The application of the pre-existing duty rule and economic duress doctrine in connection with informal post-contractual modifications was recently tested by the New Brunswick Court of Appeal in Nav Canada v. Greater Fredericton Airport Authority Inc (2008) 290 DLR (4th) 405. The Court ultimately abandoned altogether the “classical” requirement for fresh consideration in support of an informal post-contractual modification, leaving the enforceability of such modifications to be determined instead by the modern doctrine of economic duress. In that connection, the Court propounded a new analytical framework for adjudicating economic duress claims, and one that discards, at least for restitutionary or declaratory remedial purposes, the need for proof of “illegitimacy” in the pressure applied. This comment argues that neither move is self-evidently correct or desirable. While abandonment of the pre-existing duty rule might well prove to be theoretically unobjectionable, all things considered, the Court’s reform of the economic duress rules was, with respect, unconvincing in terms of principle and policy, and it was unnecessary for resolving the litigation in any event. Such a reform initiative, if followed by future courts, will leave Canada with an analytical framework for duress that is conceptually inferior to the prior, and relatively stable, Anglo-Commonwealth jurisprudence on the subject, which jurisprudence had, at least until the Nav Canada decision, achieved general, if not universal, acceptance among Canadian intermediate courts and legal commentators.
Available at: http://works.bepress.com/rick_bigwood/3/