Peter M. Quinlan

A costs endorsement following a motion in construction-related litigation involving multiple parties.

The court held that two parties were entitled to independent representation on the motion but found the motion unnecessary because the governing law was clear.

Although the responding parties had a right to bring the dispute before the court, the court emphasized that unsuccessful litigants cannot expect to avoid meaningful cost consequences.

Substantial indemnity costs were declined, and proportionality concerns were considered due to the relatively small claims involved.

Costs were fixed at $5,903.60 for each successful party, payable by the opposing parties in equal shares.

The defendants moved for judgment under Rule 49.09 of the Rules of Civil Procedure based on the plaintiffs’ accepted offer to settle.

The plaintiffs had made a written offer prior to trial that remained open until one minute after the commencement of trial, and the defendants accepted the offer months later after the trial had been adjourned.

The responding parties argued the court should exercise its discretion not to enforce the settlement because significant additional litigation expenses had been incurred after the adjournment.

The court held that discretion to refuse judgment on an accepted offer should be exercised only in rare circumstances and that the facts did not justify departing from the policy favouring enforcement of settlements.

Judgment was therefore granted in accordance with the accepted offer.