[1] This is the second of three motions which were down for hearing today. By it, the plaintiff seeks the variance of a consent order which was dated March 27, actually consented to on March 31 and entered on April 23, 2003.

[2] The motion is said to be under Rule 399 (2) of the Federal Court Rules, 1998 or alternatively under Rule 230(a).

399. (2) On motion, the Court may set aside or vary an order

(a) by reason of a matter that arose or was discovered subsequent to the making of the order;

(b) where the order was obtained by fraud.

230. On motion, the Court may relieve a party from production for inspection of any document, having regard to

(a) the issue in the case and the order in which they are likely to be resolved;

399. (2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l'un ou l'autre des cas suivants:

a) des faits nouveaux sont survenus ou ont été découverts après que l'ordonnance a été rendue;

b) l'ordonnance a été obtenue par fraude.

230. La Cour peut, sur requête, dispenser une partie de la production de certains documents pour examen, compte tenu des facteurs suivants:

a) les questions en litige et l'ordre dans lequel elles sont susceptibles d'être réglées;

[3] At the outset, I exclude any possible application of Rule 230(a). By its terms, in my view, that rule only applies where the Court has before it an affidavit of documents which lists and describes certain documents and where it is sought to relieve from the obligation to produce or make copies of those documents. Here, the plaintiff seeks to be excused from actually listing certain of the documents in the supplemental affidavit of documents mentioned in the consent order. There is no room, in my view, for the application of Rule 230 to that situation. The only conceivably applicable rules would be either Rule 399 or Rule 30 and clearly, the latter is not invoked because there is no suggestion that plaintiff did not consent to the order.

30. (1) A judge or prothonotary who is not sitting in court may make an order on a motion if

(a) the judge or prothonotary is satisfied that all parties affected have consented thereto;

(b) the motion was brought in accordance with rule 369; or

c) for any other reason the judge or prothonotary considers that the order can be made without a hearing without prejudice to any party.

(2) On motion, the Court may set aside or vary an order made under paragraph (1)(a) on the ground that a party did not consent to it.

30. (1) Un juge ou un protonotaire ne siégeant pas en cour peut rendre une ordonnance à la suite d'une requête si, selon le cas:

a) il est convaincu que toutes les parties intéressées y ont consenti;

b) la requête a été présentée selon la règle 369;

c) il estime, pour toute autre raison, que l'ordonnance peut être rendue sans audience sans que cela porte préjudice aux parties.

(2) La Cour peut, sur requête, annuler ou modifier l'ordonnance rendue en vertu de l'alinéa (1)a) au motif qu'une partie n'y a pas consenti.

[4] Rule 399 is itself an exceptional rule and one which must be treated as an exception for it allows a party to question the finality of judgments duly made and entered. Clearly, there is here an important public policy at play. Judgments, even interlocutory judgments dealing with such mundane matters as affidavits of documents must be respected and cannot likely be set aside. In my view, plaintiff does not meet the conditions established by Rule 399.

[5] First, since what is being sought to be set aside is a consent order, plaintiff must show that in some way its consent to the order was vitiated. There are any number of possible ways in which that might have been the case, fraud, mistake, something of that sort, grounds upon which contracts can be set aside. But no showing of that sort has been made or has been attempted to be made. All that has happened is that since the order has been consented to plaintiff has withdrawn a part of its claim with the result, it says, that the ordered documents are no longer relevant. In my view, a "matter" which is within the sole control of the moving party (and the withdrawal of a part of plaintiff's claim falls clearly into that category) is not a "new matter" within the meaning of the rule.

[6] Furthermore, to come within the rule, the new matter must be one which is shown to be something that would have changed the result. In a case of a consent order, that has to mean, not only that the moving party would not have given its consent but also that the other party would not have done so. A consent order, like any negotiated contract involves give and take by both parties. Once it endorses the consent order, the Court cannot look into the giving and taking that has gone on between the parties so as to reach what is, or was at the time, in their view, a fair bargain.

[7] Here, it would, in my view, be most improper for the Court to set aside a part only of the bargain that plaintiff does not now like and leave the rest in place.

[8] Finally, plaintiff has argued that the documents ordered to be listed in the supplemental affidavit would no longer be relevant in the light of the changed state of the pleadings. I will only say that that is not evident to me. In the view of the broad definition of relevance as regards documents under the Federal Court Rules, 1998, I cannot, at this stage, accept an argument that the documents required to be listed are not relevant to the pleadings. Especially since, in my view, that argument should have been made almost a year ago and not saved till today.

[9] The motion will accordingly be dismissed as with the first motion which I heard this morning and I shall reserve the question of costs until final disposition of the last motion which is brought by the defendant seeking certain forms of relief against the plaintiff for its non compliance with the consent order.

Judge

Ottawa, Ontario

February 6, 2004

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: T-319-98

STYLE OF CAUSE: Volkswagen Canada Inc. V. Access International Automotive Ltd.

PLACE OF HEARING: Calgary, Alberta

DATE OF HEARING: February 5, 2004

REASONS FOR ORDER BY THE HONOURABLE MR. JUSTICE HUGESSEN

DATED: February 6, 2004

APPEARANCES:

Michael J. Donaldson For plaintiff

Trent Horne For defendant

SOLICITORS OF RECORD:

Burnet, Duckworth & Palmer LLP

Calgary, Alberta For plaintiff

Sim, Hughes, Ashton & McKay

Toronto, Ontario For defendant

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Volkswagen Canada Inc. v. Access International Automotive Ltd., 2004 FC 203, 2004 FC 202

Citations2004 FC 203, 2004 FC 202

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Citations
2004 FC 203, 2004 FC 202