BORGEL v PAINTEARTH (SUBDIVISION AND DEVELOPMENT APPEAL BOARD), 2020 ABCA 321
WATSON, WAKELING AND STREKAF JJA
4.24: Formal offers to settle
4.29: Costs consequences of formal offer to settle
The Appellants were successful in their Appeal of the prior Judicial Review Decision against the Respondent, the County of Paintearth No. 18 (the “County”) and the Subdivision and Development Appeal Board for the County (“SDAB”). The Appellants sought Costs against both the County and SDAB. The County argued that it was entitled to double Costs since it had made a Formal Offer to settle, which it believed was more favourable than the Judgment.
Rule 4.29 states that a party who makes a settlement offer which is more generous than the amount awarded in a Judgment is then entitled to double Costs for the steps taken after service of that offer. The Justices noted that the settlement offer must meet the qualifications for a Formal Offer to settle as set out in Rule 4.24 in order to trigger Rule 4.29.
The Court of Appeal considered whether the new Schedule C tariff, which came into effect on May 1, 2020, should be used in evaluating an offer under Rule 4.29. The Justices decided that, for the purposes of assessing a settlement offer, the Costs should be calculated pursuant to the tariff as it existed at the time the offer was made.
The Court then considered the County’s offer and found that it did not comply with Rule 4.24, because it did not address whether the offer was inclusive of interest, did not include a form of acceptance, and did not include a notice of Costs consequences - all requirements prescribed by Rule 4.24(2). The Court found in favour of the Appellants and awarded Costs to them, dismissing the arguments of the County and SDAB.View CanLII Details