Cost consequences flowing from offers to settle do not apply on appeals

Smith Estate v. Rotstein, 2011 ONCA 833
deals with costs in the context of estate litigation. As part of the analysis the Court makes clear that the cost consequences flowing from offers to settle do not apply on appeals:

[16]         We do not accept the respondent's submission concerning the application of Rule 49 or Rule 49-like consequences.  Rule 49 does not apply to appeals.  This court has, on an earlier occasion, said that an offer to settle an appeal prior to argument may be taken into account when fixing costs: see Douglas Hamilton Design Inc. v. Mark (1993), 66 O.A.C. 44.  However, this power of the court is exercised only on rare occasions.