[44] Counsel for the claimant also submitted that it is an established equitable
principle that equity is concerned to prevent unconscionable conduct and this
consideration permeates all the elements of the doctrine. Counsel relied on the
decision of Robert Walker LJ in Gillet v Holt [2001] 41 CH 210 at p.232 where
his lordship stated that:
The overwhelming weight of authority shows that detriment is required.
But the authorities also show that it is not a narrow or technical concept.
The detriment need not consist of the expenditure of money or other
quantifiable financial detriment, so long as it is something substantial. The
requirement must be approached as part of a broad inquiry as to whether
repudiation of an assurance is or is not unconscionable in all the
circumstances.
[45] There is no doubt that unconscionability is central to the doctrine of proprietary
estoppel. The law is clear and indeed, it is where the actions of the landowner is
such that it would be unconscionable for him to assert his proprietary entitlement
or not to transfer title, that an equitable estoppel (proprietary estoppel) may arise
to prevent him from enforcing or relying on his legal rights, once certain
conditions are fulfilled.
[46] Annie Lopez however makes it clear that unconscionability in and of itself
will not ground a cause of action for proprietary estoppel. The claimant in the
instant case must first establish that she was given an assurance which
created a clear expectation of an interest in the property, in reliance on which she
altered her position by expending her time and resources. It is then that, if
proven, the fact that she has suffered a disadvantage, occasioned by the 2
nd
defendant unconscionably failing and/or refusing to honour the assurance,
becomes relevant.
Was there a Representation made by the 2
nd
defendant that created in the mind of
the claimant a clear expectation of an interest in the property?
[47] The question is whether the 2
nd
defendant through her words and/or
conduct assured the claimant of a legal interest in the house and/or property. In
Annie Lopez, Morrison J.A. adopted the view that a representation is
present only if the representor intended his assurance to be relied upon.
[48] The claimant stated that once it was discovered that the house could not be
repaired, the defendants agreed that the only alternative was to build a new
one. As they did not have the money, they asked her to assist. The 2
nd
defendant then told her that if she assisted them, they (both defendants) would
place her name on the title but in the meantime, they would give her the duplicate
certificate of title for the property as a security for the money she had to spend,
until her name was placed on the title as a joint tenant with the 2
nd
defendant.
[49] She however also gave another version concerning how she came into
possession of the title documents. She also indicated that in 2006, she was
having difficulty financing the continued construction of the house which began
in 2005, as it was costing more than she expected. This information was relayed
to the 2
nd
defendant who then said that the claimant was the only one financially
assisting her and gave her the title as previously arranged. That same day they
went to Mr. Clarke’s store in Santa Cruz to purchase forms to put her name on
the title.
[50] On cross-examination, she maintained that the arrangement was for her name to
be placed on the title. However, she testified that she was given the title from
2005 and in 2006, the 2
nd
defendant attempted to put her name on the title. She
further admitted that it was not true that she got the title on the same day they left
to buy the forms, as she had received the title prior thereto. The 2
nd
defendant in
response was adamant that there was no agreement between her and the
claimant for the claimant to obtain an interest in the house and/or for her to have
one of the rooms. The 2
nd
defendant also denied that she gave the title to the
claimant as security for her assistance. Rather she stated that her children
pooled their resources together to assist with the construction of the house and
sent money to the claimant. The claimant she said was the one who took the