RULE 18: OFFERS TO SETTLE

DEFINITION

“offer” means an offer to settle one or more claims in a case, motion, appeal or enforcement, and includes a counter-offer. O. Reg. 114/99, r. 18 (1).

APPLICATION

(2) This rule applies to an offer made at any time, even before the case is started. O. Reg. 114/99, r. 18 (2).

MAKING AN OFFER

(3) A party may serve an offer on any other party. O. Reg. 114/99, r. 18 (3).

OFFER TO BE SIGNED BY PARTY AND LAWYER

(4) An offer shall be signed personally by the party making it and also by the party’s lawyer, if any. O. Reg. 114/99, r. 18 (4).

WITHDRAWING AN OFFER

(5) A party who made an offer may withdraw it by serving a notice of withdrawal, at any time before the offer is accepted. O. Reg. 114/99, r. 18 (5).

TIME-LIMITED OFFER

(6) An offer that is not accepted within the time set out in the offer is considered to have been withdrawn. O. Reg. 114/99, r. 18 (6).

OFFER EXPIRES WHEN COURT BEGINS TO GIVE DECISION

(7) An offer may not be accepted after the court begins to give a decision that disposes of a claim dealt with in the offer. O. Reg. 114/99, r. 18 (7).

CONFIDENTIALITY OF OFFER

(8) The terms of an offer,

(a) shall not be mentioned in any document filed in the continuing record; and

(b) shall not be mentioned to the judge hearing the claim dealt with in the offer, until the judge has dealt with all the issues in dispute except costs. O. Reg. 114/99, r. 18 (8).

ACCEPTING AN OFFER

(9) The only valid way of accepting an offer is by serving an acceptance on the party who made the offer, at any time before,

(a) the offer is withdrawn; or

(b) the court begins to give a decision that disposes of a claim dealt with in the offer. O. Reg. 114/99, r. 18 (9).

OFFER REMAINS OPEN DESPITE REJECTION OR COUNTER-OFFER

(10) A party may accept an offer in accordance with subrule (9) even if the party has previously rejected the offer or made a counter-offer. O. Reg. 114/99, r. 18 (10).

COSTS NOT DEALT WITH IN OFFER

(11) If an accepted offer does not deal with costs, either party is entitled to ask the court for costs. O. Reg. 114/99, r. 18 (11).

COURT APPROVAL, OFFER INVOLVING SPECIAL PARTY

(12) A special party may make, withdraw and accept an offer, but another party’s acceptance of a special party’s offer and a special party’s acceptance of another party’s offer are not binding on the special party until the court approves. O. Reg. 114/99, r. 18 (12).

FAILURE TO CARRY OUT TERMS OF ACCEPTED OFFER

(13) If a party to an accepted offer does not carry out the terms of the offer, the other party may,

(a) make a motion to turn the parts of the offer within the court’s jurisdiction into an order; or

(b) continue the case as if the offer had never been accepted. O. Reg. 114/99, r. 18 (13).

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.

2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.

3. The offer does not expire and is not withdrawn before the hearing starts.

4. The offer is not accepted.

5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).

COSTS CONSEQUENCES — BURDEN OF PROOF

(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14). O. Reg. 114/99, r. 18 (15).

COSTS — DISCRETION OF COURT

(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply. O. Reg. 114/99, r. 18 (16).