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Digest of the Week | Judicial discretion on costs is not unlimited

A recent decision from the Ontario Court of Appeal considers judicial discretion on costs where a settlement offer is not accepted


Barresi v. Jones Lang Lasalle Real Estate Services Inc.

2019 ONCA 884 

Costs – Offers to settle or payments into court – Offers to settle – Discretion of court –In this  Ontario Court of Appeal decision, court considered whether a real estate investment management company repudiated its contract with plaintiff – The plaintiff was recruited from a competitor to lead its Ottawa office – Plaintiff was later told that his office’s transactions would be limited - Trial judge found that the limitations undermined plaintiff's reason for joining the company – An offer to settle was made before the trial and remained open, but the case went to a five-day trial – Lower court found that r. 49.10(1) of the Rules of Civil Procedure applied – Trial judge did not apply r. 49.10(1) – Court of Appeal found that there was “no basis for the trial judge to depart” from the presumption in r. 49.10(1) stating that the discretion to depart from the presumption as to costs in r. 49.10(1) is not unfettered and must be exercised in accordance with the purpose of the rule. 

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