In Rockyview Enterprises v Starline Windows, et al, (1601-03526) Justice Romaine dismissed the Plaintiff's appeal of Master Farrington's decision to summarily dismiss the claims against the Defendants, but refused to award double costs because the formal offer had not been re-served.

Starline Windows manufactured and supplied windows for a condominium project in Calgary. The windows were glazed with an environmentally-friendly protective coating called E-Shield (distributed by Eco Coat). E-Shield protected the windows from debris during the construction process. After construction was completed, the glazing could be removed with the application of a dissolving solution and running water.

Starline supplied the windows for the Project. The general contractor hired Clean Team to clean the windows after construction. Clean Team subcontracted the work to Rockyview. Rockyview had difficulties cleaning the windows, so Starline sent representatives of Eco Coat to the site to show Rockyview how to clean the windows. Despite three separate on-site instructional visits, as well as written instructions, and the provision of instructional videos, Rockyview failed to follow the instructions, electing to use soap instead of the dissolving solution and running water. As a result, Clean Team terminated its subcontract with Rockyview and hired someone else. Clean Team did not pay Rockyview, so Rockyview sued and filed a lien. Clean Team counterclaimed for the amount it had to pay to the other subcontractor (who was able to clean the windows without issue). Rockyview defended the counterclaim and further issued third party claims against Starline and Eco Coat, alleging it was their fault Rockyview could not clean the windows.

Starline and Eco Coat issued formal offers to accept discontinuances of the third party claim on a without costs basis and also applied to have the third party claims summarily dismissed. Rockyview provided no evidence to support its allegations. As a result, Master Farrington dismissed the third party claims against Starline and Eco Coat. Master Farrington also awarded two sets of double costs against Rockyview (one for Starline and one for Eco Coat). Rockyview issued a Notice of Appeal of a master's decision to a justice indicating no new evidence and no new written argument would be relied upon.

Justice Romaine heard the appeal and was convinced Master Farrington's decision was correct. This was especially true since Rockyview had elected to provide no new evidence to support its allegations against Starline or Eco Coat. While Starline and Eco Coat asked for double costs, the case law indicated the formal offers would have had to be re-served after Rockyview's Notice of Appeal was filed in order for double costs to be awarded. Starline and Eco Coat further argued it was not possible for the formal offers to be re-served since they were no longer parties to the action after Master Farrington dismissed the claims against them. However, Justice Romaine indicated the formal offers could still be re-served and should have been after Master Farrington's decision in order for double costs to be awarded.

Accordingly, respondents to an appeal would be wise to re-serve a previous formal offer or serve a new formal offer in order to secure an entitlement to double costs. Without that, the party will only be awarded the party-party costs in the tariff.