What is the test for determining who is the weaker bargaining portion in a motor vehicle accident claim?

In Woods v. Hubley the trial judge had determined the plaintiff was in the weaker bargaining portion; she had little former education and no prior experience in settling legal claims, and a tendency to rely on persons in authority. The injuries had been serious, leaving the plaintiff permanently, partially disabled. The trial judge found that the adjuster deceived and misled the plaintiff and prevented her from having a fair opportunity to consult a lawyer. He was found to “either not understand or was wilfully blind in the nature of the severity of the injuries and the medical condition” and “unconscientiously used a position of power to achieve an advantage in obtaining a settlement.”

In Stephenson v. Hilti, supra, I note that an employee terminated without cause after nine years of employment signed a release accepting four months pay while in a distraught state and having not had legal advice. The release was set aside as unconscionable.

In Coleman v. Bishop, 1991 CarswellNS 123 (N.S.S.C.), a case also relied upon by the plaintiff, that plaintiff was illiterate and did not understand the nature of the release.

In Blackburn v. Eager, [2001] NSSC 30, the insurer failed to reveal to the plaintiff the receipt of medical reports, showing more serious injury and pressed the plaintiff to sign a release.