[67] In concluding that the plea of economic duress was established and that the arbitrator erred in finding that the subsequent correspondence qualified as a separate and enforceable contract, I have not made reference to the matters of “independent legal advice” and “good faith”. Nav Canada argues that the Airport Authority was in receipt of independent legal advice over the relevant period of time. I will not speculate on whether Nav Canada also retained legal counsel in the months leading up to the exchange of correspondence, other than to state that the correspondence reflects an awareness of the tenets of the doctrine of economic duress. In any event, this factor could have no bearing on the determination regarding economic duress. Finally, it may well be that Nav Canada truly believed that it had no contractual obligation to pay for the cost of the navigational aid and as such was acting in good faith. But it is equally plausible, as claimed by the Airport Authority, that Nav Canada was simply attempting to offload its responsibility to purchase navigational equipment onto an unwilling and unrelenting “victim”. If that were its true intent then it failed to achieve that objective because of the economic duress doctrine. In any event, “good faith” is not a defence to a plea of economic duress when dealing with the enforceability of a contractual variation.
VI. Conclusion/Disposition
[68] I would dismiss the appeal and award costs of $6,600, based on an amount in issue of $223,000, as per Note 1 to Tariff “A”, Scale 3, in Rule 59 of the Rules of Court.
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J. T. ROBERTSON, J.A.
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