What is the test for making an offer to settle continuously variable?
Ontario, Canada
The following excerpt is from Animal House Investments Inc. v. Lisgar Development Ltd., 2009 CanLII 57553 (ON SC):
The Defendant also relies upon Ypremian v. Weisz (1993), 1993 CanLII 5483 (ON SC), 16 O.R. (3d) 121. In that case the offer to settle, if not accepted prior to April 6, was "to continue to remain open less the Defendant’s party and party costs and assessable disbursements incurred from the date of this offer to the date of acceptance". This was held to make the offer to settle continuously variable after April 6 and the court concluded that the Plaintiffs would have no knowledge of what was offered. The court was of the view that there should be "something fixed and determinable to contemplate and accept".
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