Offers to Settle (SCSM) - Re: Defendant Wins

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-07-05
CLNP Page ID:	2035
Page Categories:	[Small Claims Court Procedures]
Citation:	Offers to Settle (SCSM) - Re: Defendant Wins, CLNP 2035, <>, retrieved on 2024-07-05
Editor:	Sharvey
Last Updated:	2022/12/30

O. Reg. 258/98: RULES OF THE SMALL CLAIMS COURT

14.05 (1) An offer to settle may be accepted by serving an acceptance of an offer to settle on the party who made it, at any time before it is withdrawn or before the court disposes of the claim in respect of which it is made. O. Reg. 78/06, s. 30.

(2) An offer by a plaintiff to settle a claim in return for the payment of money by a defendant may include a term that the defendant pay the money into court; in that case, the defendant may accept the offer only by paying the money into court and notifying the plaintiff of the payment. O. Reg. 258/98, r. 14.05 (2).

(3) If a defendant offers to pay money to a plaintiff in settlement of a claim, the plaintiff may accept the offer with the condition that the defendant pay the money into court; if the offer is so accepted and the defendant fails to pay the money into court, the plaintiff may proceed as provided in rule 14.06. O. Reg. 258/98, r. 14.05 (3).

(4) If an accepted offer to settle does not deal with costs, the plaintiff is entitled,

(a) in the case of an offer made by the defendant, to the plaintiff’s disbursements assessed to the date the plaintiff was served with the offer;

(b) in the case of an offer made by the plaintiff, to the plaintiff’s disbursements assessed to the date that the notice of acceptance was served. O. Reg. 258/98, r. 14.05 (4).

14.06 If a party to an accepted offer to settle fails to comply with the terms of the offer, the other party may,

(a) make a motion to the court for judgment in the terms of the accepted offer; or

(b) continue the proceeding as if there had been no offer to settle. O. Reg. 258/98, r. 14.06.

14.07 (1) When a plaintiff makes an offer to settle that is not accepted by the defendant, the court may award the plaintiff an amount not exceeding twice the costs of the action, if the following conditions are met:

1. The plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer.

2. The offer was made at least seven days before the trial.

3. The offer was not withdrawn and did not expire before the trial. O. Reg. 258/98, r. 14.07 (1).

(2) When a defendant makes an offer to settle that is not accepted by the plaintiff, the court may award the defendant an amount not exceeding twice the costs awardable to a successful party, from the date the offer was served, if the following conditions are met:

1. The plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer.

2. The offer was made at least seven days before the trial.

3. The offer was not withdrawn and did not expire before the trial. O. Reg. 258/98, r. 14.07 (2).

(3) If an amount is awarded under subrule (1) or (2) to a self-represented party, the court may also award the party an amount not exceeding $500 as compensation for inconvenience and expense. O. Reg. 78/06, s. 31.

Brander v Backstage Bar and Grill Inc, 2014 CanLII 6613 (ON SCSM)

[12] Section 29 of the Courts of Justice Act limits an award of costs, other than disbursements, to 15 per cent of the amount claimed “unless the court considers it necessary in the interests of judgment to penalize a party or the party’s representative for unreasonable behavior in the proceeding.” Rule 19 of the Rules Of The Small Claims Court provides for awarding a successful party reasonable broadly-defined “disbursements”, reasonable “representation fees” and up to $500.00 “compensation for inconvenience and expense”. The last is for the benefit of only self-represented parties. Rule 19.02 limits the power to award Rule 19 costs to the 15 per cent in section 29 of the Courts of Justice Act. Of course the statute governs the rule in the event of conflict.

[13] On a plain reading of section 29 the limit of 15 per cent can rise to accommodate a penalty for “unreasonable behavior in the proceeding.” That was the view of Winny D.J. in Beatty v. Reitzel (2008) CarswellOnt. 1364, [2008] O.J. No.953. “In the proceeding” has often been held to include pleadings and even the motive for commencing a proceeding.