LEE v BOYD, 2015 ABQB 426


4.29: Costs consequences of formal offer to settle
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

Master Schulz considered the quantum of a Costs award following a successful strike motion by the Defendants, and whether a Formal Offer was genuine in the circumstances.

Master Schulz noted that Rule 4.29 is similar to its predecessor Rule and applied the decisions of Tonizzo v Moysa, 2007 ABQB 370 (CanLII) and Allen (Next Friend of) v Mueller, 2006 ABCA 101 (CanLII), noting that a Formal Offer must be “reasonable and realistic” in all of the circumstances at the time it was served. Master Schulz went on to note that the Formal Offer was provided after the Notice of Application to strike had been served and the cross-examinations on the Affidavit in support of the Application completed. In the circumstances, the Formal Offer was found to be a genuine attempt at compromise.

Master Schulz also considered whether there had been inordinate delay in filing the strike motion that might disentitle the Defendants from Costs. Master Schulz noted that some professional courtesies had been extended by both counsel to deliver various items and these delays could not now be used against the Applicants. The Defendants were not deprived of their Costs simply because of delay.

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