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Civil Litigation Dicta - Consent Orders. Johnston v. McLean
In Johnston v. McLean (Ont CA, 2024) the Ontario Court of Appeal dismisses an appeal, here involving "the correct analytical approach to the interpretation of a consent judgment" (which it establishes was contract interpretation):[14] In my view, consent judgments should be interpreted according to the principles of contractual interpretation because they are a species of contract. It must be borne in mind that, “a consent judgment is not a judicial determination on the merits of a case but only an agreement elevated to an order on consent. The basis for the order is the parties’ agreement, not a judge’s determination of what is fair and reasonable in the circumstances”: James G. McLeod in his annotation in the Reports of Family Law to Thomsett v. Thomsett, 2001 BCSC 546, 16 R.F.L. (5th) 427 at pp. 428-29.
[15] Thus, it is the contractual nature of consent judgments that distinguishes them from regular judgments and drives the requirement to determine the intention of the parties. Therefore, there is no principled reason why the analytical approach to them should differ from other contracts. This approach has been adopted by the British Columbia Court of Appeal: see Shih v. Shih, 2017 BCCA 37, at para. 34.
[16] The approach has also been adopted by the Ontario Superior Court of Justice where the surrounding circumstances and intention of the parties have been considered in interpreting consent orders: see for example NHDG (Green Mountain) Inc. v. The Hamilton Teleport Ltd., 2021 ONSC 362, at paras. 27-34; Cetin v. Percival et al., 2022 ONSC 2057, at para. 12; and S.C.H. v. S.R., 2023 ONSC 1549, at paras. 49-55.
[17] Based on the principles of contractual interpretation, the court should read consent orders as a “whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract”: Sattva, at para. 47. . Nugent v. Dimakas
In Nugent v. Dimakas (Div Court, 2024) the Divisional Court granted a motion to quash a Small Claims Court interlocutory appeal for delay.
Here the court notes that appeals on consent orders require leave [CJA 133(a)]:[26] The first rule, already referenced, applies to all appeals: a party cannot appeal from a consent order “without leave of the court to which the appeal is to be taken”: s. 133(a) of the Courts of Justice Act.
[27] Leave to appeal a consent order is required even if the consent itself is challenged or disputed: Arnold v. Lulu Holdings Inc., 2021 ONSC 8125, at paras. 34 – 37.
[28] The law requires leave to appeal a consent order based on the principle that a consent judgment is binding and final, and that finality is important in litigation because the parties reached their bargain on the premise of an allocation of risk and the implicit understanding that they would accept the consequences of the settlement: Mohammed v. York Fire and Casualty Insurance Co., 2006 CanLII 3954 (ON CA), 79 O.R. (3d) 354, at paras. 34-35; Mendes. v. Mendes, 2019 ONSC 6036, at para. 44. Parties cannot appeal a consent order simply because they later regret the agreement they reached.
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