“Ms. Shalaby submits that she was under undue influence and duress when she signed the Agreement, as well as that its terms were unconscionable.
In Berdette v. Berdette, 1991 CanLII 7061 (ON CA), 1991 CarswellOnt 280 (Ont. C.A.), Galligan J.A. set out the test for undue influence:
I adopt the definition of undue influence found in the judgment of Henry J. in Brooks v. Alker (1975), 1975 CanLII 423 (ON SC), 22 R.F.L. 260, 9 O.R. (2d) 409, 60 D.L.R. (3d) 577 (H.C.), at p. 416 [O.R., p. 266 R.F.L.]. There undue influence was defined as the “unconscientious use by one person of power possessed by him over another in order to induce the other to” do something.
[Emphasis added]
Finlayson J.A., speaking for the majority of this Court in Stott v. Merit Investment Corp. (1988), 1998 CanLII 192 (ON CA), 19 C.C.E.L. 68 said that in order for pressure to amount to duress it must be “‘a coercion of the will’, or it must place the party to whom the pressure is directed in such a position as to have ‘no realistic alternative'” but to submit to it.
[Emphasis added]
In Turk, Kitely J., at para. 93, accepted the Newfoundland and Labrador Supreme Court’s definition of duress from Keough v. Keough [2005] N.J. No. 327:
Duress is said to occur where there is such pressure placed on one of the parties that any consent by that party is not sufficient to uphold the agreement. There exists an absence of choice which in effect vitiates any ability to lawfully consent. However, duress sufficient to void an agreement does not arise based only upon a lack of will to proceed but rather it must be based upon a resolution on the part of the submitting party that there is no other practical choice but to perform the act in question. Duress can be established based upon actual or threatened violence or upon economic consideration.”