November 24 , 2022

Scope of Offers to Settle

October 13 , 2022

Checklist for Cross-Examination

September 16 , 2022

Reviewing Latest Changes

August 22 , 2022

First Steps in Problem Solving

July 28 , 2022

Checklist of Powerful Procedural Principles

March 22 , 2022

Repeating a Cross-Examination Question

January 25 , 2022

Enforcing Land Sales Becomes Easier

January 5 , 2022

Proving a Settlement After a Mediation

November 16, 2021

Types of Injunctions

October 1, 2021

Orders After Litigation is Over

August 11, 2021

Discoverability for Limitation Periods

August 5 , 2021

Releases of Claims

June 7 , 2021

Language Used Still Matters

May 17 , 2021

Serving Uncooperative People

April 15 , 2021

Death and After-Life of Contingency Agreements

February 22 , 2021

Legal Analysis

February 2 , 2021

Costs Clarified at Last

January 4 , 2021


December 10, 2020

Traps and Confusion in Service Times

November 24, 2020

Don't Cut Corners

October 2 , 2020

Consent Orders

August 4 , 2020

Electronic Hearings

July 21, 2020

Ceasing to Act

June 29, 2020

Writing Skills

June 29, 2020

Keeping Up With the Law

June 22, 2020

Assets as a Test for Security for Costs

June 19, 2020

What is This Case About?

June 11, 2020

Cross-Examining Child Witnesses

May 20 , 2020

Formal Offers

May 13 , 2020

Vexatious or Self-Represented Litigants

January 7, 2020

G.S.T. and Costs

December 20 , 2019

Electronically Navigating the

October 7 , 2019

Questioning is a Bad Word

July 29 , 2019

Dismissal for Delay

May 7 , 2019

Rule 4.31 Fallacies

March 18 , 2019

More Dangers in Oral Fee Agreements

February 11 , 2019

Weir-Jones Decisions

January 9 , 2019

Discouraging Settlements

November 30, 2018

European Court Helps You Twice?

November 23 , 2018

Courts Overruling Tribunals

November 16 , 2018

New Evidence on Appeal

October 30 , 2018

Schedule C's Role

July 17 , 2018

Loopholes in Enforcing Settlements

May 7 , 2018

Enforcement of Procedure Rules

April 16, 2018

Limping Lawsuits are Often

April 3 , 2018

Court of Appeal Tips for
Summary Decisions

March 19, 2018

Serious Dangers in Chambers

February 13 , 2018

Court Backlog

December 18 , 2017

Lowering the Status of Courts

September 15 , 2017

Access to Court Decisions

July 4 , 2017

Strictissimi Juris

June 14 , 2017

Why Don't Your Clients Settle?

June 5 , 2017

Gap in Rules About Parties

June 5, 2017

Personal Costs Against

April 26, 2017

Clogged Courts

April 11, 2017

Dismissal for Want of

January 6, 2017

Incomplete Disclosure

December 15, 2016


November 23, 2016

Is Contract Interpretation Law?


Côté’s Commentaries

© J.E. Côté 2016-2022


A recent Court of Appeal decision clarifies the law on making offers to settle. It confirms the importance of settlement Rules, and encourages their use, which is not new. What may surprise some people, is that it holds that in an appeal, a settlement offer need not be about settling the whole lawsuit.

It has long been clear that a party may make a formal offer to settle an appeal. Fairly often, an appeal is about some procedural topic, not about the final merits of the whole lawsuit. Now the Court of Appeal makes explicit what had long been assumed. That is that a formal offer may be an offer to settle a particular appeal from an interlocutory decision, and so not about the whole lawsuit. See ¶’s 24 to 28 of Mostafa Altalibi P.C. v. Lorne S. Kamelchuk P.C. 2022 ABCA 364 (Nov 15).

That may leave open one question. May there may be a formal offer in the Court of King’s Bench to settle an interlocutory motion? After all, some interlocutory applications are lengthy, expensive, and very important. Some of them pretty well dictate the result of the lawsuit, though in form they are narrower. For example, once a suit is certified as a class action, it is quite common that the suit is settled fairly quickly.

On the one hand, R. 14.59(1) about offers to settle appeals expressly says “to settle the appeal or any part of the appeal”. But the Rules about offers outside appeals do not use the word “part”. On the other hand, R. 4.24(1) does refer to offers to settle “the action or a claim in the action”. And the deadline for making an offer under R. 4.24 counts back from either, the beginning of the trial, the hearing date for a summary judgment application, or “an application ... to be heard or considered”. Nothing says that third alternative deadline has to be substantive, not procedural. Why put that deadline in the Rule if the offer must be to end the whole suit? An ordinary “application” not for summary judgment or summary trial, cannot end a suit.

So could a party offer formally to settle a pending application about discovery or about mode or date of trial?

For that matter, could one formally offer to settle the claim for unjust enrichment, but not the same suit’s claim for breach of trust? Or offer to settle the claim for using the wrong type of cement for the driveway, but not the claim for treble-glazed windows as an extra? Would that meet the words “or a claim in the action” in R. 4.24?

– Hon. J.E. Côté

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at email: or phone 780-424-5345.