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Offer to Settle

Hydrastone Inc. v. Clearway Construction Inc. 2015 Ont SCJ

Defendant offered to settle for $75,000 plus interest. Offer was given 8 days before trial. Master awarded $39,000 after trial and assessed the plaintiff’s costs throughout at $33,000. Master awarded all costs to the plaintiff, stating that rule 49.10 did not apply. She felt that the all-in settlement amount rendered the amount vague. The judge overturned that decision. The award of $72,000, even assuming that the plaintiff should receive its costs of trial, was still $3,000 less than the defendant’s offer. The plaintiff was given its costs to the date of the offer and the defendant was given its cost from the date of the offer. Note: the Court of Appeal in Rooney v. Graham (2001) opined that, when comparing an all-in offer plaintiff offer to the actual award, there should be a mini assessment of costs to the date of the offer to determine whether the offer beat the award.

Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.