“Rodney relies on the decision of Justice Quinn in Riss v. Greenough, 2002 CarswellOnt 1450 where he discussed Subrule 18(4) of the Family Law Rules. He said at paragraph 32 that the requirement to have an offer signed personally by the party making it and also by the party’s lawyer, if any was a straightforward, uncomplicated requirement and was mandatory. He held that the lack of a signature by counsel was sufficient to invalidate the offer and that there was nothing in rule 2 that should be used to resuscitate the offer. In addition, he found that the offer was not capable of enforcement and thus was not an offer under the Family Law Rules.
I prefer Justice Healey’s interpretation of Rule 18(4). In Gogas v. Gogas, 2011 ONSC 5368 she said:
15 The result in Riss arose from a strict interpretation of subrule 18(4), which provides that an offer shall be signed personally by the party making it and also by the party’s lawyer, if any. Quinn J. found that a lack of signature on an offer by a lawyer was sufficient to invalidate the offer. At para. 32 of the judgment he wrote:
…Subrule 18(4) states that “an offer shall be signed personally by the party making it and also by the party’s lawyer, if any”. This is a straightforward, uncomplicated requirement. It also is mandatory. The lack of a signature by counsel is sufficient to invalidate the offer. I do not think that anything in rule 2 should be used to resuscitate the offer and, being invalid, resort cannot be had to subrule 18(16)…
16 Pursuant to subrule 2.01(1)(a) of the Rules of Civil Procedure R.R.O. 1990, Reg. 194, a failure to comply with those rules is an irregularity, does not render a document in a proceeding a nullity, and the court may grant all relief on such terms as are just to secure the just determination of the real matters in dispute. The same wording is not found in Rule 2 of the Family Law Rules. Instead, the court is required to promote the primary objective, which is to deal justly with cases. Dealing with a case justly includes, as set out in subrule 2(3)(a), ensuring that the procedure is fair to all parties. With the greatest of respect to Quinn, J., I find it implicit in this directive that the court should not require strict compliance with a rule where to do so would mean that the case is dealt with unjustly. That would include, in appropriate circumstances, not nullifying a document. (emphasis added)
17 The policy reasons behind subrule 18(4) are unknown; the Rules Committee did not publish discussion papers prior to or after the Family Law Rules came into effect. One can easily speculate that the requirement of a lawyer’s signature was included to ensure that the terms of an offer had received the scrutiny and advice of legal counsel before being extended to the opposing party in order to lessen the likelihood of the offer being ambiguously drafted, reneged or set aside. Where, as in this case, the offer is delivered to the opposing party through the offeror’s lawyer’s office, there can be little doubt that the lawyer has had input into the creation of the offer, has provided advice on the offer, and is aware of it being delivered to the opposing party. The signature of the lawyer adds nothing in such circumstances.”