“A consent order may be set aside on the same grounds as the agreement giving rise to the order: McCowan v. McCowan (1995), 1995 CanLII 1085 (ON CA), 14 R.F.L. (4th) 325 (Ont. C.A.); Rick v Brandsema, 2009 SCC 10 (CanLII). The traditional grounds for setting aside a contract are: mistake, misrepresentation, unconscionability, and incapacity, with all of their various subcategories.
Ms. Glazer claims duress. Duress is a sub-category of unconscionability. In order for Ms. Glazer to rely on duress as the basis to set aside her consent, she must prove that she was subjected to illegitimate pressure to such a degree that her will was coerced. Ms. Glazer must establish, on a balance of probabilities, that illegitimate pressure put her in a position where she had no realistic alternative but to agree: Stott v. Merit Investment Corp. (1988), 1988 CanLII 192 (ON CA), 25 O.A.C. 174, 63 O.R. (2d) 545 (Ont. C.A.) at para. 48 and Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157 (Ont. C.A.) (CanLII) at para. 9.
In Stott at para. 48, the Court of Appeal emphasized that:
“not all pressure, economic or otherwise, is recognized as constituting duress. It must be a pressure which the law does not regard as legitimate and it must be applied to such a degree as to amount to a ‘coercion of the will’, to use an expression found in English authorities, or it must place the party to whom the pressure is directed in a position where he has no ‘realistic alternative’ but to submit to it…duress has the effect of vitiating consent and an agreement obtained through duress is voidable at the instance of the party subjected to the duress…”
This reasoning in Stott was applied in the decision of the Court of Appeal in Taber where citing Stott, the court stated at para. 8 and 9:
“there is no doubt that economic duress can serve to make an agreement unenforceable against a party who was compelled by the duress to enter into it. Nor is there any doubt that the party can have the agreement declared void on this basis. However, not all pressure, economic or otherwise, can constitute duress sufficient to carry these legal consequences. It must have two elements: it must be pressure that the law regards as illegitimate; and it must be applied to such a degree as to amount to ‘a coercion of the will’ of the party relying on the concept.”