“The Applicant requests the consent final order be made “nunc pro tunc”, or retroactive to September 8, 2023, the date it was signed by the parties. The Applicant acknowledged this is a discretionary power of the Court.
The Supreme Court of Canada, in Canadian Imperial Bank of Commerce v Green, 2015 SCC 60 (para. 86) explained:
The history of the courts’ inherent jurisdiction to issue orders nunc pro tunc is intimately tied to the maxim actus curiae neminem gravabit (an act of the court shall prejudice no one). Originally, the need for this type of equitable relief arose when a party died after a court had heard his or her case but before judgment had been rendered. In civil suits, this situation caused problems because of the well-known common law rule that a personal cause of action is extinguished with the death of the claimant.
Similarly, in circumstances where courts have made errors through an oversight or a “slip”, orders have issued retroactively. These are not the only circumstances where the doctrine of nunc pro tunc may be applied but serve only as examples.
Prior to courts exercising its inherent jurisdiction, the following factors must be considered: (1) the opposing party will not be prejudiced by the order; (2) the order would have been granted had it been sought at the appropriate time, such that the timing of the order is merely an irregularity; (3) the irregularity is not intentional; (4) the order will effectively achieve the relief sought or cure the irregularity; (5) the delay has been caused by an act of the court; and (6) the order would facilitate access to justice. This list is not meant to be exhaustive. (Ibid, para 90).”