THE PROTECTION OF WEAKER PARTIES Flashcards
Duress
Airport under government authority conflicts with NAV Canada regarding the responsibility of certain expenditures for a runway expansion project – airport requests that NAV move an instrument landing system, NAV suggest cheaper alternative to only replace a portion of it – neither side agrees on who to pay for expenses – NAV refuses to move the instrument until airport pays – airport sends letter under protest saying they will pay but only after NAV does the job – NAV finishes job, airport does not pay – was letter sent by airport made under economic duress or is it binding promise to pay? – Greater Frederiction Airport Authority v NAV Canada p.686
Undue influence
Mother has mental illness – her mother (grandmother to grandchildren) secretly changes will, leaving everything to the mentally ill daughter and then said daughter’s children, cutting out rest of family, unbeknownst to rest of family – mother seeks independent legal advice, creates a trust that divides her property equally among all the grandchildren, identical to the first will her own mother left behind, but the mentally ill mother does not seem to understand what she’s done – when mentally ill mother dies years later, she leaves another will saying she left everything to her children in particular – manifest disadvantage? – Geffen v Goodman Estate p.701
Wife charges interest in her home in favour of a bank as security for her husband’s debts – later claims she made these charges under the undue influence of her husband – claims the bank knew that these transactions were made via undue influence – burden of proof for undue influence? – Royal Bank of Scotland v Etridge p.709
Unconscionability
Elderly woman, little financial means – persuaded by two men to borrow money on mortgage to her home from financing company and lend the money to them so they could pay off their own debts to same company – old woman does this, but cannot pay back the loan and the men do not help her – she requests mortgage be rescinded because of unconscionability – unequal bargaining power? – proof of unfair bargain? – Morrison v Coast Finance p.719
Mental incapacitation – land purchased by someone with mental disabilities – buyer of land did not know of seller’s mental incapacitation – buyer first went to the seller’s brother but could not convince brother to make the deal, so they went to the mentally disabled person directly – can agreement be rescinded by unconscionability? – was offer of payment grossly inadequate? – was agreement unfair, unreasonable? – unequal bargaining power? – Marshall v Can. Permanent Trust p.723
Man mortgages his farm which had been in the family for 300 years (also his only asset in life) to bank to support his son, whose business was failing – father told only way bank will loan money to son’s business is by charging the dad’s property – dad signs agreement, later claims he did not know what document he was signing and the circumstances of his son pressured him into doing so – son’s business fails, bank wants to foreclose dad’s property and evict him - Lloyds Bank v Bundy p.726
Uneducated, inarticulate person sells fishing boat for much less than true value – attached to the boat was a special fishing license, the real source of its value – buyer knew the true value, but assured seller they could easily find another boat – went back and forth on deal several times, buyer keeps returning with a cheque, eventually seller acquiesces – seller had unknowingly given away their fishing license, cannot get another boat – recission of contract by unconscionability? – Harry v Kreutziger p.732
Incapacity
Mental Incompetence
Land purchase from man with mental disabilities – buyer did not know of these disabilities – declaration that agreement be rescinded for want of mental capacity – Hart v O’Connor p.744
