In many cases, we see offers to settle that are open for acceptance until a few minutes after the commencement of the hearing of the matter. They are structured this way so as to trigger the costs consequences under Rule 49.10 of the Ontario Rules of Civil Procedure, if not accepted. Rule 49.10 provides for adverse costs consequences if a favourable offer is not accepted that “is not withdrawn and does not expire before the commencement of the hearing”.
In Re Galeveski, 2012 ONSC 3460, a decision released June 12, 2012, the issue was whether the offer, which was to expire 5 minutes after the commencement of the hearing of the Application to pass accounts, was still open for acceptance. There were several procedural orders made in the proceeding. The court held, however, that the matter was not actually “heard” on any of the preliminary dates as the application was never dealt with on its merits, and no judge was seized of the matter.
The court noted that in in the context of a trial, it is commonly understood that the trial commences when evidence begins to be heard. In some cases, it has been held that the trial commences when the judge is present and prepared to hear the matter on its merits.
In Re Galeveski, the offer was held to be open for acceptance. The court went on to consider whether the offer should be enforced. Although the court has discretion whether to enforce a settlement or not, the court concluded that the settlement should be enforced.
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