[
19] In the present case, the defendants did not make any offer that could be characterized as a“near miss”. They made an offer, which if accepted, would have paid the plaintiff $7. This presented the plaintiff with the proposition that, on the eve of trial, she should walk away from her case with no compensation, or proceed through trial. In my view, to impose a rule arbitrarily limiting the amount of costs to some proportion of the recovery when there has been no offer of settlement, or only a nominal offer as in this case, would undermine the purpose of Rule 49, which is to encourage settlement by attaching costs consequences for failure to make or accept reasonable offers. It would also encourage the type of “hard ball” approach to settlement employed in this case.
[25] I respectfully agree with the observations of the judges in these three cases. In the circumstances of the present case, it would be an injustice to the plaintiffs to deprive them of an otherwise appropriate and reasonable award of costs due to a modest recovery at trial, in the face of a $7.00 settlement offer from the defendant.
Disposition
[26] In summary, in considering the defendant’s position on settlement, the relevant factors under Rules 49.13 and 57, including the offers made, the results of the trial and considerations of proportionality, I award the plaintiffs their costs of the action on a partial indemnity basis as follows: fees in the sum of $159,249, HST in the sum of $20,702.48 and disbursements in the sum of $89,347, payable by the defendant within 30 days hereof.
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