- Offers to settle tend to accumulate for practical reasons: - Early offers are often made before either side has full information — before discovery, before expert reports, before a…
- When a judge assesses costs after trial, the general approach is to compare the trial result against the offers that were actually outstanding and available for acceptance at relevant…
Litigation rarely stays still. A case that started with one modest settlement offer often ends up with several by the time it actually reaches trial. When that happens, a natural question arises: if both sides made more than one offer to settle over the life of the case, which one does the judge actually use when deciding costs?
The short answer is that Ontario courts generally look at the offer that was open and available closest to trial, but the full picture is more nuanced once you account for withdrawn offers, expired offers, and offers made by both sides at different points.
This guide walks through how courts generally approach multiple offers, so you understand what's actually at stake each time you send — or receive — a new one.
Why Cases End Up With More Than One Offer
Offers to settle tend to accumulate for practical reasons:
- Early offers are often made before either side has full information — before discovery, before expert reports, before a clearer sense of the evidence.
- As a case develops, positions shift. A plaintiff might lower an early ask once weaknesses in the claim surface. A defendant might raise an early offer once liability starts looking harder to avoid.
- Multiple rounds of settlement discussions, mediation, and pretrial conferences each tend to generate fresh formal offers.
None of this is unusual — but each offer sent, and not formally withdrawn, potentially remains part of the record the court can consider at the end of the case.
What the Court Generally Considers
When a judge assesses costs after trial, the general approach is to compare the trial result against the offers that were actually outstanding and available for acceptance at relevant points in the case, not simply the very first offer ever made. In practice:
- An offer later improved upon by the same party is typically superseded by the newer offer for these purposes.
- An offer that was withdrawn, or that expired according to its own terms, generally stops being available for the other side to accept, but the fact that it existed can still matter to how the court views the parties' conduct.
- Where both sides made offers, the court can consider each side's offer separately when apportioning costs, since either side's offer can trigger a costs consequence if the eventual result doesn't improve on it.
Because the analysis is fact-specific and the court retains discretion, there isn't a single mechanical formula — the aim is generally to reward the party whose offer, in hindsight, would have resolved the case efficiently.
A Simple Way to Think About It
| Situation | General effect |
|---|---|
| You made one offer and never changed it | That offer is the benchmark against the trial result |
| You made a lower early offer, then a higher one later | The later, more generous offer is generally what matters most |
| You withdrew an offer before trial | It generally can no longer be accepted, but the history may still be relevant context |
| Both sides made offers at different points | Each side's own relevant offer can be weighed separately |
Practical Tips for Handling Multiple Offers
- Keep every offer in writing, dated, and clearly marked as a formal offer to settle — not buried in casual settlement chatter.
- Track expiry dates. An offer that lapses on its own terms behaves differently than one still technically open at trial.
- Formally withdraw offers you no longer want available, rather than assuming a later offer automatically cancels an earlier one.
- Reassess before trial. As the trial date approaches, review every outstanding offer, yours and theirs, so nothing is forgotten when costs are argued.
- Get advice before sending a new offer if you already have one on the table; a poorly timed second offer can complicate your costs position rather than improve it.
Frequently asked questions
If I made three offers over two years, does the judge look at all of them?
The court can consider the history, but the offer that matters most for costs purposes is generally the one that was open and available closest to the point it would have mattered, not necessarily the first one you ever sent.
Does a withdrawn offer still help me at all?
It can provide useful context about how the litigation developed, but a formally withdrawn offer is generally no longer capable of being accepted or used the same way an outstanding offer would be.
What if the other side never responds to any of my offers?
Silence doesn't cancel an offer's effect. If your offer remains open and the other side simply doesn't respond, its potential costs consequence can still apply if they don't do better at trial.
Can I change my mind and improve my own offer partway through the case?
Yes, and it's common. A later, more generous offer generally supersedes an earlier one from the same party for these purposes, so review your file carefully before trial to confirm which version is actually live.
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