190 THE ADVOCATE
VOL. 77 PART 2 MARCH 2019
Greater Fredericton Airport Authority Inc, 2008
NBCA 28 NAV Canada.
4. Indeed, the Supreme Court of Canada has expressly
admonished courts from making anything but
“incremental changes to the common law”—significant
changes are the prerogative of the legislature.
See Watkins v Olafson, 1989 2 SCR 750 at 760; R
v Salituro, 1991 3 SCR 654 at 677–78.
5. I tentatively suggested some of these points in an
early article on Rosas without expressing a view one
way or another. See Thomas Posyniak, “Consideration
Reconsidered: The Law of Consideration in the
Employment Context following Rosas v. Toca” (2018)
28 ELLR 5. I have since become more convinced of
the correctness of Rosas.
6. Rosas, supra note 1 at paras 5–10.
7. Ibid at paras 11–19.
8. Ibid at para 19.
9. Ibid at para 1.
10. Ibid at para 3.
11. Ibidat paras 75–78.
12. See Stilk v Myrick, 1809 EWHC KB J58, which the
Court of Appeal in Rosas cited for the proposition
that “where one party promises something in
exchange that they already owe to the other party,
they have, in effect, given nothing in exchange, and
courts have held that this does not amount to consideration”
13. Rosas, supra note 1 at paras 49–154.
14. Ibid at paras 186–87.
15. There is little doubt that Rosas modifies the body of
the common law of contract, including its employment
law wing. While this was not expressly said,
the Chief Justice put no qualifications on his pronouncement
and clearly was aware of the particularities
of employment contracts when he referenced at
para 118 the dissent of Slatter JA in Globex Foreign
Exchange Corp v Kelcher, 2011 ABCA 240
16. Hobbs v TDI Canada Ltd (2004), 246 DLR (4th) 43
17. Holland v Hostopia Inc, 2015 ONCA 762 at para 53.
18. Krieser v Active Chemicals Ltd, 2005 BCSC 1370.
19. See Watson v Moore Corp, 1996 CanLII 1142 at
para 27 (BCCA), McEachern CJBC Watson;
Gadhri v 0760815 BC Ltd, 2016 BCSC 521 at para
169 Gadhri (“the test for consideration is not one
of adequacy. It is trite law to say that any consideration,
even of nominal value, is sufficient for the purposes
of a contract. A mere peppercorn will do”);
Pan-Afric Holdings Ltd v Athabasca Holdings Ltd,
2015 BCSC 1000 at para 30 (“a castle for a peppercorn”);
Sheckter v Polonuk, 1992 ABCA 324 at para
5 (“consideration need not be adequate; a peppercorn
will do”); Stangenberg v Bellamy Software,
2016 ABQB 160 at para 46; Kostic v Piikani Nation,
2017 ABCA 53 at para 15. In Halsbury’s Laws of
Canada – Contracts (Toronto: LexisNexis Canada,
2017), Angela Swan and Jakub Adamski note at
HCO-42 that “while there are many statements that
a peppercorn is good consideration, there are no
Canadian cases in which a party has actually tendered
a peppercorn to the other side. Nevertheless,
there are leases that have reserved a party’s right to
the payment of a peppercorn, if demanded. Finally,
see MacLauchlan v Soper (1965), 50 MPR 339
(PEISC), where a conveyance stipulated to be for the
consideration of a single dollar was held to be adequate.”
This also happened in Gadhri at para 172.
20. Supra note 19.
21. One could reasonably contend that the fresh consideration
rule is a “gotcha” argument facing careless
employers or employers who did not take the time to
obtain legal advice.
22. See Globex, supra note 15 at para 136, cited in
Rosas, supra note 1 at para 118.
23. See Globex, supra note 15 at para 134, citing GHL
Fridman, The Law of Contract in Canada, 5th ed
(Toronto: Thomson Reuters Canada, 2006) at 98, citing
Williams v Roffey Bros & Nicholls (Contractors)
Ltd (1989), 1991 1 QB 1 at 18–19 (CA), and NAV
Canada, supra note 3 at paras 27–28.
24. Thanks to Rosas, it may be that in Ontario it still
does, while in British Columbia it does not.
25. See e.g., Nowak v Biocomposites Inc, 2018 BCSC
26. This criticism was expressly made in Globex, supra
note 15 at para 135 and implicitly accepted in Rosas.
27. See Catalyst Paper Corp v Companhia de Navegação
Norsul, 2008 BCCA 336 at para 27; Hunter
Engineering Co v Syncrude Canada Ltd, 1989 1
SCR 426 at 462, Dickson CJC. See also Globex,
supra note 15 at para 135 (“in applying the law of
consideration, the courts should refrain, if possible,
from relieving the parties of covenants freely entered
into, absent some overriding public policy consideration:
Tercon Contractors Ltd v British Columbia
(Transportation and Highways), 2010 SCC 4, 2010
1 SCR 69 at paras 107, 120; Seidel v TELUS Communications
Inc, 2011 SCC 15 at paras 2, 169”).
28. Lei v Crawford, 2011 ONSC 349 at para 7, cited
with approval in Jestadt v Performing Arts Lodge
Vancouver, 2013 BCCA 183 at para 48 and Dairy
Queen Canada, Inc v MY Sundae Inc, 2017 BCCA
442 at para 50.
29. Kriegman v Dill, 2018 BCCA 86 at para 70.
30. See Loychuk v Cougar Mountain Adventures Ltd,
2012 BCCA 122 at para 29, citing Morrison v Coast
Finance Ltd (1965), 55 DLR (2d) 710 at 713 (BCCA).
31. See Rahemtulla v Vanfed Credit Union, 1984 CanLII
689 at para 20 (BCSC).
32. Douez v Facebook, Inc, 2017 SCC 33.
33. Heller v Uber Technologies Inc, 2019 ONCA 1.
34. Bhasin v Hrynew, 2014 SCC 71.
35. Ibid at para 66.