ALERINA RING PETITIONER - v. -, 2023 SKKB 212

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 212 Date: 20 23 10 11 Docket: DIV-RG-00455-2019 Judicial Centre: Regina, Family Law Division BETWEEN: ALERINA RING PETITIONER - and - RONALD RING RESPONDENT CORRECTED JUDGMENT: The text of the original judgment has been changed per the corrigendum released October 12, 2023. (A copy of the corrigendum is appended to this corrected judgment.) Counsel: Deidre Brandt for the petitioner Gulzaib Fida for the respondent FIAT BROWN J.

OCTOBER 11, 2023 INTRODUCTION [ 1 ] Ronald applies for an order of double costs against Alerina regarding the trial he successfully defended. Alerina opposes his application arguing he has not met the criteria to seek double costs. [ 2 ] For the reasons that follow, I have concluded that the application to assess double costs is not properly made in the circumstances of this matter. The offer made by Ronald does not meet the requirements set by The Queen’s Bench Rules to be a formal offer so as to make the double costs order available to Ronald pursuant to The Queen’s Bench Rules .

In any event, even if it were, I would not order double costs in the result. ISSUES 1. Are double costs available pursuant to the Rules in the circumstances of this matter? 2. Should double costs be awarded to Ronald if they are available? DISCUSSION

[ 3 ] It is common ground that in advance of the trial in this matter, which proceeded on March 27-29, 2023, an offer to settle was served by Ronald on Alerina. It was served on March 16, 2023 at 4:23 p.m. on Alerina’s counsel. By its terms the offer was open to acceptance until 4:00 p.m. on March 24, 2023. It was not accepted. Ronald was ultimately primarily successful at trial with Alerina’s claim being dismissed. [ 4 ] The issue is governed by the

interpretation and application of The Queen’s Bench Rules . Given the matter is a family law proceeding, Rule 15-96 of The Queen’s Bench Rules is of application: Costs 15-96(1) Costs are in the discretion of the Court and, except as modified by this rule, the following provisions apply to the costs of a family law proceeding: (

a) Part 4, Division 4; (

b) Part 11.

(2) Subject to subrule (3), there is a presumption that a successful party is entitled to the costs of a family law proceeding or a step in a family law proceeding.

(3) A successful party who has behaved unreasonably or has acted in bad faith during a family law proceeding may be: (

a) deprived of all or part of the party’s own costs; or (

b) ordered to pay all or part of the unsuccessful party’s costs.

(4) In deciding whether a party has behaved reasonably or unreasonably or in bad faith, the Court may examine: (

a) the party’s behaviour in relation to the nature, importance and urgency of the issues from the time they arose; (

b) any conduct of the party that tended to lengthen unnecessarily the duration of the family law proceeding; (

c) whether any step in the family law proceeding was improper, vexatious or unnecessary; (

d) the party’s denial or refusal to admit anything that should have been admitted; (

e) whether the party made an offer to settle; (

f) the reasonableness of any offer to settle the party made; and (

g) any offer to settle that the party withdrew or failed to accept.

(5) If success in a family law proceeding or a step in a family law proceeding is divided, the Court may apportion costs as appropriate.

(6) The Court may order costs against a party if the party: (

a) fails to appear at a step in the family law proceeding; (

b) appears but is not properly prepared to deal with the issues at that step; or (

c) appears but has failed to make the disclosure required before that step.

(7) After each step in the family law proceeding, the judge who dealt with that step may, in a

summary manner: (

a) decide who, if anyone, is entitled to costs; (

b) set the amount of costs; and (

c) specify a date by which payment must be made.

(8) Offers to settle referred to in this rule do not include offers made during a pre-trial conference but do include: (

a) offers made before the commencement of a family law proceeding; and (

b) offers made pursuant to

Part 4, Division 5 [ 5 ] Rules 11-1 and 11-2 are also on point here and provide: Discretion of Court 11-1

(1) Subject to the express provisions of any enactment and notwithstanding any other rule, the Court has discretion respecting the costs of and incidental to a proceeding or a step in a proceeding, and may make any direction or order respecting costs that it considers appropriate.

(2) In exercising its discretion as to costs, the Court may determine: (

a) by whom costs are to be paid, which may include a successful party; (

b) to whom costs are to be paid; (

c) the amount of costs; (

d) the date by which costs are to be paid; and (

e) the fund or estate or portion of the fund or estate out of which costs are to be paid. 11-2(1) The Court may make a direction or order as to costs at any stage of the proceedings.

(2) Any direction or order as to costs may be made after entry of judgment unless it is inconsistent with the express provisions of the entered judgment. [ 6 ] Rules 4-26 and 4-31 deal with the specific issue raised by Ronald as he submits his offer is a Formal Offer to Settle. Those Rules state: Formal offers to settle 4-26

(1) One party may serve on the party to whom the offer is made a formal offer to settle the action or a claim in the action at any time after a proceeding is commenced, but 10 days or more before: (

a) an application for

summary judgment is scheduled to be heard; (

b) a trial is scheduled to start; or (

c) an application is scheduled to be heard or considered.

(2) To be a valid formal offer, the offer to settle must: (

a) be made within the period described in subrule (1); (

b) be in Form 4-26; and (

c) include the following information: (

i) the name of the party making the offer; (ii) the name of the party or parties to whom the offer is made; (iii) what the offer is and any conditions attached to it; (iv) whether or not the amount of the offer is inclusive of interest and, if not, to what date and at what rate interest is payable under the terms of the offer; (

v) whether or not the amount of the offer is inclusive of costs and, if not, the amount or scale of the costs and the date to which they are payable under the terms of the offer; (vi) the requirements that must be complied with to accept the offer; (vii) a form of acceptance of the offer; and (viii) notice of the costs consequences specified in rule 4-31.

(3) Unless a valid formal offer is withdrawn pursuant to subrule (4), the valid formal offer remains open for acceptance until the earlier of: (

a) the expiry of 30 days after the date of the offer or any longer period specified in the offer; and (

b) the start of the hearing of an application for

summary judgment or the start of the trial, as the case may be.

(4) A valid formal offer may not be withdrawn unless the Court first gives permission for the withdrawal, and the Court shall give that permission only if the Court is satisfied that there are special circumstances that justify withdrawal.

(5) If the Court gives permission for a valid formal offer to be withdrawn, the withdrawal is effective as of the time of service of the notice of application for withdrawal on the party to whom the offer was made. …

Costs consequences of formal offer to settle 4-31(1) Subject to subrule (3), if a plaintiff makes a valid formal offer that is not accepted and subsequently obtains a judgment or orderin the action that is equal to or more favourable to the plaintiff than the formal offer, the plaintiff is entitled to double the costs to whichthe plaintiff would otherwise have been entitled pursuant to rule 11-18 for all steps taken in relation to the action or claim after service ofthe formal offer, excluding disbursements.

(2) Subject to subrule (3), if a defendant makes a valid formal offer that is not accepted and a judgment or order in the action is made thatis equal to or more favourable to the defendant than the formal offer, the defendant is entitled to double costs for all steps taken in theaction in relation to the action or the claim after service of the formal offer.

(3) This rule does not apply: (

a) if costs are awarded pursuant to rule 11-1; (

b) in the case of an offer made with respect to an application for

summary judgment, if the offer is made less than 10 days before thedate scheduled to hear the application for

summary judgment; (

c) in the case of an offer made with respect to any other matter, if the offer is made less than 10 days before the date scheduled for thetrial to start; (

d) if an offer is withdrawn in accordance with subrule 4-26(4); or (

e) if in special circumstances the Court orders that this rule is not to apply. [7] As a starting point, it is clear that a successful party in a family law proceeding should not be denied costs withoutgood reason (see H.(D.) v H. (J.E.), 2002 SKQB 39, 215 Sask R 183). As well, awards of costs in family law matters, as with other matters, are discretionary (see M.L.S. v N.E.D., 2019 SKQB 26, 19 RFL (8th) 316. The Queen’s Bench Rules have specifically come toinclude guidance regarding costs in family law matters which address these issues. [8] K.R. v J.K., 2018 SKCA 35 notes at paras. 95-96: 95.

At one time, it could be said in relation to family law matters that “the practice in this jurisdiction has been to make no order as tocosts in the absence of the exceptional, in the absence that is of some misconduct on the part of one of the parties” (italic emphasis inoriginal, Benson v Benson (1994), (SK CA), 120 Sask R 17 (CA) at para 92, aff’d (1994), (SKCA), 123 Sask R 122 (CA) [Benson]). All this changed in January of 2001 with the repeal and revision of

Part 48 of The Queen’s BenchRules [Rules]. Rule 585(2) of the newly enacted Rules provided that “the general procedure and practice of the Court is to apply tofamily law proceedings unless otherwise provided”. Further, Rule 608(2) created a presumption that the successful party is entitled tocosts. This change prompted Ryan-Froslie J., as she then was, to write, “Costs should no longer be denied a successful party in familylaw proceedings without good reason” (D.H. v J.H., 2002 SKQB 39 at para 8, 215 Sask R 183). 96.

This principle was reinforced by the enactment of The Queen’s Bench Rules, effective July 1, 2013, which now provide detailedrules regarding the payment of costs in family law proceedings. . . [9] In relation to costs in the context of a family law proceeding, George v Penner, 2020 SKQB 99 [George] sets out someprevalent legal concepts at paras. 15-16: 15. Thus while a wide, almost unfettered discretion as to costs has been conferred upon the court, that discretion is not to be exercisedcapriciously. It is a discretion that should be exercised carefully and judiciously.

Departures from the normal principles governing costawards should be relatively rare and should be driven by the particular circumstances of a case. 16. As a rule, costs follow the successful party and the court will usually start its costs analysis from this point. This is set out in Rule15-25(2) but the rule is not absolute. There can be circumstances wherein a departure from this rule is warranted, such as when asignificant cost award would not be in the best interests of children or would wreak financial hardship.

In this regard I have referred toAckerman v Ackerman, 2015 SKQB 113 (particularly paras. 34 to 36), 473 Sask R 219; K.R. v J.K., 2018 SKCA 35 (particularly paras.95 to 99); and Werbicki v Werbicki, 2009 SKQB 373, 342 Sask R 140. [10] The application of the 30 day provision as a requirement was noted at paras. 42, 47 and 48 of George: 42 Assuming the offer was validly served by email on November 16, 2018, the question then turns to whether that day counts as oneof the 30 days an offer must stay open to be valid pursuant to Rule 4-26(3)(a). . . . 47 . . . the offer was only open for 29 days. 48 As a result of the operation of these rules and the application of these authorities, I have concluded the November 6, 2018 offerwas not a “valid formal offer” within the strictly defined meaning of Rules 4-26 and 4-31, thus the double costs provisions have not beentriggered.

(emphasis added) [ 11 ] In relation to double costs, George goes on at para. 49 : 49. . . . I still must decide two things before double costs apply: whether the offer was as good as or better than the judgment obtained; and if I will determine and award costs under Rule 11-1 because if so, then the double costs provisions do not automatically apply. This latter point is in the Rules and was expressly recognized by Justice Scherman in Schneider v McMillan LLP , 2017 SKQB 222 . … 53.

I recognize the underlying purpose of the formal offer rules is to "encourage settlements, avoid unnecessary trials and penalize parties who insist on putting the opposite party through the expense and inconvenience of a trial when a reasonable compromise settlement has been made": Balzer v Federated Co-operatives Ltd. , 2019 SKQB 340 [ Balzer ] per Chief Justice Popescul at para. 14. 54. That being said, the award of double costs remains in the discretion of the judge deciding the matter.

In Balzer , the applicable principles when deciding against an award of double costs were succinctly summarized: 45 The double costs consequences against a party who declines to accept an offer to settle that turns out to be more generous than the judgment are not absolute. Awards of costs are always a matter of judicial discretion. See Deren v SaskPower , 2019 SKQB 242 at para 40 [ Deren ] .

Should all the prerequisites for a double costs award be met, the court, nonetheless has the authority, and the obligation, to decide whether there are "special circumstances" that warrant the non-application of the Rule. … 50 However, the key considerations are not sympathy or ability to pay, but rather whether the plaintiff, who seeks relief from the application of Rule 4-31(2), has established "special circumstances". 51 The term "special circumstances" has been interpreted as "truly exceptional" and would also include offers that are not genuine.

See Labbee v Peters , 2000 ABCA 176 at para 15 , 261 AR 141 ; Blaze Energy Ltd. v Imperial Oil Resources , 2014 ABQB 509 at para 89 ; Allen (Next Friend of) v University Hospitals Board , 2006 ABCA 101 at para 13 , 267 DLR (4th) 244 ; and Union Square Apartments Ltd. v Academy Contractors Inc. , 2017 ABQB 151 at para 13 , 50 Alta LR (6th) 209 [ Union Square ] . 55.

Thus in the particular circumstances of this case I would not exercise my discretion to award double costs. [ 12 ] Knobel v Knobel , 2015 SKQB 67 , 456 Sask R 115 is of some assistance with respect to whether strict adherence to the ten day requirement is indicated. The preliminary question here is whether this offer was in fact a formal offer as recognized by the Rules. Is the Offer One Countenanced by Rule 4-26 Ten Days Before Trial [ 13 ] The question is whether the offer made here is a formal offer as recognized by Rule 4-26 of The Queen’s Bench Rules .

In this particular matter the offer was served on March 16, 2023 at 4:23 p.m. and was stated to remain open until 4:00 p.m. on March 24, 2023, a period of eight days. The trial began on March 27, 2023 at 10:00 a.m. three days after the offer expired. The start of the trial was more than ten days from the time the offer was made. The issue raised by Ronald is whether the terms of the offer itself preclude it from being included in Rule 4-26 as a Formal Offer to Settle. [ 14 ] I proceed on the basis that the offer was made ten days or more in advance of the beginning of the trial.

While an argument was raised by Alerina that the time provisions of the Rules in combination with The Legislation Act, SS 2019, c L-10.2 made the offer less than ten days in advance of the trial, I do not find that technical

interpretation of assistance to her position here. The objective of the Rule is to ensure that sufficient time between the offer and the beginning of the trial is available to both consider the offer and avoid costly preparation for trial if possible, through acceptance of the offer. The ten-day period is an efficiency and economy provision. Its aim is to encourage settlements and avoid unnecessary trials as noted in Balzer v Federated Co-operatives Limited , 2019 SKQB 340 , [2020] 8 WWR 113 [ Balzer ].

[ 15 ] The efficiency and economy objectives are both accomplished through the offer here being made 10 days and 17 hours prior to the start of trial. While the counting of the 17 hours is made unnecessary by the time computation provisions in the Rules, even setting those aside the offer was made 10 days or more prior to the trial starting. [ 16 ] There are terms in the offer, though, which create other issues for Ronald.

An offer which does not specify the amount of time it is left open and is titled “Formal Offer” may be given the benefit of inclusion in the ten-day time period set out in The Queen’s Bench Rules as a formal offer. However, that is not the situation now before the court. When the time periods in the offer itself are stated to run contrary to the time periods set out in Rule 4-26, the Rule is not intended to override the terms of the offer with respect to that time period. [ 17 ] Alerina argues that the

interpretation advanced by Ronald would potentially create prejudice through the receiving party not being aware of the risks associated with such an offer. If an offer states on its face that it was only open for eight days not including a day on which the trial began, but in fact the Rule overrode this, such that it was at law open until the day trial began, the risk associated with the possibility of incurring double costs may well be lost on the recipient. It would not be fair to find the recipient owed double costs when the offer on its face was no longer capable of acceptance.

This example is helpful in demonstrating reasons not to interpret the Rule as overriding the specific terms of an offer such as counsel made in this particular matter. [ 18 ] An offer which specifies a shorter time period for its acceptance than the Rule recognizes will be categorized in accordance with the time period set out in the offer, not the time period identified in the Rule. Simply calling an offer a “formal offer” will not import all aspects of Rule 4-26 regardless of the terms of that offer itself.

The terms of the offer must either specifically accord with the Rule or at the very least not operate contrary to the Rule to have the effect Ronald desires in this situation. [ 19 ] Ronald argues that public access to the Local Registrar’s office at the courthouse was closed from Friday at 4:00 p.m. on March 24, 2023 until the start of trial at 10:00 a.m. on March 27, 2023 and therefore the offer was technically open at the beginning of trial. That argument is not persuasive.

The hours during which the public might access the Local Registrar’s office do not coincide with the critical period by which to measure time here. Work continues in the Local Registrar’s office before 10:00 a.m. and after 4:00 p.m. Law offices are generally still in operation beyond 4:00 p.m. on weekdays. There was also an intervening weekend during which the trial had not yet begun occurring after the offer was stated to no longer be open to acceptance. [ 20 ] The offer here was not a “valid” formal offer within the meaning of Rule 4-26.

To be a valid offer it cannot by its own terms contradict the time periods identified in the Rule. While having no set expiry time or date in the offer may suffice to import timelines identified in the Rule, the best practice is an offer which is stated on its face to specifically comply with the time limits expressed in the Rule such that it is clearly still open to acceptance when the trial begins. [ 21 ] In the same way as the specific terms of the offer will not be overridden by the Rule when the two are in conflict, so too is it the case that this particular offer is not one that complied with the Rule.

It was not still open for acceptance at the beginning of the trial as it had expired by virtue of its own terms. It was therefore not a valid Formal Offer to Settle within the meaning of Rule 4-26. Open for 30 Days [ 22 ] Ronald further argues that the provision in Rule 4-26(3) with respect to an offer remaining open for 30 days is also a provision that affects the terms of his offer. The result, he submits, is that notwithstanding the expiry was set by its own terms to end 8 days after it was made, since it was a “formal offer to settle”, the Rule in fact made it open to acceptance for 30 days.

This position is also dependent on the structure and wording of the requisite Rule. The argument is similar to that made earlier which is that if the offer is described as a formal offer, then it is automatically kept open for 30 days by operation of the Rule. [ 23 ] This argument is similarly unpersuasive. While the language of Rule 4-26(3) in combination with Rule 4-26(1) and (2) could be clearer, the proper

interpretation is that the offer must be made 10 days or more prior to the trial beginning and by its own terms must remain open until the beginning of the trial or 30 days minimum in order to be considered a Formal Offer to Settle within the meaning of the Rule. For similar reasons as set out above respecting the offer being open to acceptance for ten days, so too is this argument unsuccessful. [ 24 ] A time limited offer which is not in compliance with the time periods identified by the Rule is not rewritten by the Rule.

Such an offer will not be transformed such that the terms of the Rule replace the expiry dates set by the offer itself. This applies both with respect to being open for acceptance 10 days prior to and including the beginning of the trial or the 30 days referenced. It is couched in the alternative by the terms of the Rule as “the earlier of” in Rue 4-26(3).

There is no cumulative effect respecting either the beginning of trial or being mandated to remain open for 30 days such that these extend the terms of the offer made in this situation. [ 25 ] In any event, I would not award double costs in this instance even if the

interpretation advanced by Ronald were to govern. Application of the requisite criteria shows why. Are Other Factors Contrary to a Double Costs Award: Criterion of Importance [ 26 ] Even if Ronald’s argument were to succeed and his naming the offer a “formal offer” thereby imports with it the 10 day and/or 30 day time periods set out in the Rules, I would not award double costs. It is still a discretionary decision based on all the circumstances. Balzer is of further assistance: 45 .

The double costs consequences against a party who declines to accept an offer to settle that turns out to be more generous than the judgment are not absolute. Awards of costs are always a matter of judicial discretion. See Deren v SaskPower , 2019 SKQB 242 at para 40 [ Deren ] . Should all the prerequisites for a double costs award be met, the court, nonetheless has the authority, and the obligation, to decide whether there are “special circumstances” that warrant the non-application of the Rule. …

50 . However, the key considerations are not sympathy or ability to pay, but rather whether the plaintiff, who seeks relief from the application of Rule 4-31(2), has established “special circumstances”. 51. The term “special circumstances” has been interpreted as “truly exceptional” and would also include offers that are not genuine.

See Labbee v Peters , 2000 ABCA 176 at para 15 , 261 AR 141 ; Blaze Energy Ltd. v Imperial Oil Resources , 2014 ABQB 509 at para 89 ; Allen (Next Friend of) v University Hospitals Board , 2006 ABCA 101 at para 13 , 267 DLR (4th) 244 ; and Union Square Apartments Ltd. v Academy Contractors Inc. , 2017 ABQB 151 at para 13 , 50 Alta LR (6th) 209 [ Union Square ] . 52 . For an offer to be “genuine”, it cannot be made with the expectation that it would never be accepted by the other party, nor solely to invoke the double costs rule as a no-risk litigation tactic.

Rather, to qualify as a genuine offer, the formal offer to settle must reflect the relative strength of the parties’ positions at the time the offer was made and be reasonable and realistic in the circumstances. See Kerr v Kerr , 2001 ABCA 152 at para 5 , 293 AR 384 , and Union Square at para 15 . Special Circumstances [ 27 ] I do not find that the offer was genuine in the way required to engage double costs considerations here. It was stated to only be open for acceptance for eight days. It was not stated to be open at the time trial started. It was not stated to be open for 30 days.

In such circumstances it cannot be said to be genuine within the meaning of that word here. [ 28 ] If the arguments of Ronald are accepted, then an offering party can attempt to obtain an advantage by being deceptive rather than being clear and obvious with the offer. The true consequences to the party receiving the offer are hidden from them by the terms of the offer itself.

An offer stating on its face to be operating within a very different time period than the Rule, but in actuality surreptitiously having an effective time period different than as stated (due to the operation of law effected by the Rule), takes such an offer out of the category of being “genuine”. [ 29 ] If there were other facts in evidence such as communications through which a recipient was clearly made aware that reliance on the time periods set out by the Rule was in effect and not on the terms set by the offer itself, that might raise other considerations.

If it were shown the recipient of the offer was aware the terms had been supplanted by agreement to apply the timelines set by the Rule, this would be a different situation than what exists here. None of those facts are present in this matter. Double costs are not appropriately awarded in such a scenario. [ 30 ] As there are few indications that counsel advanced the offer believing the Rule would override the specific time period set out therein, I will not say more about the inappropriateness of doing that.

I will assume the argument being made now was late- occurring and not pre-planned at the time the offer was made. CONCLUSION [ 31 ] The offer did not comply with the time requirements of Rule 4-26. It was not stated to be open to acceptance at the time the trial began. It was not stated to be open for 30 days. In fact, the offer specifically operated on its face contrary to the time periods set by Rule 4-26. It was therefore not a formal offer within the meaning of that Rule notwithstanding it was called a formal offer.

I do not find any argument or special circumstances which would interpret the Rule as overriding the wording used in the offer itself. Double costs are not available to Ronald through Rule 4-26 for those reasons. [ 32 ] Even if that conclusion were incorrect, this is not an appropriate situation in which an order for double costs has been made out. An offer stated to be on terms which go contrary to the time periods identified by Rule 4-26 would not be a genuine offer absent some circumstance which provided a reason to conclude otherwise.

The offer made here has no additional ancillary facts on which to rely and therefore does not warrant a double costs award for that reason. [ 33 ] In consideration of the complexities of the issues at trial, the level of complication and effort, the costs are instead to be calculated according to column 1 as set out in the judgment and taxed by the Local Registrar. If the parties are able to agree as to the amounts this would avoid the Local Registrar’s involvement. J. D. J.

BROWN KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 212 Date: 2023 10 11 Docket: DIV-RG-00455-2019 Judicial Centre: Regina, Family Law Division

BETWEEN: ALERINA RING PETITIONER - and - RONALD RING RESPONDENT Counsel: Deidre Brandt for the petitioner Gulzaib Fida for the respondent CORRIGENDUM TO THE FIAT BROWN J. DATED OCTOBER 11, 2023 OCTOBER 12, 2023 [ 34 ] In paragraph 13 of my fiat dated October 11, 2023, the reference to Rule 4-26(3)(

a) should be removed and replaced with Rule 4-26. That paragraph will now read as follows: [13] The question is whether the offer made here is a formal offer as recognized by Rule 4-26 of The Queen’s Bench Rules . In this particular matter the offer was served on March 16, 2023 at 4:23 p.m. and was stated to remain open until 4:00 p.m. on March 24, 2023, a period of eight days. The trial began on March 27, 2023 at 10:00 a.m. three days after the offer expired. The start of the trial was more than ten days from the time the offer was made.

The issue raised by Ronald is whether the terms of the offer itself preclude it from being included in Rule 4-26 as a Formal Offer to Settle. [ 35 ] In paragraphs 31 and 32, the reference to Rule 4-26(3)(

a) should be removed and replaced with Rule 4-26. Those paragraphs will now read as follows: [31] The offer did not comply with the time requirements of Rule 4-26. It was not stated to be open to acceptance at the time the trial began. It was not stated to be open for 30 days. In fact, the offer specifically operated on its face contrary to the time periods set by Rule 4-26. It was therefore not a formal offer within the meaning of that Rule notwithstanding it was called a formal offer.

I do not find any argument or special circumstances which would interpret the Rule as overriding the wording used in the offer itself. Double costs are not available to Ronald through Rule 4-26 for those reasons. [32] Even if that conclusion were incorrect, this is not an appropriate situation in which an order for double costs has been made out. An offer stated to be on terms which go contrary to the time periods identified by Rule 4-26 would not be a genuine offer absent some circumstance which provided a reason to conclude otherwise.

The offer made here has no additional ancillary facts on which to rely and therefore does not warrant a double costs award for that reason. J. D. J. BROWN