In Zant v Zant 2022 BCSC 2023 the Court exercised it’s inherent jurisdiction to prevent an abuse of court and miscarriage of justice.
During temporary covid court rules, an imposter posed as a wife and signed and spoke to a consent order over telephone that settled the wife’s interests for very little.
Evidence came forward one year later that the “wife’ was an imposter”, the real wife brought court proceedings to set aside the consent court order, and the court did so
INHERENT JURISDICTION
The court has inherent jurisdiction to set aside a consent order where there are grounds that would invalidate a contract.
The British Columbia Court of Appeal in Racz v. Mission (District), [1988] B.C.J. No. 19 (C.A.) endorsed the law relating to setting aside a consent order summarized by Fraser and Horn, Conduct of Civil Litigation in British Columbia, Vol. 2 as follows:
[8] The law relating to the setting aside of a consent order is summarized by the editors of Fraser and Horn, Conduct of Civil Litigation in British Columbia, vol. 2 at p. 1064 (January 1985):
27.11 Order Obtained by Consent.
An order entered by consent is in effect an agreement of compromise and such an order may be set aside on any ground which would invalidate a contract. In all other respects the judgment has full force and validity. A separate action must be brought to set aside a final order. Where the order is interlocutory however, a motion may be made to set it aside.
Grounds upon which a consent order may be set aside include lack of authority of counsel, common mistake, fraud, collusion, duress and illegality.
Nichol v. Nichol, 2015 BCCA 278 summarized the inherent jurisdiction of the court in more general terms at para. 28:
[28] Further, the Supreme Court has inherent jurisdiction to prevent miscarriages of justice. As this Court stated in R & J Siever Holdings Ltd. v. Moldenhauer, 2008 BCCA 59, at para. 14:
[14] … In addition to the powers conferred by the Rules of Court, the Supreme Court of British Columbia, as a superior court of record, has inherent jurisdiction to regulate its practice and procedures so as to prevent abuses of process and miscarriages of justice: see I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Leg. Prob 23 at 23-25. As the author said, at 25,
The inherent jurisdiction of the court may be exercised in any given case, notwithstanding that there are Rules of Court governing the circumstances of such case. The powers conferred by the Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the court. The two heads of powers are generally cumulative, and not mutually exclusive, so that in any given case, the court is able to proceed under either or both heads of jurisdiction.
The Annulment Order was also set aside on the basis that it constitutes an abuse of process. There should be no question that it is an abuse of process for a party to secure an order of the court with the assistance of an imposter.
