Index

October 2 , 2020

Consent Orders


August 4 , 2020

Electronic Hearings


July 21, 2020

Ceasing to Act


June 29, 2020

Writing Skills


June 29, 2020

Keeping Up With the Law


June 22, 2020

Assets as a Test for Security for Costs


June 19, 2020

What is This Case About?


June 11, 2020

Cross-Examining Child Witnesses


May 20 , 2020

Formal Offers


May 13 , 2020

Vexatious or Self-Represented Litigants


January 7, 2020

G.S.T. and Costs


December 20 , 2019

Electronically Navigating the
Handbook


October 7 , 2019

Questioning is a Bad Word


July 29 , 2019

Dismissal for Delay


May 7 , 2019

Rule 4.31 Fallacies


March 18 , 2019

More Dangers in Oral Fee Agreements


February 11 , 2019

Weir-Jones Decisions


January 9 , 2019

Discouraging Settlements


November 30, 2018

European Court Helps You Twice?


November 23 , 2018

Courts Overruling Tribunals


November 16 , 2018

New Evidence on Appeal


October 30 , 2018

Schedule C's Role


July 17 , 2018

Loopholes in Enforcing Settlements


May 7 , 2018

Enforcement of Procedure Rules


April 16, 2018

Limping Lawsuits are Often
Doomed


April 3 , 2018

Court of Appeal Tips for
Summary Decisions


March 19, 2018

Serious Dangers in Chambers
Applications


February 13 , 2018

Court Backlog


December 18 , 2017

Lowering the Status of Courts


September 15 , 2017

Access to Court Decisions


July 4 , 2017

Strictissimi Juris


June 14 , 2017

Why Don't Your Clients Settle?


June 5 , 2017

Gap in Rules About Parties


June 5, 2017

Personal Costs Against
Solicitors


April 26, 2017

Clogged Courts


April 11, 2017

Dismissal for Want of
Prosecution


January 6, 2017

Incomplete Disclosure


December 15, 2016

Mediation


November 23, 2016

Is Contract Interpretation Law?

 

Welcome

Côté’s Commentaries

© 2016-2020 J.E. Côté

CONSENT ORDERS

A very recent decision of the Alberta Court of Appeal matters to you: Custom Metal Installations v. Winspia Windows 2020 ABCA 333 (Sep 21). First, it deals with an old mystery: when can a judge’s procedural order later be varied or rescinded by another judge?

Second, it also deals with consent orders. Many lawyers supposed that a consent order was a contract, and that a consent order could be upset or varied only on grounds to upset a contract, such as misrepresentation or duress.

If the consent order sets the lawsuit's final result, it probably cannot be changed. Such consent orders are presumed to implement a settlement contract. (One supposes a court would also say the same of a consent order to end part of the suit.)

This new decision creates a large exception for merely procedural orders. For them, the court does not presume any contract. So the court can later undo or amend the earlier entered consent order, despite objection of one party. In the Custom Metal case, a party which bargained for more time and one last chance got it via a consent order. Later it wanted still more time and a further chance. A second chambers judge gave that, which the Court of Appeal upheld.

A pessimist might fear that now any binding deal about procedure is impossible. That is probably not so. The Court of Appeal said that serious prejudice would be a ground to refuse to upset or vary a consent procedural order. And it seemed to say that in procedural matters a contract is merely not presumed. Presumably proving an express contract might change or fill both gaps.

Opposing counsel in lawsuits making a procedural agreement are often very reticent or sloppy in expressing or recording it. What if opposing counsel make an actual deal about a procedural matter? It is in their interest to set out in writing what the contract is. If one of the parties has a history of poor performance, such documenting may be vital.

In the present appeal, likely it would have helped if counsel had written expressly

a. that there was a contract,
b. what the performance on both sides was,
c. agreement what harm would flow to party A from party B’s non-performance,
d. whether paying money would fully remedy prejudice from non-performance,
e. what remedy would flow from non-performance, and whether it must be irrevocable, and
f. a non-draconian remedy (no jail or default judgment), e.g. a stated sum of security for costs.

A draconian remedy for any future default, set by a present consent order, can be dangerous for both sides.

– Hon. J.E. Côté

 

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.