This was a Decision regarding Costs following an unsuccessful Appeal by the Appellant, Impact Painting Ltd. The Respondent, Man-Shield (Alta) Construction Inc., made an offer of settlement to the Appellant pending the Appeal for the full amount of the Trial Judgment (the “Offer”). Essentially the Offer was to accept the amount awarded at Trial without Costs in exchange for the Appellant foregoing the Appeal.

The issue before the Panel was whether the Offer triggered the Costs consequences under Rule 4.29; namely an award of double Costs if a Formal Offer is bested at Trial. The consequences described in Rule 4.29 are the same regardless of whether a Formal Offer is tendered in advance of a Trial in accordance with Rule 4.24 or in advance of an Appeal in accordance with Rule 14.59.

The Appellant argued that the Offer was not valid under Rules 4.24 or 14.59. The Appellant argued the Offer was ambiguous because it did not specifically address both the Respondent’s Statement of Claim and Counterclaim. Furthermore, the Appellant argued that the Offer had not been bested because the original award in the Trial Judgment included in the Offer was subsequently increased in a corrected Judgment to address a technical error.

The Panel rejected these arguments. There was no pending Appeal regarding the Counterclaim. Moreover, the difference between the amount awarded in the original Trial Judgment and the amount ultimately awarded in the corrected Judgment was less than what the Respondent would have been entitled to in Costs following its success on Appeal. Therefore, the Respondent had technically bested the value enclosed in the Offer.

The Panel awarded double Costs to the Respondent from the date of the Offer based on Column 1 of Schedule “C”.