Is an Unentered BC Supreme Court Order Effective?
After a BC Supreme Court Judge or Master makes an Order, the parties to the lawsuit typically agree to the order’s terms, reduce it to writing, sign it and enter it with the Court Registry. Can an order be effective if parties fail to take these usual steps? The answer is yes and Reasons for Judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this area of the law.
In this week’s case (Hable v. Hable) the parties were involved in a family law dispute. In the course of the lawsuit a Court Order was obtained. The order was never entered and the lawsuit was eventually discontinued. After this the parties could not agree as to whether the unentered order was effective and the Court was asked to address this issue. The respondent argued that the order could not be entred because the underlying lawsuit was discontinued. The Court disagreed and in finding that the order was valid and effective Mr. Justice Bowden provided the following helpful reasons:
[7] The law in British Columbia regarding the effect of an order that has not been entered, as found in Metro Trust Co. of Can. v. MacDonald, (1988) CanLII 3025 (B.C.S.C.), is that it is “provisionally effective and can be treated as a subsisting order in cases where the justice of the case requires it and the right of withdrawal would not be thereby prevented or prejudiced.” That view of the law reflects an earlier decision of the B.C. Court of Appeal in Allard v. Manahan, [1974] B.C.J. No. 933, where the Court of Appeal said at para 10:
What is meant by the statement that an unentered order is only “provisionally effective”? I think that it means that the Judge who made it may, in his discretion, alter it or set it aside.
[8] A superior court is not functus officio with respect to an unentered order. (Clayton v. British American Securities Ltd., [1935] 1 D.L.R. 432 (B.C.C.A.). Unlike the dismissal of an action, which is a final order, a discontinuance leaves matters open and is not a bar to further proceedings. (Chrétien v. Canada (Attorney General), 2005 FC 925 (Federal Court) and Davis v. Campbell (1986), 54 O.R. (2d) 443 (H.C.)
[9] I have concluded that the discontinuance filed in this matter does not preclude me from signing and entering the Order without the signatures of counsel. By doing so, I am simply confirming an order which was made prior to the filing of a discontinuance. Either party is at liberty to apply to settle the order before me or the Registrar, provided that such application is made before July 16, 2011. If no application is made by that date, the Order will be entered.