3.68: Court options to deal with significant deficiencies
4.24: Formal offers to settle

Case Summary

The Applicant and the Respondent were engaged in divorce and matrimonial property proceedings. The Applicant brought two preliminary Applications: one to remove the Respondent’s counsel from the file because of a conflict, and the other to determine whether the Applicant had accepted a Formal Offer.

The Court declined to remove the Respondent’s counsel. The Respondent’s counsel had his legal assistant swear an Affidavit that offered opinions, arguments, and proposed inferences. Justice Mah noted that a lawyer cannot be counsel and witness in the same proceedings. Although the Court declined to remove the Respondent’s counsel, the Court noted that it did not approve of the subjective commentary in the Affidavit. The Court also noted that objectionable opinion evidence in an Affidavit may be struck out under Rule 3.68(4).

The Court then considered whether the Applicant had accepted the Formal Offer. The Formal Offer was open for acceptance for two months per Rule 4.24(3). The Respondent had applied for leave to withdraw the Formal Offer early, but the Respondent’s Application was adjourned when the Court temporarily closed due to the COVID-19 Pandemic (the “Court Closure”). The Applicant later purported to accept the Formal Offer but was unable to file his acceptance due to the Court Closure. The Court noted that Master Order #2, which extended all filing deadlines due to the Court Closure, extended the deadline to accept the Formal Offer.

The Court decided to hear the Respondent’s Application to withdraw the Formal Offer because allowing the Court Closure to deny the Respondent of the opportunity to have her Application heard would be grossly unfair. The Court noted that Rule 4.24(4) allows a Formal Offer to be withdrawn where written notice is given and if the Court is satisfied that there are special circumstances that justify withdrawal. The Respondent argued that the Applicant had offered a false property statement in an earlier Affidavit. However, the Court found there was no material non-disclosure and declined to allow the Respondent to withdraw the Formal Offer. As a result, the Court held that the Formal Offer had been validly accepted.

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