Veinotte v. Haugen, 2020 NSSC 167

SUPREME COURT OF Nova Scotia Citation: Veinotte v. Haugen , 2020 NSSC 167 Date: 20200528 Docket: Bridgewater , No. 430878 Registry: Bridgewater Between: Linda Louise Veinotte Plaintiff v. Richard G. Haugen and Janet E. Chute Defendants Judge: The Honourable Justice Pierre L. Muise Heard: September 17, 18, 19 and 20, 2019, in Bridgewater, Nova Scotia Counsel: Farhan Raouf, for the Plaintiff Robert Purdy, Q.C., for the Defendants INTRODUCTION [ 1 ] The Plaintiff was involved in a motor vehicle collision on April 16, 2011 (the “MVC”).

On January 20, 2012, she received settlement funds from the insurer of the Defendant Vehicle and signed a release. However, she commenced an action against the Defendants on April 29, 2014. [ 2 ] The issue of liability was severed from the issue of damages. Liability for the collision was admitted. That left the question of the validity of the release to be tried. The Plaintiff is seeking a finding that the release is to be set aside as being unconscionable. That is opposed. [ 3 ] The Plaintiff’s name is now Linda Louise Finigan, not Linda Louise Veinotte. Therefore, I will refer to her as Ms. Finigan.

ISSUES [ 4 ] The issues to be determined are: 1. The credibility and reliability of the witnesses; and, 2. Whether the release should be set aside as unconscionable. LAW AND ANALYSIS ISSUE 1: THE CREDIBILITY AND RELIABILITY OF THE WITNESSES [ 5 ] Subject to exceptions I will comment on in the course of discussing each witness individually, all witnesses generally gave their evidence in a straightforward and un-evasive manner. [ 6 ] Apart from Ms. Finigan herself, the only witnesses who testified on her behalf were Mary Haylock (her counsellor) and Dr.

Barbara Ross (the psychiatrist who conducted an independent medical evaluation of Ms. Finigan). [ 7 ] The witnesses who testified on behalf of the Defendants were Lisa Wiper (the

Section B adjuster), Patti Dwyer (the

Section A claims examiner), Graham Campbell (the independent adjuster) and Cathy Joudrey (Mr. Campbell’s assistant). Linda Finigan [ 8 ] Ms. Finigan readily made some admissions against interest. However, in relation to critical points, she strongly resisted making admissions by providing answers that diverted the focus of the question. She kept returning to her central message that, when she settled, she did not want to talk about the MVC and wanted it to be over.

[ 9 ] Similarly, unprompted by any question, she, on multiple occasions, made statements like: “Will I ever get well?” That indicates a tendency to engineer her evidence in an attempt to buttress her case. [ 10 ] Ms. Haylock made notes of her counselling sessions with Ms. Finigan, including during the period of time between the motor vehicle accident and the settlement. Ms. Finigan’s evidence of what happened during that time, and to some extent of what she told Ms. Haylock happened, is inconsistent with some of the notes made by Ms. Haylock regarding what Ms.

Finigan told her. [ 11 ] One such inconsistency was in relation to whether Ms. Finigan had consulted a lawyer. [ 12 ] Ms. Haylock had no reason to record things like Ms. Finigan having told her she contacted a lawyer, if Ms. Finigan did not tell her that. There would be no reason for Ms. Haylock to falsely record what was said to her. Apart from the evidence of Ms. Finigan, describing different circumstances, there is no evidence to indicate any inaccurate recording by Ms. Haylock. [ 13 ] The report of Dr. Ross indicates that Ms.

Finigan told her that, at the time she signed the release, she had bills to pay for physiotherapy and psychotherapy. However, we know that those were covered by the

Section B insurance. Therefore, Ms. Finigan provided false information to Dr. Ross. Dr. Ross was retained to provide an expert opinion regarding Ms. Finigan’s emotional state in the post accident and pre-settlement stage, and the impact of accident-related injuries on her. In those circumstances, the most likely reason for Ms. Finigan to provide false information to Dr. Ross is to attempt to influence her opinion. [ 14 ] According to the evidence of Dr. Ross, Ms. Finigan left her with the impression that she had no money. However, it is undisputed that Ms. Finigan kept receiving her full-time pay throughout.

That suggests deliberate misleading by Ms. Finigan, at least by omission. [ 15 ] Ms. Finigan told Dr. Ross that her panic attacks were “out of control” and that she did not talk to a lawyer. Both of those points are inconsistent with the progress notes made by Ms. Haylock. [ 16 ] The inconsistent notes indicate that Ms. Finigan’s description of the circumstances is, at least, incorrect, and may be deliberately dishonest. Ms. Finigan admits that she has memory issues. That might suggest that her erroneous evidence is not due to deliberate dishonesty.

However, there was no evidence to explain why she would be able to remember things such as, specifics of conversations with health care providers and insurance representatives, but unable to remember correctly whether she consulted a lawyer. [ 17 ] Ms. Finigan acknowledged that she is the one who approached Mr. Campbell wanting to settle the matter. That is consistent with her evidence that she wanted it to be over. However, it is not consistent with her evidence that she did not want to talk about anything related to the accident anymore. She had already stopped attending counselling sessions with Ms. Haylock.

She could just have easily done nothing about the settlement. That way she would not have had to have talked about the accident at all. The matter would have been over. [ 18 ] It is not disputed that she was experiencing anxiety and panic attacks, which she was taking measures to attempt to avoid. However, her approaching the insurance adjuster wanting to engage in settlement discussions, then submitting a counteroffer, with an accompanying explanation of the rationale for it, runs contrary to her evidence that she did it as an avoidance measure. [ 19 ] She testified that neither Ms. Wiper, nor Mr.

Campbell, explained to her the difference between

Section A coverage and

Section B coverage. That is inconsistent with the evidence of Mr. Campbell. [ 20 ] She gave inconsistent reasons for discontinuing counselling with Ms. Haylock. One was that she hit a brick wall and was convinced no amount of therapy would help. That was inconsistent with her evidence that she thought she would be fine. It is also inconsistent with Ms. Haylock’s notes. The other reason was the cost. She gave that evidence at trial and at discoveries. However, it is inconsistent with her acknowledgement that it, as well as physiotherapy and travel, were all being covered by

Section B benefits. [ 21 ] Her evidence also revealed she sometimes answered questions based on what she assumed was the case. For instance, when asked whether the driver of the car she was in (i.e. her friend Nancy) had a lawyer when they settled, she said no. When her source of knowledge was explored, she acknowledged she had not been told that. She just assumed that Nancy would have let her know if she had a lawyer. [ 22 ] She gave evidence that she decided to separate from her husband in November 2011, when she discovered he had an online dating profile. She told Dr.

Ross she decided to stay until after Christmas because her son was coming home for Christmas. That was inconsistent with her evidence on cross-examination that she got up one morning, decided to leave, told her husband she wanted a divorce and left with no money or residence lined up. [ 23 ] For these reasons, there are significant credibility concerns in relation to Ms. Finigan’s evidence, and, as a general comment, except where she makes admissions against interest, it is not reliable. Mary Haylock [ 24 ] Ms. Haylock gave her evidence in a fair and even-handed manner.

Her evidence regarding what was said to her, and her assessment of it, was credible and reliable, except to the extent that it was undermined by the deficiencies in the credibility or reliability of Ms. Finigan’s statements to her. Dr. Barbara Ross [ 25 ] Dr. Ross provided evidence that she was giving her expert opinion evidence in a fair, objective and unbiased manner. However, the way she answered some questions, and her failure to question what Ms. Finigan told her, indicated that she was acting as an advocate for Ms. Finigan.

[ 26 ] The following examples of how she answered some questions are illustrative. When asked whether Ms. Finigan told her she did not understand what she was signing, she evaded the question. Then, when asked whether her understanding was that Ms. Finigan did not understand the release, she answered, somewhat evasively, that Ms. Finigan did not understand her condition and how bad it was going to be. That appeared to be a statement that Ms. Finigan did not know that her condition would deteriorate. She added, as an after-thought, that Ms. Finigan did not understand the process or her condition. However, Dr.

Ross did not point to any information which indicated Ms. Finigan did not understand the process. After further questioning, she acknowledged she did not explore whether Ms. Finigan understood the release. When asked whether that would not have been an important point, she responded by explaining that she lets the patient “drive” the information provided in the interview. [ 27 ] She also stated that she avoided asking Ms. Finigan whether she understood the release because she “would not give a frank answer”. [ 28 ] Yet, she took Ms.

Finigan’s statements at face value, without questioning them or consulting other sources with a view to helping her determine if they were accurate. For instance, she did not speak to Ms. Finigan’s husband, daughter, or counsellor, even though she agreed such information could be useful. All of them would have been able to provide relevant information. She did not question Ms. Finigan on previous inconsistent statements made to, or by, health care providers. [ 29 ] Her opinion was based largely on what Ms. Finigan told her. The inaccuracies in what Ms. Finigan told her reduce the reliability of her opinion.

For instance, Dr. Ross’s opinion was based on factors that have not been proven or have been disproven. They include that: - Ms. Finigan had reduced income. - She had therapy bills to pay. - She was experiencing “out of control” panic disorder. - She had not talked to a lawyer. - She had been told by the adjuster that, if she did not accept his offer, she would have to get a lawyer “for any future agreement”. [ 30 ] She accepted those points based on what Ms. Finigan told her. In doing so, she dismissed information to the contrary in Ms.

Haylock’s notes and the medical records, which she agreed showed, among other things, considerable improvement in Ms. Finigan’s condition, and contained nothing to suggest her panic attacks were out of control. That indicates she did not critically assess what Ms. Finigan told her. [ 31 ] Ms. Finigan met with Dr. Ross in 2018, i.e. seven years after the accident and settlement discussions. Especially considering Ms. Finigan’s acknowledged memory issues, more likely than not, Ms. Finigan provided Dr. Ross with a version of events that she thought would be more compelling. [ 32 ] For these reasons, Dr.

Ross’ opinion is not reliable and I attach little or no weight to it. Lisa Wiper [ 33 ] Wawanesa was both the

Section A and the

Section B insurer in relation to the collision in question. Ms. Finigan submitted those circumstances made it such that Ms. Wiper, would have incentive to provide evidence more favourable to the Defendants. However, the evidence was that she arranged for Ms. Finigan to have her counselling sessions with Ms. Haylock paid, even though they generally would not have covered the expense, because Ms. Haylock’s qualifications did not meet the policy requirements. Ms. Wiper did so because she recognized that it made sense for Ms. Finigan to return to the counsellor with whom she already had a good working relationship.

In her words, “it was the right thing to do”. That demonstrates that Ms. wiper is a fair-minded person. She is a professional adjuster. Ms. Finigan’s file would just be one of many. Any impact of the fact that Wawanesa was also the

Section A insurer would be negligible to nil. I do not find that it has any real negative impact on the credibility or reliability of her evidence. [ 34 ] Ms. Finigan also submits Ms. Wiper had no independent recollection of the file and was giving confusing information, so she must have been confused. Many of her answers, that she did not recall, were simply that she did not recall telling Ms. Finigan things that Ms. Finigan had said she told her. Given the serious concerns about Ms. Finigan’s evidence, it is unlikely that she said those things. So, she was effectively answering “no”.

Her testimony showed she recalled a significant portion of her dealings on the matter. [ 35 ] There was one prior statement that was advanced as being inconsistent. She testified at trial that she did not consult with a supervisor when she initially denied Ms. Finigan

Section B coverage for counselling with Ms. Haylock. In an email to Mr. Campbell dated June 15, 2011, she said she had discussed Ms. Haylock’s qualifications with her supervisor. She agreed with the suggestion that it was a contradiction. However, it is important to note that the June 15 email is in response to an email to her from Mr. Campbell. That email referred to her having denied

Section B coverage for Ms. Haylock’s services, pointed out that Ms. Haylock was listed on the Canadian Counselling and Psychotherapy Association website, and attached the relevant page. Ms. Wiper’s email in reply states: “I have reviewed the attached documentation and I have also discussed the qualifications of Ms. Haylock with … my Supervisor”. Therefore, it states that she spoke to her supervisor after receiving Mr. Campbell’s email, not when she initially denied coverage. As such, there is no inconsistency. [ 36 ] There were no other credibility or reliability issues in relation to her. [ 37 ] I found Ms. Wiper’s evidence to be credible and reliable. Graham Campbell

[38] Ms. Finigan submitted that there was a clear and significant inconsistency between Mr. Campbell’s evidence at trial, and that indiscoveries, on the following point. She said Mr. Campbell testified at trial that he felt Ms. Finigan was confused between

Section A andSection B insurance, and testified at discoveries that his comment regarding confusion was directed at Ms. Wiper, not Ms. Finigan. [39] At trial, he testified that, early on, when he first started dealing with Ms. Finigan, she displayed some confusion betweenSection A and

Section B coverage. [40] At discoveries the following passage, from his letter to Ms. Dwyer, dated June 17, 2011, was put to him: “Ms. Veinotte was advised by

Section B Adjuster Lisa Wiper that as the doctor had recommended a physiologist {sic} they could notpay the costs of Ms. Haylock’s treatments and that she should sue

Section A for these treatments. (Ms. Veinotte’s words) As I felt therepossibly was some confusion I both called Ms. Wiper and forwarded the attached email dated June 13, 2011. Ms. Wiper’s reply dated June 15th and my response of June 15th are attached as well.” [41] Mr. Campbell confirmed he testified at discoveries that his reference to “confusion” was directed at Ms. Wiper. [42] At trial, when it was suggested that there was an inconsistency. He explained that it was part of him assisting Ms. Finigan ingetting her counselling with Ms.

Haylock paid. [43] The June 13 and 15 emails referred to in his June 17 letter clearly show that he was of the view that Ms. Wiper was confusedregarding whether Ms. Haylock met the qualifications required for

Section B to cover her fees. [44] In his June 13 email to Ms. Wiper he noted that her family doctor referred Ms. Finigan to Ms. Haylock for counselling, who hadpreviously treated her with success. He stated that Ms. Haylock is listed on the Canadian Counselling and Psychotherapy Associationwebsite and attached a page from it. He added that he was bringing it to Ms. Wiper’s attention so that it could be “looked into”. [45] Ms. Wiper’s June 15 email, in reply, noted they had reviewed the attachments and maintained that

Section B would not coversessions with Ms. Haylock because she was not “a registered psychologist”. [46] Ms. Campbell’s June 15 email noted he would be suggesting that her doctor “clarify what treatment and who he is prescribingin any future medical reports” as that “may clear up any confusion”. Therefore, he clearly was referring to Ms. Wiper’s confusion overwhether Ms. Haylock specifically would qualify to be covered under

Section B, not a confusion as to what

Section A and

Section Bcoverage were. [47] His reference to the confusion initially exhibited by Ms. Finigan was a different confusion regarding

Section A and B. That isconsistent with his acknowledgement, at trial, on cross examination, that “there was confusion in both of them”, and his evidence, ondirect examination, that he thought there was confusion between Ms. Wiper and Ms. Finigan as to whether Ms. Haylock should becovered under

Section B. He added, on direct examination, that he “felt something was wrong” and wanted to see what he could do tohave Ms. Finigan “treated properly under

Section B”. He added, on cross examination, that he was concerned Ms. Wiper was notunderstanding what Ms. Finigan was asking for. [48] Therefore, there was no inconsistency between his evidence at discoveries and his evidence at trial. [49] There was, however, one notable inconsistency in his evidence. He initially said he knew that Ms. Finigan had been referred toMs. Haylock, but did not know if she had gone.

Then he later, voluntarily and unprompted, corrected himself by saying that he knewbecause he was trying to help her get paid. [50] That self-correction diminishes the impact of the inconsistency on his credibility and reliability. [51] Part of the cross examination was focussed on whether he complied with his ethical obligations as a professional adjuster. Thatwould naturally tend to render him defensive in his evidence, a relevant factor to consider. [52] On the other hand, much of his evidence was supported by contemporaneous notes and letters. [53] I generally found his evidence to be credible and reliable.

Patti Dwyer and Cathy Joudrey [54] There were no issues in relation to the credibility and reliability of Ms. Dwyer’s and Ms. Joudrey’s evidence. There was no realdispute in relation to Ms. Joudrey’s brief involvement in any event. ISSUE 2: WHETHER THE RELEASE SHOULD BE SET ASIDE AS UNCONSCIONABLE [55] Unless there has been fraud or some other equitable reason, such as unconscionability, to set aside a release, it is to be upheld.The injuries or damages turning out to be worse than expected at the time of settlement is not amongst such equitable reasons:Richmond v.

Matar, 2009 NSSC 113, at para 14, citing Van Patter v. Tillsonburg District Memorial Hospital, (ONSC), [1998] O.J. No. 1700. [56] The parties agree the test for setting aside a release for unconscionability is that summarized at paragraphs 13 and 14 ofStephenson v. Hilti (Can.) Ltd. (1989), (NS SC), 93 N.S.R.(2d) 366 (N.S.S.C., T.D.), as follows: “13 … [A] transaction may be set aside as being unconscionable if the evidence shows the following:

(1) That there is an inequality of bargaining position arising out of ignorance, need or distress of the weaker party;

(2) The stronger party has unconscientiously used a position of power to achieve an advantage, and

(3) The agreement reached is substantially unfair to the weaker party or … it is sufficiently divergent from community standards of commercial morality that it should be set aside. 14 To put it even more succinctly, is the transaction so unconscionable that it requires the intervention of the Court considering all the circumstances surrounding the making of the agreement?” [Emphasis by underlining added] [ 57 ] The fairness of the agreement is to be assessed as of the date of settlement: Hubley v.

Woods , 1995 NSCA 173 , 1995 CarswellNS 273, at para 30 of the Carswell Report. [ 58 ] Though the burden is on the party seeking to set aside the release, “once it appears that there is an inequality of bargaining power and a substantially unfair agreement, the burden shifts to the party supporting the transaction to show that the superior power was not used”: Hubley v. Woods , supra , at para 26 . [ 59 ] Therefore, I will deal with the questions of inequality of bargaining power and the fairness of the agreement first.

Inequality of Bargaining Power [ 60 ] It is useful to examine cases in which the court dealt with the question of inequality of bargaining power, to glean what factors or combination of factors lead to one conclusion or the other. [ 61 ] In Woods v. Hubley , [1995] N.S.J. No. 128 (S.C.) , the court found the release void and unenforceable. That portion of the trial judge’s decision was upheld on appeal. The trial judge, at paragraph 42, stated: I find that the plaintiff, compared to the adjuster for the insurer, was the weaker party.

I find that she was ignorant by reason of her incomplete formal education, her limited work experience, her tendency to rely for guidance upon persons in authority, and her unfamiliarity with aspects of the legal system. I find that she was in distress as the result of four months of continual, severe, debilitating pain, and facing imminent major surgery which she hoped might alleviate, but not cure, her pain and other symptoms.

I hold that there was an inequality of bargaining position arising out of that ignorance and distress. [ 62 ] It is noteworthy that: the surgery was for a disk protrusion resulting form the accident; the plaintiff knew her mother had hired a lawyer for a motor vehicle accident settlement, but, had not been happy with the portion she received for settlement; and, the adjuster dissuaded the plaintiff from getting a lawyer. [ 63 ] The Court of Appeal, in Hubley v.

Woods , supra , agreed with the finding of inequality of bargaining power, stating, at page 9 (paragraph 28 of the Carswell Report): While the respondent testified that she did not need money at the particular time it is apparent from her circumstances as a person with no income and dependent upon her fiancé for support, who had little money to spare and who quickly used up the money to buy comforts for her hospital stay and a vacation trip after her surgery, that she was in fact in need of money.

She was ignorant of the legal system, not well educated and as we shall see later, a person of limited accomplishments for her age (then 25). In my opinion she was no match for the adjuster who appears to have had considerable practical training and a degree of sophistication in bargaining with people over numbers. The inequality of their respective positions is clear. [ 64 ] The court in Blackmore v. Cablenet , [1994] A.J.

No. 938 , found inequality of bargaining power, in a wrongful dismissal case, where the plaintiff “was under a great deal of mental and financial distress” and was “more concerned with keeping his job … than protecting his rights to adequate notice”. The Plaintiff had been told he would not get the severance he had been promised if he did not sign the release. [ 65 ] In Stephenson v.

Hilti , supra , at paragraph 15, the court found inequality of bargaining power, also in a wrongful dismissal case, and distinguished an unreported British Columbia case, stating: I am satisfied on the evidence that there was an inequality of bargaining position between the plaintiff and the defendant because of the plaintiff’s distress, lack of sophistication in business matters and the genuinely felt need of the plaintiff to have his pay continued that put him in a position that he was not thinking as clearly as he should have been at the time when he was discussing his termination with the defendant. ….

The case can be distinguished from the facts of the case before me in that the learned trial Judge did not find that the plaintiff was in need or distress; secondly, it was the plaintiff in that case who had suggested the settlement and, thirdly, the plaintiff was a man of considerable business experience. Those factors were not present in the case before me. [ 66 ] In Blackburn v. Eager , 2001 NSSC 30 , the adjuster had medical information indicating that the injuries were much more serious than what she and the plaintiff had envisaged. However, she did not share that information with plaintiff.

The court concluded that left the plaintiff “in ignorance of the full implications of the injury” and created “an inequality of bargaining position arising out of ignorance … of the weaker party”. The plaintiff had only completed grade 7 and the court found that there was a little or no discussion regarding the effect of the release. Nevertheless, at paragraph 28, it stated: “She did not appear to me, however, to be functionally illiterate and I am not at all persuaded that she did not understand the effect of the final release.” [ 67 ] In Richmond v.

Matar , supra , the court, at least impliedly, concluded that the factors fell short of demonstrating inequality of bargaining power, and, at paragraph 21, described the plaintiff as follows: Although the plaintiff in this case has only a grade 9 education, I found her to be an intelligent woman with considerable work and life experience. The plaintiff had furthered her education by taking some high school courses and a computer course in 1993-94. Her current employment was as a server at Jack Astor’s and she had also been self-employed as a housecleaner.

[ 68 ] At paragraphs 31 to 34, the court noted the plaintiff’s familiarity with releases, outlining the two previous claims in which she had received settlements and signed releases. [ 69 ] In Coleman v. Bishop , 1991 CarswellNS 123 (S.C., T.D.) , the plaintiff approached the insurer to settle. He had experience dealing with insurers on similar claims. When he asked the adjuster what an appropriate settlement amount would be, she told him she could not give him such advice and he would have to get it from a lawyer. However, he was concerned about having to pay a lawyer out of his settlement amount.

He was facing financial hardship, but he had not proven his home would be foreclosed on. He had the ability to negotiate to buy his son’s car, three days after he signed the release, and to scheme to mislead its insurer. [ 70 ] The circumstances of the case at hand differ significantly from those in the cases where the court concluded there was inequality of bargaining power. They are more like those in Richmond v. Matar , the unreported British Columbia case distinguished in Stephenson v. Hilti , and Coleman v. Bishop . [ 71 ] Ms.

Finigan had a grade 11 education and graduated from vocational school with a business diploma. She had subsequently taken, and successfully completed, a computerized accounting course. She was proficient with computers. She had her own business, which she started in 1997 and sold in 2008, then continued to manage for the new owner. She did office management and clerical work for that business, and the other business of the same owner. She was articulate and appeared to be of at least average intelligence on the stand. [ 72 ] She was knowledgeable in legal matters generally and releases specifically.

She and her husband had hired a lawyer to prepare wills. She had hired a lawyer to represent her in an earlier separation from her husband in 2005. They had subsequently reconciled. In 2012, she also hired another matrimonial lawyer regarding her second and final separation from her husband. She assumed it was in January. So, it could have been before she signed the release. She was comfortable and content with those lawyers, except for the one she hired in 2005. She had previously signed releases in two cases that she settled. They were from motor vehicle collisions in 1999 and 2006. She was self-represented.

She displayed some legal savvy. For instance, she told Ms. Haylock, on May 24, 2011, i.e. less than one month after the collision, that her friend, who was also involved, was “settling too soon after the accident”. [ 73 ] Mr. Campbell testified that, though she initially expressed confusion between

Section A and

Section B coverage, after he explained the difference, she seemed to clearly understand his role. In his dealings with her he saw no indicia that her ability to understand was impaired. [ 74 ] She continued receiving her full-time employment income throughout. [ 75 ] She was not awaiting the outcome of any imminent process or procedure that would supply important information regarding a likely prognosis. Rather, having shown improvement, she had terminated all treatment and counselling with no intention of returning. According to Dr.

Ross, she conveyed the following about her situation at the time: “[I]nitially, she had not realized how bad things were going to be for her. Instead, her thoughts were that she had fought in the past to get better from problems and that she could fight again. She said that at the time, she had not known that the emotional and physical changes were going to be life changers for her. … …. When she was first injured from the motor vehicle accident, her first thought was … here was another pain experience.

She assumed that she would have to handle the pain, and that it would get better as she had been told that she had soft tissue injuries. … She reported that in the early years, her pain in her left lower back was intermittent, such that she could have some days without pain. … [E]ventually … it turned into chronic pain instead of being intermittent pain.

This transition to chronic daily pain happened about four years ago [i.e. in or about 2014] according to her memory. … She said that in the couple of days that followed the accident, she was a ‘wreck’ from an emotional perspective, she said that she just kept popping Ativan (lorazepam). In her mind, she could not ‘stop being on the gurney’.

This took a long time to pass – months. … …. … [F]or weeks afterwards, she felt very alone; very betrayed and victimized. … She has not ever had another panic attack that was as bad as the one in the ambulance. … [S]he did come close, which was about two months before this interview [i.e. in 2018].” [ 76 ] This description of her condition following the accident indicates that, at the time she made the settlement and signed the release, her physical and mental or emotional issues had settled, and it is only years later that significant physical and mental health issues surfaced and remained. [ 77 ] Such a conclusion is further supported by the fact that it was not until about two and a half years after the release was signed (i.e.

August of 2014) that a lawyer contacted the insurer on her behalf to reopen the matter. She had only consulted that law firm on July 3, 2014. [ 78 ] Unlike the plaintiff in Blackmore v. Cablenet , she had no reason to attempt to please the adjuster or insurer. Thus, there was no such factor influencing her ability to protect her rights. [ 79 ] She is the one who approached the adjuster asking for an offer of settlement from the insurer. Then she submitted a counteroffer increasing the amount by 50%.

[ 80 ] Neither the adjuster, nor the insurer, in the case at hand, had any medical or other information indicating that the injuries were more serious than what they or Ms. Finigan had envisaged. Ms. Finigan had determined there was no need for further treatment or counselling. The treatment and counselling reports and notes showed that she was improving. No one had any more information, about Ms. Finigan’s condition, than Ms. Finigan herself.

She did not share anything with the adjuster or the insurer from which it could reasonably be anticipated that her condition would subsequently (it appears years later) worsen to the point that she says it has. [ 81 ] Mr. Campbell had told her to ensure she was better and then wait a month or two. Thus, she was not under any pressure from him to seek a settlement. [ 82 ] She requested an offer from the insurer on October 12, 2011. She found out that her husband had an online dating profile in November 2011.

Thus, the decision to separate, which followed that discovery, is not what motivated her to push the issue of settlement. Plus, she had decided to wait until after Christmas to separate, so that her son could spend Christmas with them as a family, and she did not separate until December 30. [ 83 ] On December 15, she verbally advised she agreed with $3000 for her bodily injuries, but she wanted an additional amount for lost wages and extra airline expenses. She was very clear on what she wanted. She submitted the counteroffer which included the additional amounts, in writing, in December. Mr.

Campbell received it December 28. Thus, she had ample time to fully consider it. It was not a panicked or kneejerk response. It was only ultimately accepted on January 18, 2012. Thus, she had plenty of time to reconsider and revoke her counteroffer. [ 84 ] She agreed, on cross examination, that Mr. Campbell never put any pressure on her. [ 85 ] I reject her evidence that she did not speak to a lawyer about matters related to the MVC. She told Ms. Haylock that she did, and that she was “holding off signing with a lawyer until she sees what she’s offered”. That was recorded in Ms. Haylock’s notes. Ms.

Haylock emphatically testified that she would not put in her notes anything other than what Ms. Finigan actually said to her. Ms. Finigan’s friends and Ms. Haylock had encouraged her to see a lawyer. In the circumstances it makes sense that she would contact a lawyer, but hold off on signing to see if she was happy with what was offered, so as to not unnecessarily incur legal fees, on contingency or otherwise. It shows some level of sophistication and independence on her part. It is credible and reliable. I find that she did speak to a lawyer, but did not formally retain one.

She either forgot, or pretended she forgot, that she did. [ 86 ] A related point was her knowledge of the ability to engage a lawyer on a contingency basis. I reject her evidence that she thought she could not. She said she was aware of contingency fee agreements from watching U.S. television. However, she did not know it existed in Nova Scotia. If she was concerned about the cost of a lawyer, as she said she was, and knew about contingency fee agreements, given that she was computer savvy, it makes no sense that she would not simply conduct an online search to find out.

Again, I find her evidence on that point is an after-the-fact reason she came up with when questioned about that possibility on cross examination. More likely than not, the reason she did not hire a lawyer was, as she told Ms. Haylock, that she wanted to wait to see what was offered. That way she would not have to share her settlement with a lawyer. [ 87 ] Mr. Campbell did not tell Ms. Finigan she could obtain independent legal advice. However, Ms. Finigan’s comments to him and to Ms. Haylock show she knew that in any event. [ 88 ] She argued that if she saw a lawyer, it was only in relation to

Section B benefits. That argument arises from her characterizing Mr. Campbell’s evidence as being that she told him she talked to a lawyer about

Section B only. However, that is not a completely accurate characterization of Mr. Campbell’s evidence. It is more accurately described at page 3 of his letter of June 17, 2011 to Ms. Dwyer, where he stated: “Ms. Veinotte [now Ms. Finigan] told me that she had spoken to counsel, however, had not retained them as of yet and that her reasoning for speaking with counsel was that she had concerns with the way she was being treated on the

Section B claim. She was concerned that benefits she felt should be paid were not being paid and felt she may have to sue her

Section B Insurer, Wawanesa, in order to obtain benefits. I explained to her that if counsel was retained we would not be able to proceed unless we dealt direct through her counsel.” [ 89 ] That only indicates that the catalyst for her seeing a lawyer was being denied

Section B benefits she thought she was entitled to. It does not show that she only talked to a lawyer about

Section B benefits arising from the MVC. Mr. Campbell specifically testified that she did not say she talked to a lawyer only about

Section B. [ 90 ] Waiting for an offer before signing with the lawyer only makes sense if she was referring to an offer from the

Section A insurer. Plus, Ms. Haylock’s note, that Ms. Finigan told her she contacted a lawyer, is accompanied by a note that the “insurance company adjuster is interested in a meeting”. The only evidence of a meeting with an adjuster is that with Mr. Campbell. In addition, it would be unusual to restrict discussions to

Section B issues. [ 91 ] Even if Ms. Finigan only pretended to Ms. Haylock that she saw a lawyer, her comment that she was waiting to see the insurer’s offer before signing would show a logical rationale for not doing so, as well as the strength and independence required to make and implement that decision. It would run contrary to a finding of inequality of bargaining power. [ 92 ] In the end, it is her choice whether she wants to consult a lawyer. It was not necessarily a “bad decision” at the time, contrary to what she submits. It avoided her having to share a portion of her settlement with a lawyer.

She could not have known that her condition would worsen years later. [ 93 ] She did express some confusion regarding

Section A and

Section B covering separate losses. However, she did not agree with

Section B not covering her counselling with Ms. Haylock, and told Mr. Campbell she may have to hire a lawyer to sue them. That indicates a readiness to retain counsel to pursue a claim if unhappy with what she can obtain on her own. [ 94 ] Ms. Finigan advances the anxiety and panic attacks she was suffering as a factor militating in favour of a finding that her emotional state made it such that she had unequal bargaining power.

[ 95 ] Her evidence regarding the progress she had made, and her emotional state, in the period of time leading up to the negotiated settlement, is inconsistent with that of Ms. Haylock. Ms. Finigan indicated that she had “hit a brick wall”. Ms. Haylock’s notes indicate the following. Ms. Finigan described for Ms. Haylock an “epiphany” she had, which Ms. Haylock saw as an important and positive step in being able to manage her anxiety and panic attacks. [ 96 ] Ms. Finigan acknowledged telling Ms. Haylock about having an epiphany. However, she said it did not happen. She surmised she was just having a good day.

There would have been no reason, at the time, for her to say it if it was not true. Now that she is seeking to invalidate the release, it is in her interest to say it was not true, as it helps her case. That is a further example of how her statements are unreliable or lack credibility, and negatively impact the value of opinions based on them. [ 97 ] Dr. Ross opined as follows: “Mrs.

Finigan did have an elevated emotional state in the months following the collision and this would more likely than not (at least a probability of 51%) have impacted her ability to think clearly and to understand her dealings with the insurance company. It would also have affected her ability to seek and act upon any given legal advice. She was in a highly activated emotional state as a result of the motor vehicle accident which is documented in the text of this report. She felt that she was in the worst emotional state that she had ever been in. Her panic condition disorder was out of control at that time.

Her memories and difficulties of her childhood were flooding her and likely affecting her ability to act in her own best interest. At the same time, she decided to separate from her husband as she discovered in November 2011 that he had an active online dating profile. She left the marriage on December 30, 2011, having waited for her son to finish his Christmas visit. She had significant concerns about how she would support herself following the marriage separation. [ 98 ] In addition to the factors noted in that expression of her opinion, Dr.

Ross also noted other points which informed her opinion, including those which follow. To avoid panic, Ms. Finigan does not go to concerts, because of the lack of ready access to an exit door. Before the accident, she had gained control of her psychiatric symptoms to the point where she could go to a movie without constantly checking for the exit door, and could travel on planes, albeit with some anxiety. She had physiotherapy and psychotherapy bills to pay at the time she signed the release. [ 99 ] The following is not in dispute. The abuse Ms.

Finigan suffered as a young child, at the hands of a foster brother, have resulted in her suffering from anxiety and experiencing panic attacks, particularly while restrained or in confined spaces. She experienced a “full- blown panic attack” while strapped in the ambulance following the MVC. That exacerbated her pre-existing anxiety and panic attack conditions. It resulted in fear of another full-blown panic attack occurring. It required her to return to counselling with Ms. Haylock to regain coping strategies. [ 100 ] However, the foundation for Dr. Ross’ opinion is not reliable.

Her opinion is based on subjective reporting by Ms. Finigan, some seven years after the accident. Ms. Finigan has a real or professed faulty memory of what occurred in the period of time between the accident and the settlement. Multiple purported circumstances, in the period of time leading up to the settlement, presented by Ms. Finigan, are inconsistent with the evidence at trial. [ 101 ] The evidence at trial showed the following. [ 102 ] Her physiotherapy and psychotherapy bills were covered by

Section B benefits. [ 103 ] She was in receipt of the same full-time employment income she had been receiving before the accident. There never was a break in that income. [ 104 ] Ms. Haylock’s notes, dated September 13, 2011, state that Ms. Finigan had gone to a concert in Vermont over the labour day weekend and had no panic attack despite a storm evacuation. Her notes, dated September 27, 2011, state that Ms. Finigan “flew to Ottawa and back” and “went to Reba McIntyre concert at the Metro Centre”. She confirmed that was the last session with Ms. Finigan. [ 105 ] Ms.

Haylock’s notes, from July 26, 2011, state that Ms. Finigan had an epiphany and realized that her panic disorder is reversible, the panic will not hurt her, and she did not feel hopeless. [ 106 ] Her notes, from August 16, 2011, state that Ms. Finigan indicated she could visit the demons of her past and not panic. [ 107 ] A letter, dated the same day, and handwritten by Ms. Finigan, states that she knows she cannot control the panic, however, she knows what she needs to do and, though doing it is the hard part, she has fought and won her whole life.

She added that, though she sometimes feeds “too tired to fight another battle”, “that passes quickly”. [ 108 ] Ms. Haylock’s letter, of September 20, 2011, states that Ms. Finigan had been “moving forward to create strategies that allow her to … know … that she can actually do something if ever” in a “situation of entrapment where she had no control”, and was expressing that she was “ready to move away from therapy and continue to maintain what she has discovered in therapy in these past months”. [ 109 ] Dr.

David Martell’s notes, from a November 1, 2011 visit, indicate that her anxiety symptoms had “settled some since the accident”. His notes, from a December 8, 2011 visit, indicate that she was “feeling well”. [ 110 ] These points, and the points previously reviewed in assessing the credibility and reliability of Ms. Finnigan’s evidence, raise concerns regarding her credibility, and demonstrate that her evidence is not reliable. That effect flows over into the evidence she gave beyond the points in relation to which inconsistency was established.

As argued by the defendants, she could just as easily have exaggerated the magnitude of her panic attacks, as she did in relation to above-noted comments she made to Dr. Ross which are inconsistent with the evidence. The lack of reliability in Ms. Finigan’s evidence weakens the opinion of Dr. Ross to the point where it must be given little or no weight. [ 111 ] In addition, Dr. Ross did not opine on the extent to which Ms. Finigan’s emotional state would impact her ability to think clearly,

understand her dealings with the insurer, and seek and act upon legal advice. Further, she acknowledged that Ms. Finigan’s functioning would vary from day to day. She agreed that Ms. Finigan would have good days and bad days. Yet, she did not obtain any information regarding how Ms. Finigan was feeling: in October when she approached Mr. Campbell to settle; when she rejected the $3000 offer and made a counteroffer for $4500; and, on January 20, 2012, when she received the settlement check and signed the release. She justified that by saying there was no information she had good enough days.

However, we know she was having good enough days, by June 6, to work more than her regular 40-hour work-week. [ 112 ] Ms. Finigan’s emotional state did not prevent her from sending a letter to EHS complaining about the way they handled her. That is also inconsistent with her evidence that she wanted the matter over because she did not want to talk about the event. [ 113 ] It is telling that Dr. Ross testified that it would have done no good to ask Ms. Finigan whether she understood the release when she signed it, because she would “not have given a frank answer”.

That raises a question regarding why, and how much, Dr. Ross could rely upon what Ms. Finigan told her in general. [ 114 ] Dr. Ross did not opine that Ms. Finigan could not understand the settlement or the release. [ 115 ] Ms. Finigan herself acknowledged that she read the release and knew that it meant that it was a full and final settlement of her claim. Mr. Campbell testified they had a discussion about it being final. She knew she could not go back for more. It had been sent to her in late November, along with the settlement offer. So, she had plenty of time to read and interpret it. [ 116 ] Ms.

Joudrey did not notice anything unusual the day the release was signed. She witnessed the signature. [ 117 ] Ms. Finigan argued that her “complete lack of memory” suggests she was suffering from issues at the time. However, the evidence shows she did not have a complete lack of memory. Rather, at best, she had a selective and faulty memory. Some seven years later, she remembered events in a way that at least exaggerated her situation and condition at the relevant time. [ 118 ] Ms. Finigan’s evidence that she believed there was a cap on damages of $4500 is also unreliable.

She said she got that figure from the media and people talking. However, despite being computer savvy, she said she said she did not check online to confirm it. She did not ask Mr. Campbell what the Cap was. It does not make sense that she would base her counteroffer on an assumed Cap amount she heard about, without making some effort to verify it. More likely than not, it is an after-the-fact rationalization for her counteroffer. Mr.

Cambell’s evidence was that her expressed rationalization for her counteroffer was adding lost wages and flight expenses to the $3000 they offered for general damages. [ 119 ] Considering these points, I find that Ms. Finigan has not established that, at the time she agreed to the settlement amount, nor at the time that she signed the release, there was “an inequality of bargaining position arising out of ignorance, need or distress”. She did not even establish that, in the circumstances, she was the weaker party, as she is the one who commanded the negotiations.

The mere fact that the insurer controlled the purse strings, and could choose to reject her counteroffer, does not make her the weaker party. [ 120 ] All three elements must be established to set aside a transaction as unconscionable. Since Ms. Finigan failed to establish the first element, it would be unnecessary to address the remaining two elements. I will, nevertheless, do so. Fairness of the Agreement as of the Date of Settlement [ 121 ] Our Court of Appeal, in Woods v.

Hubley , supra , at page 10, noted that, though “the relevant time to evaluate the bargain is the time of the settlement”, where “chances of long-term problems were so high that the only sound advice … would be not to settle the claim at an early stage” that may render “the bargain … improvident, substantially unfair and divergent from community standards of commercial morality”. In that case, disk surgery was imminent and would provide much more certainty of prognosis. [ 122 ] However, in the case at hand, the evidence does not establish such a high chance of long-term problems, arising from the accident.

The problems she was suffering, she had suffered prior to the accident, except, according to her, the lower back pain on the left side. She said it had only been on the right side before the accident. She had a long history of anxiety and panic disorder for which she was still on medication (Ativan and Citropan) at the time of the accident, and had been since the time of her diagnosis in the 1990’s. The accident had merely exacerbated it, requiring a slight increase in her Ativan dosage. She was progressing in her return to her pre-accident state to the point where she terminated treatment and counselling.

There was nothing signalling that her condition would worsen years later. [ 123 ] A Memo to Mr. Campbell, dated September 16, 2011, and handwritten by Ms. Dwyer, shows that she had “obtained the

Section B records” and enclosed a copy for Mr. Campbell. She also asked him to obtain hospital records and her family doctor’s file. [ 124 ] A letter dated September 20, 2011, from Ms. Haylock to Wawanesa stated that the entrapment following the accident caused her panic disorder to resurface. However, it also says that Ms.

Finigan: knew she could do something if in the same situation again; knew the memory would “fade as her strength and belief in what she can do to manage her panic evolves”; and, was “ready to move away from therapy and continue to maintain what she [had] discovered in therapy in the [previous] months”. [ 125 ] Ms. Haylock’s notes showed that, in September, Ms. Finigan was able to fly and attend concerts with no panic attacks. [ 126 ] Ms. Haylock testified that she encourages clients to get on with their lives and not depend on her. When she did not hear from Ms. Finigan, she thought she was good on her own.

She thought that was part of why she stopped attending counselling, with the cost being another factor. However, we know that

Section B was still covering the cost. Ms. Haylock was unaware of that. [ 127 ] She described Ms. Finigan as very resilient. She had ways of coping she learned in childhood. Ms. Haylock saw it as a good thing that she was leaving counselling and moving on with her life. [ 128 ] Ms. Finigan’s last visit to physiotherapy was July 18, 2011. The discharge report notes that, at that time, subjectively “her back

was feeling much better”, “she was no longer in constant pain”, and “she reported improvement in her left shoulder”. However, “rotation movements were still very limited” and she had “continued limitation reaching behind her back”. The objective observations were: “Lumbar AROM – WNL, pain-free; Left Shoulder AROM – WNL, pain-free, except HBB 90%; and, Palpation – Generalized tenderness low back. Tender L supraspinatus tendon.” [ 129 ] The July 13, 2011 physiotherapy report notes that Ms.

Finigan informed them she had been working part-time and that her low back and left shoulder pain “got progressively worse through the day”. [ 130 ] A letter from her employer, who is now her husband, Alex Finigan, indicates she worked part-time from April 18 to June 3, 2011, but was paid full-time wages, then, from June 6 to September 30, 2011, made up the 156 hours she had missed, while working full-time. So, by June 6, she was back working more than full-time. [ 131 ] She had significant medical issues pre-dating the subject MVC. She had a history of panic disorder and phobias.

She had been receiving injections for left shoulder pain since at least 2007. She had been suffering from depressive disorder and PTSD-related insomnia, for which she was taking medication, since at least 2006. The shoulder pain, at times, also caused her to get little sleep. In 2009, a fall down a stairway injured her right lumbar. At that time, it was noted she had “mild lower lumbar degenerative changes”. Even though she was no longer in counselling with Ms.

Haylock, medical records from a May 26, 2010 visit with her family doctor show she was suffering from insomnia and nightmares related to PTSD from the sexual abuse and confinement she suffered as a child. She took Lorazepam for that. She had decompression surgery on her shoulder in late 2010, and was off work, at least until the end of January 2011. She agreed the pre-existing shoulder pain could still have been present at the time of the MVC. [ 132 ] In May 2011, Ms. Haylock recommended that Ms. Finigan receive acupuncture treatments to alleviate symptoms of PTSD. Ms. Finigan did not do so. [ 133 ] Ms.

Finigan felt EHS was responsible for her full-blown panic attack in the ambulance. [ 134 ] The emergency report, from Ms. Finigan’s visit to the Halifax Infirmary on the day of the MVC, states: “Clinically she has chronic back pain, for which she is on chronic medications, and there was no new spinal tenderness. She had an acromioplasty of her left shoulder 3 months ago and now her shoulder is very tender.

X-rays were repeated and there were no acute changes. … [S]he was given some intravenous Toradol for pain and was discharged to the care of her family doctor.” [ 135 ] That indicated there were no new physical injuries. [ 136 ] However, notes of her first post-MVC visit to her family doctor, on April 18, 2011, said she had developed pain all over. Dr. Martell assessed her as having a contusion of the back and recommended she avoid massage therapy or physiotherapy for at least 2 weeks. [ 137 ] Her second visit to her family doctor’s clinic was on April 21, 2011. Dr.

Jenkins only noted acute exacerbation of her pre- existing panic disorder and prescribed the same medication she had already been taking. By May 3, she had already seen some improvement. Between May 3 and May 18, she had made “considerable improvement”. There was no assessment or discussion of physical injuries. [ 138 ] The July 18, 2011 physiotherapy notes state her back was feeling much better and her shoulder was feeling better. That was her last visit. She said she stopped because she could not afford it. However, that does not make sense, as

Section B benefits were covering it. I reject her evidence on that point. I also note that she initially resisted acknowledging that coverage by providing an evasive answer (i.e. that her husband’s insurance had to be used first). [ 139 ] The notes from her visit to her family doctor, on July 28, 2011, indicate she only seems to have panic attacks when she feels trapped. [ 140 ] The notes, from her December 8, 2011 visit, state she was there for a B12 injection and was “feeling well”. There was no mention of any persisting physical or psychological issues arising from the subject MVC. [ 141 ] Mr.

Campbell’s assessment of the losses and injuries suffered by Ms. Finigan, as a result of the subject MVC, are described in his letter, of October 28, 2011, to Ms. Dwyer, as follows: “… Net wage loss is $1,560.78. … There have been few treatments with family physician for the accident related injuries. Claimant has a history of fibromyalgia, osteoarthritis, severe allergy reaction, migraines, abdominal pain, panic attacks and left shoulder pain. These all pre-date the accident. Her chief complaints since the accident that have been exacerbated are her panic attacks, back pain and left shoulder pain.

Based on review of the medical documentation the Claimant previously had left shoulder surgery November 22, 2010. Physiotherapy had been completed on same prior to this accident. … She essentially had an injury that bothered her for a 5 ½ month period. I seek settlement authority in the $5,000 - $7,000 range.” [ 142 ] That is a reasonable assessment based on the information Mr. Campbell had. There was nothing alerting him to the need to seek, or wait for, additional information. He did not have Ms. Haylock’s September 20, 2011 report.

However, even if he did, it would not change the reasonableness of his assessment. [ 143 ] There was little evidence of how it affected her daily activities, apart from her reducing work hours for a short period of time and

crying a lot. In her statement to Mr. Campbell in June 2011, she stated she was unable to do home gardening, including mowing, or look after the house, which she normally would have done. However. Ms. Haylock’s notes, from her May 24, 2011 counselling session, indicate Ms. Finigan had spent two hours mowing on the weekend, indicating she was able to do that shortly after the MVC, and certainly by June. As such, her statement to Mr. Campbell that she was unable to perform such tasks is unreliable, and loss of valuable services was not a live issue. [ 144 ] Ms.

Dwyer responded that she did not think they owed anything for wage loss. She determined that a $3,000 offer should be made. After deducting the roughly $1,500 advanced as wage loss, that offer was only $500 less than the lower end of the range suggested by Mr. Campbell. [ 145 ] The ultimate amount settled on ($4,500) is only $500 less than the lower end of the suggested range. It includes about $819.42 for a combination of wage loss and extra costs for changing airline tickets, leaving $3690.58 for general damages. [ 146 ] Ms.

Finigan provided the following cases in support of her argument that the bargain was substantially unfair and divergent from community standards. - Barnes v. Terris , 2002 NSSC 99 - Fraser v. Hunter Estate , 2000 NSCA 63 - French v. Hodge , 2005 NSSC 44 - Hill v. Ghaly , 2000 NSSC 112 - O’Neill Jones v. Chabot , 2015 NBQB 143 - Taylor v. Nice , [1999] N.B.J. No. 204 (Q.B.) - Trenholm v. H. & C. Trucking Ltd. , 2014 NSSC 90 [ 147 ] As argued, the general damage awards in those cases were substantially higher than Ms. Finigan’s.

However, all of those cases involved situations where the effects of the injuries persisted for years, continuing up to the time of trial, with remaining residual effect, which in some cases was substantial and long term. Some had little or no related pre-existing conditions. None of the cases involved situations where the pre-existing conditions resembled the post-accident conditions as closely as in Ms. Finigan’s case.

By all appearances she had made significant progress and was well on her way to her pre-accident condition five and a half months post- collision. [ 148 ] A higher amount would have been more reasonable However, in the circumstances as they existed at the time, I cannot say that the amount settled on was “improvident, substantially unfair [or] divergent from community standards of commercial morality”. [ 149 ] It is only years later that it became apparent that Ms. Finigan’s condition had deteroriated and was likely to remain so for the long term. Even Ms.

Finigan herself testified that, at the time she settled, she thought her physical and mental injuries would just go away and she would be fine, but her condition worsened substantially after she settled. Unconscientious Use of Position of Power [ 150 ] Mr. Campbell treated Ms. Finigan in a courteous, respectful and kind manner. [ 151 ] She agreed he did not put any pressure on her to settle. [ 152 ] He went above the call of duty to advocate on her behalf so that she could obtain

Section B coverage for her counselling sessions with Ms. Haylock. [ 153 ] He did not pressure her to negotiate a settlement. He told her to wait until a month or two after she was better. He had no reason to believe she had not done so. The reports stated she had made improvement and terminated treatment. He, understandably, interpreted the medical reports, combined with her approaching him to settle, that she had essentially returned to her pre-accident condition. [ 154 ] She is the one who contacted him for an offer to settle. He had no reason to believe she did not understand the ramifications.

She acknowledged on the stand that she did and that the release meant it was final and she could not go back for more. [ 155 ] She did not tell Mr. Campbell, or anyone representing the insurer, that she had separated from her husband. Thus, even if it had created a pressure to settle, it is not something they could be said to have taken advantage of. [ 156 ] Ms. Finigan testified that Mr. Campbell told her that if she changed her mind about accepting the $4,500, he could not communicate with her anymore, and she would have to get a lawyer and he would have to deal with the lawyer.

That evidence, along with her evidence that she could not afford a lawyer, was presented to show that she felt pressured and threatened to maintain the $4,500 deal. However, I reject that evidence. As indicated above, when she told Mr. Cambell she had spoken to a lawyer and may sue for

Section B benefits, he simply told her that, if she did get a lawyer, he would have to deal with that lawyer. I accept that he explained to her that nothing would change, other than that he had to speak to counsel, not her. As he testified, he had to find out if she was represented by counsel, because, if she was, he had an obligation to deal with her counsel. His version makes sense and I accept it. Even if her version was accurate, it would show that he was suggesting a lawyer may be required, not trying to convince her she did not need a lawyer. [ 157 ] Ms. Finigan argued Mr. Campbell did not speak to Ms.

Haylock or see a need to get her records, and had a duty to do so, as there was a letter saying Ms. Finigan was seeing Ms. Haylock and they had authorization to get the records.

[ 158 ] Ms. Dwyer reviewed Ms. Haylock’s handwritten letter of May 11, 2011. However, she did not see her type-written letter of September 20, 2011, as it post-dated her receipt of the

Section B. She candidly stated that, if she had seen Ms. Haylock’s second letter, she may have offered an amount closer to the Cap, which, at the time, was $7,665. [ 159 ] However, she testified that, when they assessed the claim, she felt she had enough information, without additional information from Ms. Haylock. [ 160 ] They did have substantial information. The family physician records supplied to them documented the exacerbation of her panic disorder extensively. Except for the record of the April 18, 2011 visit, they are devoted almost exclusively to that issue.

They document the frequency of panic attacks and their impact. In addition, Ms. Finigan, in her statement to Mr. Campbell, spoke of: her pre-existing panic disorder; the severe panic attack in the ambulance; and, how she had “been affected majorly since this accident”. Therefore, Mr. Campbell and Ms. Dwyer had substantial information in relation to it. [ 161 ] Mr. Campbell testified he was aware of both her physical and psychological injuries, and the treatment, counselling and medications prescribed. He takes his instructions from the insurer as to what information to get.

He did not see it as being important to dispute what was in the medical file. [ 162 ] He added that any reports regarding treatment ordered by the doctor are normally provided to the doctor and form part of the medical file. [ 163 ] In the circumstances, Mr. Campbell did not have a duty to obtain additional records or reports from Ms. Haylock. [ 164 ] Ms. Finigan argued that they did not factor in any amount for loss of capacity to perform valuable services.

However, as noted earlier, there was little information to support such a claim. [ 165 ] She argued that he did not discuss the Cap and related issues with her. There was no need to, as neither the offer, nor the counteroffer, exceeded the Cap. [ 166 ] Neither Mr. Campbell, nor Ms. Dwyer, had information that they ignored or failed to share with Ms. Finigan. As noted above, her condition did not flare up until 2014, about two and a half years after the agreement to settle. [ 167 ] Considering these circumstances, I find that neither Mr. Campbell, nor Ms.

Dwyer, “unconscientiously used a position of power to achieve an advantage”. CONCLUSION [ 168 ] For the reasons outlined, considering all the circumstances surrounding and leading to the settlement agreement, it has not been shown that it is so unconscionable that the court should intervene and set aside the release. I find that the release is valid. COSTS [ 169 ] If the parties cannot reach agreement in relation to costs, I will receive written submissions on the issue. ORDER [ 170 ] I ask counsel for the Defendants to prepare the order. ____________________________ Pierre L. Muise, J.