H2S SOLUTIONS LTD v TOURMALINE OIL CORP, 2020 ABCA 201
SCHUTZ, HUGHES AND FEEHAN JJA
4.29: Costs consequences of formal offer to settle
14.59: Formal offers to settle
Following the Court’s Summary Dismissal of the Appellant’s claim for interest on overdue accounts, the Respondents sought double Costs pursuant to Rules 4.29 and 14.59, as the Respondent had made a Formal Offer under Rule 14.59, offering to forego Costs of the Appeal in exchange for a discontinuance of the Action.
The Court declined to grant double Costs due in part to the chronology of events. The Court concluded that the Respondent did not sustain any Costs during the two-month period in which the Formal Offer remained open per Rule 14.59. Both the factum and response materials were filed months after the Formal Offer expired, and no interlocutory proceedings took place in the interim. As such, the Court ruled that the lack of Costs incurred during the time that the Formal Offer was open was fatal to the Application for double Costs, since Rule 4.29 (as incorporated into Rule 14.59) relates to Costs incurred after service and before expiry of the Formal Offer.
Additionally, the Court found that the Respondent’s Formal Offer did not incorporate an identifiable and sufficient compromise, as the Respondent had not incurred any Costs to double in the time period when the Formal Offer was open for acceptance. To that end, the Formal Offer was devoid of any substantive meaning and therefore insufficient to trigger a double Costs Award.View CanLII Details