Chisholm v. Lindsay, (2013) 560 A.R. 97 (QB)

• Judge: Kenny, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 05, 2013
• Citations: (2013), 560 A.R. 97 (QB);2013 ABQB 157

Chisholm v. Lindsay (2013), 560 A.R. 97 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MR.126

Catherine Chisholm (plaintiff) v. Noreen Lindsay (defendant)

(0701 04015; 2013 ABQB 157)

Indexed As: Chisholm v. Lindsay

Alberta Court of Queen's Bench

Judicial Centre of Calgary

Kenny, J.

March 12, 2013.

Summary:

The plaintiff obtained judgment against the defendant for under $350,000. The defendant had made two settlement offers ($350,000 and $360,000). The first offer was invalid under the Rules (not served 10 days before trial). The second offer (three days before trial) was made "without prejudice" and did not state an intention to use the offer with respect to the issue of costs if not accepted. Accordingly, the second offer was not a valid Calderbank offer. The plaintiff argued that the court could not consider either offer in determining costs.

The Alberta Court of Queen's Bench held that the court had a discretion to consider informal settlement offers (invalid offers under the Rules and non-Calderbank offers) in determining costs.

Evidence - Topic 3626

Documentary evidence - Private documents - Letters or documents written without prejudice - Settlement negotiations - [See Practice - Topic 7241 ].

Practice - Topic 7241

Costs - Party and party costs - Offers to settle - General (incl. what constitutes and validity) - The defendant made two informal offers to settle, neither of which were valid under the Rules (not made within 10 days of trial) nor valid Calderbank offers (did not state an intention to use the offer with respect to the issue of costs if not accepted) - The second offer was also marked "without prejudice" - The plaintiff argued that the court could not consider either offer in determining costs - The Alberta Court of Queen's Bench held that the court had a discretion to consider informal settlement offers (invalid offers under the Rules and non-Calderbank offers) in determining costs - The "without prejudice" privilege as it related to settlement offers expired once the merits of the dispute were settled or judgment was rendered - The court stated that "offers that comply with the Rules have specified cost consequences. Calderbank offers which reference cost consequences within the offer are subject to specific cost consequences. That does not take away from the court's overall discretion to deal with costs. Informal offers to settle, in whatever form, are but one consideration of many that the court may take into account with respect to costs".

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - [See Practice - Topic 7241 ].

Cases Noticed:

Mahe et al. v. Boulianne, [2010] A.R. Uned. 25; 21 Alta. L.R.(5th) 277; 2010 ABCA 74, refd to. [para. 11].

Tomich Estate, Re, [2011] A.R. Uned. 344; 70 E.T.R.(3d) 1; 2011 ABCA 257, refd to. [para. 11].

Leonardis v. Leonardis, [2003] A.R. Uned. 391; 50 Alta. L.R.(4th) 56; 2003 ABQB 577, refd to. [para. 12].

Fullowka et al. v. Pinkerton's of Canada Ltd. et al. (2008), 437 A.R. 390; 433 W.A.C. 390; 2008 NWTCA 9, refd to. [para. 14].

Counsel:

Norma C. Mayer and Morris Warren, for the plaintiff;

Taryn Burnett, Katherine Stys and Derrick Pagenkopf, for the defendant.

This matter was heard on March 5, 2013, before Kenny, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on March 12, 2013.