The Defendant applied to have a settlement offer, that was neither a Calderbank offer nor a formal offer pursuant to the Rules, considered by the Court in determining costs. The Plaintiff argued that the basic rule was that the successful Party was entitled to costs, pursuant to Rule 10.29, and that the Court could not even consider a settlement offer unless it was a Calderbank offer or a formal offer. The Defendant, on the other hand, argued that Rules 10.31 and 10.33 gave the Court the discretion to consider any kind of settlement offer in determining an award of Costs.

Kenny J. referred to and relied on Mahe v Boulianne, 2010 ABCA 74, and Koma v Tomich Estate, 2011 ABCA 257, and held that the Court had discretion to consider informal settlement offers, in whatever form, when determining an award of Costs. Further, Kenny J. stated that this was in keeping with Rule 1.2 and facilitating the quickest means of resolving a claim and encouraging Parties to resolve a Claim themselves. Kenny J. also held that “without prejudice” privilege as it relates to settlement offers expires once the merits of the dispute have been settled. The Defendant’s Application was granted and the Court held that the informal settlement offers could be considered by the Court in the overall determination of costs between the Parties.