Jan 19, 2012

Subrule 59.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended (the “Rules”), reads as follows:


(2) A party who seeks to,


(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

(b) suspend the operation of an order;

(c) carry an order into operation; or

(d) obtain other relief than that originally awarded,


may make a motion in the proceeding for the relief claimed.


Paragraph 59.06(2)(a) of the Rules, which deals specifically with setting aside or varying a court order, requires a showing of “fraud or of facts arising or discovered after it was made”. In the decision of Chitel v. Rothbart (1984), 42 C.P.C. 217, which dealt with court orders made on consent of the parties, Master Sandler ruled that a consent order can only be set aside or varied by “subsequent consent, or upon the grounds of a common mistake, misrepresentation or fraud, or on any other ground which would invalidate a contract.” However, the grounds for such a variance or setting-aside were substantially expanded by the decision of the Court of Appeal for Ontario in Stoughton Trailers Canada Corp. v. James Expedite Transport Inc., 2008 ONCA 817. The Court of Appeal in that decision ruled that “the discretion [to vary or set aside] is broader and should be exercised where necessary to achieve the justice of the case”. Accordingly, a consent order can be set aside or varied either on (1) a subsequent consent, (2) any ground that would invalidate a contract (such as fraud), or (3) if the justice of the case requires it.



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