Beaubier T.C.J.:
Judgment in this matter was signed on August 24, 1998 allowing the appeal and awarding the Appellant party and party costs. On October 1, 1998 solicitors for the Appellant applied for an extra $300 in costs over and above the party and party tariff. The reasons were stated to be:
Prior to trial, and while in attendance at Court, counsel for the Appellant provided counsel for the Respondent with a handwritten offer of settlement. The terms of this written offer of settlement were that the Respondent would allow the appeal on the basis that the Appellant was not an employee of Fleming Powerline Construction Ltd. during her 1995 taxation year, and each party was to bear their own costs. Counsel for the Respondent, Ms. Deborah Horowitz, refused this handwritten offer of settlement. The Judgment obtained by the Appellant was more favourable than the written offer of settlement.
As this written offer of settlement was a bona fide reflection of the Appellant’s position, the Appellant submits it should be taken into consideration on an award of costs by this Court. (Canadian Imperial Bank of Commerce v. R. (1995), 96 D.T.C. 6175 (Fed. T.D.)).
Counsel for the Respondent disputed this application on the basis that the written offer was delivered as the trial was commencing; that there was no examination for discovery from which the Respondent could base a de- termination of settlement; that as a result time, expense and volume of work were not unnecessarily increased; and that costs as awarded actually resulted in a greater benefit than was proposed by Appellant’s counsel.
Ms. Browatske instituted the Notice of Appeal herself. Her counsel had to prepare for and conduct the hearing.
For settlement purposes, one of the problems inherent in the Informal Procedure is the fact that until the hearing, there is no evidence under oath on which to base a responsible decision. Under the Ontario Small Claims Court provisions, there is an allowance for extra costs if an offer to settle is made more than seven days before the hearing. That period of time would allow the opposing party an opportunity to verify the basis upon which a settlement was proposed. However, an offer made “as the trial was com- mencing” is not in the same category.
There is no doubt that the Appellant’s counsel was of measurable assis- tance to the Appellant in the hearing. However the Informal Procedure, both by its nature - that there is no discovery of documents or parties - and its expeditious intent, mitigates against an award of costs over and above those set out in the tariff in the circumstances described in this case.
The application is dismissed.
Application dismissed.
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