The Parties attended a Judicial Dispute Resolution with Foster J. on April 29, 2011. On May 10, 2011, the Appellant’s counsel sent an Interim Corollary Relief Order to the Respondent’s counsel. The covering letter indicated that the draft reflected the Agreement reached by the parties at the JDR. The May 10, 2011 form of Order was never signed.

On November 17, 2011, the Parties appeared before Foster J. They worked through a number of issues and appeared to be working toward a form of Order somewhat different from the one sent out on May 10, 2011. The Parties, their counsel and the Justice all participated in the session. Although there was confusion as to whether this was a JDR or a Special Chambers Application, the Court of Appeal found this was a JDR process, but was not a binding JDR.

No Consent Order or Agreement was signed at the JDR on November 17, 2011. On January 23, 2012, the Respondent’s counsel and the Appellant appeared in chambers before Foster J. The Appellant’s counsel had ceased to act for him. Foster J. signed an Order presented by the Respondent’s counsel. The preamble to the Order stated: “Upon noting that the parties attended a Judicial Dispute Resolution session with the Honourable Justice James L. Foster on April 29, 2011 and again appeared before Justice Foster on November 17, 2011 wherein the parties reached an agreement on the record of the within issues”. The Appellant’s consent was not endorsed on the Order. The Appellant claimed that the Order did not reflect the Agreements reached November 17, 2011. With regards to this Order, the Court of Appeal stated that:

The JDR process contemplates that if an agreement is reached, that agreement is documented by way of a consent order or a written agreement […] Unfortunately, in this case there was neither a consent order nor a written agreement. Two months later the respondent’s counsel presented the JDR judge with an order but it was not a consent order. Moreover, it is apparent from the transcript that while there was agreement on some issues, there was no agreement on others. In the result, the November 17, 2011 Order must be set aside.

At the January 23, 2012 appearance, Foster J. signed another Order (the “Second Order”) dealing with matters that were not consented to in either of the previous sessions before him. This second Order was granted by the same Judge who conducted the JDR. There had been no agreement on the issues contained in the Second Order.

In its decision to set aside the Second Order, the Court of Appeal made the following comment:

Rule 4.21 of the Rules of Court deals with the involvement of a judge after the JDR process concludes. The judge facilitating a JDR process in an action must not hear or decide any subsequent application, proceeding or trial in the action without the written agreement of every party and the agreement of the judge. There was no such agreement here. The chambers judge exceeded his jurisdiction and the order must be set aside …