Dennis Van Sickle

The moving party brought a motion under Rule 59.06 of the Rules of Civil Procedure seeking to set aside or vary a prior consent order requiring her to vacate a property by a specified date.

She argued the responding parties had failed to comply with disclosure obligations, that the consent order should be interpreted alongside earlier family law orders, and that circumstances had materially changed.

The court reviewed the principles governing the finality of settlements and consent judgments and held that such orders may only be set aside for limited grounds such as fraud, misrepresentation, common mistake, or a material change in circumstances.

The evidence did not establish any of these grounds.

The court concluded the consent order was clear, voluntarily agreed to after negotiations, and remained binding.

The appellant, an unsecured business creditor, sought a constructive trust over funds held by the Receiver of a bankrupt company, arguing the bankrupt was unjustly enriched by the unauthorized sale of the appellant's shipping containers.

The motion judge dismissed the claim, finding no direct connection between the proceeds of the sales and the funds held by the Receiver.

On appeal, the Court of Appeal upheld the dismissal for the majority of the funds, confirming that a constructive trust requires a direct link between the property and the unjust enrichment.

However, the Court allowed the appeal in part, imposing a constructive trust over $27,244 that was directly traceable to the unauthorized sale of five containers shortly before the receivership.

The appellant appealed an order striking his statement of defence and counterclaim for persistently failing to satisfy undertakings given on an examination for discovery.

The Court of Appeal dismissed the appeal, finding that the motion judge's discretionary order was entitled to deference and was supported by the record, which showed the appellant failed to fully answer undertakings despite four court-ordered timetables in a case involving allegations of fraud.

The appellant moved for substantial indemnity costs and an order prohibiting the respondent from filing responding material after the respondent's cheques for costs, payable as a condition of an adjournment, were returned for insufficient funds.

The respondent's counsel had promptly replaced the cheques with a firm trust cheque once notified.

The court awarded $200 in costs for the inconvenience of the dishonoured cheques but dismissed the request to prohibit responding materials as premature.

The court noted the escalation of costs was due to a lack of professional courtesy and communication between counsel.