1Where a proceeding is dismissed for failure to properly plead a claim rather than being determined on the merits, the comparison between Calderbank offers and the result obtained is not straightforward, and the rejection of such offers may not be unreasonable.
2The party seeking indemnity costs on the basis of a rejected Calderbank offer bears the onus of showing that the offeree acted unreasonably or imprudently in not accepting the offer, assessed by reference to the Hazeldene's Chicken Farm factors including the offeree's prospects of success as at the date of the offer.
3A case that fails at the pleading stage is not necessarily one that was always doomed to fail, and the inability to properly plead a professional negligence claim may reflect difficulties with the underlying documentation rather than the absence of a meritorious cause of action.
