DATE: 20040114

DOCKET: C40686

COURT OF APPEAL FOR ONTARIO

RE:

CARLETON UNIVERSITY (Plaintiff/Appellant) –and–

ALAIN L. MERCIER, ALAIN L. MERCIER, carrying on business as LES ENTREPRISES ALAIN MERCIER, and ALMERCO INTERNATIONAL INC. (Defendants/Respondents) –and– ALMERCO RECHERCHE INC. (Respondent)

BEFORE:

CATZMAN, LASKIN and BORINS JJ.A.

COUNSEL:

Daniel J. Leduc

for the appellant

Sean Cumming

for the respondent Almerco Recherche Inc.

HEARD AND ENDORSED:

January 14, 2004

On appeal from the order of Justice Denis J. Power of the Superior Court of Justice dated September 17, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] On the basis of the finding of the motion judge that the appellant would not have consented to an order dismissing its action against Almerco Recherche Inc. (“ARI”) but for the misrepresentation of Mr. Mercier, the motion judge should have set aside that order. In our view, he erred in principle in expanding the test for setting aside consent orders by requiring the appellant to demonstrate that it had “a genuine issue for trial with respect to the claim against ARI”, and to demonstrate that it would be prejudiced if the consent order were not set aside.

[2] The appeal is allowed, the order of Power J. is set aside, and an order substituted for the relief requested in paras. 1 and 2 of the notice of motion before him. The appellant is entitled to the costs of the motion, in the amount directed by Power J., and to the costs of the appeal, fixed in the amount of $5,000, inclusive of disbursements and G.S.T.