In time for Valentine’s Day, I give you my love note to the Offer to Settle.
If you are a family litigator, motions are a part of your everyday practice. Trials are much less common, but still happen (like a crater, it seems, falling smack into the centre of your life smothering everything else for days, or weeks, or months, until the trial ends and your life can begin again. I haven’t done many trials, but I’ve been part of enough to understand that it divides your life into two parts – BT or before trial, and AT or after trial – but I digress…). I try, as a rule, to serve offers before I even begin drafting a notice of motion. If that isn’t possible, I try to serve an offer with the notice or shortly thereafter. I think it’s best practice to serve an offer before you really get into the drafting of the affidavit materials; however, for a multitude of reasons, this isn’t always possible.
Offers can be extremely challenging to draft because of the balance between what your client wants (their very best day in court), what you believe a Judge may order, and what you believe is a reasonable offer that will insulate your client on the issue of costs after the arguments are made. Any offer, however, even the offer you have to pull from your client’s clenched hands (“why do I have to make any offer? They should have just agreed! I don’t want to make any compromise!”) is better than none. Although the timing of the offer is a factor in the determination of costs, all offers will be considered by a Judge hearing a motion or a trial.
The starting point in determining costs is Rule 24 (12) where, among other considerations, at (iii) the court will consider “any written offers to settle including offers that do not meet the requirements of rule 18”. Costs are discretionary and the successful party is generally entitled to their costs, but a written offer, made in the appropriate time, can go a long way in insulating your client or ensuring they recover as much as possible. In the dawn of Beaver v. Hill (2018), which is on the lips of every member of the bench, strong offers to settle speak to reasonableness – specifically set out in Subrule 25 (5) (the other consideration when exercising discretion in awarding costs being proportionality).