Interlocutory Consent Orders And The Court's Discretion To Vary Or Set Aside Terms

• Published date: 30 October 2020
• Law Firm: CLC (Canadian Litigation Counsel)
• Author: Ms Amanda Baker (Brownlee LLP)

In a recent case from the Alberta Court of Appeal, the Court considered the application of rule 9.15(4) of the Alberta Rules of Court and whether an interlocutory Consent Order is a type of contract that can only be set aside for the same reasons as a contract can be set aside. The Court of Appeal found that it is not.

In Custom Metal Installations Ltd. v Winspia Windows (Canada) Inc., 2020 ABCA 333, a subcontractor, Winspia Windows (Canada) Inc., filed a Builder's Lien and a Statement of Claim to enforce the Builder's Lien against a contractor Custom Metal Installations Ltd., claiming unpaid amounts in the sum of $950,000 in respect of a residential condominium project. In response, the contractor, Custom Metal Installations Ltd., filed a Counterclaim for damages in the sum of $3,000,000.

On an Application by the contractor, the Builder's Lien claim was struck for being invalid and, due to the failure by the subcontractor to comply with a Court Order to register extra-provincially in Alberta, the subcontractor's Statement of Claim was also struck. Later in the litigation, the parties entered into a Consent Order providing that the subcontractor's Statement of Defence to Counterclaim would also be struck if the subcontractor's corporate...