Duhaime's Law Dictionary

Consent Order Definition:

An order of the court in terms which have been contractually entered into by parties to the litigation.

Related Terms: Stipulated Judgment, Minutes of Settlement

Also known as a consent judgment.

Terms of settlement which are proposed to a Court of law and adopted by the Court as terms of an order of the court.

In Kinley v Krahn, Justice Goldie of the British Columbia Court of Appeal wrote:

"[A] consent judgment is in the nature of a contract which has received judicial sanction in the form of an order of the court."

In the Saskatchewan Court of Appeal, Justice Lane wrote, in BMO v Coopers Lybrand:

"A judgment is a final determination by the Court of the rights and obligations of the parties. A consent judgment, even if it is in the terms consented to by the parties, is not a decision of the parties but is a decision of the Court. The fact the judgment was consented to makes it no less a valid and subsisting judgment."

But not entirely ....

In 2009, Justice Abella of Canada's Supreme Court adopted these words at ¶64 of Rick v Brandsema:

"[A] consent judgment may be set aside on the same grounds as the agreement giving rise to the judgment.... This rule reflects the reality 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."

Similarly, note these words of Justice Alfred Denning in Siebe Gorman v Pneupac:

"We have had a discussion about consent orders. It should be clearly understood by the profession that, when an order is expressed to be made by consent, it is ambiguous. There are two meanings to the words by consent.... One meaning is this: the words by consent may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract.

"The other meaning is this: the words by consent may mean the parties hereto not objecting. In such a case there is no real contract between the parties. The order can be altered or varied by the court in the same circumstances as any other order that is made by the court without the consent of the parties."

In 155569 Canada, Justice McDonald of the Alberta Court of Queen's Bench adopted these words:

"An order by consent in an action is not a contract, but it is sufficient evidence of the contract upon which it is based, and such contract is not less a contract and subject to the incidents of a contract because there is super-added the command of a Judge.... Be that as it may, a consent order, like a contract, may be interfered with by the court in certain circumstances. ... Where a consent order embodies an agreement which amounts to a contract between the parties, the Court will only interfere with it on the same grounds as it would with any other contract.... [A] consent order can only be set aside or varied by subsequent consent, or upon the grounds of common mistake, misrepresentation or fraud, or on any other ground which would invalidate a contract."


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