Lower Court Judgments Cannot Be Turned Over on Consent
Can parties ask an appellate court to erase a trial judge’s order by consent? In Martin v. 11037315 Canada Inc., 2025 ONCA 648, the Ontario Court of Appeal gave a firm answer: no.
Appellate courts are not rubber stamps. To overturn a lower court decision on consent, in the absence of any legal or evidentiary error, would bring the administration of justice into disrepute and is simply not within the jurisdiction of the Court of Appeal.
The Lower Court Decision
Kelly Martin owned a residential property that was subject to a second mortgage. After she defaulted, the mortgage was assigned to 11037315 Canada Inc., which commenced foreclosure proceedings, obtained a default judgment against Ms. Martin, and sold the property to 2670082 Ontario Corp. (“267”).
When Ms. Martin discovered the sale, she challenged the default judgment in Superior Court. An appeal of the Superior Court decision was allowed, and a trial of an issue was ordered to determine whether 267 was a bona fide purchaser for value without notice under the Land Titles Act.
The trial judge declared that 267 was not a bona fide purchaser, making several adverse credibility findings against 267’s witnesses.
267 filed a notice of appeal. Before the appeal could be heard, however, it moved to have the appeal allowed on consent, after reaching a settlement with Ms. Martin. The proposed order would vacate the trial judge’s declaration as the company’s principals viewed it as damaging to their reputations.
Appeals Will Not Be Allowed on Consent Alone
The Court of Appeal unanimously dismissed the motion stressing that appellate courts cannot allow an appeal or set aside a judgment merely because the parties ask them to. In the absence a legal or evidentiary error, the Court has no authority to overturn a trial judgment, even on consent. To do so would abdicate the Court’s role and bring the administration of justice into disrepute.
Furthermore, counsel for 267 candidly admitted that his clients “were concerned about the findings made against them and the impact on their reputations.” No other arguments grounded in the correctness of the lower court decision were furthered. The Court held that reputational concerns do not provide jurisdiction to vacate a trial judge’s factual and credibility findings.
The trial judge’s declaration rested squarely on findings of fact and credibility. Overturning this by consent would “whitewash this finding of misconduct without any basis for doing so.”
Judicial Findings Cannot be Contracted Around
This decision affirms that appellate courts exist to correct errors of law or fact, or to affirm lower-court decisions, not to rubber stamp private agreements between parties. Parties cannot contract around judicial findings, especially those tied to credibility and misconduct.