Today brings an interesting comment regarding setting aside a consent order. The Court's authority is based on 'justice of the case' and not a mechanistic application of guidelines.
See Stoughton Trailers Canada Corp. v. James Expedite Transport Inc., 2008 ONCA 817:
[1] In our view, the motion judge erred in principle in holding that her discretion to set aside the consent order was circumscribed by the factors set out by Master Sandler in Chitel v. Rothbart (1984), 42 C.P.C. 217. As pointed out by Sachs J. in Beetown Honey Products Inc. (Re) (2003), 67 O.R. (3d) 511 (S.C.J.), the discretion is broader and should be exercised where necessary to achieve the justice of the case. See also the decision of the Divisional Court in Chitel at (1985), 2 C.P.C. (2d) xlix. In this case, there were reasonable grounds for questioning the correctness of the default judgment especially as against the individual defendant. Also, the funds to comply with the order, while not paid by December 31, 2007, were available before the return date of the motion.
James Morton
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