Civil Procedure Rules of Nova Scotia  
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Part 4 - Alternate Resolution or Determination

Rule 10 - Settlement

Scope of Rule 10
10.01 (1) This Rule applies to a settlement of a proceeding or of a claim in a proceeding, and includes both of the following:
   
(a)
a formal way to make an offer that may affect how costs are awarded;
   
(b)
judge-assisted alternative dispute resolution that is voluntary and flexible.
  (2) This Rule does not cover approval of a settlement by a judge, such as that provided for in Rule 36 - Representative Party.
  (3) Nothing in this Rule makes a judge a compellable witness, or diminishes judicial immunity from civil claims.
       
Release-bar and third party beneficiary rules
10.02 (1) A settlement with one party of a claim in a proceeding does not release any other party against whom the claim is made, unless the party making the claim expressly agrees to release the other party.
  (2) An express agreement to release another party may be enforced by that other party, although the other party is not a party to the agreement.
     
Settlement offers and costs
10.03   A judge who determines costs may take into consideration a written offer of settlement made formally under this Rule or otherwise, unless the offer was made at a settlement conference or under an agreement that the offer would not be admissible in relation to costs.
       
Enforcement of settlement agreement or arbitration award
10.04 (1) A party who alleges that, after a proceeding was started, the parties reached agreement for settlement of the proceeding or of a claim in the proceeding may make a motion for an order giving effect to the agreement.
  (2) The judge who hears the motion may do any of the following:
   
(a)
declare that an agreement was, or was not, made and is, or is not, enforceable;
   
(b)
declare the terms of an agreement;
   
(c)
grant an order enforcing an agreement according to its terms;
   
(d)
order a trial under Rule 4 - Action or a hearing under Rule 5 - Application and give directions about the issues to be determined.
  (3) A motion under this Rule 10.04 in which it is alleged that an agreement was made in the presence of a settlement conference judge must be heard by the settlement conference judge, unless the judge directs otherwise.
  (4) The settlement conference judge may take into account the judge’s own knowledge of what took place at the conference, as well as the evidence presented by the parties.
  (5) A judge may grant an order enforcing a mediated agreement or an arbitration award disposing of a claim in a proceeding, if both of the following apply:
   
(a)
after the proceeding was started, the parties agreed to submit the claim to mediation or arbitration;
   
(b)
either the mediated agreement or the award disposes of all claims in the proceeding or the claim is severed under Rule 37 - Consolidation and Separation and the award or mediated agreement disposes of the claim.
       
Formal offer to settle an action
10.05 (1) A party who makes a formal offer to settle under this Rule 10.05 may take advantage of the applicable provisions for costs in Rules 10.08 and 10.09.
  (2) A party may make a formal offer to settle an action, or a counterclaim, crossclaim or third party claim in an action, by delivering an offer to settle.
  (3) A formal offer to settle must contain the standard heading of the action, be entitled in one of the following ways, and be dated and signed:
   
(a)
“Offer to Settle by Claimant (Monetary)”, if it offers to settle entirely on the basis that money is paid to the party who makes the offer;
   
(b)
“Offer to Settle by Claimant (Non-monetary)”, if it offers to settle on terms that include a requirement the other party do, or refrain from doing, something in satisfaction of a non-monetary claim;
   
(c)
“Offer to Settle by Person Claimed Against (Monetary)”, if it offers to settle entirely on the basis that money is paid to the other party by the party who makes the offer;
   
(d)
“Offer to Settle by Person Claimed Against (Non-monetary)”, if it offers to settle on terms that require the party making the offer to do, or refrain from doing, something in satisfaction of a non-monetary claim made by the other party.
  (4) The offer must include terms that would settle all claims in the proceeding between the party making the offer and the party to whom it is made, and the term that would settle costs must provide for one of the following:
   
(a)
payment on acceptance of an amount stated in the offer;
   
(b)
payment of an amount for costs to be determined by a judge;
   
(c)
an option for the other party to choose between a stated amount for costs or determination by a judge.
  (5) The offer must also contain both of the following terms:
   
(a)
it is open for acceptance until it is withdrawn or the trial begins;
   
(b)
it may be accepted only by delivery of a written acceptance to the party making the offer.
       
Withdrawal or expiry of formal offer to settle
10.06 (1) A party who makes a formal offer to settle may withdraw the offer at any time by delivering to the other party a written withdrawal.
  (2) A formal offer to settle remains open for acceptance although the other party makes an offer to settle on other terms.
       
Remedy for breach
10.07 (1) A party to a settlement agreement that results from a formal offer to settle may do either of the following in response to a breach by the other party:
   
(a)
move for judgment for damages, or any other remedy arising from the breach of the settlement agreement;
   
(b)
require that the action continue as if there had been no settlement agreement.
  (2) The party not in breach of the agreement may also recover judgment against the party in breach for the expenses of attempting to perform the agreement and seeking performance.
       
Determining costs if formal offer accepted
10.08 (1) A judge who determines costs under an accepted formal offer to settle that was delivered by a party who started a proceeding must award costs to that party, unless an injustice would result.
  (2) A judge who determines costs under an accepted formal offer to settle that was delivered by a party against whom the proceeding was started must award to the following party the following costs, unless an injustice would result:
   
(a)
to the party who started the proceeding, recoverable disbursements incurred and a contribution towards the expense of the proceeding until the offer was delivered;
   
(b)
to the party who made the offer, recoverable disbursements incurred and a contribution towards the expense of the proceeding between the delivery of the offer and the delivery of the acceptance.
       
Determining costs if formal offer not accepted
10.09 (1) A party obtains a “favourable judgment” when each of the following have occurred:
   
(a)
the party delivers a formal offer to settle an action, or a counterclaim, crossclaim, or third party claim, at least one week before a trial;
   
(b)
the offer is not withdrawn or accepted;
   
(c)
a judgment is given providing the other party with a result no better than that party would have received by accepting the offer.
  (2) A judge may award costs to a party who starts or who successfully defends a proceeding and obtains a favourable judgment, in an amount based on the tariffs increased by one of the following percentages:
   
(a)
one hundred percent, if the offer is made less than twenty-five days after pleadings close;
   
(b)
seventy-five percent, if the offer is made more than twenty-five days after pleadings close and before setting down;
   
(c)
fifty percent, if the offer is made after setting down and before the finish date;
   
(d)
twenty-five percent, if the offer is made after the finish date.
  (3) A judge may award costs in one of the following amounts to a party who defends a proceeding, does not fully succeed, and obtains a favourable judgment:
   
(a)
the amount that the tariffs would provide had the party been successful, if the offer is made less than twenty-five days after pleadings close;
   
(b)
seventy-five percent of that amount, if the offer is made more than twentyfive days after pleadings close and before setting down;
   
(c)
sixty percent of that amount, if the offer is made after setting down and before the finish date;
   
(d)
nothing, if the offer is made after the finish date.
       
Formal offer of contribution
10.10 (1) A party may deliver a formal offer of contribution in an action, or on a counterclaim, crossclaim, or third party claim in an action.
  (2) A formal offer of contribution must refer to this Rule 10.10.
  (3) A judge may take a formal offer of contribution into account when determining costs.
       
Settlement conference
10.11 (1) A settlement conference may be organized at any stage of a proceeding, if the party making a claim and the party against whom the claim is made agree to participate.
  (2) The court may provide either of the following kinds of settlement conference:
   
(a)
an ordinary settlement conference, at which the parties may request a judge to express opinions on the issues in dispute after reading excerpts from discoveries, other documentary evidence, and briefs and hearing submissions;
   
(b)
a trial-like settlement conference, at which the parties request a judge to express opinions after hearing some witnesses being questioned in addition to reading materials and hearing submissions.
       
Procedures for settlement conference generally
10.12 (1) A judge may adopt any procedure for a settlement conference, and the adopted procedure prevails over procedures provided by this Rule 10.
  (2) A party may propose a procedure for a settlement conference in any of the following ways:
   
(a)
at the conference for scheduling the settlement conference;
   
(b)
at an organizing conference requested by a party or required by the settlement conference judge;
   
(c)
by correspondence with the settlement conference judge, if all parties agree to the proposed procedure;
   
(d)
at a conference called to organize a trial-like settlement conference;
   
(e)
at the settlement conference.
  (3) A party who participates in a settlement conference must do each of the following:
   
(a)
submit a brief, book of authorities, and book of evidence on time;
   
(b)
prepare adequately for the conference;
   
(c)
disclose the party’s case or defence in written submissions and discussions;
   
(d)
attend the conference personally if the party is an individual or, if the party is an individual who cannot attend or a corporation, authorize an agent to bind the party to terms of settlement;
   
(e)
if the party authorizes an agent, arrange for the agent to attend the conference or, if the settlement conference judge permits, to be in communication with counsel and able to authorize counsel to bind the party to terms of settlement.
  (4) A judge may order a party who participates in a settlement conference and does not comply with Rule 10.12(3) and, as a result, causes the settlement conference to be cancelled, to indemnify another party for the expenses of the conference.
  (5) A judge may order a party who cancels a settlement conference after another party incurs expenses for the conference to indemnify the party for the expenses.
       
Ordinary settlement conference
10.13 (1) Each party who participates in an ordinary settlement conference must submit all of the following to the settlement conference judge at least five days before the conference, unless the judge directs otherwise:
   
(a)
a brief that complies with Rule 40 - Brief, and this Rule 10.13;
   
(b)
a book of authorities that complies with Rule 40 - Brief;
   
(c)
a book of evidence containing excerpts from discovery examinations, documentary productions, plans and expert’s reports only to the extent necessary for the party to make whatever points the party wishes to make at the settlement conference.
  (2) A brief must include the party’s position on the issues to be decided and on any proposals for settlement that have been made.
  (3) The book of evidence must conform with all of the following standards:
   
(a)
reproduction must be as legible as possible;
   
(b)
the book must contain an index that describes each document and refers to its tab or page number;
   
(c)
the material must be edited to ensure the judge reads evidence essential to the points being made, and no more.
  (4) The following agenda applies at an ordinary settlement conference, unless the parties agree or the settlement conference judge directs otherwise:
   
(a)
meet in a conference room or courtroom, not on record and not open to the public;
   
(b)
each party refers to any further evidence in response to the other party’s book of evidence;
   
(c)
each party gives concise submissions on the issues in dispute and the party’s position on settlement;
   
(d)
the judge has the opportunity to ask questions and may require an adjournment to reflect on the submissions;
   
(e)
the judge meets with the parties or counsel, together or in caucus;
   
(f)
at an appropriate time, the judge expresses opinions on the issues in dispute or explains why the judge is unable to formulate an opinion.
       
Trial-like settlement conference
10.14 (1) Unless the judge directs otherwise, each party who participates in a trial-like settlement conference must, at least fourteen days before the conference, submit to the settlement conference judge the same materials required for an ordinary settlement conference and the brief must include all of the following additional information:
   
(a)
a list of witnesses the party would call at trial;
   
(b)
a concise summary of the testimony each is expected to give at trial;
   
(c)
the name of any person the party intends to produce for questioning at the conference;
   
(d)
a proposal for limits on the time to be allotted for questioning.
  (2) The settlement conference judge may convene a conference to organize a trial-like settlement conference.
  (3) The parties may agree on, or the judge at an organizing conference may direct, any procedure for a trial-like settlement conference, including any of the following:
   
(a)
the time allotted for questioning;
   
(b)
a will-say statement, instead of direct questioning;
   
(c)
limits on subjects for questioning.
  (4) The following agenda applies at a trial-like settlement conference, unless the parties agree, or the judge directs, otherwise:
   
(a)
meet in a courtroom, not on record and not open to the public;
   
(b)
the judge deals with any preliminary issues;
   
(c)
the parties briefly describe the evidence each would present at trial;
   
(d)
persons are questioned, without oath or affirmation, by the party presenting them, then the other party;
   
(e)
each party gives concise submissions;
   
(f)
the judge has the opportunity to ask questions and may require an adjournment to reflect on the submissions;
   
(g)
the judge meets with the parties or counsel, together or in caucus;
   
(h)
at an appropriate time, the judge expresses opinions on the issues in dispute, or explains why the judge is unable to formulate an opinion.
  (5) The questioning of a person at a trial-like settlement conference is only for the settlement conference judge to better assess the chances a party’s position will be accepted.
       
Record of settlement
10.15   A judge who conducts a settlement conference at which the parties reach agreement must do all of the following, as soon as possible:
   
(a)
cause the provisions of the agreement to be recorded in writing or electronically;
   
(b)
assign responsibility to prepare an order that gives effect to the agreement;
   
(c)
advise the prothonotary of the affect the agreement may have on requirements for trial or hearing dates.
       
Confidentiality
10.16 (1) The privilege attached to settlement discussions applies to all written and oral communications between a party and the judge who conducts a settlement conference and between the parties themselves in connection with or at the settlement conference.
  (2) A judge who conducts a settlement conference may cause all or part of the conference to be recorded.
  (3) A recording of a settlement conference is not part of the public court record and it must be kept confidential by the prothonotary on behalf of the settlement conference judge.
  (4) Documents or correspondence for a settlement conference must not be filed with the records of the proceeding, or shown to anyone not involved in the conference.
  (5) The settlement conference judge must keep custody of the documents and correspondence and destroy them, or return them to the parties, when the judge no longer requires them.
  (6) The prothonotary need not keep correspondence to schedule a settlement conference confidential or the fact that the conference is scheduled, unless a confidentiality order under Rule 85 - Access to Court Records provide otherwise.
       

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