Dear Colleagues:

Those of you interested in consideration and economic duress will be interested in the NBCA's decision in Greater Fredericton Airport Authority Inc. v. NAV
Canada (2008) 290 D.L.R. (4th) 405. In that decision, the CA decided that Williams v Roffey Bros should largely be followed in New Brunswick in relation to contractual modifications but that the UK jurisprudence on economic duress and illegitimate pressure should be disregarded since it was too confusing. List members Stephen Waddams and John McCamus are thoroughly cited.

I wonder though how many of you would agree with the following two statements made by Robertson JA:

1) At [29]: "Frankly, law professors spend far too much time trying to explain to law students what qualifies as valid consideration and why the cases seem to be irreconcilable, except in result".

2) At [46]"Like Professor Ogilvie, I am not convinced that the doctrine of economic duress should incorporate a criterion of illegitimate pressure when it comes to cases involving a variation to an
existing contract. If we apply Lord Scarman's approach it should follow that most contractual variations will be classified as having been procured through the exercise of legitimate commercial
pressure. Let me explain .... In cases involving the variation of an existing contract, inevitably the nature of the pressure is the threatened breach of the contract: the "coercer" threatens to withhold performance
under the contract until such time as the "victim" capitulates to the coercer's demands. Of course, a threatened breach of contract is not only lawful but in fact constitutes a right which can be exercised
subject to the obligation to pay damages and possibly to an order for specific performance."

For what it's worth, I don't do the first and the second statement seems spectacularly wrong, but others might disagree.

Cheers,

-- 
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435