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    Papers on The Settlement Conference and Written Offers to Settle (10/12)
    Posted: 2010-11-11 08:05:39

    By Marcel D. Mongeon

    The following is a passage from an essay by Marcel D. Mongeon, Deputy Judge, Small Claims Court of Ontario. We’ve divided this paper into a series of 12 posts.

    Chapter # 10 -- Formal offers to settle

    The settlement conference is a useful milestone at which to consider the need for making a formal offer to settle by any party. At this point (the settlement conference), the parties should have as much information about the case of the other parties as they are likely to obtain after a trial. In addition, if they were listening properly at the settlement conference, the presiding judge would likely have given the parties some idea of what was likely to happen to the case after a trial. Although this opinion is not binding on the court, the parties should certainly take the view of an experienced judge into account in deciding if they have that much upside opportunity to continue the matter to trial.

    Rule 14 deals with Offers to Settle. The heart of this rule is found at r. 14.07. This is the double costs consequences if a party does not accept an offer and then, at trial, does not obtain a result that is any more favourable than they would have had in the offer.

    This is simple to illustrate from the point of view of the parties.

    Let us begin with a defendant. If the plaintiff offered to settle the case for $9,000 and, after trial, the plaintiff actually obtained $12,000, the court will find that the defendant should have accepted the settlement offer. By not doing so, the defendant may be ordered to pay double costs.

    From the point of view of a plaintiff, let’s say that the defendant offered to settle the case by paying a nominal amount of $250. At trial, the case is actually dismissed. The plaintiff should have taken the offer and since they didn't the double costs rule is invoked.

    The actual form of the written offer can be in Form 14A on the Ontario court forms website. Alternately it can be in any written form.

    If an offer to settle is sent, it is important to both keep an extra copy of it as well as proof of sending. Neither the letter nor the proof of sending is provided to the court until after a trial. The court is very sensitive to not wanting to taint itself with knowledge of a settlement offer until after a trial decision is final. Although the court will normally ask the parties after a trial if there are any settlement offers to consider, if not invited, a party intending to rely on such an offer should bring it to the court's attention.

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