While everyone is still talking about the UKSC judgment in MWB, where the Court’s decision was not particularly helpful with respect to the issue of consideration in variations of contracts, it is worth mentioning that in Canada, the British Columbia Court of Appeal came down with a very interesting decision on the topic (where it did not shy away from the issue)on May 18^th in Rosas v. Toca 2018 BCCA 191 (https://www.canlii.org/en/bc/bcca/doc/2018/2018bcca191/2018bcca191.html)

The BC Court of Appeal endorsed the obiter by Justice Robertson in the New Brunswick Court of Appeal decision of Nav Canada (2008) stating that, “The time has come to reform the doctrine of consideration as it applies in this context [variations of existing contracts], and modify the pre-existing duty rule…When parties to a contract agree to vary its terms, the variation should be enforceable without fresh consideration, absent duress, unconscionability, or other public policy concerns…[A] lack of fresh consideration will no longer be determinative.  In this way, the legitimate expectations of the parties can be protected.  To do otherwise would be to let the doctrine of consideration work an injustice.” [para 4, repeated in para 183]. 

Definitely worth a read!

Rosalie Jukier