What is the test for undue influence and unconscionability?
Alberta, Canada
The following excerpt is from Canadian Imperial Bank of Commerce v. 3L Trucking Ltd., 1995 CanLII 9226 (AB QB):
Undue influence focusses on the sufficiency of consent. Unconscionability focusses on the reasonableness of the transaction and the existence of unequal bargaining power between the parties. A fiduciary obligation carries with it not only a duty of skill and competence; the special elements of trust, loyalty and confidentiality give rise to a corresponding duty of loyalty: Hodgkinson v. Simms, supra, at pp. 405-406.
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