UNGER v SCOTT

Two hospital co-workers entered into an intimate relationship. Ms. Scott became pregnant, and either the Plaintiff, Mr. Unger, or another partner could have been the father. She obtained prenatal DNA testing that excluded the other partner. She relayed this to Mr. Unger but did not disclose the results. Ms. Scott then sought and received child support from Mr. Unger. Mr. Unger played a limited role in the child’s life but paid child support for nearly two decades. At his request, further testing later confirmed that he was not the father.

Mr. Unger advanced claims in fraudulent and negligent misrepresentation, alleging that Ms. Scott misrepresented paternity and caused him to pay approximately $386,000 in child support. In the alternative, he claimed unjust enrichment based on a mutual mistake of fact.

Ms. Scott argued that repayment would be inequitable given her reasonable and good faith belief that Mr. Unger was the father. In both written and oral submissions, she relied on the equitable defence of estoppel by convention. Mr. Unger argued that estoppel by convention was unavailable because Ms. Scott did not expressly plead it, contrary to Rule 13.6(3)(c). Rule 13.6(3) requires a party to include any matter that may take the opposing party by surprise, including estoppel, in the Statement of Defence.

Ms. Scott maintained that the Rules require only the pleading of material facts sufficient to establish a claim or defence, and that her Statement of Defence set out the facts to support estoppel by convention.

Justice Brookes noted that Rule 13.6(2) requires a party to plead the material facts relied on, not the evidence. She further held that, although Rule 13.6(3) requires parties to plead matters that may cause surprise, Ms. Scott’s Statement of Defence set out the material facts supporting estoppel by convention: both parties shared the belief that Mr. Unger was the father; Mr. Unger relied on that belief in paying support; and Ms. Scott would suffer prejudice if required to repay funds that she had already spent. She also noted that Mr. Unger knew of this argument before oral submissions through Ms. Scott’s written materials.

Justice Brookes held that Ms. Scott had sufficiently referenced the facts supporting estoppel by convention in her Statement of Defence and could rely on it.

In the result, the Court dismissed the claims of fraudulent and negligent misrepresentation. Although unjust enrichment was established, the Court denied recovery.