Woods v. Hubley, (1995) 140 N.S.R.(2d) 180 (SC)

• Judge: Nathanson, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 23, 1995
• Jurisdiction: Nova Scotia
• Citations: (1995), 140 N.S.R.(2d) 180 (SC)

Woods v. Hubley (1995), 140 N.S.R.(2d) 180 (SC);

  399 A.P.R. 180

MLB headnote and full text

Janice Woods (plaintiff) v. Brenda Hubley and Michael Hubley (defendants)

(S.H. No. 93-1029)

Indexed As: Woods v. Hubley

Nova Scotia Supreme Court

Nathanson, J.

March 23, 1995.

Summary:

The plaintiff was seriously injured in a motor vehicle accident caused by the de­fendants' negligence. The plaintiff sued for damages. The defendants relied on a release executed by the plaintiff. The plaintiff claimed the release was void and unenforce­able as an unconscionable bargain. The defend­ants also claimed the action was barred by the two year limitation period in the Limita­tion of Actions Act.

The Nova Scotia Supreme Court allowed the plaintiff's action and assessed damages accordingly. The release was void and unen­forceable as being unconscionable. The defence based on the two year limitation period was disallowed, because most, if not all, of the delay was attributable to the defendants and there was little prejudice to the defendants.

Contracts - Topic 9329

Unconscionable transactions relief - Con­ditions for relief - General - The Nova Scotia Supreme Court stated that a trans­action may be set aside if the evidence establishes "(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, as expressed in the Harry v. Kreutziger case, it is sufficiently diver­gent from com­munity standards of com­mercial morality that it should be set aside." - See para­graph 20.

Contracts - Topic 9350

Unconscionable transactions relief - Con­ditions for relief - Harsh and unconscion­able - What constitutes - The plaintiff signed a release four months after suffer­ing serious injuries in a motor vehicle accident - The adjuster phoned her days before scheduled back surgery for a pro­truded disc and advised that the insurer would pay only $3,500 - The plaintiff did not have legal advice and the adjuster effectively dissuaded her from seeking advice - The plaintiff was in continual, severe, debilitating pain at the time - The Nova Scotia Supreme Court set aside the release as being unconscionable - There was inequality of bargaining position - The adjuster "deceived and misled the plaintiff and prevented her from having a fair opportunity to consult a lawyer" - The $3,500 offer was made without any refer­ence to what was appropriate compensation - No effort was made to adjust the claim in good faith - The $3,500 was woefully inadequate given the severity of her injuries and was substantially unfair and sufficiently divergent from community standards of commercial morality to justify setting it aside - See paragraphs 19 to 45.

Damage Awards - Topic 11

Injury and death - Continuing pain - A now 31 year old woman suffered severe lumbar strain, disc protrusion at the L4-5 level, mechanical back pain with right sciatica and chronic pain following a 1989 accident - Pre-existing psychological and physical problems, but they did not affect the severity of her current complaints - Totally disabled from employment to date of trial - Permanent partial disability - Psychological element to her pain - Still suffering continual pain, insomnia, low energy, poor appetite, poor concentration, mood irritability and depression - Surgery and other treatments ineffective in reduc­ing the pain - Unable to sit, stand or walk without pain for any length of time - The Nova Scotia Supreme Court assessed $100,000 general damages for nonpecun­iary loss - The court reduced the award by 5% for the failure to mitigate, where the woman failed to obtain recommended treatment (physiotherapy, exercises and Pain Clinic) over a 5.5 month period - See paragraphs 62 to 83.

Damage Awards - Topic 66

Injury and death - Body injuries - Back - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 488

Injury and death - General damage awards - Cost of housekeeping services - The 31 year old female plaintiff was permanently partially disabled following a 1989 motor vehicle accident - She was unable to perform many common domestic chores and would require assistance all of her life - The Nova Scotia Supreme Court awarded the plaintiff $60,225 general damages for the cost of future house­keeping services, based on an annual cost of $1,600, with services provided to age 75 - See paragraphs 103 to 106.

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care - The 31 year old female plaintiff was permanently partially disabled following a 1989 motor vehicle accident - She would require the services of a psychologist and chiropractor - The Nova Scotia Supreme Court assessed $150,000 general damages for the cost of future medical care - See paragraphs 108 to 111.

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - A now 31 year old plaintiff was totally disabled from future employment in a 1989 motor vehicle accident - Between 1983 and 1987 she earned an average of $638 per year - She did not work from 1988 to 1991, being supported by her fiance - They split up in 1992 - She left school in Grade 10 - The Nova Scotia Supreme Court awarded the plaintiff $157,700 general damages for lost future income to age 65, based on an estimated annual income of $7,000 had she been able to work - See paragraphs 94 to 102.

Damage Awards - Topic 2027.1

Exemplary or punitive damages - Uncon­scionable conduct - The plaintiff was awarded almost $500,000 damages for injuries suffered in a 1989 motor vehicle accident - She was permanently partially disabled - The insurer's adjuster had con­vinced her to sign a release for $3,500, which was set aside in the present action - The Nova Scotia Supreme Court awarded the plaintiff $10,000 punitive damages against the insurer, stating that "the adjuster for the defendants' insurer was indifferent or wilfully blind to the severity of the plaintiff's injuries and potential permanent disability, and his actions in arranging a settlement shortly before sur­gery which held out the prospect of im­proving only some of her symptoms were not in good faith, contemptuous of her rights and deliberately exposed her to a risk of suffering from increasingly severe symptoms without justification. I find that such actions offend the ordinary standards of morality or decent conduct in the com­munity at large." - See paragraphs 115 to 118.

Damages - Topic 1011

Mitigation - In tort - Personal injuries - Treatment for - [See Damage Awards - Topic 11 ].

Damages - Topic 1413

Special damages - Loss of income of self-employed, underemployed or unemployed person - A now 31 year old plaintiff was injured in a 1989 motor vehicle accident - She was permanently disabled from em­ployment - Between 1983 and 1987 she earned an average of $638 per year - She did not work from 1988 to 1991, being supported by her fiance - They split up in 1992 - She left school in Grade 10 - The Nova Scotia Supreme Court awarded $17,700 damages for lost income to trial, based on an estimated lost income of $6,000 per year had she been able to work - See paragraphs 84 to 93.

Limitation of Actions - Topic 9424

Bars - Disallowance of defence - Con­siderations - Delay - The plaintiff in a 1989 motor vehicle accident executed a release (without legal advice) four months after the accident - More than three years later, the insurer was given notice that the plaintiff intended to seek to set aside the release and sue - The defendants pleaded the two year limitation period (Limitation of Actions Act, s. 2(1)(f)) - The action was commenced 20 months after the limi­tation period expired - The Nova Scotia Supreme Court allowed the plaintiff's application under s. 3(2) to disallow the defence and to allow the action to proceed - The court stated that "most if not all of the delay is attributable to the insurer" - The defendant would not be prejudiced by allowing the claim to pro­ceed, but the plaintiff would be if precluded from pro­ceeding - See paragraphs 46 to 61.

Limitation of Actions - Topic 9426

Bars - Disallowance of defence - Con­siderations - Prejudice to parties - [See Limitation of Actions - Topic 9424 ].

Releases - Topic 3391

Grounds of invalidity - General - [See Contracts - Topic 9350 ].

Cases Noticed:

Stephenson v. Hilti (Canada) Ltd. (1989), 93 N.S.R.(2d) 366; 242 A.P.R. 366 (T.D.), refd to. [para. 20].

Coleman v. Bishop (1991), 103 N.S.R.(2d) 265; 282 A.P.R. 103 (T.D.), refd to. [para. 21].

McGuire and McGuire v. Fermini (1984), 64 N.S.R.(2d) 60; 143 A.P.R. 60 (C.A.), refd to. [para. 49].

Anderson v. Co-Operative Fire & Casualty Co. (1983), 58 N.S.R.(2d) 163; 123 A.P.R. 163 (T.D.), affd. (1993), 62 N.S.R.(2d) 378; 136 A.P.R. 378 (C.A.), refd to. [para. 50].

McGuire and McGuire v. Fermini (1984), 62 N.S.R.(2d) 104; 136 A.P.R. 104 (T.D.), refd to. [para. 50].

Greene v. Hines (1985), 67 N.S.R.(2d) 296; 155 A.P.R. 296 (T.D.), refd to. [para. 50].

MacIntyre v. Canadian Broadcasting Corp. (1985), 68 N.S.R.(2d) 170; 159 A.P.R. 170 (T.D.), refd to. [para. 50].

Vickery v. Murphy and Yarmouth Regional Hospital (1986), 73 N.S.R.(2d) 429; 176 A.P.R. 429 (T.D.), refd to. [para. 50].

Rankin's Estate v. Smith (1987), 81 N.S.R.(2d) 316; 203 A.P.R. 316 (T.D.), refd to. [para. 50].

Veinotte v. Smith (1988), 85 N.S.R.(2d) 265; 216 A.P.R. 265 (T.D.), refd to. [para. 50].

Dartmouth (City) v. Director of Assessment (N.S.) and Industrial Estates Ltd. (1992), 113 N.S.R.(2d) 181; 309 A.P.R. 181 (T.D.), refd to. [para. 50].

Andrews v. Grand & Toy (Alberta) Ltd., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452; [1978] 1 W.W.R. 577; 3 C.C.L.T. 225, refd to. [para. 77].

Thornton et al. v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552; 83 D.L.R.(3d) 480; [1978] 1 W.W.R. 607; 3 C.C.L.T. 257, refd to. [para. 77].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1; 3 C.C.L.T. 372; 83 D.L.R.(3d) 609, refd to. [para. 77].

Parnell v. Singer (1991), 111 N.S.R.(2d) 127; 303 A.P.R. 127 (T.D.), refd to. [para. 77].

Smith v. Stubbert (1992), 117 N.S.R.(2d) 118; 324 A.P.R. 118 (C.A.), refd to. [para. 78].

Richards v. Grant and Richardson (1981), 46 N.S.R.(2d) 485; 89 A.P.R. 485 (T.D.), refd to. [para. 79].

Benson v. Jamieson (1991), 106 N.S.R.(2d) 335; 288 A.P.R. 335 (T.D.), refd to. [para. 79].

Korolek v. Wedge (1988), 68 Sask.R. 233 (Q.B.), refd to. [para. 80].

MacMullin v. Beveridge (1990), 95 N.S.R.(2d) 181; 251 A.P.R. 181 (T.D.), refd to. [para. 80].

Broughm-O'Keefe and O'Keefe v. Taylor (1991), 102 N.S.R.(2d) 68; 279 A.P.R. 68 (T.D.), refd to. [para. 80].

Kennedy v. Lewis (1993), 122 N.S.R.(2d) 65; 338 A.P.R. 65 (T.D.), refd to. [para. 80].

Dorie v. Williams (1994), 127 N.S.R.(2d) 29; 355 A.P.R. 29 (S.C.), refd to. [para. 80].

Whitehead v. Misner and F.B. Marine Enterprises Ltd. (1982), 51 N.S.R.(2d) 111; 102 A.P.R. 111 (C.A.), refd to. [para. 96].

Keizer v. Hanna and Buch, [1978] 2 S.C.R. 342; 19 N.R. 209, refd to. [para. 96].

Lewis v. Todd and McClure and Canadian Provincial Insurance Co. (1980), 34 N.R. 1; 115 D.L.R.(3d) 257 (S.C.C.), refd to. [para. 96].

Mallett v. McMonagle, [1970] A.C. 166 (H.L.), refd to. [para. 97].

Gerow v. Reid et al. (1988), 88 N.S.R.(2d) 34; 255 A.P.R. 34 (T.D.), refd to. [para. 103].

Matheson v. Bartlett (1993), 121 N.S.R.(2d) 373; 307 A.P.R. 373 (S.C.), refd to. [para. 103].

Bush v. Air Canada (1992), 109 N.S.R.(2d) 91; 297 A.P.R. 91 (C.A.), refd to. [para. 114].

Stevenson v. Vance (1988), 87 N.S.R.(2d) 96; 222 A.P.R. 96 (T.D.), refd to. [para. 115].

Patterson v. Municipal Contracting Ltd. (1989), 98 N.S.R.(2d) 259; 263 A.P.R. 259 (T.D.), refd to. [para. 115].

McIntyre v. Atlantic Hardchrome Ltd. and Ferguson (1991), 102 N.S.R.(2d) 1; 279 A.P.R. 1 (T.D.), refd to. [para. 115].

Hill v. Church of Scientology of Toronto and Manning (1992), 7 O.R.(3d) 489 (Gen. Div.), affd. (1994), 71 O.A.C. 161; 18 O.R.(3d) 385 (C.A.), refd to. [para. 115].

Clark v. O'Brien and Clark (1994), 136 N.S.R.(2d) 218; 388 A.P.R. 218 (S.C.), refd to. [para. 120].

Statutes Noticed:

Judicature Act, R.S.N.S. 1989, c. 280, sect. 41 [para. 112].

Limitation of Actions Act, R.S.N.S. 1989, c. 258, sect. 2(1)(f) [para. 46]; sect. 3(2), sect. 3(4), sect. 3(6) [para. 48].

Authors and Works Noticed:

Klar, Remedies in Tort (1994 Release 5), vol. 4, pp. 27-74 to 27-76 [para. 72].

Linden, Canadian Tort Law (5th Ed. 1993), pp. 324 to 334 [para. 72].

Orkin, The Law of Costs (2nd Ed. 1994), p. 2-109, refd to. [para. 120].

Counsel:

Colin D. Bryson and Philip S. Gruchy, for the plaintiff;

W.A. Richardson and Melanie McGrath, for the defendants.

This action was heard on January 16-20 and 27, 1995, at Halifax, N.S., before Nath­anson, J., of the Nova Scotia Supreme Court, who delivered the following judgment on March 23, 1995.