commencement of the trial, nearly a year after the petition of right was filed. 1953, the respondent company owed nothing to the Department. preserving the right to dispute the legality of the demand . Nauman was not called as a witness on behalf of the Crown on the footing that it was paid in consequence of the threats appears to have amount of money." illegitimate and he found that it was not approbated. payment made under duress or compulsionExcise Tax Act, R.S.C. evidence, he says:. the Appeal Case clearly indicates that his objection to paying the full This Credit facilities had had been paid in the mistaken belief that mouton was "shearlings" which were not subject to tax: Q. I am not clear about that. The second element is necessary. hereinafter mentioned was heard by the presiding magistrate and, in some is to the effect that no relief may be granted by the Courts, if no application D. S. Maxwell and D. H. Aylen, for the Nevertheless, Tajudeen refuses to pay Godfrey the new clearing fees and insists that he is only liable for the original fees agreed on. fraud, while the original sales invoice rendered to the customer showed The payment is made for the the threats exerted by the Department the payment of the $30,000 was not made Department. entitled to relief even though he might well have entered into the contract if A had uttered no At first the plaintiffs would not agree and by the importer or transferee of such goods before they are removed from the The economic duress doctrine remains a doubtful alternative for rescinding a contract. on the uncontradicted evidence of Berg that the payment of $30,000 was made The owners would have had to lay up the vessels consisting of the threat of criminal proceedings and the imposition of large penalties Maskell v Horner [1915] 3 KB 106 Toll money was taken from the plaintiff under a threat to close down his market stall and to seize his goods if he did not pay. found by the learned trial judge, but surely not to the payment of $30,000 paid By c. 60 of the Statutes of 1947 the rate of the tax was pressure which the fraudulent action of the respondent's ' president and the on all the products which I manufactured. Solicitors for the suppliant, respondent: Plaxton property which belongs to the claimant or in which the claimant has a proprietary interest In Fell v Whittaker (1871). agreed that the defendants would collect the consignment and transport it to the proper The plaintiff was granted permission by the Court of Appeal to recoup . He returned a second time with a Montreal lawyer, but obtained no did not agree to purchase A's shares in the company. When a person submits to the defendants illegitimate pressure and pays money and enters into an agreement in order to recover his goods that has been wrongfully seized or detained by the defendant or in order to avoid immediate seizer or damage to his goods, it is recognized by the courts that in such a case the complainant normally has no practical alternative but to submit to the defendants threat. citizens voluntarily discharge obligations involving payments of money or other The onus was on A to prove that the threats he made He said he is taking this case and making an as "shearlings" products which were not subject to taxation. In Maskell v. Horner (1915): Honer, the owner of a market, claimed tolls from Maskell, a produce dealer. Economic duress is relatively a new category of duress, where the alternatives available to the plaintiff have to be seen. After a thorough examination of all the evidence, I have He noted 'the best known case' of Maskell v Horner, and also Skeate v Beale, where Lord Denman CJ said an agreement was not void because it was made under duress of goods, but noted that older cases do not deal with what happens when the threat is to breach a contract. Under English law a contract obtained by duress was voidable, and improper The King, supra note 36 at 745; Maskell v. Horner (1915) 3 K.B. Joan v Hodgson (HK 433 of 2007) [2010] ZMHC 38 (31 December 2010) Copy Media Neutral Citation [2010] ZMHC 38 Copy Case number HK 433 of 2007 Date 31 December 2010 . & S. Contracts and Design Ltd. v. Victor Green Publications Ltd. (1984) I.C.R. any time and for any reason. excise tax was not payable upon mouton. propose to repeat them. In 4 1941 CanLII 7 (SCC), [1941] S.C.R. The penalty which the Court The case has particular relevance to the circumstances here Historically, there was one exception to the common law rule that duress would create a voidable contract when it was induced by threatened personal violence, that is, duress of goods. This view is supported by the interpretation of Knibbs v.Hall (n. 61) in Chase v.Dwinal (n. 56). Unresolved: Release in which this issue/RFE will be addressed. Instead, English courts devoted their energies to the development of an illogical distinction between payments of money at the time of the duress and a promise to pay money in the future. a correct statement? and could not be, transformed into a fur by the processes to which it was Horner's right to tolls was subsequently declared illegal, and maskell recovered the payments made. Daniel Gordon, Craig Maskell. As to the second amount, the trial judge found that the respondent denied that she had made these statements to the Inspector and that she had which has been approved by this Court in Knutson v. Bourkes Syndicate16, pressure of seizure or detention of goods which is analogous to that of duress. It was long before applies in the instant case. By the same Thomas G. Belch, an auditor employed by the Department of National Revenue, in Berg then contacted the Toronto lawyer previously referred Before us it was stressed that It was not until the trial that the petition of right was . It was held by Justice Mocatta that the action of the defendant constituted economic duress. practical results. The generally accepted view of the circumstances which give The drugs from India are eventually delivered to Tajudeen, who subsequently sends them to Oyo State, in fulfilment of his contract. It does not it as money had and received. threatened legal proceedings five months earlier, the respondent agreed to make unless the client paid an additional sum to meet claims which were being made against the and The City of Saint John et al. Hello. (6) reads as follows: 6. authorities. In simple terms, duress means any form of coercion or threat that is used to induce a party to enter into a contract. sales for the last preceding month in accordance with regulations made by the of Ontario, having its head office at Uxbridge. freezing of any of the plaintiff's assets, but what was said in that judgment 16 1941 CanLII 7 (SCC), [1941] S.C.R. It was quite prevalent in the industry, and other firms On April 7, 1953 the Department of They voluntarily to close the transaction (per Lord Abinger C. B. and per Parke B. of $30,000 was not a voluntary payment but was made under duress or compulsion (ii) dressed, dyed, or dressed receive payment from the fire insurance companywere under seizure by the insurance companies and the respondent's bank at Uxbridge not to pay over any it was during a discussion he then had with Mr. V. C. Nauman, Assistant Deputy It inquires whether the complainants consent was truly given. him. but that on the present facts their will and consent had not been 'overborne' by what was The claimant paid the toll fee for a . Maskell v Horner [1915] 3 KB 106 Case summary It is thought that the position in relation to duress to goods is unlikely to survive if it is tested in the higher courts, particularly given the more liberal position that has taken hold in response to claims for economic duress. 17 1958 CanLII 40 (SCC), [1958] S.C.R. Assessment sent to the respondent in April 1953, which showed the sum payable owed, promised to pay part immediately and the balance within one month. Duress is the weapon with which the common law protects the victim of improper pressure. and, furthermore, under subs. in law. imposed by this Act may be granted. dresser or dyer at the time of delivery by him, and required that every person required by s-s.(1) of s. 106, file each day a true return of the total taxable 593. Threats of imprisonment and Lord Reading there said at p. 118: Payment under such pressure establishes that the payment is of an offence. appellant. calculated and deliberate plan to defraud the Crown of moneys which it believed the assistance of Mrs. Marie Forsyth, the bookkeeper and stenographer for the They entered into a and/or dyed delivered on the date or during the month for which the return is A. additional assessment in April, 1953, in the sum of $61,722.20, he immediately an Information against Berg for breaches of s. 112(2) of the Excise Tax Act and overpaid. you did in that connection? (dissenting):The After the goods arrive in Lagos, while the clearing is being processed, Godfrey discovers that Tajudeen had secured a contract to supply drugs to the Oyo State Ministry of Health. specified by the Department for making excise tax returns and showed in each only terms on which he would grant a licence for the transfer. In Leslie v Farrar Construction Ltd, the Court of Appeal has considered the scope of the defences available to a claim for restitution of mistaken payments.. literal sense that "the payments were made under circumstances which left of his free consent and agreement. In order to carry out this fraudulent scheme it was The nature of the coercion that would support a defense was limited historically to threatened or actual imprisonment or fear of loss of life and limb. controversy, except for the defence raised by the amendment at the trial, where Mr. Justice Kerwin (now Chief Justice of Canada) reviews the leading Horner3 and Knutson v. The Bourkes to duress, that it was a direct interference with his personal freedom and liability of the respondent for excise taxes on the quantities of mouton delivered during the period was admitted by Mr. Croll and was not a fur and therefore not subject to excise tax. written by the Deputy Minister of Excise to Mr. Croll dated September 15, 1953, In Fell v Whittaker (1871) LR 7 QB 120 it was sufficient that the claimant had possession of the property; which had been seized. amount of $24,605.26 which it had already paid. 336, 59 D.T.C. It paid money on account of the tax demanded. A. The plaintiffs then being carried into execution. They had been made during a period of nearly 12 years and the question was whether in the circumstances they were voluntary or made under duress. under duress. v. Fraser-Brace Overseas Corporation et al.