A recent Court of Appeal decision clarifies the law on making offers to settle. It confirms the importance of settlement Rules, and encourages their use, which is not new. What may surprise some people, is that it holds that in an appeal, a settlement offer need not be about settling the whole lawsuit.
It has long been clear that a party may make a formal offer to settle an appeal. Fairly often, an appeal is about some procedural topic, not about the final merits of the whole lawsuit. Now the Court of Appeal makes explicit what had long been assumed. That is that a formal offer may be an offer to settle a particular appeal from an interlocutory decision, and so not about the whole lawsuit. See ¶’s 24 to 28 of Mostafa Altalibi P.C. v. Lorne S. Kamelchuk P.C. 2022 ABCA 364 (Nov 15).
That may leave open one question. May there may be a formal offer in the Court of King’s Bench to settle an interlocutory motion? After all, some interlocutory applications are lengthy, expensive, and very important. Some of them pretty well dictate the result of the lawsuit, though in form they are narrower. For example, once a suit is certified as a class action, it is quite common that the suit is settled fairly quickly.
On the one hand, R. 14.59(1) about offers to settle appeals expressly says “to settle the appeal or any part of the appeal”. But the Rules about offers outside appeals do not use the word “part”. On the other hand, R. 4.24(1) does refer to offers to settle “the action or a claim in the action”. And the deadline for making an offer under R. 4.24 counts back from either, the beginning of the trial, the hearing date for a summary judgment application, or “an application ... to be heard or considered”. Nothing says that third alternative deadline has to be substantive, not procedural. Why put that deadline in the Rule if the offer must be to end the whole suit? An ordinary “application” not for summary judgment or summary trial, cannot end a suit.
So could a party offer formally to settle a pending application about discovery or about mode or date of trial?
For that matter, could one formally offer to settle the claim for unjust enrichment, but not the same suit’s claim for breach of trust? Or offer to settle the claim for using the wrong type of cement for the driveway, but not the claim for treble-glazed windows as an extra? Would that meet the words “or a claim in the action” in R. 4.24?
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.