Darryl R. Buxton

Following dismissal of a motion seeking to vary a consent judgment and amend a statement of claim, the court determined costs payable to the successful defendants.

One defendant sought costs payable forthwith, while the plaintiff argued any award should be set off against an outstanding amount owed under a prior consent judgment.

The court held that the costs award and the debt under the consent judgment were liquidated mutual obligations, requiring legal set‑off.

Costs payable to that defendant were therefore credited against the amount owed under the consent judgment, while costs payable to the other defendant were ordered payable forthwith.

The court also assessed the reasonable quantum of costs under Rule 57.01 of the Rules of Civil Procedure.

The plaintiff moved to vary a consent judgment arising from a three-party settlement and to lift a stay imposed on his separate action after the First Nation defendant defaulted on later settlement instalments.

The court held that a consent judgment may be rectified only on grounds going to the formation of the underlying agreement, not merely because of subsequent non-performance, and found no evidence of fraud, mistake, or other vitiating factor.

Relief was also unavailable under Rule 49.09 because the settlement had merged into the consent judgment, and the court declined to invoke inherent jurisdiction to rewrite a bargain negotiated with counsel.

The motion was dismissed, leaving the plaintiff to pursue enforcement remedies under the existing judgment.