Is a plaintiff entitled to substantial indemnity costs for its counterclaim as a result of its rule 49.10 offer?

Ontario, Canada


The following excerpt is from American Axle & Manufacturing Inc. v. Durable Release Coaters Limited et al., 2010 ONSC 4526 (CanLII):

Thus in this case, the plaintiff would be entitled to substantial indemnity costs for its claim as a result of its rule 49.10 offer but not entitled to such an elevated award for the counterclaim because of the principles enunciated in Davies v. Clarington. While some may contend that it is impractical, if not unworkable, for there to be such a distinction, particularly when the offer is made by a party who is both a plaintiff and defendant by counterclaim, it appears driven by the language of the rule and the interpretation of the rule made in Davies v. Clarington.

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