Talk:Offers to Settle (SCSM) - Re: Defendant Wins

"There is some controversy about the interplay of CJA s. 29 and r. 14.07. some courts consider failure to accept a settlement offer which is then exceeded at trial to be an example of 'unreasonable behaviour in the proceeding" permitting the costs otherwise determined. But the 15% is a ceiling, not a tariff, and does not obviate the determination of a reasonable representation fee n the circumstances of each case. The statutory provision and the rule must be dealt with in order, always keeping in mind that the statute limits the rule. First, the court must determine the costs exclusive of disbursements, which largely means determining a reasonable representation fee. If the conditions of r. 14.07(1) or (2) are met, the court must then determine by how much to increase that reasonable representation fee, within a range of 0% and 100%. The court must take into account what an unsuccessful party should reasonably expect to pay for his day in court considering the length and complexity of the case and the amount in issue. This amount is universally acknowledged, especially in the Small claims Court, to be much less than the actual costs of the successful party in most cases. At the second stage, the reasonable expectations of the unsuccessful party take on far less significance because of its conduct in failing to accept a reasonable settlement offer."

The Honourable Mr. Justice Todd L. Archibald and The Honourable Madam Justice P. Tamara Sugunasiri, Ontario Superior court Practice, Annotated Small Claims Court Rules and Related Materials, 2022 Edition (Toronto: LexisNexis Canada Inc., September 2021), Page 69