THE MINING AND LANDS COMMISSIONER

IN THE MATTER OF THE CONSERVATION AUTHORITIES ACT

IN THE MATTER OF

An application for permission to place fill in the valley of the East Branch of the Little Cataraqui Creek in Lot 16 in the 2nd Concession in the City of Kingston in the County of Frontenac.

B E T W E E N :

JOHN L. SMITH

Appellant

and

CATARAQUI REGION CONSERVATION AUTHORITY

Respondent

H. L. Cartwright for the respondent.

B. W. Trumpour Q.C. for the appellant.

On December 9, 1976 Messrs. Cartwright and Cartwright on behalf of the Cataraqui Region Conservation Authority, hereinafter referred to as "the Authority", served and filed with the tribunal a notice of motion for an order defining with greater clarity lands which may be filled pursuant to the order of the tribunal in this matter dated December 24, 1975. No affidavits were served and filed in support of the motion. At the time of obtaining an appointment Mr. Cartwright indicated that a court reporter would not be necessary.

Mr. Trumpour filed with the tribunal a memorandum of fact and law which was used in an application for judicial review brought by the City of Kingston. No viva voce evidence was presented at the hearing.

At the hearing Mr. Cartwright filed a copy of two letters. The first was a letter dated March 19, 1975 from his firm to Mr. Trumpour's firm which reads as follows:

"Re: Cataraqui Region Conservation Authority and John L. Smith

We enclose a plan of the proposed fill to be made by your client. The area shown in red are to be excavated, and, the area shown in green are to be filled, as we understand the plan.

The executive has approved this counter-proposal and if it is in accord with your client's wishes we will notify the Mining and Lands Commissioner that we have come to an agreement."

Mr. Cartwright also produced a copy of a letter of June 18, 1975 from Mr. Trumpour to his firm which reads as follows:

"Re: John L. Smith and Cataraqui Region Conservation Authority

Further to our March correspondence herein, we have gone over the plan submitted with coloured areas and approve your counter proposal as shown. We may excavate the red area, may fill the green area, and may proceed to construct a roadway on the yellow area.

We should appreciate receipt of fill permit since we intend to proceed in the immediate future to level the land south of King's Highway No.2 (Princess Street) as fill becomes available."

At this time it may be well to outline some of the back­ground of the original hearing and subsequent proceedings as they are of record in the office of this tribunal. On January 23, 1974 the Authority denied an application to place fill in the valley of the east branch of the Little Cataraqui Creek in Lot 16 in Concession II in the City of Kingston. This denial was appealed to the Minister of Natural Resources and by Ontario Regulation 473/74 the power and duty of hearing the appeal was assigned to the Mining and Lands Commissioner.

The appeal was heard in Kingston on December 4, 1974. Following the hearing of the appeal judgment was reserved in order that the parties might consider the possibility of the issue of permission on a revised location. Pursuant to this arrangement the parties presumably negotiated with the result that there was an exchange of letters set out above. Notwithstanding the exchange of letters the Authority failed to issue the permission and on November 10, 1975 Mr. Trumpour wrote the tribunal requesting that this tribunal make a finding in accordance with the proposed settlement.

On November 28, 1975 Mr. Trumpour attended upon the tribunal ex parte and produced to the tribunal a plan which he had received from Mr. Cartwright with a letter of November 21st, 1975 which reads as follows:

"Re   John L. Smith and Cataraqui Region Conservation Authority

I regret the difficulties that have arisen in this matter.

I enclose herewith a copy of the plan which shows the fill line that we agreed upon marked in yellow and noted as recommended alignment. I have signed the plan for identification and you may use this letter and the plan before the Commissioner if you wish to do so. I will not oppose the application for an order. "

At this attendance the plans submitted did not appear to the tribunal to be adequate for the purpose of preparing an order, particularly an order implementing the stage storage doctrine which appeared to be the basis of the settlement between the parties. Mr. Trumpour agreed to review the matter further and the plan was returned to him. Although there was no evidence, as such, on the subject it appears that this plan may have been destroyed in the period following the formal judgment in the matter.

In mid-December Mr. Trumpour again attended before the tribunal bringing to the tribunal a copy of a plan of survey dated the 10th day of December, 1975 and a description dated the 12th day of December, 1975 and made by Humphries and Burgham Limited, Ontario land surveyors, of parts of lots 14 and 15 in Concession II in the Township of Kingston and parts of lots 15 and 16 in Concession II in the City of Kingston. Three townships lots were involved as the boundary between the City and the Township of Kingston passes through Lot 15 in Concession II. This sketch shows the lots running in a general northerly direction and being crossed by the Canadian National Railway right of way in a general easterly direction. It also shows the Little Cataraqui Creek crossing the lots. Between the creek and the railway right of way there had been laid out an 86-foot strip as a proposed road which was properly and legally defined. To the south of this road there were two areas shown coloured red which were not defined except that they were understood to be bounded on the south by the regional flood line of the creek. To the north of the proposed road there were seven green areas which similarly were not defined but related to the elevation of the regional flood line of the creek. Mr. Trumpour did not produce a draft order and the tribunal, as this appeared to be the first case of its kind, prepared on December 24, 1975 a draft order incorporating the description that was submitted. Copies of the order were sent to the solicitors for each of the parties and in due course were returned duly approved by each solicitor. As no amendments were suggested by the solicitors the order with its original date was signed and forwarded to the parties.

Following the issue of the order a number of judicial proceedings were taken by the Authority and by the City of Kingston. This tribunal considers these proceedings irrelevant as far as this motion is concerned except to the degree that they illustrate that Smith had relied on the order and had changed his position on the strength thereof with the result that concerns have arisen over the placing of fill on the areas to the north of the proposed road that were not coloured green.

Mr. Cartwright's position was that the two letters of March 19, 1975 and June 18, 1975 constituted the sole agreement between the parties and that there was no subsequent negotiations which would warrant the issue of permission over the parts of the lots lying northerly of the proposed road that were not coloured green on the plan. He contritely admitted that, having come back from his vacation he was perhaps careless in not fully examining the description that was used in the draft order that the tribunal had forwarded to him but in defence he indicated that it would never have occurred to him that the applicant would have substituted a sub­stantially larger description than the areas agreed to. Accordingly, he asked the order be amended to limit the order to the area coloured yellow and the areas coloured green on the plan.

It was agreed by counsel that there was no question on the jurisdiction of the Authority over the uncoloured areas on the plan. It was agreed that these uncoloured areas fell within the schedule to Regulation 109 of Revised Regulations of Ontario, 1970 and that filling may be done only with the permission of the Authority.

Mr. Trumpour raised several points in his argument. Firstly, he submitted that notwithstanding an error on the part of counsel a consent judgment should 'not be amended after a period of one year. He suggested that settlements would be a farce if one party would be able to upset them easily and at such a period after the making of the settlement. He pointed out that the purpose of settlement is the avoidance of cost, time and litigation and that a settlement loses all its meaning if such settlements can be easily disregarded.

Secondly, Mr. Trumpour argued that his client was being highly prejudiced by the proceedings that have transpired. Relying on the memorandum that was mentioned above he pointed out that in 1973 his client obtained a permit for a 300 foot strip. At this time the overpass over the railroad had not been constructed. Subsequently this permit, which was unlimited as to time, was cancelled at a time the Authority decided to place a one-year limitation on all permits issued by it. On application in 1974 pursuant to this new policy the Authority refused to issue the permit with the result that an appeal was taken to the Minister of Natural Resources. He also referred to the subsequent proceedings that were taken which indicate, in his argument, that his client is being persecuted with the many procedures in respect of the matter that at one time had been found acceptable.

Thirdly, Mr. Trumpour argued on the merits that there was no harm in the order as issued. He pointed out that the issues raised at the original hearing related to the constriction of the flow of the stream. He suggested that the real cause of the constriction was the culvert in the overpass rather than any fill that would be placed downstream of the culvert.

Fourthly, he argued, in similar vein, that permission to fill the green areas with a prohibition of filling on the white areas would create an unsightly appearance with hills, humps, moguls or bumps in the area that was being filled. He submitted that the effect of the order requested would result in an unsightly and unpracticable result. Related to this issue he submitted that the cost of defining and surveying the boundaries of the areas coloured green would be unduly prohibitive in relation to the danger of flooding in respect of the parts of the lots lying northerly of the parts coloured green on the plan.

Fifthly, he pointed out that the two letters relied on by Mr. Cartwright were not necessarily the entire settlement. He referred to the letter of November 21, 1975 quoted above which indicated that there was an acknowledgement of a line which was referred to as the "recommended alignment." He submitted that this meant that the parties had agreed that there would be a fill line along the edge of the yellow area and it was contemplated that any area above the yellow line could be filled.

Sixthly, he referred to a letter that was written to Smith by the Authority subsequent to the issue of the consent judgment whereby the Authority stated that it was issuing permission to fill on the area covered by Schedule A to the order of this tribunal. It may be noted that it appeared that such permission at no time actually issued. However, Mr. Trumpour's point was that not only the counsel for the Authority had adopted the schedule but also the Authority itself had adopted the schedule and the Authority should not be permitted at this time to deny the extent of the permission that was granted by the order.

With reference more specifically to the notice of motion he pointed out that he could see nothing equivocal or ambiguous in the order. In this regard he pointed out that complaints only arose after the filling pursuant to the order had commenced and he submitted that in effect the Authority had acknowledged the extent of the permission granted and it was only upon complaints or upon receipt of political pressure that the Authority began to look for a legal device to deal with the complaints and in effect attempted to change its mind from the position that, it acknowledged in the earlier part of the year.

Neither counsel provided the tribunal with any authorities affecting this matter. Mr. Cartwright referred generally to the rules of court indicating that the rules provide adequate authority to rectify mistakes in judgments. The tribunal has been left with the responsibility of determining whether there are any authorities and applying them to the particular case. Assuming that the rules apply to procedings before this tribunal, I shall first consider the effect of the rules and the authorities in respect thereof.

Rules 527 to 529 inclusive of the rules of court deal with amendment of judgments and provide as follows:

"527. Clerical mistakes in judgments or orders or errors arising therein from any accidental slip or omission may at any time be corrected upon an application in chambers. R.R.O. 1970, Reg. 545, r. 527.

528. Where a judgment or order requires amendment in any particular on which the court did not adjudicate, it may be amended on motion. R.R.O. 1970, Reg. 545, r. 528.

529. A party entitled to maintain an action for the reversal or variation of a judgment or order upon the ground of matter arising subsequent to the making thereof or subsequently discovered, or to impeach a judgment or order on the ground of fraud, or to suspend the operation of a judgment or order, or to carry a judgment or order into operation, or to any further or other relief than that originally awarded, may move in the action for the relief claimed. R. R. o. 1970, Reg. 545, r. 529."

An examination of rule 529 indicates that it is applicable to situations other than the present except in respect of a matter of fraud. Mr. Cartwright made the submission that the use of the description in question was not expected. It may be interesting to speculate as to whether an issue of fraud before an administrative tribunal should be dealt with by the tribunal or whether it ought to be heard by the courts. However, the motion was not argued on this basis.

Rule 528 appears to apply to a limited situation where a court did not adjudicate on a particular. It does not appear to specifically apply to consent judgments. Accordingly, the case would have to fall within rule 527 and come within the words "errors arising therein from an accidental slip or omission."

In reviewing the authorities it is found that there have been a number of decided cases dealing with consent judgments and the conduct of counsel in negotiating consent judgments. The text writers, and I refer specifically to Halsbury, 4th ed., Volume 3, p. 650 ff. and Homestead and Gale p. 2251 ff., point out that settlements fall within the powers of general agency held and exercised by counsel on behalf of his client. They further point out that there are two basic categories of errors that have occurred. Firstly, there are consent judgments that have been entered into beyond the express limitations of the authority of counsel. There are a number of authorities on this subject which hold fairly clearly that if the restriction on the authority of the counsel is made known to the other side the settlement is not binding. However, the authorities are not so clear where the restriction is not known by the other side. As this approach was not argued in this case I will not comment further other than to say that these cases turn on principles of the doctrines of principal and agent.

The second category of case, and it was on this basis that I understand that counsel for the Authority argued the motion before this tribunal, comprises cases where counsel has given his consent under a misapprehension. It will be apparent that this category of case is dependant on some law of mistake as contrasted with principles of principal and agent.

The leading Ontario case on the subject of consent judgments appears to be the case of Re Rose [1943] O.W.N. 457. In this case Barton, Co. Ct. J., sitting in the Surrogate Court invited counsel to his chambers and proposed a settlement. The solicitor for one of the caveators consulted with his client, and returned to the judge's chambers and indicated that the client consented. The judge returned to the bench and pronounced judgment on the terms agreed upon in his chambers. Before the formal order was settled the caveators repudiated their counsel's consent and retained a new solicitor who objected to the entry of the order. The trial judge settled and issued it as a consent judgment. The matter was appealed to the Court of Appeal.

The dissenting judgment of Riddell, J. A. indicated that a grave injustice was being done and in the traditions of British justice the caveators were entitled to a new trial. The majority judgment was written by Gillanders J. A. At pp. 459 to 461 his Lordship after referring to the case of Prestwick et al v. Poley (1865) 18 C.B.N.S. 806. is quoted as follows:

"The cases show that the general authority to compromise is subject to some limitations. If a client has specifically limited counsel's authority, it has been held that the client is not bound by a consent against the express terms of such authority: Neale v. Gordon Lennox, [1902] A.C. 465 Where counsel's authority has been expressly limited but knowledge of such limitation has not been communicated to the other side, different views have been taken. See cases cited in 2 Halsbury, 2nd ed., pp. 526 et seq. When the compromise is effected by mistake, misunderstanding as to terms, or duress, various cases have held that the client may be relieved from the terms of the order in question. None of these questions arises here, nor is it urged that any specific limitation was placed on whatever general authority counsel had. It is only said that the settlement was never authorized by, submitted to, or approved by the clients.

Counsel for the appellant cited Shepherd v. Robinson, [1919] 1 K. B. 474, where counsel for the defendant consented to judgment against his client for only part of the claim, the plaintiff abandoning the balance, and on appeal by the plaintiff the case was restored to the list for hearing. It is to be noted, however, that that decision turned on the finding that counsel had acted under a misapprehension, and the authority of counsel had been strict1y limited by the client. Bankes L. J. states the general principle clearly at p. 477:

'It is clear that counsel has an apparent authority to compromise in all matters connected with the action and not merely collateral to it; and if he acts within his apparent authority and the other party has no notice of any limitation or restriction on that authority, the client will be bound by the agreement made by his counsel and embodied in some order or judgment of the Court. If Mr. Powell could bring this case within that line of decisions I should agree that this compromise must stand.

But there is a second and different line of cases which decide that before a consent order has been drawn up and perfected the consent given by counselor solicitor may be withdrawn by the client if the counselor solicitor gave it under a misapprehension. In such cases the Court will not proceed further with the drawing up and perfecting of the order, and will not lend its authority to compel observance of an agreement arrived at through a mistake.'

In the circumstances here, it must be held that the general authority possessed by the appellants' solicitor and counsel at the trial binds the clients.

On the argument of the appeal I was inclined to the view that whatever counsel purported to do at the trial, the clients were not bound and might effectively withdraw any alleged consent before the issue of the order, but a consideration of the authorities has led me to the conclusion that there are no circumstances present here which would justify permission to the appellants to withdraw the consent given by their counsel at the trial. In Harvey v. Croydon Union Rural Sanitary Authority (1883-4), 26 Ch. D. 249, the defendant's counsel had consented to an order being made before the case was opened to the Court. Before the order had been passed, the defendants formally withdrew their consent, and on appeal it was held that where counsel by authority of their clients consent to an order, the clients cannot arbitrarily withdraw such consent. Cotton L. J. in delivering judgment said in part:

'Mr. Justice Pearson considered it to be settled that a consent could be withdrawn at any time before the order was drawn up, without regard to the question whether there was any mistake or error in giving the consent. If a consent is given through error or mistake, there can be no doubt that the Court will allow it to be withdrawn if the order has not been drawn up. But the question is very different whether when counsel, being duly authorized, have given a consent, there being no mistake or surprise in the case, the party can arbitrarily withdraw that consent.'

And Lord Coleridge L. C. J. said:

'In the Queen's Bench Division this case would not have been arguable, it being quite settled there that a consent given by counsel with authority and with full knowledge of the facts is binding and cannot be withdrawn. I agree with the Lord Justice Cotton that this is the right rule, both in the interest of counsel and of those who employ them.'

The learned Surrogate Judge was justified in declining to permit the consent given at the trial to be withdrawn."

There are inferences in the Rose case which raise a serious hurdle against the motion of the Authority being granted. In the second paragraph of the quotation from the judgment of Bankes, L. J., which refers to the category of case at hand, there is an inference that the power of the court is limited to the period of time preceding the perfecting of the order. This inference is again referred to in the judgment of Cotton L. J. where the statement of the power of the court to amend an order is qualified by the words "at any time before the order was drawn up."

The Court of Appeal apparently viewed the Rose case as one in which there was no restriction on the authority of counsel to enter into a settlement, and consequently, no knowledge on the part of the other side of any such restriction and further as one in which there was no mistake as to fact. While the facts indicate that the objection was made before the entry of the order, the facts do not reveal any mistake of fact on the part of counsel. Accordingly, the endorsement of the Court of Appeal of the inferences that appear in the judgments of Bankes, L. J. and Cotton L. J. can only be treated as obiter dicta.

Further support by way of obiter dictum may be found in the British Columbia decision of Ruttan J. in chambers in the case of Yannacopoulos et al. v. Maple Leaf Milling Co. Ltd. and O'Conner 37. D.L.R. (2d) 562. This was an attempt to enforce a settlement of an action and in effect was a motion for the perfection and entry of a judgment. The case involved a motor vehicle accident in which counsel purported to settle the liability on the basis of a 50-50 settlement without contribution. The defendant resisted the settlement on the grounds that the settlement did not provide for 50 per cent payment of his damages. The plaintiff relied on the cases of Warner v. Sampson [1958] 1 Q.B. 404, Roman Catholic Archiepiscopal Corp. of Winnipeg et al. v. Rosteski et al. (1957) 23 W.W.R. 113 affd (1958) 13 D.L.R. (2d) 229, 26 W.W.R. 82, and Re Rose. At pp. 564 and 565 Ruttan J. is quoted as follows:

"But in all these cases the Courts were careful to except that situation which arises where the solicitor or counsel has acted under a misapprehension of his instructions. Mr. Justice Maybank on the issue of general authority to compromise an action relied upon the judgment of Mr. Justice Farwell in Re Newen, Carruthers v. Newen, [1903] 1 Ch. 812. But Farwell, J., commences his judgment at p. 816 in these words:

'But it has been pressed upon me, and I agree, that it would not be right to bind the defendants to treat this as a consent order, drawn up, passed and entered, because it would have been open to them while the order was in minutes to object to having the order passed and entered as a consent order if the consent had not really been given, or had been given under some mistake, which would have entitled them to be relieved therefrom. Now, treating it, first of all, as an order which has come to me in minutes, was there any mistake? In my opinion there was none at all. The parties clearly understood what they were doing . . . (My italics.) ,

Surely the situation that comes before me is the converse to that decided by Mr. Justice Farwell. Due to a mistake the consent transmitted by counsel for the defendant to a dismissal of the claim and counterclaim consequent upon an agreement to settle in fact never did move from his client.

In the oft-quoted authority of Harvey v. Croydon Union Rural Sanitary Authority (1884), 216 Ch. D. 249, the Court of Appeal disagreed with the trial Judge's ruling that a consent could be withdrawn at any time before the order was drawn up. In doing so however, Lord Justice Cotton made this qualification [p. 255]:

'If a consent is given through error or mistake, there can be no doubt that the Court will allow it to be withdrawn if the order has not been .drawn up. But the question is very different whether when counsel, being duly authorized, have given a consent, there being no mistake or surprise in the case, the party can arbitrarily withdraw that consent.'

In the present case there is no suggestion of an arbitrary change of mind on behalf of the defendants."

It is noted again that the inference is raised that had the order been formally drawn up the principle would not be applied. Again this is a matter of obiter dictum in that the case dealt with a situation prior to the settlement of the final judgment. Ruttan J. set the matter down for trial on the basis that the settlement had been arrived at "through a mistake". At this time it is convenient to refer to the two cases, other than the Rose case, relied on by the plaintiff.

In the case of Warner v. Sampson and Another [1958] 1 Q.B. 404 it was held in an action of a landlord against two executors of his tenant that denial by counsel for one of the tenants of all allegations in the statement of claim constituted a denial of the plaintiff's title which had been pleaded, and consequently constituted a breach of the lease for which, under the applicable law, there was no relief from forfeiture. Ashworth J. distinguished the case of Neale v. Gordon Lennox and at p. 418 said as follows:

"Alternatively, it was contended that the form of the defence was given to it 'in the teeth of the second defendant's express 'instructions' that the asset in question forming part of Mrs. Sampson's estate was to be preserved for the benefit of her children. In support of this contention I was referred to Neale v. Gordon Lennox. In that case the plaintiff was only prepared to consent to a proposed order if a certain condition were satisfied. Counsel appearing for her omitted to have this condition included when agreeing to the proposed order, and the House of Lords held that in the circumstances the plaintiff was not bound by the agreement which her counsel had made. In my judgment, that case is plainly distinguishable from the present case, and I am quite unable to hold that counsel who drafted the second defendant's defence was disregarding specific instructions. I am not satisfied that any specific instructions beyond those which I have referred to were given to counsel; still less that any specific instructions were given by the second defendant herself."

The case is also illustrative of the treatment afforded to forgetfulness of counsel. At pp. 417 and 418 the following comments were made:

"Logically, the next point to consider is Mr. Hames' contention that the denial of the lease contained in the pleading was made by mistake, or, alternatively, was not intended, and that in the circumstances the second defendant should not be regarded as bound by it. For the plaintiff, Mr. Scarman was prepared to accept that the denial was a mistake by counsel, by which he meant that counsel unfortunately overlooked the possible consequence of a pleading in the form drafted by him. There is, in my view, a risk of confusion in the use of the word 'mistake' in this connexion (sic). So far as the evidence goes, there-is nothing to show that counsel did not intend to draft the pleading in the form in which it was delivered, or that he was in any way misled. The instructions sent to him were produced at the hearing before me by the solicitor who then acted for the second defendant, and it is clear from them that in the solicitors view there was no defence to the claim that the covenants in the lease had been broken. Counsel was asked to draft a defence 'if only to stay the hand of the ground landlord whilst efforts "are made to induce Sampson to do something in the matter".' The defence certainly achieved the object of keeping the plaintiff out of possession but, as already stated, counsel overlooked the fact that, if and when the day of reckoning came, the pleading which he drafted might prove fatal. To avoid confusion, I should prefer to call this a lapse rather than a mistake on the part of counsel and I cannot accept Mr. Hames's submission that 'counsel's mind did not go with his signature.' In this connexion (sic) reference was made on behalf of the plaintiff to the decision of the Court of Appeal in Barrow v. Isaacs & Son, in which Lord Esher M. R. emphasized the difference between mere forgetfulness and mistake. In my view, counsel's lapse was an instance of the former and not of mistake."

In the case of Roman Catholic Archiepiscopal Corporation of Winnipeg and Larock v. Roteski and Krushowy, (1957), 23 W.W.R. 113, Maybank J. granted a motion to confirm a settlement made by the solicitor on the record as the agent of the defendant's actual solicitor. The issue in the case was authority rather than misapprehension. The Manitoba Court of Appeal confirmed the judgment, see 26 W.W.R. 32.

The point arose again for discussion in the case of Marsden v. Marsden [1972] 2 All E.R. 1162. In this matrimonial case counsel for the wife had, contrary to express instructions, undertaken to release a charge on the matrimonial home, to abandon her interest therein and enter into an agreement for the maintenance of the wife and the children. The wife objected to the order either on the same day that an application was made to enter it or had advised the court of her intention prior to the date on which the formal order was issued. At p. 1166 Watkins J. in dealing with the issue stated:

"So far as I have been able to ascertain, in no case has the court interfered to set aside a consent order save at a time before the order of the court has been perfected. If and insofar as Lord Lindley was saying in Neale v. Gordon Lennox that the court had power to deal with such a matter notwithstanding that the order had been perfected, I feel it is only necessary to say that that was a case which turned on its own special facts in that the plaintiff took out the order only for the purpose of applying to have it set aside. I think it is well settled law that the court will not interfere at a time after perfection of the order."

His Lordship went on to hold that the wife had taken adequate steps prior to the perfection of the order and accordingly the order that was issued was set aside on the basis of contravention of express instructions.

I now turn to the authorities with a view toward determining whether there are any grounds for refusing to give effect to the obiter dicta respecting perfecting of consent judgments. I have been able to find three cases where consent judgments have been set aside.

The case of highest authority is the decision of the House of Lords in Neale v. Gordon Lennox [1902] A.C. 465. This case involved a settlement of a defamation action by counsel who had exceeded his authority but had not advised the defendant's counsel of his lack of authority. More specifically, the consent judgment failed to incorporate a condition that the defendant would publicly disclaim in court any imputations on the character of the plaintiff. It is noted that Ashworth J. in the Warner case, distinguished this case on the ground that there was a specific disregarding of instructions, which issue is not involved in the present motion. In addition Watkins J. distinguished the case in respect of the issue under consideration by holding that the entry of the judgment was solely for the purpose of setting it aside which in the words of Lord Lindley was "mere machinery".

In my opinion the significant thrust of the Neale decision may be found on p. 472 of the report. In his closing paragraph the Earl of Halsbury L. C. stated,

"On the other hand, to tell me that the person whose character is alleged to have been attacked--I am not saying whether it is true or not--is to be deprived by this unauthorized act of the opportunity of vindicating her character in public, seems so gross an injustice that, upon the general jurisdiction that every Court has over its own procedure, this Court ought to refuse to allow that injustice to be committed."

Lord Macnaghten stated,

"I do not think that the Court is entirely in the hands of counsel, and bound to give the seal of its authority to any arrangement that counsel may make when the arrangement itself is not in its opinion a proper one."

The view of Lord Brampton was,

"I have rarely heard anything more preposterous, to my mind, than the notion that a suitor can impose no effective veto upon a course proposed to be taken by his or her own counsel which rightly or wrongly in his or her judgment will operate most prejudicially to his or her interests in an action, and possibly to the ruin of his or her character."

A second decision in which the formal order has been issued was Wilding v. Sanderson [1897] 2 Ch. 534. In the words of the headnote Byrne J. set aside a consent order made upon settled minutes in an action after the order had been passed, entered, partially acted upon and construed by the court.

Byrne J. discussed the significance of the entry of the order on p. 545 and he said,

"The only difference between the present case and Hickman v. Berens (if any) in principle is to be found in the reference in the judgment to the fact that in that case the agreement had never been formulated in an actual order of the Court. These references do not, in my opinion, mean that that fact would have prevented the same relief being given had the agreement been duly formulated. It would have prevented the relief being given without an action, and the Court would no doubt have required the most cogent evidence in a case where so formal and deliberate an act as assenting to judgment with all the opportunities of settling minutes and applying to the Court before completion of the order had been had by the party complaining: but in principle, if the Court finds no agreement up to time of perfecting the order, I think the order itself should go for the reasons given in the case I have referred to. "

The Court of Appeal approved the judgment of Byrne J. and in the judgment of Lindley L. J. reference was made to the Hickman case although the issue of entry of the order was not discussed. It is noted that the Wilding case did not appear to have been referred to Watkins J. in the Marsden case.

Thirdly, Russell v. Brown [1948] O.R. 835 is an Ontario case in which a consent judgment duly entered was set aside by the Court of Appeal. In this case the conduct of the solicitor for the defendant was most questionable and the appellate court concluded on the evidence that he had not negotiated a settlement that falls within the general authority of a counsel which settlement must be, in the words of Hogg J. A., "fair and reasonable".

It is noted that the early authorities, particularly the prestwick case, make this qualification of a counsel's authority to compromise an action. Accordingly, it would seem that this qualification relates to the issue of authority as contrasted with the issue of mistake. Robertson C. J. O. held that the settlement was not only unauthorized by the client but was contrary to the instructions of his client. The Chief Justice pointed out that the settlement included payment of damages and provided for payment of future damages notwithstanding that the statement of claim made no claim for damages. Also the other provisions of the settlement were most difficult of apprehension.

Before drawing a conclusion in respect of the three cases, I refer to a number of early decisions which seem to provide some support for the Authority's motion.

In Attorney General v. Tomline (1874) 7 Ch. D. 388 Fry J. dealt with a judgment directing a reference to determine half the gross value of coprolites taken from Crown lands, the proposal having been agreed to but Tomline having forgotten that he did not receive the full revenue from the coprolites in question but had assigned his right to take them, receiving only a small royalty in respect thereof. At pp. 389 and 390 Fry J. said as follows:

"It is now said, and I think truly, that the undertaking was given under a mistaken belief as to the facts. The Defendant and his counsel believed that the coprolites had been sold by him, but in fact they had been sold only in the sense that he had parted with his interest and was receiving only a royalty as profit. It is to be borne in mind that this fact must have been within the knowledge of the Defendant who was a party to the deed under which he was receiving the royalty, but it was not mentioned during the trial, nor were his counsel aware of it. Now, the judgment was not drawn up until two or three weeks after it was delivered: and the interval between the pronouncing of a judgment by consent and it being drawn up gives an opportunity to a person who has consented to anything to ascertain the true state of the facts, and he may in that interval make an application to have the judgment varied. But in my opinion, when a consent order has been drawn up, passed and entered, it is not competent to this Court to vary that order, except for reasons which would enable the Court to set aside an agreement. The facts were within the Defendant's own knowledge. There was in the interval between the trial and the drawing up of the judgment ample time to make inquiry. The Defendant chose not to make the inquiry, and it would now be unreasonable to allow him to set the judgment aside."

While the result of this case is that where judgment had been entered and finalized the application to set it aside was refused in the circumstances, by way of obiter dictum it was suggested that if there were sufficient reasons to enable the Court to set aside an agreement the court could set aside a consent judgment.

In the case of In Re South American and Mexican Company, ex parte Bank of England, [1894] 1 Ch. 37 Vaughan Williams J. at pp. 44 and 45 said as follows:

"The other question, is whether it makes any difference that in this case the judgment was a judgment by consent. I will deal with the second question first, and as to that point I am of opinion that the fact that the judgment was by consent makes no difference whatsoever. It is quite true, of course, that a judgment by consent is based on agreement between the parties, and, if the judgment has not been drawn up in accordance with the agreement between the parties, that is, at any time, a sufficient ground for altering the judgment and modifying it so as to make it accord with the agreement."

Here again the consent judgment was not set aside and the decision was confirmed in the Court of Appeal. On appeal Lord Herschell L. C. is quoted as follows at page 50:

"The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action."

It is said in paragraph 1183 of Halsbury that the case of Lewis's v. Lewis (1890) 45 Ch. D. 281 is authority for the proposition that where counsel enters into a compromise in intended pursuance of terms agreed upon between the clients, and owing to a misunderstanding the compromise fails to carry out the intentions of one side, the compromise does not bind the client, and the court will allow the consent to be withdrawn. On reading this case it is apparent that the formal judgment was not issued in this case. In the same paragraph Halsbury cites the case of Hickman v. Berens [1895] 2 Ch. D. 638 as authority for the proposition that where acting upon instructions to compromise, counsel consents under a misunderstanding to certain terms which do not carry into effect the intentions of counsel, and the terms are thought by one party to be more extensive than the other party intends them to be, there is no agreement on the subject matter of the compromise, and the court will set it aside. Again on reading this case, it becomes apparent that the formal order had not been drawn up. Also cited by Halsbury for this proposition is the case of Wilding v. Sanderson [1897] 2 Ch. 534.

Returning to a consideration of the three cases and the obiter dictum of Fry J. in the Tomline case, it is noted that in their result there are at least three cases that have not followed the principle that there is no relief if formal judgment has been entered. This leads to the questions of whether there is no rule or whether the cases reflect exceptions to the rule. If the latter approach is adopted, the exceptions could be stated as being cases where the action taken by counsel is a nullity or a miscarriage of justice. An example of the former is the Wilding case where the court concluded in the words of Lindly L. J. that the minds of the advisers were addressed to "a different matter altogether", p. 551 - or in the words of Chitty L. J. at p. 552 there was a common error in the preparation of the formal order that was drawn up to implement an agreement reached in Court. Chitty L. J. also held there was innocent misrepresentation leading to the errors. Similarly the comments of Fry J. fall within the same classification i.e. a voidable contract or a declaration that no contract was entered into. The Neale and the Russell cases fall into the latter category.

Assuming that the rules of court apply to enable the tribunal to correct errors, this tribunal is of the opinion the remedy sought by the Authority must be denied on the basis that a formal decision had been entered. While there was in this case no formal entry as such is required in a court case, there is no statutory requirement or practice of a formal entry procedure. The practice has been merely for the tribunal after signing the final decision and order, which are usually combined, to mail or deliver the decision to the parties. It has not been overlooked that in Part VIII of The Mining Act which is made to apply mutatis mutandis to the hearing of assigned powers and duties of the Minister of Natural Resources by the Mining and Lands Commissioner by subsection 7 of section 5a of The Ministry of Natural Resources Act, 1972 as enacted, inter alia, by section 3 of The Ministry of Natural Resources Amendment Act, 1973, an order is required to be filed with the mining recorder. Subsection 7 reads as follows:

"(7) Part VIII of The Mining Act applies mutatis mutandis to the exercise of authorities, powers and duties assigned to the Commissioner under clause b of subsection 6."

However, in the opinion of this tribunal the doctrine of mutation would not extend this requirement, which is basic to a mining appeal, to a hearing where there is no role of or significance in the filing of a decision in the office of the mining recorder. In this case all formal steps had been taken and no further action was required to validate the decision. On an application of the rule deducted from the authorities the motion ought to be dismissed.

On the question of whether the case fell within the exceptions to the rule, it is concluded that these exceptions are not applicable. On the first grounds of nullity, there is nothing to suggest that a permission by the authority in respect of the lands covered by the consent judgment is a nullity. The lands were admitted to be within its jurisdiction and it had the authority to issue permission if it saw fit. Apart from the question of alleged mistake, the permission actually granted would not be a nullity. Assuming one were to analogise to contractual matters, the mistake appears to be one of degree rather than of substance. No affidavit evidence was filed to establish any facts but on inquiry of the tribunal as to the seriousness of the consent judgment, counsel for the Authority advised that his client wished to study a larger area of land including the subject lands and the decision would establish a precedent which might prejudice the implementation of the recommendations that might be made by the studies. This tribunal was not provided with any evidence of the nature of the studies or the problems the studies were examining and it cannot be concluded that the Authority satisfied this tribunal that the variation between what was executed and what is now alleged to have been agreed upon is sufficiently different to suggest that, had the matter been one of contract, the finding of a court would be that the contract should be set aside.

In similar vein the evidence before this tribunal does not establish that the conduct of counsel for the Authority created a situation that was tanamount to a travesty or miscarriage of justice.

Many of the points raised by Mr. Trumpour relate to the issue of whether the consent judgment amounts to a travesty or miscarriage of justice. Such matters as the issue of a prior permit for the area above the flood line, the absence of concrete evidence of harm or concern regarding the extent of the permission, and the apparent subsequent endorsement of the description contained in the order reflect on this approach. However, the onus to establish such a travesty or miscarriage of justice lies on the mover of the motion and no evidence was produced to establish this result of counsel's action.

One of the difficulties in applying the reported authorities is that many of the cases involve commercial transactions to which principles of contract, including the doctrines of mistake, can be applied. There appears to be no ground for suggesting that principles of contract should apply to the issue of permission under Regulation 109. Such function is not a matter of contract but is an exercise of the responsibility of a public body in respect of the public interest. This tribunal cannot conceive of any reason why the principles of contract ought to be applied to the exercise of such a function. Such a function could only, in the opinion of this tribunal, be categorized as an administrative function, as contrasted with a judicial or ministerial function. Subsection 2c of section 27 of The Conservation Authorities Act, as enacted by The Conservation Authorities Amendment Act, 1973, sets out the jurisdiction of the Minister of Natural Resources as follows:

"27.-(2c) An applicant who has been refused permission may, within thirty days of the receipt of the reasons for the decision, appeal to the Minister who may dismiss the appeal or grant the permission."

It is obvious that the Minister's responsibility is to review the administrative aspects of the application and not to review from a purely legal point of view, the propriety of the refusal of the conservation authority.

Also there is no legislative code by way of statute or regulation or by-law which governs the issue of permission in order to warrant the categorization of the function as ministerial. The control on the exercise of the function is the discretion of the conservation authority. That discretion, in cases of appeal, is transferred to the Minister and the assignment of this responsibility to this tribunal by regulation cannot change the category of the function. An administrative act does not cease to be administrative merely because the function is exercised by a body that on occasion acts as a judicial or quasi-judicial body.

As far as this tribunal is aware, the rules of court do not apply to its exercise of an administrative function. Fundamentally administrative bodies are governed by the statute under which they act. There is nothing in The Conservation Authorities Act or in Part VIII of The Mining Act or in The Statutory Powers Procedure Act, 1971 to make the rules of court applicable to administrative hearings before this tribunal under The Conservation Authorities Act.

Accordingly, there is in the opinion of this tribunal, no authority for this tribunal to make the order requested on the strength of the rules of court. Regarding the matter from another approach, the tribunal, having executed a formal judgment, is bound by the doctrine of functus officio. In this regard it is said on p. 26 of the Manual of Practice on Administrative Law and Procedure in Ontario, 1972,

"7. Miscellaneous matters concerning tribunals.

(1)   DOCTRINE OF FUNCTUS OFFICIO

Under this doctrine when a tribunal has conducted its hearing and has arrived at and delivered its final decision and order, the tribunal can take no further action--the powers of its office are exhaused. It cannot therefore change its decision or vary it in any way.

Because of the strictness of this rule many statutes provide that a tribunal may reopen its decision and vary it or may make a new decision. In the absence of such a provision a tribunal cannot do so.

The correction of obvious clerical errors probably does not offend against this rule."

As the amendment requested goes beyond obvious clerical errors this tribunal does not have the jurisdiction to grant the remedy sought by the Authority on its motion and accordingly, the motion ought to be dismissed on this ground. Sections 157 and 158 of The Mining act, contained in Part VIII, provide for the awarding of costs by this tribunal.

IT IS HEREBY ORDERED that the motion of the Authority be and is hereby dismissed, with costs, if demanded, on the Supreme Court scale to be taxed by a local taxing officer.

DATED this 3rd day of February, 1977.

Original signed by

G.H. Ferguson

MINING AND LANDS COMMISSIONER.