“There are two schools of thought regarding the role of offers to settle in the determination of success under r. 24. On the one hand, in Lawson v. Lawson, 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (S.C.J.), Justice J. Wilma Scott wrote that any determination of success “…must take into account how that order compares to any settlement offers made”: at para. 7. In Osmar v. Osmar, 2000 CanLII 20380 (ON SC), [2000] O.J. No. 2504 (S.C.J.), at para. 7, Aston J. was even more direct, in stating that:
Offers to settle become the yardstick by which to measure “success” and are significant in considering both liability for costs and the amount of those costs.
On the other hand, in Jackson v. Mayerle, Pazaratz J. considered offers to settle separately from the issue of relative success. His four factors do not include success in comparison to offers to settle. Similarly, Chappel J.’s analysis of divided success in Thompson v. Drummond did not consider offers to settle. Rather, elsewhere in her decision, she describes offers as “[a]nother important consideration in determining both entitlement to and the quantum of costs.”
In my view, offers to settle are imported into r. 24 only about reasonableness and/or proportionality, not success. Further, while those offers need to be in writing, they do not have to meet the formal requirements of r. 18 in order to be considered under r. 24(12).”
Nugent v. Nugent, 2025 ONSC 797 (CanLII) at 16-18