Civil Litigation - Orders - Settling Orders. Bowen v. JC Clark Ltd.
In Bowen v. JC Clark Ltd. (Ont CA, 2023) the Court of Appeal dismissed a R59.04 ['issuance of orders'] set aside motion as being substantive in nature, rather than formal:
 The appellants also, belatedly, raise issues with respect to how the order was settled, relying on rule 59.04. We see two problems with the appellants’ submissions in this regard.. FS Partnership/UPI Energy FS v. Mr. Refuel Inc.
 First, the appellants did not raise any issue with the procedure followed for settling the order when they could have done so earlier. Following the issuing of the court’s judgment on August 29, 2022, the parties were unable to agree on the form of the order. The appellants requested an appointment before the panel that heard the appeal to settle the form of the order. The parties were advised by court staff that a dispute about the terms of the order would be addressed, first, by an appearance before the Registrar, and if necessary, would be escalated to the panel. We note that this is consistent with rules 59.04(9), (10), and (11). The parties appeared before the Registrar on November 10, 2022. The Registrar suggested that the parties prepare their respective versions of the order, which the Registrar would then put before the panel. The two draft orders were largely identical, with the exception of the issue of trial costs. The two versions of the order were placed before the panel and the panel advised the Registrar of which order reflected the order in the judgment (the respondent’s version). On November 24, 2022, the parties were advised of this.
 At the time that the Registrar suggested to the parties to provide their respective versions of the order, and that the two versions would be put before the panel, the appellants raised no objection to this procedure.
 Second, the issue raised by the appellants – who is entitled to an award of trial costs – is not an issue of the form of the order; rather, it is an issue of the substance of the order made by this court in relation to trial costs. The panel advised, through the Registrar, which draft order was consistent with its August 29, 2022 judgment. Again, the proper avenue to seek redress is a motion for leave to appeal to the Supreme Court of Canada.
In FS Partnership/UPI Energy FS v. Mr. Refuel Inc. (Ont CA, 2022) the Court of Appeal considers the limitations of an appointment with a judge to settle a formal order:
 The motion judge refused to exercise her discretion to vary the order as requested by Mr. Kersten on behalf of Ms. Kaur. She stated that an appointment to settle an order under r. 59.04(10) should result in changes to an order “sparingly” and only where there has been a technical error or to avoid a miscarriage of justice, relying on Beard Winter LLP v. Shekhdar, 2015 ONSC 4517, at paras. 29-39. The motion judge emphasized that, “No miscarriage of justice is at stake. If I sign the order that Mr. McMahon requested, the Defendant Kaur still has various remedies open to her to address.”. Xia v. Lakehead University
 We see no basis to interfere with the motion judge’s discretion on the settling of the order, which is entitled to deference. The appointment to settle an order that has not been signed and entered is an opportunity, if necessary, to correct technical errors or to avoid a miscarriage of justice: Brown v. The Municipal Property Assessment Corp., 2014 ONSC 7137 (Div. Ct.), at para. 20.
 The motion judge properly instructed herself on her narrow authority to change an order. She did not act unreasonably in determining that those narrow grounds did not arise in this case, and in particular that there would be no miscarriage of justice as other avenues of recourse were open to Ms. Kaur.
 On this point, the motion judge did not determine whether the order she settled should be varied or whether grounds to do so are present in this case. No such motion to vary was brought, nor were there materials before her in support of such a motion. The motion judge also did not comment on any potential liability of Ms. Kaur’s prior counsel.
In Xia v. Lakehead University (Div Ct, 2021) the Superior Court commented on the practice of settling orders with self-represented parties:
 The parties have been unable to settle the form and content of the order reflecting the panel’s decision in this case released October 9, 2020 (Xia v. Lakehead University, 2020 ONSC 6150). Dr Xia is self-represented and this may be why the order could not be settled without recourse to the court. For future reference, Dr Xia should understand that settling an order does not include substantive argument about the content of the order but only whether the draft order accurately reflects the decision of the court.
 Settling the form and content of an order is usually done on appointment before the Registrar rather than by a judge. I have settled the order in this instance because of the COVID-19 pandemic which makes appointments before the Registrar more difficult to arrange.