Is a settlement approval order a consent order?

In any event it is not at all clear that an order approving the settlement of a class proceeding is a consent order. The basis for a consent order is the parties’ agreement, not a judge’s determination of the merits or what is fair and reasonable in the circumstances. It therefore seems wrong to characterize a settlement approval order, which requires a judicial determination that the settlement is fair and reasonable and in the best interests of the class, as an order made on consent: Bodnar v. The Cash Store Inc., 2011 BCCA 384 at paras. 37-38, 23 B.C.L.R. (5th) 93. That characterization could also foreclose a class member’s ability to seek leave to challenge an approval order on appeal, even when an appeal might be in the best interests of the class.