What is the test for a motion of estoppel?

The second issue arises with respect to the plaintiff’s plea of estoppel. In its factum the defendant argued that estoppel cannot be relied upon as a sword but only as a shield. On the argument of the motion that position was not vigorously pursued. I suspect that is because the law regarding the issue of estoppel is in a state of flux. Many courts and commentators have been critical of the old shield versus sword distinction (see for example Tudale Explorations v. Bruce 1979 CarswellOnt. 778 (S.C.)). I am not prepared to strike the estoppel claim on this basis as it is not plain and obvious that there is no reasonable cause of action.

However, the claim that is made regarding estoppel is fairly bald. It should particularize the details regarding the promise or representation made and the detrimental reliance of the plaintiff (see Reclamation Systems v. Rae (1996) CanLII 7950 (Ont. S.C.)). The plaintiff has 10 days from the date of this endorsement to amend the statement of claim to properly plead estoppel, failing which the defendant may move to strike.