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)
Issue: Can P recover damages for result that D not unlikely to know could arise? Reasonable foreseeability higher than Confirms Hadley test – not Victoria Ratio: D should, or reasonable person in their position, realized that loss was sufficiently likely to result from breach of K – loss flowed naturally from breach or within contemplation Higher than torts b/c can direct attention to other party to protect from risk Duty to Mitigate P can’t recover losses he could’ve avoided had he acted reasonably May include steps to mitigate Don’t need to act perfectly If asking for remedy of SP, no duty to mitigate Southcott v Toronto Catholic School Board Corporation formed specifically for purchase of specific building. Didn’t sell due to breach of School Board. Sued for specific performance. Only wanted that one building, so didn’t mitigate. There is a duty to mitigate – commercial transaction Courts decide not to order SP of real estate transaction of commercial nature Property not automatically considered unique Ratio: D has onus of proving that P failed to mitigate loss. BOP, must show: Opportunities to mitigate loss were available to P and P unreasonably failed to pursue opportunities Reasons for failure to mitigate – fair, real, substantial justification for claiming SP, lack of finances Factors for determining uniqueness and availability of SP – remedy of damages is inadequate to do justice + P has fair justification for SP Time for Calculating Damages General rule – time of breach is time for calculating damages (Asamera) Semelhago v Parmadevan Facts: 2 private parties, negotiating sale of house. Buyer not able to get property – insists on SP, or damages in lieu of. His property improved, plus that property. When should damages be assessed? If courts doesn’t award SP – awards damages in lieu of SP – equitable damages Like enforcing the K – pushes assessment of damages to time of Ratio: SP – property must be unique – substitute no readily available vendor reneges in anticipatory breach, innocent party has 2 options: accept repudiation and commence action for damages, or insist on performance. Claim for SP – postpones date of breach – so assess damages at date of trial. Asamera Oil v Sea Oil & General Loan of shares in oil exploration company. Stock price significantly fluctuate. What is value of loss?