Division 2Division 2 Offer of compromise
(cf SCR Part 72A, rule 11)
This Division applies except so far as is otherwise agreed in writing by the parties to the arbitration agreement.
(cf SCR Part 72A, rule 12)
(1) Unless the parties otherwise request, the arbitrator in any arbitration proceedings:(a) must make an interim award dealing with all questions of liability and the relief to be granted, and(b) must, before making any provision in an award with respect to the costs of the arbitration, give the parties an opportunity to be heard on the question of the costs of the arbitration.(2) Subrule (1) does not apply if an offer has been accepted in accordance with this Division.
(cf SCR Part 72A, rule 13)
(1) An offer of compromise is made to a party under this Division by serving a notice of the offer on the party.(2) A notice of offer must be in writing and bear a statement to the effect that the offer is made in accordance with this Division.
(cf SCR Part 72A, rule 14)
Any party may make to any other party an offer to compromise any claim to which the arbitration agreement applies on the terms specified in the notice of offer.
47.14 Time for making or accepting offer
(cf SCR Part 72A, rule 15)
(1) An offer may be made at any time before the time prescribed by subrule (8) in respect of the claim to which it relates.(2) A party may make more than one offer.(3) An offer may be expressed to be limited as to the time it is open to be accepted but the time expressed must not be less than 28 days after it is made.(4) An offeree must, within 3 days after service, serve a written acknowledgment of receipt on the offeror.(5) An offeree may accept the offer by serving notice of acceptance in writing on the offeror before:(a) the expiration of the time specified in accordance with subrule (3) or, if no time is specified, the expiration of 28 days after the offer is made, or(b) the time prescribed by subrule (8) in respect of the claim to which the offer relates,whichever is sooner.(6) An offer may not be withdrawn during the time it is open to be accepted.(7) An offer is open to be accepted within the period referred to in subrule (5) even if during that period the party to whom the offer (the first offer) is made makes an offer (the second offer) to the party who made the first offer, whether or not the second offer is made in accordance with this Division.(8) The time prescribed for the purposes of subrules (1) and (5) is the time when the arbitrator:(a) has made decisions on all questions of liability and the relief to be granted in respect of the claim to which the offer relates, and(b) has communicated the decisions to one or more of the parties.
(cf SCR Part 72A, rule 16)
An offer providing for the payment of a sum of money, or for the doing of any other act, is, unless the notice of offer otherwise provides, taken to provide for the payment of that sum or the doing of that act within 28 days after acceptance of the offer.
47.16 Withdrawal of acceptance
(cf SCR Part 72A, rule 17)
(1) A party who accepts an offer may, by serving a notice of withdrawal on the offeror, withdraw the acceptance if:(a) the offer provides for payment of a sum of money or the doing of any other act, and(b) the sum is not paid to the offeree, or the act is not done, within 28 days after acceptance of the offer or within such other time as the offer provides.(2) On withdrawal of an acceptance all steps in the arbitration taken in consequence of the acceptance have such effect only as the arbitrator may direct.(3) On withdrawal of an acceptance the arbitrator:(a) may give directions under subrule (2), and(b) may give directions for restoring the parties as nearly as may be to their positions at the time of the acceptance, and(c) may give directions for the further conduct of the arbitration.
(cf SCR Part 72A, rule 18)
An offer made in accordance with this Division is taken to have been made without prejudice, unless the notice of offer otherwise provides.
47.18 Disclosure of offer to arbitrator
(cf SCR Part 72A, rule 19)
(1) No statement of the fact that an offer has been made may be contained in any document delivered to the arbitrator before the time prescribed by subrule (4).(2) If an offer has not been accepted, no communication with respect to the offer may be made to the arbitrator before the time prescribed by subrule (4).(3) Subrules (1) and (2) do not apply if a notice of offer provides that the offer is not made without prejudice.(4) The time prescribed for the purposes of subrules (1) and (2) is the time when the arbitrator:(a) has made decisions on all questions of liability and the relief to be granted in respect of the claim to which the offer relates, and(b) has communicated the decisions to one or more of the parties.
47.19 Failure to comply with accepted offer
(cf SCR Part 72A, rule 20)
If a party to an accepted offer fails to comply with the terms of the offer, then, unless the court otherwise orders, the other party is entitled, as he or she may elect, to:(a) such judgment or order as is appropriate to give effect to the terms of the accepted offer, or(b) if the party in default is the claimant, an order that the arbitration be stayed, or(c) if the party in default is opposing the claim, an order declaring that:(i) the compromise constituted by the acceptance of the offer is of no effect, and(ii) the claimant is at liberty to proceed with the arbitration.
47.20 Costs where offer not accepted
(cf SCR Part 72A, rule 21)
In any exercise of discretion as to costs, the arbitrator must consider whether the offeror was at all material times willing and able to carry out the offeror’s part of what was proposed in the offer.