{"id":10982,"date":"2024-07-29T14:42:48","date_gmt":"2024-07-29T18:42:48","guid":{"rendered":"https:\/\/360mediations.com\/en\/?p=10982"},"modified":"2024-07-29T14:42:51","modified_gmt":"2024-07-29T18:42:51","slug":"person-alleging-cognitive-injury-fails-to-have-settlement-set-aside","status":"publish","type":"post","link":"https:\/\/mail.360mediations.com\/en\/person-alleging-cognitive-injury-fails-to-have-settlement-set-aside\/","title":{"rendered":"Person Alleging Cognitive Injury Fails to Have Settlement Set-Aside"},"content":{"rendered":"\n

\u00a0<\/p>\n

In this recent appellate decision, a personal injury litigant was unsuccessful in having his settlement set-aside on the grounds that he was allegedly suffering from cognitive impairments at the time the settlement paperwork was signed.<\/p>\n

The settlement occurred in 2015, resulting in a consent dismissal order.\u00a0 Four years later, in 2019, the plaintiff brought a motion to set aside the dismissal order and to have his case restored on the grounds that he was a person under disability when the settlement was reached and that the settlement was unconscionable and improvident.<\/p>\n

Following a six-day hearing, the lower court judge dismissed the motion because the injured plaintiff failed to prove that he was under a disability at the time of settlement.\u00a0 There is no controversy that a settlement must be upheld if the plaintiff had capacity to understand the settlement when it was signed, absent some extenuating circumstances.<\/p>\n

However, a little more controversial was the trial judge\u2019s next conclusion which was that even if the plaintiff was a person under disability, the dismissal order must still stand.\u00a0 This is less intuitive because if there was no capacity to enter into the settlement when it was made, how can it be binding?<\/p>\n

To get to this conclusion, the trial judge carefully considered Rule 7.08, and rightfully pointed out that this rule does not say any settlement made with a person under disability is void.\u00a0 What it does say, however, is that “no settlement of a claim made by or against a person under disability … is binding on the person without the approval of a judge<\/span>.”\u00a0 Citing Mohammed v. York Fire and Casualty Insurance Co.<\/em> (2006), 79 O.R. (2d) 354 (C.A.) (\u201cMohammed\u201d), the lower court judge ruled that after a case has already been dismissed, “the moving party to demonstrate circumstances which warrant deviation from the principle that a final judgment, unless appealed, marks the end of the line<\/span>.\u201d\u00a0<\/p>\n

Even though the trial judge was prepared to recognize that a person’s disability could be one factor, there were many other factors that militated against setting aside the settlement, including: a) the plaintiff was represented by counsel when the settlement was reached; b) the plaintiff was not prepared to return the settlement funds they had received; c) the defendant settled the matter in good faith without any suspicion that the plaintiff lacked capacity; d) the settlement was neither unfair nor unreasonable; and e) the plaintiff waited four years before bringing their motion.<\/p>\n

The Court of Appeal declined to overturn the lower court ruling.\u00a0 First, there was ample evidence to support the finding that the plaintiff was not a person under disability at the time of the settlement.\u00a0 Again, this conclusion makes sense.<\/p>\n

However, the appellate court went on to say that even if the plaintiff lacked capacity when the settlement was made in 2015, \u201cthe appeal would fail, because the trial judge concluded that the settlement and dismissal order should not be set aside in any event. \u00a0This court will not interfere in a trial judge\u2019s mixed finding of fact and law absent a palpable and overriding error in their reasons:\u00a0 Housen v. Nikolaisen<\/em>, 2002 SCC 33<\/a>, [2002] 2 S.C.R. 235, at paras. 36-37<\/a>; 1632093 Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74<\/em>, 2020 ONCA 843<\/a>, at para. 1<\/a>. No such error has been identified in the trial judge\u2019s analysis<\/span>.\u201d<\/p>\n

It is regrettable that the appellate court didn\u2019t take the time to explain how it is possible for a person under disability to enter into a binding settlement that is incapable of being set-aside on a motion before the court.\u00a0 If the person lacks capacity, that should arguably vitiate anything signed by them, and if it does not, some guidance would have been helpful.\u00a0 However, by condoning the reasoning used by the trial judge, we are left to assume the following guidance prevails:<\/p>\n

a) if the Plaintiff is a person under disability when the settlement was signed, there is a rebuttable presumption that the settlement should be set aside; and<\/p>\n

b) the following factors may rebut the aforementioned presumption:<\/p>\n

i) the person under disability had legal representation at the time;<\/p>\n

ii) the settlement cannot be undone (ie: if money was paid, it cannot be returned to make the Defendant whole);<\/p>\n

iii) the opponent did not know that they were settling with a person under disability;<\/p>\n

iv) the person under disability failed to bring a timely motion to set aside the settlement (or if much time passed, they were unable to provide a reasonable explanation for any lengthy delay); and\/or<\/p>\n

iv) the settlement was not unconscionable, improvident unfair, nor unreasonable.<\/p>\n

Because the defendant was able to establish every one of the rebuttable factors noted above, the moving party plaintiff was unable to convince the judge to set-aside the settlement, even if he was a party under disability at the time of the settlement.\u00a0<\/p>\n

Invariably, the courts are generally adverse to giving litigants easy access to overturn settlements; closure is important.\u00a0 This sentiment is reflected in paragraph 7 of the Court of Appeal\u2019s decision, which reads:<\/p>\n

\u201cThe \u2026 (plaintiffs)\u2026 effectively argue that, in any personal injury action alleging a permanent cognitive injury, the plaintiff should undergo assessments of their capacity to manage property and personal care before signing minutes of settlement. Their argument implies that, if such assessments are not conducted prior to settlement, a consent dismissal based on that settlement would be open to challenge for years after the fact. This is not the law, nor should it be. The \u2026(plaintiffs\u2019)\u2026 proposed regime would discourage settlement and needlessly make it more costly.\u201d<\/span><\/p>\n

The net take-away is that settlements must be taken very seriously because convincing a court to set them aside at a later date is very challenging, and rightfully so; even if you are a party under disability at the time.\u00a0 \u00a0\u00a0<\/p>\n

Book v. Cociardi<\/strong>,<\/em> 2024 ONCA 589 (CanLII)<\/p>\n

https:\/\/www.canlii.org\/en\/on\/onca\/doc\/2024\/2024onca589\/2024onca589.html<\/a><\/p>\n

\u00a0<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

\u00a0 In this recent appellate decision, a personal injury litigant was unsuccessful in having his settlement set-aside on the grounds that he was allegedly suffering from cognitive impairments at the time the settlement paperwork was signed. The settlement occurred in 2015, resulting in a consent dismissal order.\u00a0 Four years later, in 2019, the plaintiff brought… Continue reading Person Alleging Cognitive Injury Fails to Have Settlement Set-Aside<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[53,163],"tags":[],"class_list":["post-10982","post","type-post","status-publish","format-standard","hentry","category-court-practice","category-personal-injury","entry"],"yoast_head":"\nPerson Alleging Cognitive Injury Fails to Have Settlement Set-Aside - 360Mediations<\/title>\n<meta name=\"description\" content=\"Litigants cannot easily avoid their settlements, even if they later argue they were mentally incompetent to enter into the settlement.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/mail.360mediations.com\/en\/person-alleging-cognitive-injury-fails-to-have-settlement-set-aside\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Person Alleging Cognitive Injury Fails to Have Settlement Set-Aside - 360Mediations\" \/>\n<meta property=\"og:description\" content=\"Litigants cannot easily avoid their settlements, even if they later argue they were mentally incompetent to enter into the settlement.\" \/>\n<meta property=\"og:url\" content=\"https:\/\/mail.360mediations.com\/en\/person-alleging-cognitive-injury-fails-to-have-settlement-set-aside\/\" \/>\n<meta property=\"og:site_name\" content=\"360Mediations\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/360Mediations-120028596572318\" \/>\n<meta property=\"article:author\" content=\"https:\/\/www.facebook.com\/360Mediations-120028596572318\" \/>\n<meta property=\"article:published_time\" content=\"2024-07-29T18:42:48+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2024-07-29T18:42:51+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/mail.360mediations.com\/en\/wp-content\/uploads\/2022\/01\/COURT-DECISIONS-360MEDIATIONS-1x1-1.png?fit=406%2C322&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"406\" \/>\n\t<meta property=\"og:image:height\" content=\"322\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/png\" \/>\n<meta name=\"author\" content=\"David M. 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