Consent (Review)

Joshi v. Joshi, 2014 ONSC 4677 (CanLII)

[3] It is the moving party's position that the responding parties have failed to comply with the order as regards disclosure and thereby, in essence, frustrated the order, that the consent order must be read in light of the previous order of Croll J. in the family law action, which has not been complied with as regards disclosure and that material circumstances have changed, justifying the varying or setting aside of the order.

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[6] Based on the jurisprudence, in order to set aside a consent order, there must be proven grounds of common mistake, misrepresentation, fraud, or any other ground which would invalidate contract or, alternatively, a material change in circumstance occurring after the consent order : Gibson v Gibson [2002] O.J. No. 174 paras. 15-16; Masters v MIS International Inc., [2000] O.J. No. 3524 and see Rosen v Rosen1994 CanLII 2769 (ON CA), [1994] O. J. No. 1160 (O.C.A.).

Burke v. Poitras, 2018 ONCA 1025 (CanLII)

[9] Here, the consent order itself put the appellant on notice of the consequences of his failure to comply. In addition, the appellant received notice, albeit short notice, that the respondent was seeking to enforce the consent order and strike his Answer. The appellant admitted at the settlement conference that he failed to comply with the consent order that required disclosure of a carefully itemized and substantial list of financial and other documentation. These were material documents necessary to permit the matter to proceed to trial or to properly negotiate a settlement. While the appellant complains of procedural unfairness, we are not persuaded that it would have made any difference had the respondent brought the motion to enforce the consent order on a different day. There is no issue that even as of the hearing of the appeal, the appellant still had not complied, or even demonstrated good faith attempts to comply with the consent order.

[10] The appellant also argues that the respondent agreed not to strike his Answer while their respective counsel were trying to work out disclosure and other issues. While the respondent provided the appellant with an indulgence, which did not result in significant disclosure, we are not satisfied there was an agreement to refrain indefinitely. More importantly, the respondent’s four-month forbearance in enforcing the consent order did not excuse the appellant’s lack of compliance with a binding and conclusive court order.

Mohammed v. York Fire and Casualty Insurance Company, 2006 CanLII 3954 (ON CA)

[34] Minutes of settlement are a contract. A consent judgment is binding. Both are final, subject to reasons to set them aside. Finality is important in litigation. This is so for the sake of the parties who reached their bargain on the premise of an allocation of risk, and with an implicit understanding that they will accept the consequences of their settlement. Finality is also important for society at large, which recognizes the need to limit the burdens placed on justice resources by re- litigation, a limitation reflected in the doctrine of res judicata: See Tsaoussis (Litigation Guardian of) v. Baetz (1998), 1998 CanLII 5454 (ON CA), 41 O.R. (3d) 257, [1998] O.J. No. 3516, 165 D.L.R. (4th) 268 (C.A.), at paras. 15, 17, 18.

[35] For these reasons, the avenues to set aside a settlement and consent dismissal are restricted. Rule 59.06 sets out the procedure for setting aside such an order. It provides that a party may bring a motion in the original proceeding to "have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made".

[36] However, this court has said that the rule, while providing an expeditious procedure to determine whether an order should be set aside, does not prescribe or delineate a particular test: Tsaoussis at para. 39. Rather, to succeed, "[t]he appellant must demonstrate circumstances which warrant deviation from the fundamental principle that a final judgment, unless appealed, marks the end of the litigation line" (para. 20).

[37] This case is analogous to Tsaoussis, which also considered the consequences of a change in circumstances following a judgment. There, two years after a judgment approving the settlement of a minor's personal injury claim, a motion was brought on behalf of the minor to set aside the judgment on the basis that the child's injuries were more extensive than had been expected. The minor's motion was dismissed.

[38] In Tsaoussis, this court confirmed the importance of finality in litigation at para. 20 [See Note 4 at the end of the document]: [page364]

Attempts, whatever their form, to reopen matters which are the subject of a final judgment must be carefully scrutinized. It cannot be enough in personal injury litigation to simply say that something has occurred or has been discovered after judgment became final which shows that the judgment awards too much or too little. On that approach, finality would become an illusion. The applicant must demonstrate circumstances which warrant deviation from the fundamental principle that a final judgment, unless appealed, marks the end of litigation.

[39] In terms of rule 59.06(2)(a), the court in Tsaoussis stated at para. 44:

These and numerous other authorities (e.g. Whitehall Development Corp. v. Walker) recognize that the finality principle must not yield unless the moving party can show that the new evidence could not have been put forward by the exercise of reasonable diligence at the proceedings which led to the judgment the moving party seeks to set aside. If that hurdle is cleared, the court will go on to evaluate other factors such as the cogency of the new evidence, any delay in moving to set aside the previous judgment, any difficulty in re-litigating the issues and any prejudice to other parties or persons who may have acted in reliance on the judgment. The onus will be on the moving party to show that all of the circumstances are such as to justify making an exception to the fundamental rule that final judgments are exactly that, final. In a personal injury case, new evidence demonstrating that the plaintiff was inadequately compensated cannot, standing alone, meet that onus.

McCowan v. McCowan, 1995 CanLII 1085 (ON CA)

The general principle set out in these authorities was accepted by this court in Monarch Construction Ltd. v. Buildevco Ltd. (1988), 26 C.P.C. (2d) 164 at pp. 165-66:

A consent judgment is final and binding and can only be amended when it does not express the real intention of the parties or where there is fraud. In other words, a consent judgment can only be rectified on the same grounds on which a contract can be rectified.