BURNS v MOORE

The Applicant sought permission to appeal a Consent Final Property Judgment, and for an extension of time to do so. The Applicant submitted that they did not have capacity to instruct their counsel to enter into the Consent Judgment due to pre-existing brain injuries, and in fact did not instruct their counsel to enter into the Consent Judgment. The Applicant brought the Application seeking permission to Appeal the Consent Judgment one day after the deadline to do so.

In considering the Appeal of a Consent Judgment, the Court looked both to Rule 14.15 and to the surrounding caselaw. The Court noted that, in most cases, a party being a single day past the deadline would not be of concern due to the minimal prejudice to the opposing party. However, the present case raised some additional concerns. In particular, it was required to consider whether the Applicant benefitted from the Judgment under Appeal. Justice Friesen noted that, in the present case, the Consent Judgment provided that the Applicant would be paid $10,000.00 within 30 days of the Judgment. That payment was made and the funds were used in their entirety by the Applicant.

Further, the Applicant’s position on Appeal was that they had not instructed their counsel to enter into the Consent Judgment. However, the Applicant was present when the Judgment was entered and when the terms of the Judgment were read into the record. There was no evidence or indication that either party’s counsel or the Court ought to have known or suspected that the Applicant did not or could not agree to the terms of the Consent Judgment. There was no reasonable prospect of success for the Applicant’s Appeal and as such the Court dismissed the Application.