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Civil Litigation Dicta - Consent Orders. Martin v. 11037315 Canada Inc. [set aside on consent]
In Martin v. 11037315 Canada Inc. (Ont CA, 2025) the Ontario Court of Appeal dismissed an appellate motion on consent to "“set aside” a judgment declaring that it [SS: the individual moving party] was not a bona fide purchaser without notice":[2] We are not satisfied that granting the requested relief would be appropriate or in the interests of justice. The motion is therefore dismissed. What follows is our explanation for reaching this conclusion and a direction for next steps in this matter.
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[15] This court cannot allow an appeal or set aside a judgment or order made below based on the parties’ consent alone. To ensure its powers do not serve an improper purpose, this court must consider, in every case, whether the relief requested is appropriate in light of the law and the facts of the case.
[16] Similarly, courts of appeal from other Canadian jurisdictions have concluded that they could not allow an appeal merely because of an agreement between the parties: Uhrik v. Terrigno, 2024 ABCA 383, at para. 13; C.S. v. D.S., 2022 NBCA 51, at para. 24; and Garshowitz v. Canada (Attorney General), 2017 FCA 251, at paras. 17-19.
[17] As for the decisions from the Court of Appeal for British Columbia, they do not assist the parties. While we have doubts that this court should adopt the process followed in those cases, we need not decide that question. Indeed, as the parties concede in their submissions, the decisions they rely on make clear that an appeal will not be allowed on consent if doing so would bring the administration of justice into disrepute: Kubota v. Kubota, 2022 BCCA 41, at para. 5; Malick v. McCullough, 2023 BCCA 190, 39 B.L.R. (6th) 268, at para. 3.
[18] This case highlights the mischief that can occur if this court were simply to rubber stamp an agreement between parties to allow an appeal on consent.
[19] This court had previously directed the trial of an issue. Chozik J.’s judgment includes a declaration that is responsive to that direction. Her decision was based on an assessment of the evidence, including findings of fact and credibility. Her ultimate judgment incorporates her findings of fact and law in the form of a declaration that 267 “is not a bona fide purchaser without actual notice”. The parties are asking the court to whitewash this finding of misconduct without any basis for doing so. In the absence of any legal or evidentiary error, there is no authority for this court to set aside her judgment, even on consent. Given the circumstances of this case, we are satisfied that setting aside the judgment below based on the consent of the parties alone, given the declaratory judgment and the underlying findings of misconduct, would bring the administration of justice into disrepute.
[20] It is evident that Ms. Martin is being put in an unfair position. She was successful on the trial below. The moving parties are prepared to settle the appeal on the basis that she will receive a substantial amount of money. However, the settlement includes a term over which she has no control, which is that the judgment below be vacated or set aside. If there are valid grounds of appeal, the moving party should proceed with its appeal on the merits. If the moving party wishes to abandon the appeal, that can be done and the monetary aspect of this matter can be resolved by the parties as they see fit.
[21] Unfortunately, the dismissal of the motion is obviously unsatisfactory for Ms. Martin. We order that, if the moving party wishes to pursue the appeal, the appeal is to be expedited. . Smith v. Fire Team K-9’s Inc
In Smith v. Fire Team K-9’s Inc (Ont Divisional Ct, 2025) the Divisional Court dismissed an appeal, here from a motion judge's order that a settlement regarding ownership of a dog should be enforced.
Here the court considers the contractual nature of consent orders and endorsements:[15] Consent orders and endorsements are a species of contract, and the analytical approach to their interpretation does not differ from the ordinary principles of contract interpretation: Johnston v. McLean, 2024 ONCA 791 at paras. 14-15. Contract interpretation is generally an issue of mixed fact and law subject to a deferential standard of review unless there is an extricable error of law: Spina v. Shoppers Drug Mart Inc., 2024 ONCA 642 at para. 53. . 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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