The essential difference between duress and unconscionability is that duress looks to determine whether the consent was freely given, whereas the latter is founded in the unequal bargaining position of the respective parties. ¹ Threats of physical harm and criminal prosecution have been both determined to be good grounds of duress.

This defence looks also to the issue of whether the consent was freely given. Threats of physical harm and criminal prosecution have been both determined to be good grounds of duress. ²

Economic duress has also been recognized as grounds of duress, although it has been rarely applied in Canadian jurisprudence. In Ellis v Friedland, which considered but did not apply the argument, the court noted that there was support for the view that financial circumstances may lead to this plea.

The court also made reference to the leading case on economic duress of the House of Lords decision.³ The Court in this instance did not find in favour of the defendant asserting this plea but did nonetheless identify the following factors that will be considered when determining the existence of duress:

1. Economic factors;
2. Whether or not there was a coercion of will;
3. It must be shown that the contract was not a voluntary act;
4. Whether the victim protested;
5. Whether there was an alternate course of conduct possible to allow for a legal remedy;⁴
6. Whether independent legal advice was obtained; and
7. After the contract was formed, whether the victim took steps to avoid it.

Further definition was added that the pressure must be a compulsion to the will of the victim and there must be illegitimacy to the pressure which was exerted.^{5 6}

This defence was also considered in MacCosham v Deck. Deck had signed an acknowledgement by which he had agreed to be responsible for the financial value of a cellular phone given to him within the course of his employment. He argued, unsuccessfully, that he did so under economic duress. The defence failed as the there was no pressure which could meet the test of “illegitimate” to be a compulsion of will.