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  • #16
    I am of the belief that, as both parties feel the other side's Offer to Settle is unreasonable, this motion is necessary due to the inability of both parties to reach a settlement/agreement.

    Would the above statement be allowed in the affidavit/statement of facts presented at motion hearing?

    ....or, is it a no-no to even mention the fact that an Offer to Settle was presented?

    Is it the submission of the actual details of the Order To Settle, at the motion, that violates the rules of the Court?

    Comment


    • #17
      Hi Firhill,

      It is revealing the actual "details" of the offer to settle that matter and violate the rules of the court. In my case, the opposing party quite blatantly attached my entire Offer to Settle as an Exhibit to his affidavit. Even though the "Offer" clearly stated it was being made without prejudice. Meaning it can not be used by either party in their motion/affidavits and should only be placed in an sealed envelope to be read by the Judge after he has rendered the Judgement and is deciding upon costs.

      However, you can make reference to the fact that you have made efforts to try and settle the matter outside of court in your motion.
      Last edited by Nadia; 01-24-2013, 10:43 PM.

      Comment


      • #18
        Thanks Nadia, for clearing that question up for me

        ....and here's wishing you the best at the upcoming motion hearing.

        Comment


        • #19
          Filing the opposing party's Offer is a serious violation of the rules, and may be subject to sanctions, including having the motion struck. While self-represented parties get lots of latitude, this seems a bridge too far to me. As others have noted, you cannot unring a bell.

          Perhaps you can convince the other party to withdraw and refile, under threat of sanction. If the motion has not been heard, it is unlikely that the motion judge has read the filing.

          [I am not a lawyer and do not offer legal advice.]

          Comment


          • #20
            Thank you for sharing "yhm." I was going to ask for an adjournment instead of having the motion struck. I will have to read the rules on this and see whether one can request for a motion to be struck. Perhaps someone else can chime in here and point me to the specific rule related to this?

            Comment


            • #21
              Would this be applicable in your case?...........


              MOTION TO STRIKE OUT DOCUMENT Rule 14(22)

              (22) The court may, on motion, strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process. O. Reg. 114/99, r. 14 (22).

              Comment


              • #22
                Yes, that could be very helpful. I will check with FLIC on Monday. Thanks so much Firhill. I have almost finished writing up a response to the opposing party's motion. Just in case I do not get an adjournment. Best to be prepared for all outcomes.

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                • #23
                  I put in an offer to settle, my ex has a lawyer, i dont, but i didnt put without prejudice on it, does that mean it is not valid and if so what do i do, resubmit it and add it this time??

                  Comment


                  • #24
                    You don't have to say without prejudice, but you must serve it by regular service, in order to be presumptively entitled to costs. An offer (or the existence of an offer) is inadmissible at trial or in any dispositive motion.

                    Comment


                    • #25
                      Um I would have to respectfully disgaree with the previous poster and say yes, you need to make sure you state "without prejudice" otherwise it can be included as evidence.

                      Just re-send with amended "without prejudice" or "strictly on a without prejudice basis" stated very clearly in the first line.

                      Comment


                      • #26
                        Originally posted by Nadia View Post
                        Um I would have to respectfully disgaree with the previous poster and say yes, you need to make sure you state "without prejudice" otherwise it can be included as evidence.

                        Just re-send with amended "without prejudice" or "strictly on a without prejudice basis" stated very clearly in the first line.
                        I am not a lawyer, but I see nothing about "without prejudice" in the family law rules [or in my offers to settle that were drafted by a competent trial lawyer]. Also note rule 18(8).

                        RULE 18: OFFERS TO SETTLE

                        DEFINITION

                        18. (1) In this rule,
                        “offer” means an offer to settle one or more claims in a case, motion, appeal or enforcement, and includes a counter-offer. O. Reg. 114/99, r. 18 (1).
                        APPLICATION

                        (2) This rule applies to an offer made at any time, even before the case is started. O. Reg. 114/99, r. 18 (2).
                        MAKING AN OFFER

                        (3) A party may serve an offer on any other party. O. Reg. 114/99, r. 18 (3).
                        OFFER TO BE SIGNED BY PARTY AND LAWYER

                        (4) An offer shall be signed personally by the party making it and also by the party’s lawyer, if any. O. Reg. 114/99, r. 18 (4).
                        WITHDRAWING AN OFFER

                        (5) A party who made an offer may withdraw it by serving a notice of withdrawal, at any time before the offer is accepted. O. Reg. 114/99, r. 18 (5).
                        TIME-LIMITED OFFER

                        (6) An offer that is not accepted within the time set out in the offer is considered to have been withdrawn. O. Reg. 114/99, r. 18 (6).
                        OFFER EXPIRES WHEN COURT BEGINS TO GIVE DECISION

                        (7) An offer may not be accepted after the court begins to give a decision that disposes of a claim dealt with in the offer. O. Reg. 114/99, r. 18 (7).
                        CONFIDENTIALITY OF OFFER

                        (8) The terms of an offer,
                        (a) shall not be mentioned in any document filed in the continuing record; and
                        (b) shall not be mentioned to the judge hearing the claim dealt with in the offer, until the judge has dealt with all the issues in dispute except costs. O. Reg. 114/99, r. 18 (8).
                        ACCEPTING AN OFFER

                        (9) The only valid way of accepting an offer is by serving an acceptance on the party who made the offer, at any time before,
                        (a) the offer is withdrawn; or
                        (b) the court begins to give a decision that disposes of a claim dealt with in the offer. O. Reg. 114/99, r. 18 (9).
                        OFFER REMAINS OPEN DESPITE REJECTION OR COUNTER-OFFER

                        (10) A party may accept an offer in accordance with subrule (9) even if the party has previously rejected the offer or made a counter-offer. O. Reg. 114/99, r. 18 (10).
                        COSTS NOT DEALT WITH IN OFFER

                        (11) If an accepted offer does not deal with costs, either party is entitled to ask the court for costs. O. Reg. 114/99, r. 18 (11).
                        COURT APPROVAL, OFFER INVOLVING SPECIAL PARTY

                        (12) A special party may make, withdraw and accept an offer, but another party’s acceptance of a special party’s offer and a special party’s acceptance of another party’s offer are not binding on the special party until the court approves. O. Reg. 114/99, r. 18 (12).
                        FAILURE TO CARRY OUT TERMS OF ACCEPTED OFFER

                        (13) If a party to an accepted offer does not carry out the terms of the offer, the other party may,
                        (a) make a motion to turn the parts of the offer within the court’s jurisdiction into an order; or
                        (b) continue the case as if the offer had never been accepted. O. Reg. 114/99, r. 18 (13).
                        COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

                        (14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
                        1. If the offer relates to a motion, it is made at least one day before the motion date.
                        2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
                        3. The offer does not expire and is not withdrawn before the hearing starts.
                        4. The offer is not accepted.
                        5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).
                        COSTS CONSEQUENCES — BURDEN OF PROOF

                        (15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14). O. Reg. 114/99, r. 18 (15).
                        COSTS — DISCRETION OF COURT

                        (16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply. O. Reg. 114/99, r. 18 (16).

                        Comment


                        • #27
                          Thanks for the help guys, I also read the family law rules but Im so nervous because she has a lawyer and i dont want to be stuck paying costs. If I submit a new offer with the without prejudice on it, just to be safe, can she use the old offer in her evidence still??

                          Comment


                          • #28
                            Sorry, you said the offer must be served by regular service, I faxed it to her lawyer, is that ok?? Her lawyer never replies to anything I send so I am not expecting any response but I was allowed to serve other court documents by fax. Is that all I have to do, I dont have to file it with the court right??

                            Comment


                            • #29
                              You have to file an affidavit of service with the court confirming service.

                              To be on the safe side, I would urge you to send another copy via registered or express mail. You will get a tracking number and be able to print off a receipt from the Canada post website regarding delievery. Print out and file that together with affidavit of service. Make sure you keep a copy of everything that is filed.

                              This is what I have done with each and everyone of my Offers To Settle and there have been many. But then again, I have a very difficult opposing party and have to make sure there is absolutely no "wiggle" room to challenge anything I claim I have done.
                              Last edited by Nadia; 01-28-2013, 11:49 AM.

                              Comment


                              • #30
                                Ok but when I file the affidavit of service do I mention that it was an offer to settle that was served?? and do I have to send copy of the affidavit of service to the opposing parties lawyer?? In the rules posted above it says that the offer cannot be mentioned in any documents in the records so wouldnt this be a problem?

                                Comment

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