In Karolidis v. Orthotic Holdings Inc., Justice Chalmers was assessing costs after the acceptance of a Rule 49 offer which was accepted prior to a summary judgement motion .
In discussing what various offers were made during the course of the litigation, the Judge said the following :
“At the mediation on March 24, 2021, the Defendant made an offer, which was 7.7 months’ notice, which was less than the 12 months’ notice offered at the time of termination. ”
Rule 24.1.14 of the Rules of Civil Procedure reads as follows:
“All communications at a mediation session and the mediator’s notes and records shall be deemed to be without prejudice discussions .”
Questions to ponder;
1. Does Rule 24.1.14 mean that the Judge ought not to have considered any offer made at the mediation ?
2. Or, because the Rule only makes the contents of the mediation into a without prejudice discussion and does not explicitly bar it from being revealed to the Court, the Court can consider the contents of the mediation offer just like it can consider any offers made outside the mediation?
3. If the parties signed a mediation agreement where they agreed to keep the contents of the mediation strictly confidential, would that have made a difference ?
I look forward to your thoughts .
In Pavlov v. The New Zealand and Australian Lamb Company Limited, 2022 ONSC 68, Justice Stewart award the Plaintiff costs of $50,000 plus disbursement but inclusive of HST on account of obtaining an award of $118,305.
The Court made these comments about the respective offers prior to trial:
[6] The Plaintiff made a series of offers to settle prior to trial, each of which was less than that recovered. These offers were made in order to arrive at a compromise to make a trial unnecessary.
[7] The Defendant rejected these offers. Although the Defendant did make counter-offers they were substantially less than the Plaintiff’s compromise position and much less than his recovery at trial.
As this was a Simplified Procedure action the maximum that the Court could award would be $50,000 plus HST plus disbursements.
This case shows the advantage of using the Simplified Procedure and of making meaningful Rule 49 offers to settle.
Conflict Alert: The winning Plaintiff’s lawyer was my son Matthew Fisher, a partner at Lecker & Associates .
If you wish a copy of this case email me at barry@barryfisher.ca