Graesser J

4.24: Formal offers to settle
4.29: Costs consequences of formal offer to settle
10.33: Court considerations in making costs award

Case Summary

Following Trial, the parties applied to the Court for a determination with respect to pre-judgment interest and costs. The Plaintiff, Dr. Jones, was successful as against both Defendants, but one of the Defendants, Dr. Phan, obtained damages for his Counterclaim, which were set-off against the Plaintiff’s award.

Dr. Jones and Dr. Phan did not agree on Costs. Dr. Jones argued for double Costs pursuant to Rule 4.24 as a result of three Formal Offers which were served prior to Trial. Dr. Phan argued that, pursuant to the considerations in Rule 10.33, Dr. Jones’ Costs against him ought to be reduced due to Dr. Jones’ inefficient litigation conduct; the supposed formal offers were not “genuine offers to compromise” as they did not address Dr. Phan’s Counterclaim; and Dr. Jones had not produced all relevant and material records, and thus Dr. Phan could not make an informed decision on the Offers. Further, Dr. Phan argued that the later Formal Offers “extinguished” earlier Offers, and that Dr. Jones did not beat the most recent Offer. Graesser J. observed that both parties, at various times, were compelled by Court Order to produce records, and that on the whole neither party delayed the Action more than the other. Justice Graesser noted that a Formal Offer expires pursuant to the terms set out in the Offer. His Lordship also held that, after including pre-judgment interest, all Offers were exceeded by the award at Trial.

Justice Graesser concluded that the first Formal Offer was a net, “all-inclusive” amount, which included a set-off for Dr. Phan’s Counterclaim, and thus qualified as a Rule 4.29 Offer. His Lordship noted that, alternatively, the Offer would still qualify as a Calderbank Offer which would permit the Court to consider double Costs. Justice Graesser detailed the Costs due to each party for each contested line items, and awarded double Costs to Dr. Jones from the date of his first Formal Offer.

View CanLII Details