PRACTICE |
Costs |
Sun Construction Co. v. Canada
T-1420-96
2001 FCT 447, Pilon T.O.
9/5/01
20 pp.
Main action arising from contractual dispute over alleged failure of defendant to pay for supplies and services rendered on public wharf--Whether offer made in September 2000 offer to settle as contemplated by r. 420(2)(b); if so, costs consequences of plaintiff's failure to accept offer--Trial began 5 weeks later with offer not having been revoked--Following 5-day trial, plaintiff's claim dismissed with costs--R. 420(2)(b) providing where defendant makes written offer to settle that is not revoked, if plaintiff fails to obtain judgment, defendant entitled to party-and-party costs to date of service of offer and to double such costs, excluding disbursements, from that date to date of judgment--Assessment officers must assess bills of costs as submitted including any provisions under r. 420, unless Court has clearly ordered otherwise--Here, offer to settle not known to Trial Judge and issue not part of Court's record until filing of bill of costs--Defendant's offer to settle, in excess of $8,000, substantial, not nominal--Element of compromise not essential feature of offer to settle but its absence can be relevant factor to be taken into account in ordering otherwise: Canadian Olympic Assn. v. Olymel, Société en commandite (2000), 8 C.P.R. (4th) 429 (F.C.T.D.)--Here, offer very likely contained element of compromise--At time offer made, plaintiff aware of all steps both parties had taken to that point, and should have known that substantial expenses had been incurred by defendant--Moreover, plaintiff responsible to assess expenses and accept risks of any costs consequences resulting from non-revoked offer to settle--R. 420(2)(b) operative and clearly applicable to present action--Clear that, across Canada, imposition of severe and adverse cost consequences seen as necessary in order to encourage making and acceptance of reasonable settlement offers prior to trial: Burton v. Global Benefit Plan Consultants Inc. (1999), 183 Nfld. & P.E.I. 86 (Nfld. S.C.)--Costs of defendant between service of offer to settle and last day of trial will be doubled--Federal Court Rules, 1998, SOR/98-106, r. 420(2)(b).