In Kosteckyj v Paramount Resources Ltd, (2021 ABQB 225) Justice Sidnell had this to say about a defendant’s Statement of Defence which plead that the Plaintiff wrongfully turned down their reasonable offer to settle :
[10] Disclosing a settlement offer in a pleading undermines judicial impartially and can encroach on the fair and just system of judicial determination that we rely upon. While it may be appropriate to raise the existence of a settlement offer after a decision has been made, and in the context of the costs to be awarded, it cannot be disclosed in the pleadings or else where in the litigation before a decision has been rendered. When the defendant intentionally discloses it rebuffed settlement offer, it must be presumed that the defendant proposes an inference that the plaintiff, in not accepting the settlement offer, did not act reasonably. This type of inference has no place in our adversarial system.
[11] After termination of employment, an employee is not required to accept an employer’s settlement offer to mitigate the employee’s damages when that offer requires a release of the claim against the employee, as it did in this case. A defendant cannot argue that a rejection of a settlement offer was unreasonable until after the court makes its determination as to what are reasonable damages in lieu of notice. That is why, in relation to formal offers to settle, Rule 4.2 is clear that the formal offer to settle is to be “to be kept confidential and not disclosed to the Court” until accepted or “the remedy for the claim has been decided”.
[12] It is important for the proper functioning of our independent and impartial legal system to maintain the confidentiality of all settlement offers in litigation until the merits of the case are determined. Disclosing a rejected settlement offer may be appropriate on an application for costs.
Indeed, Rule 10.33(2)(h) contemplates that the court may consider “any offer of settlement made”, regardless of whether or not the offer of settlement is a formal offer of settlement under the Alberta Rules of Court. Disclosing a settlement agreed to may also be appropriate where a party seeks to enforce the terms of that agreement or relies on other exceptions to settlement privilege: Bellatrix Exploration Ltd v Penn West Petroleum Ltd, 2013 ABCA 10, para 29.
My Comments:
This restatement of a basic principle is welcomed. The Courts’ job is to assess what the reasonable notice period is , not whether the employer or the employee made reasonable offers. Similarly their is a line of “Ballpark Justice ” cases from long ago that also stated the Courts job is to assess the proper notice period , not whether the notice provided by the Employer was reasonable .
This often arises in my mediations when I have to explain to a defendant that the only thing a Court will see is that you only paid the ESA minimums and not that you offered 18 months if the Plaintiff signed a release. If the Employer wants to get credit for their reasonable offer, then they must unilaterally pay out that amount without the requirement of a release. If this is done upfront, then any Plaintiff’s lawyer who is on a contingency fee will think twice before taking on a case with little uphill potential .
If you wish a copy of this case, contact me at barryfisher@rogers.com