Canada: Top 5 Civil Appeals From The Court Of Appeal (November 2015)

 

1. Mehedi v 2057161 Ontario Inc., 2015 ONCA 670 (Cronk, Lauwers and van Rensburg JJ.A.), October 6, 2015

 

The appellant, Golam Mehedi, claimed that the respondents, operating as "Job Success", promised to find him a job that paid $70,000 per year within two months, in exchange for a fee of $3,700. When Job Success failed to secure such employment, Mehedi sued.

 

The trial judge dismissed the case, finding that none of the defendants made any promises or commitments that they did not fulfill and, specifically, that there was never a promise to find Mehedi a job within any specified time frame or at any specified salary range. The Court of Appeal dismissed Mehedi's appeal in January, 2012.

 

Less than a month later, the CBC broadcast an episode of Marketplace entitled "Recruitment Rip-off", in which it exposed "Toronto Pathways", a Toronto recruitment agency which exploited vulnerable, unemployed persons – mainly immigrants newly arrived in Canada – by promising to find them good jobs in exchange for a fee. Using hidden cameras, the program showed the defendant Dale Smith acknowledging that Toronto Pathways and Job Success are the same business. It also revealed company officials explicitly promising to find prospective clients jobs in order to induce them to enter into a contract. The program showed a Marketplace staffer asking the defendant Wendell Lacombe: "So you're basically guaranteeing me that I'm going to get a job?" and Lacombe responding "Absolutely. And we are very good at it." The episode featured numerous individuals making the same claims as Mehedi.

 

At the direction of Juriansz J.A., Mehedi brought a motion before a judge of the Superior Court under Rule 59.06(2)(a) of the Rules of Civil Procedure, R.R.O., 1990, Reg. 194, to adduce fresh evidence and re-open the trial. Mehedi sought to introduce as new evidence the Marketplace broadcast, as well as an article in the Metro newspaper recounting similar statements apparently made by Smith to a reporter posing as a Job Success customer.

 

The motion judge dismissed Mehedi's motion, briefly stating that the new evidence, if allowed, would not reasonably affect the outcome of the trial. Mehedi appealed, invoking both Rule 59.06 of the Rules of Civil Procedure and the Court's inherent jurisdiction.

 

Writing for the Court of Appeal, Lauwers J.A. noted that a motion judge's decision under Rule 59.06(2)(a) is discretionary and attracts considerable deference from a reviewing court. The decision should not be interfered with unless the motion judge erred in principle, misapprehended or failed to consider material evidence, reached an unreasonable decision or if the reasons failed to set out his reasoning process and do not reflect a consideration of the relevant factors. In Lauwers J.A.'s view, this was one such case: the motion judge provided inadequate reasons and erred in applying the test for setting aside an order under rule 59.06(2)(a).

 

The test for re-opening a trial after the judgment or other order has been issued and entered was set out by the Court in Tsaoussis (Litigation Guardian of) v. Baetz (1998), 41 O.R. (3d) 257. In that decision, Doherty J.A. explained that the onus is on the moving party to demonstrate that the new evidence could not have been put forward by the exercise of reasonable diligence at the original proceeding. The Court must evaluate the cogency of the new evidence, any delay in moving to set aside the previous judgment, any difficulty in re-litigating the issues and any prejudice to other parties who may have acted in reliance on the judgment.

 

Lauwers J.A. observed that the motion judge briefly referred to the appropriate test, but found that his reasons for refusing to re-open the trial were inadequate. He failed to describe the proposed new evidence or explain why it failed to meet the test or why it would not "reasonably affect the outcome" of the trial. These failures precluded the Court of Appeal from conducting a meaningful review of the basis for his dismissal of the appellant's motion.

 

Lauwers J.A. concluded that Mehedi met the Baetz test. He held that the proposed new evidence was not available at the time of the first trial or the appeal, that the appellant did not delay in seeking relief and that there would be no prejudice to the respondents if the trial were re-opened. He also found the new evidence cogent: it appeared credible and, if accepted, would likely have affected the result of trial. The new evidence, which showed the respondents making the same or similar promises to others that the appellant alleges were made to him, supported the appellant's claim that the respondents had promised to find him a job at a specified salary and within a specified time, promises which the trial judge had dismissed as "unrealistic and unreasonable".

 

2. Ferri v. Ontario (Attorney General), 2015 ONCA 683 (Cronk, Tulloch and Hourigan JJ.A.), October 8, 2015

 

The appellant, Mario Ferri, is a regional councillor for the City of Vaughn. His son, Steven Ferri, is an associate at the law firm Loopstra Nixon LLP, practising in the areas of municipal, development and land use planning law. Following the adoption of the Vaughan Official Plan 2010 by Vaughan City Council, Antonio Di Benedetto retained Loopstra Nixon to appeal an aspect of the Plan to the Ontario Municipal Board. Steven Ferri works directly on the Di Benedetto Appeal, under the supervision of a partner of Loopstra Nixon.

 

Pursuant to section 3 of the Municipal Conflict of Interest Act, R.S.O. 1990, chapter M.50 ("MCIA"), the pecuniary interest of any parent, spouse or child of a councillor, if known to the councillor, is deemed the pecuniary interest of the councillor. Section 5 of the statute provides that where a councillor has a pecuniary interest, direct or indirect, in any matter that is under consideration at a meeting, that member shall declare his interest and is prohibited from, among other things, discussing or voting in respect of the matter or attempting to influence the vote. Under section 4(k) of the MCIA, however, where the pecuniary interest of the councillor is "so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence" the councillor, section 5 does not apply.

 

The appellant disclosed and declared an interest under section 5 of the MCIA with respect to any matter which he knew that Loopstra Nixon was retained. He also brought an application to determine whether he could participate in council proceedings with respect to the Di Benedetto appeal without breaching the statute.

 

The application judge dismissed his application, holding that Steven Ferri has a pecuniary interest in the Di Benedetto appeal that is neither remote nor insignificant, and that a reasonable elector would likely conclude that the appellant's deemed interest was not "so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member."

 

Mario Ferri appealed, submitting that the application judge erred in dismissing his application by applying an overly broad definition of the term "pecuniary interest" under the MCIA, conflating the analyses required under subsection 3 and 4(k) and disregarding factors relevant to the analysis required under section 4(k).

 

Writing for the Court of Appeal, Hourigan J.A. observed that "pecuniary interest" in not a defined term in the MCIA. The case law establishes, however, that a "pecuniary interest" under the statute is restricted to a financial, monetary or economic one. Hourigan J.A. explained that while what constitutes a pecuniary interest sufficient to trigger the provisions of the MCIA is not to be narrowly confined, it must also not be construed so broadly that it captures "almost any financial or economic interest such that it risks needlessly disqualifying municipal councillors, and others captured under the ambit of the MCIA, from participating in local matters of importance to their constituents."

 

Hourigan J.A. found that it was unnecessary to determine whether the appellant has a pecuniary interest in the Di Benedetto appeal because he conceded on his application that his son has an indirect pecuniary interest in it and, having made this concession, the appellant cannot resile from it on the appeal. Hourigan J.A. held that, in any event, any pecuniary interest is so remote or insignificant that it falls within the exception in section 4(k) and that the appellant is not required to comply with the requirements of section 5.

 

Justice Hourigan agreed with the appellant that the application judge conflated the analyses required under subsection 3 and 4(k), improperly importing his conclusions from his section 3 analysis into his consideration of section 4(k). The analysis of whether a councillor's pecuniary interest is too remote or insignificant to be reasonably regarded as likely to influence that councillor cannot be premised on the notion that, unless proven otherwise, the councillor has the same level of proximity and significance as his child. The section 4(k) analysis must occur separately, focusing on the proximity and significance of the councillor's pecuniary interest in the context of all the circumstances. The application judge erred in his approach to section 4(k) by reading in a rebuttable presumption. Hourigan J.A. held that the application judge further erred in his consideration of the factors relevant to the analysis required under section 4(k), failing to consider all of the relevant circumstances.

 

The test to be applied under section 4(k) asks "[w]ould a reasonable elector, being apprised of all the circumstances, be more likely than not to regard the interest of the councillor as likely to influence that councillor's action and decision on the question?" Considering all of the circumstances established in the evidence, including the appellant's vigilance and conscientiousness in declaring potential conflicts of interest under the MCIA, Hourigan J.A. held that a reasonable elector apprised of all these circumstances would not conclude that the appellant's deemed interest in the Di Benedetto appeal would be likely to influence his participation in debate or voting on the matter before council.

 

3. Curoc Construction Ltd. v Ottawa (City), 2015 ONCA 693 (Gillese, Epstein and Roberts JJ.A.), October 15, 2015

 

The appellant, Curoc Construction Ltd., entered into a contract with the respondent, the City of Ottawa, to remove, refinish and replace vinyl floor in the office areas of City-owned property. Curoc had completed most of the work when it was informed that there was asbestos in the flooring of the construction area. The parties agreed to stop the project and allow an asbestos containment contractor to investigate and coordinate the clean-up of the work site. After a brief work stoppage, Curoc completed remainder of the work.

 

Curoc brought an action against the City, seeking for damages and declaratory relief for alleged breaches by the City of the Ontario Occupational Health and Safety Act, R.S.O. 1990, chapter O.1 ("OHSA"). Curoc claimed that the City knew that asbestos was present at the work site and violated the OHSA by failing to disclose this information. Curoc further argued that as a result of the City's breaches of the OHSA, it failed to take appropriate precautions and its employees were exposed to asbestos.

 

The City moved for summary judgment on the basis that the action was premature, that Curoc had not actually sustained any damages and that declaratory relief was inappropriate. Curoc meanwhile brought a cross-motion for summary judgment on its claims, submitting evidence that it had suffered damages in the form of legal and administrative costs.

 

The motion judge granted the City's motion for summary judgment and dismissed Curoc's cross-motion, finding that Curoc failed to meet its evidentiary burden regarding damages. He declined to make the declarations sought by Curoc due to his concern that they might have an impact on the rights of Curoc's employees, who were not parties to the proceedings.

 

Curoc appealed, submitting that the motion judge made a number of errors. It argued that the motion judge erred by: (i) dealing with the exposure of its employees to asbestos in only a cursory way; (ii) failing to determine whether the City breached the OHSA and, if it did, whether the City is accordingly liable pursuant to section 30(5) of that statute; (iii) failing to find that it had suffered damages, despite its evidence that it had spent time on administrative tasks and incurred legal costs in dealing with the incident at the work site; and (iv) finding that the test for declaratory relief had not been met.

 

Writing for the Court of Appeal, Gillese J.A. considered the first three issues together, noting that each turned on the motion judge's finding that Curoc failed to adduce evidence sufficient to satisfy its burden with respect to loss or damages.

 

Curoc's claim was based on alleged breaches of the OHSA. Gillese J.A. observed that there is no nominate tort of breach of contract in Canada, but noted that the City conceded that section 30(5) of the OHSA creates a statutory cause of action. That provision provides:

 

An owner who fails to comply with this section is liable to the constructor and every contractor and subcontractor who suffers any loss or damages as the result of the subsequent discovery on the project of a designated substance that the owner ought reasonably to have known of but that was not on the list prepared under subsection (1).

 

Assuming, for the purpose of the appeal, that section 30(5) of the OHSA creates a statutory cause of action, Gillese J.A. noted that on a plain reading of the provision, liability is dependent on Curoc suffering "loss or damages" as a result of the subsequent discovery of asbestos. Curoc claimed that it had incurred loss or damages in the form of administrative and legal costs incurred in dealing with the discovery of asbestos at the work site. In Gillese J.A.'s view, the motion judge was correct to reject these claims.

 

Curoc's claim for administrative costs related to the work of its president, who allegedly spent sixty hours attending to various administrative duties arising from the discovery of asbestos at the work site. Gillese J.A. agreed with the motion judge's decision to reject this claim, observing that the evidence proffered was vague and general, and noting that there was no evidence that Curoc compensated its president for these administrative duties, nor was there evidence that the time devoted to these duties caused an actual loss to the company.

 

Curoc's claim for legal costs was based on its retention of legal counsel in order to determine how properly to respond to the discovery of asbestos at the work site. Gillese J.A. agreed with the motion judge that there was no evidence that Curoc's "sample" bill showing fees of more than five thousand dollars was ever paid or even rendered to the company. It was also unclear how much, if any, of the sample bill related to time spent on the litigation.

 

Gillese J.A. emphasized that in responding to the City's motion for summary judgment, Curoc was required to put its best food forward. The motion judge was entitled to assume that the record before him contained all of the evidence which Curoc would present if there were a trial. He did not err in finding that Curoc had failed to meet its burden in respect of loss or damages and, having so found, it was unnecessary that he provide more detailed reasons about the employees' exposure to asbestos, nor was he obliged to determine whether the City had breached the OHSA.

 

Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Regulation 194, provides that summary judgment shall be granted if the court is satisfied that there is no genuine issue requiring a trial. With loss or damages a constituent element of the statutory cause of action under section 30(5) of the OHSA, once the motion judge found that Curoc had failed to discharge its burden on the matter of loss or damages, there was no genuine issue requiring a trial and summary judgment had to be granted.

 

While it acknowledged that declaratory relief is discretionary, Curoc submitted that the motion judge erred in declining to grant its requested declarations, speculating about the possible effects that such relief might have on third parties instead of applying the test for declaratory relief. Curoc argued that the test in Solosky v. the Queen, [1980] 1 S.C.R. 821, was satisfied because the declarations sought would determine the issue of liability between it and the City, constituting a determination of a present right.

 

Gillese J.A. rejected this submission, holding that even if Curoc's employees were exposed to asbestos at the work site, it was not known whether any of them would ever become ill as a result of that exposure and, if they did, whether they would commence legal proceedings. The first factor in Solosky – the utility of the declaration – was not established because the proposed declarations concerned possible future legal proceedings and related to future or hypothetical rights. Further, the motion judge did not err in taking into consideration that the proposed declarations could affect the rights of Curoc's employees who, while identified in the claim, were not parties to the action. Should one of them choose to initiate legal proceedings arising from this incident, any declarations made about it might very well have an impact on their rights.

 

4. Chrisjohn v. Riley, 2015 ONCA 713 (Gillese, van Rensburg and Miller JJ.A.), October 26, 2015

 

The appellants appealed an order refusing to set aside an administrative dismissal of their personal injury action. Through no fault of the appellants and due to the negligence of two sets of counsel, no motion to set aside was brought until more than five years after the action was dismissed, more than eight years after the action was commenced and more than a decade after the accident in which Deborah Chrisjohn was injured. The respondent insurance company, having heard nothing from the appellants or their counsel for almost three years until it received notice of a motion to set aside the dismissal, had assumed that the case was over. In this decision, the Court of Appeal weighed the competing interests of these parties in determining whether the motion judge was wrong to refuse to set aside the dismissal.

 

In August, 2004, an action was commenced by Deborah Chrisjohn's first lawyer, R.N., seeking damages for her injuries, and damages under the Family Law Act, R.S.O. 1990, chapter F.3, for the other appellants, her husband and daughters. R.N. named two insurance companies among the defendants, but pursuant to two orders made in unopposed motions in 2005 and 2006, the action against these insurers was dismissed and the appellants were granted leave to amend the claim to add as defendants the owner of the vehicle Chrisjohn was driving at the time of the collision and the insurer of that vehicle, the respondent, Langdon Insurance Company, with the requirement that the amendment be made within twenty days.

 

R.N. did not take steps to amend the pleading, and the respondent was never added to the action as a defendant. This was the first in a long series of failures on the part of R.N. to advance the action. A status notice was issued in May, 2007, and the action was dismissed by the Registrar's order on August 21, 2007.

 

The appellants eventually terminated their difficult relationship with R.N., retaining A.M. as counsel, but A.M. also failed them, focusing on R.N.'s negligence instead of moving to set aside the administrative dismissal.

 

As the solicitor's negligence fight between R.N. and A.M. raged on, the hapless appellants finally secured counsel who, in April, 2014, brought a motion to set aside the administrative dismissal and to amend the pleading to add the respondent as a defendant. The motion was heard in early 2015 and dismissed.

 

With a delay of more than five years from the date the appellants became aware of the dismissal, the motion to set aside was clearly not brought promptly. The motion judge held that this delay gave rise to a presumption of prejudice which the appellants failed to rebut. Further, he found that there was evidence of actual prejudice, as numerous records relevant to Chrisjohn's pre- and post-accident medical condition and liability were not available and the investigating officer had suffered a stroke. The motion judge also emphasized the "compelling consideration" of finality. Between the administrative dismissal and communications from A.M. to its counsel, the respondent had assumed for almost three years that the case was over. Ultimately, the motion judge held that the interest in finality outweighed the appellants' right to an indulgence.

 

The appellants submitted before the Court of Appeal that the motion judge erred in his consideration of the explanation for the litigation delay by ignoring, or failing to give proper weight to, the uncontroverted evidence that they always intended to proceed with the personal injury action. Writing for the Court, van Rensburg J.A. rejected this submission, noting that the motion judge was well aware that it was the conduct and inaction of the appellants' counsel, and not of the appellants themselves, that led to the administrative dismissal and the failure to move to set aside the dismissal promptly. The motion judge considered the evidence in the appellants' two affidavits that made it clear that they relied on their lawyer's assurances that the action would continue after the administrative dismissal occurred and that it was always their intention to pursue their claim for compensation. Justice van Rensburg held that while the appellants' consistent intention to pursue their claims weighed in favour of setting aside the dismissal, it was not sufficient. The rights of all the parties must be considered to determine ultimately whether it would be fair and just to set aside the dismissal and to allow the action to proceed.

 

Justice van Rensburg similarly rejected the appellants' submission that the motion judge erred in refusing to consider as relevant the prospect that, if the action were not restored, they may be without any real remedy in respect of the serious injuries suffered by Deborah Chrisjohn. She observed that the motion judge did not fail to appreciate the potential consequences to the appellants, but in fact explicitly stated that he declined to take into account whether the appellants had another remedy against either of their former counsel for negligence. In doing so, the motion judge followed the principle established by the Court in Finlay v. Paassen, 2010 ONCA 204, in which Laskin J.A. cautioned against weighing as a factor in such motions the plaintiff's ability to sue her former counsel. The lack of a guaranteed alternative recovery cannot be determinative. The motion judge's decision instead turned on the question of prejudice, or whether the respondent, after such a significant delay and after being under the impression that the action was at an end, would be able to defend the appellants' claims if the action were restored.

 

Justice van Rensburg further rejected the appellants' assertion that the motion judge erred in his assessment of prejudice. As the Court explained in Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887 and in MDM Plastics Ltd. v Vincor International Inc., 2015 ONCA 28, on a motion to set aside a dismissal for delay, the question of prejudice is invariably a key, if not the key consideration, and the relevant prejudice is to the defendant's ability to defend the action that would arise from steps taken following dismissal or which would result from the restoration of the action. The onus is not on the respondent to demonstrate "significant and actual" prejudice, but on the appellants to rebut the inference of prejudice relating to the respondent's ability to defend the action. Justice van Rensburg found that the motion judge correctly concluded that the onus was not met in this case and that actual prejudice relevant to the ability to defend the action on damages and liability had been established. He relied on the extensive evidence put forward by the respondent of actual prejudice to its ability to defend the action. Although the appellants' counsel attempted to address the question of prejudice, the motion judge noted that there were important gaps in the available medical evidence as a result of the passage of time.

 

5. Puri Consulting Limited v Kim Orr Barristers PC, 2015 ONCA 727 (Gillese, van Rensburg and Miller JJ.A.), October 29, 2015

 

This appeal, which turned on the interpretation of an offer to settle, arose from a dispute over an account for services.

 

The respondent law firm retained Professor Poonam Puri though her company, the appellant Puri Consulting Limited, to provide an expert opinion in a class proceeding. Professor Puri delivered her opinion, which was filed in court, and in July, 2012, the appellant rendered an account totalling $53,807.83. When the account remained outstanding after demands for payment, the appellant brought an action for damages. The respondent claimed that the invoiced amount was unreasonable and excessive.

 

In December, 2013, the appellant served a written offer to settle under Rule 49 of the Rules of Civil Procedure, R.R.O., 1990, Regulation 194, which stated:

 

The plaintiff, Puri Consulting Limited, offers to settle this proceeding on the following terms:

 

1. payment by the defendant to the plaintiff in the amount of $50,000, plus HST, in full and complete satisfaction of the plaintiff's claim; and

 

2. this offer will remain open for acceptance until one minute after the beginning of the trial of this action.

 

At the pre-trial conference in May, 2014, the parties disagreed as to the meaning of the offer: while the respondent interpreted the offer as inclusive of costs, the appellant's counsel made it clear that acceptance of the offer would require the respondent to pay costs. Shortly before the trial was set to commence in September, 2014, the respondent accepted the offer and paid $50,000 plus HST, for a total amount of $56,000. The appellant asserted that she was entitled to costs in addition to the amount paid by the respondent and moved under rule 49.09 to enforce the settlement.

 

At issue before the motion judge was whether the offer provided for the disposition of costs. If it did not, then Rule 49.07(5)(b) was engaged, which states:

 

Where an accepted offer to settle does not provide for the disposition of costs, the plaintiff is entitled...

 

(b) Where the offer was made by the plaintiff, to the plaintiff's costs assessed to the date that the notice of acceptance was served.

 

The motion judge held that the meaning of the words "in full and complete satisfaction" in the offer were unambiguous, and that those words provided for the disposition of costs. The appellant sought to rely on discussions that took place at the pre-trial conference which showed the parties' differing positions on the matter of costs. The motion judge refused to consider this evidence, however, holding that it was not in the interest of justice that the Rule 50.09 prohibition against disclosure of statements made in a pre-trial conference be disregarded because there was no suggestion that acceptance of the settlement was based on non-disclosure, duress, fraud or illegality. She further noted that had she considered this evidence, it would not have resolved any ambiguity.

 

The motion judge dismissed the appellant's motion.

 

Writing for the Court of Appeal, van Rensburg J.A. held that the motion judge made a reversible error in taking a literal approach to the offer, focusing only on the words "in full and complete satisfaction" and neglecting the others. As the Court explained in Dumbrell v. The Regional Group of Companies Inc. (2007), 85 O.R. (3d) 616 (C.A.), even where words in a written agreement appear to be unambiguous, the meaning of those words can only be properly ascertained by considering the context in which the agreement was made. In this case, despite her belief that the words "in full and complete satisfaction" were unambiguous, the motion judge ought to have contemplated other words in the offer, such as "claim".

 

Justice van Rensburg noted that the motion judge treated "claim" as synonymous with "action" and did not determine what "claim" the offer intended to settle. Rule 49 provides that a party may offer to settle "any one or more claims in a proceeding", meaning that the word "claim" in an offer to settle cannot be synonymous with "action" or "proceeding". In this case, the appellant claimed damages, interest and costs as separate items. Because the offer to settle referred to the settlement of the appellant's "claim", there was ambiguity as to which one the appellant meant to settle.

 

Justice van Rensburg found that the motion judge further erred in failing to consider the factual matrix when interpreting the agreement. The factual matrix in this case included the Rule 49 context in which the parties were operating, and the timing of the offer and its acceptance in the litigation.

 

As the Court of Appeal held in Rooney (Litigation Guardian of) v. Graham (2001), 53 O.R. (3d) 685, the purpose of Rule 49 is to encourage parties to make reasonable efforts to settle and to facilitate the early settlement of litigation. Rule 49.10, which sets out the costs consequences of a failure to accept an offer that the offeror does better than at trial, means that continuing litigation in the face of a reasonable offer can be risky. While a party may specifically address costs in an offer to settle, Rule 49.07(5) suggests that offers to settle will be made that do not provide for the disposition of costs. This Rule provides an incentive for the defendant to accept an offer promptly, as the later that an offer that does not provide for costs is accepted the greater the costs that will have to be paid.

 

Justice van Rensburg held that the timing of the offer and its acceptance did not favour the respondent's interpretation of the agreement. The respondent would have known that, unless the action settled, the trial would proceed as scheduled and the appellant would have incurred additional legal costs to prepare. As lawyers, they would have appreciated the implications of an offer to settle under Rule 49, and in particular the default provision in Rule 49.07(5).

 

Justice van Rensburg held that it was unnecessary to consider the scope of the prohibition in Rule 50.09 and its application to the case, or to determine whether what was communicated at the pre-trial conference was part of the factual matrix to be considered when interpreting the settlement agreement. The evidence of what occurred at the pre-trial conference was "equivocal at best", and the motion judge was correct in finding that had it been considered, it would only have indicated that the parties disagreed as to whether costs were included in the offer. It would not have clarified the agreement.

 

The Court allowed the appeal, declaring that the offer did not provide for the disposition of costs and that, pursuant to Rule 49.07(5), the appellant was entitled to costs assessed to the date on which the respondent's acceptance of the offer was served.