that. And then those things are established, it then is going to be over to the person who’s the defendant to respond to it, and possible responses to it would include a claim of truth. There can be other claims, like some form of privilege, or there can be a defence of fair comment. But in this case, the defendant who posted these negative reviews his only defence to is only was a claim that these things that he had published online were true. And the judge looks carefully at what the man had said and concluded; indeed, they were not true. Right. And that dealing with it in that fashion can indeed aggravate the sort of damages that might be awarded. You are sort of continuing to do things that make claims which can be damaging to somebody’s reputation. And so, the judge then had to go on and analyze what kind of damages might be or should be awarded in this kind of a case. This was a business that was suing, described as a family business, who had produced cedar products. And there was evidence about, for example, what their revenue was over the years. Right. And it was not an overwhelming, overwhelmingly large amount, it was a small family business to produce cedar products. And the judge went on to analyze how damaging it is when people make untrue claims on the Internet like Google and Yelp, because they would be seen by people who would be looking to do business with the company, people who are going to their web page, that kind of thing. And so, in that context, the judge analyzed the various heads of damages that can be awarded for these things, and the judge awarded $30,000 in general damages based on potential lost business, $5,000 in aggravated damages, $20,000, and another $20,000 in general damages. The total award made against the man, totaled $90,000. And so, the case should, people should really be aware of that when they are doing things on the quick. and you can imagine how somebody is sort of aggravated or angry at wanting to you know, get some revenge or whatever it might be. But things that people post on Facebook, on Twitter, on Google, on Yelp, all these various things can be very significant. They can be around for a significant period of time. They can be difficult for somebody to remove, and the damages can genuinely be very large and life changing. And so, like in this case, this man is going to be on the hook for $90,000. And so, people should bear that in mind when they are seeing things online, the fact you might be doing it from your kitchen table or sitting on your couch isn’t going to be protection. And there isn’t some general exception for, you know, an unhappy consumer or something like that. Right. There’s no doubt that in this case, the man was unhappy. He was unhappy with the transaction that he had involving buying cedar products. Fair enough. But the comments that he made were not truthful comments, setting out what his problems, in fact, were. If the comments were truthful. That is, of course, a complete defence, right? If somebody truthfully reports problems that they had, that is a complete defence to a claim of defamation. But you better make sure that they are true and don’t think that there’s going to be some exception carved out because untrue things were posted online and not in some other format. So that’s the, I think, the important takeaway from the B.C. Supreme Court.
Adam Stirling [00:21:42] Michael Mulligan with Mulligan Defence Lawyers. We’ve got 60 seconds left. If there’s anything else you’d like to touch upon.
Michael T. Mulligan [00:21:49] Well, I guess just as a comment on your opening, you know, we’re all doing our very best to try make sure the justice system, produces the right outcomes at the end of the day. And I agree with you, one of the real pleasures of doing this kind of work is that it is a forum where the watchwords are ordinarily truth.
Adam Stirling [00:22:10] Yes.
Michael T. Mulligan [00:22:10] And fairness and rationality.
Adam Stirling [00:22:12] Yes.
Michael T. Mulligan [00:22:13] And is one of the areas which is different from somehow other decisions are made right. The decisions made in court are not based on popularity or anything of that sort. And it is a nice and I think important balance that there’s a forum when you have this kind of, we have serious disputes about matters. You’ve got independent people making rational decisions about them and explaining how they got there. And so we are, I think, very fortunate to have the justice system that we do and those are legitimately core values of it. So, we’re doing our best every day, even though we may not always get it exactly right.
Michael T. Mulligan [00:22:53] Michael Mulligan for Mulligan Defence Lawyers, Legally Speaking, during the second half of our second hour every Thursday. Michael, thank you so much as always.
Michael T. Mulligan [00:23:00] Thank you so much. Have a great day.
Adam Stirling [00:23:01] All right. You, too. Take care.
Automatically Transcribed on September 6, 2022 – MULLIGAN DEFENCE LAWYERS