Greater Fredericton Airport Authority v NAV Canada Facts: NAV had responsibility to provide aviation service to GFA. GFA wanted to extend runway, disagreed about who should pay. NAV installed new equipment, GFA refused to pay. GFA had no alternative never consented, agreed to payment under protest. – For economic duress in modification of K (not formation): Commercial reality needs to be recognized parties frequently vary and modify K – – will be regarded as enforceable needs to be threat, and pressure that no practical alternative. No need for illegitimate pressure. Pressure leads to variation of K Next, focus should be: Whether coerced party contested to variation Was there consideration? Promise made under protest? Party took reasonable steps to disaffirm promise as soon as practical? Influence Induced by improper persuasion exercised by someone in special relationship w/ victim Remedy = rescission Equity focus on nature of relationship – Protects from unfair use of persuasion duress (domination of will) – Persuasion in relationship actual or presumed – Actual: direct evidence of influence (pressure short of duress) Presumed trust inferred from relation A. Recognized types of relationships = Irrebuttable + questionable transaction B. Special circumstances = rebuttable presumption + questionable transaction Geffen v Goodman Estate Facts: Family members context validity of 2 different wills. Home left is FS to daughter w/ mental disorder brothers want to ensure estate remains in family create trust providing – – L/E to daughter and remainder to grandchildren. Daughter dies, children claim brothers exerted UI on their mother. They had her best interests at heart, and she had outside legal advice. Ratio: P must establish presence of dominant relationship to give rise to presumption of UI. Then onus to D to rebut it. Must show that P acted full, free and informed and had independent advice. Magnitude of disadvantage or benefit is cogent evidence going to issue of whether UI was exercised. Royal Bank of Scotland v Etridge Facts: Wife gave guarantee to bank (interest in home as security) for husband’s debt. When bank attempted to enforce charge and take possession of home, wife claimed UI from husband. Question of notice did the bank have any notice that was duress (may be – constructed notice)
Greater Fredericton Airport Authority v NAV Canada Facts: NAV had responsibility to provide aviation service to GFA. GFA wanted to extend runway, disagreed about who should pay. NAV installed new equipment, GFA refused to pay. GFA had no alternative – never consented, agreed to payment under protest. For economic duress in modification of K (not formation): Commercial reality needs to be recognized – parties frequently vary and modify K – will be regarded as enforceable needs to be threat, and pressure that no practical alternative. No need for illegitimate pressure. Pressure leads to variation of K Next, focus should be: Whether coerced party contested to variation Was there consideration? Promise made under protest? Party took reasonable steps to disaffirm promise as soon as practical? Influence Induced by improper persuasion exercised by someone in special relationship w/ victim Remedy = rescission Equity – focus on nature of relationship Protects from unfair use of persuasion – duress (domination of will) Persuasion in relationship – actual or presumed Actual: direct evidence of influence (pressure short of duress) Presumed trust inferred from relation A. Recognized types of relationships = Irrebuttable + questionable transaction B. Special circumstances = rebuttable presumption + questionable transaction Geffen v Goodman Estate Facts: Family members context validity of 2 different wills. Home left is FS to daughter w/ mental disorder – brothers want to ensure estate remains in family – create trust providing L/E to daughter and remainder to grandchildren. Daughter dies, children claim brothers exerted UI on their mother. They had her best interests at heart, and she had outside legal advice. Ratio: P must establish presence of dominant relationship to give rise to presumption of UI. Then onus to D to rebut it. Must show that P acted full, free and informed and had independent advice. Magnitude of disadvantage or benefit is cogent evidence going to issue of whether UI was exercised. Royal Bank of Scotland v Etridge Facts: Wife gave guarantee to bank (interest in home as security) for husband’s debt. When bank attempted to enforce charge and take possession of home, wife claimed UI from husband. Question of notice – did the bank have any notice that was duress (may be constructed notice)
Biukovic_58_Full_2013_Kellan_McKeen.docx