The Importance of Clarity in Making Rule 49 Offers

The law with respect to r. 49 offers is increasingly complicated.  It is important for offers to be clear in order to benefit from the provisions of r. 49.  At the same time, even if an offer does not qualify as a r. 49 offer, it can be taken into consideration when a court is deciding costs.

In Elbakhiet v. Palmer, 2014 ONCA 544 (C.A.), the plaintiffs sought damages of almost $2 million dollars.  After a jury trial, they were awarded $144,013.07.  The plaintiffs made one offer of $600,000 plus costs.  The defendants made two offers, the second of which was $145,000 plus pre-judgment interest in accordance with the Courts of Justice Act plus costs.

One of the issues at the Court of Appeal was whether the defendants obtained a judgment as favourable or less favourable than their offer.  The defendants’ position was that the offer was intended to mean PJI of 5% on the entire offer (which would mean the offer exceeded the judgment).  The trial judge held that it was not clear that there was a uniform practice that 5% would be applied to the entire offer, and different rates of interest could apply to different heads of damages.  She held the defendants had not beat their offer and ordered the defendants to pay costs of almost $580,000.

The Court of Appeal held that there is no evidence of a general understanding that 5% would apply to the entire offer.  At the same time, the trial judge failed to give proper consideration to r. 49.13 which permits the court to exercise discretion and take into account any offers made.  Since the offer to settle was virtually the same as the judgment, the trial judge should have taken r. 49.13 into account.  She erred in failing to do so.

The Court of Appeal held that “it was not fair and reasonable to award the [plaintiffs] costs of almost $580,000 for a claim the jury valued at just under $145,000”.  It allowed the appeal and reduced the costs payable to the plaintiffs to $100,000.