188 THE ADVOCATE
VOL. 77 PART 2 MARCH 2019
between the parties, did they actually agree, and was it fair and justifiable?
Rosas does this through the invocation of two well-established legal doctrines:
duress and unconscionability.
The defence of duress involves coercion of the consent or will of the
party entering into a contract. To establish duress, “it is not enough to show
that a contracting party took advantage of a superior bargaining position; for
duress, there must be coercion of the will of the contracting party and the
pressure must be exercised in an unfair, excessive or coercive manner”.28
The core concept of duress is the “‘vitiation’ of one’s will by means that are
illegitimate (or perhaps egregiously unfair)”.29
In order to make out unconscionability, an employee would need to
establish inequality in the position of the parties arising from the ignorance,
need or distress of the weaker, which left him or her in the power of the
stronger, and proof of substantial unfairness in the bargain. Proof of these
circumstances creates a presumption of fraud which the stronger must
repel by proving the bargain was fair, just and reasonable.30
These principles provide a more direct and transparent means of measuring
the legitimacy of a change in the contractual relationship.
Granted, these are high standards. They are doubtless more difficult to
establish than merely the absence of consideration. Findings of duress and
unconscionability are rare. Moreover, the burden of demonstrating duress
and unconscionability falls on the party seeking to escape the binding effect
of a contract—normally, the employee. The burden of establishing that
there is fresh consideration for a contractual change falls on the party seeking
to rely on the change—normally, the employer.31
These difference are significant, but for three reasons they should not
foster nostalgia for the fresh consideration rule.
First, duress and unconscionability principles will likely expand and
develop as they are employed more frequently in lieu of fresh consideration.
Without the fresh consideration rule, parties and courts will be obliged
to confront the fairness and voluntariness of a contractual change.
Second, while unconscionability and duress are difficult hurdles to overcome,
recent decisions have shown that appellate courts are not shy about
refusing to uphold contractual provisions they deem unconscionable in the
circumstances. For example, the Supreme Court of Canada recently refused
to uphold a forum selection clause in a consumer contract of adhesion
because the clause would have had the effect of denying a party the ability
to pursue a quasi-constitutional privacy claim in British Columbia.32 The
Ontario Court of Appeal very recently refused to enforce a contract
between Uber and its drivers which mandated binding arbitration.33 In the