4.24: Formal offers to settle
4.29: Costs consequences of formal offer to settle
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Costs endorsement followed the Defendants’ request for Costs of the Appeal of the Court’s Decision to dismiss the Plaintiffs’ Action due to delay. The Court had dismissed the Appeal. The Defendants sought double Costs in accordance with Rule 4.29(1) on the basis they had served a Formal Offer to settle (the “Formal Offer”), and the dismissal of the Action was ultimately more favorable to the Defendants than the Formal Offer.

The Court noted that the successful Party to an Application is entitled to a Costs award against the unsuccessful Party subject to a variety of considerations including the Court’s general discretion under Rule 10.31. The Court additionally noted that the Court of Appeal had affirmed that the general approach was to quantify reasonable and appropriate Costs at a level approximating 40-50% of actual Costs. The Court noted that Schedule “C” may be appropriate in routine high volume chambers Applications, and can also be a useful default to which Parties may defer, or which Trial Judges may adopt in a variety of circumstances including for example cases where there is a significant imbalance in the power and means of the Parties.

Among other things, the Court additionally noted that: (1) the Plaintiffs’ claim that the Defendants were guilty of litigation misconduct including lying and misleading the Court was unproven; (2) the Plaintiffs’ materials, particularly the supplemental Affidavit, contained a mixture of opinions on the Court’s conclusions of fact or law, assertions of fact, and allegations of fraud that did not satisfy the fresh evidence standard nor were they practically conclusive in demonstrating fraud; (3) the Plaintiffs’ claims of unlawful garnishment summonses was not relevant to the Costs issue; and (4) the Court did not agree with the Plaintiffs’ claim that there had been mistreatment arising from being a self-represented litigant.

The Court held that in order to grant the Cost consequences under Rule 4.29, the Formal Offer must: (1) comply with the specific requirements of Rule 4.24(2); and (2) be a genuine offer to compromise. The Court found that the technical requirements of the Rules were satisfied. The Court noted that there is a presumption that an offer is genuine with the onus to rebut on the losing party. In considering the second element, the Court noted that the Plaintiffs had not made submissions with respect to the Formal Offer, nor had they asserted that it was neither genuine or not in compliance with the Rules. The Court also note that the Plaintiffs did have an adequate opportunity to assess the strength of their position well before the Formal Offer had expired.

The Court awarded Costs against each of the Plaintiffs jointly and severally for $3,000 in accordance with Rule 10.29(1).

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