Discontinuance Legal Definition:

A formal notice filed with the Court and served on the defendant, ending active litigation.

Related Terms: Withdrawal , Retraxit

Simply, to abandon a claim that is in-progress.

Only a plaintiff can file a discontinuance and he or she can do so over the objection of the defendant.

In Young v Valcourt, the defendant tried to stop the plaintiff from discontinuing after the examinations for discovery deflated the plaintiff's case, hoping to get extra costs if given a chance to defeat the claim at trial. Justice Tyrwhitt-Drake noted that:

"The plaintiff is the master of this litigation, and may proceed or not as he chooses. He is therefore entitled to the order he seeks. If the defendant has some claim against him, her remedy is not in this action, which is now at an end."

discontinuanceThe common law and today, each jurisdiction provides, in some fashion, for an organized retreat from litigation. In British Columbia, by way of example, the rules related to a discontinuance are set out in the British Columbia Rules of Court, at §36, and are very similar to the Civil Procedure Rules in Great Britain1:

"At any time before an action is set down for trial, a plaintiff may discontinue it in whole or in part against a defendant by filing and delivering a notice of discontinuance ... to each party of record.

After an action has been set down for trial, a plaintiff may discontinue it in whole or in part against a defendant with the consent of all parties of record or by leave of the court.

... a person wholly discontinuing an action ... shall pay the costs of that party to the date of delivery of the notice of discontinuance...."

The peculiarity of a discontinuance is that it does not mean that an identical action cannot be started by the same plaintiff at some future date. Although the statutes or court rules of each jurisdiction may differ, the following from the 2009 Ontario court rules (§23.04) is standard:

"The discontinuance of all or part of an action is not a defence to a subsequent action, unless the order giving leave to discontinue or a consent filed by the parties provides otherwise."

In Passarini, Justice Harris of the Nova Scotia Supreme Court wrote:

"(Where discontinued) ... the action is not dead for all purposes, but that the Court can make such order as justice requires notwithstanding the discontinuance."

In fact, in Davis, a lawyer erred and accidentally filed a notice of discontinuance in an action! Needless to say, interested parties were soon begging the Court to be relieved of the discontinuance. Justice Rosenberg was sympathetic and granted the application, adding that:

"... in appropriate circumstances where the interests of justice require, the Court has inherent jurisdiction to set aside a notice of discontinuance."

In Mortgage Investment, Justice Clarke wrote:

"By obtaining leave to discontinue he (the plaintiff) is at liberty to litigate all matters in question over again.... By reason of the discontinuance there is no success or defeat on any of the issues."

REFERENCES:

  • Davis v Campbell 9 CPC 2d 48; and also at 54 OR 2d 443 (1986, Ontario Supreme Court, High Court of Justice)
  • Duhaime, Lloyd, Civil Litigation and ADR Law
  • Duhaime, Lloyd, Legal Definition of Withdrawal
  • Halsbury's Laws of England, 4th Ed., Volume 38, "Practice and Procedure" (London: Butterworths LexisNexis, 2001), page 233-243 (note 1).
  • Mortgage Investment v Maclean 19 Alta. LR 286; also at (1923) 1 WWR 825 and (1923) 1 DLR 1129 (Alberta Supreme Court, Appellate Division)
  • Passarini v Martin 58 NSR 121; and also at (1925) 2 DLR 914
  • Rules of Civil Procedure, Revised Regulations of Ontario 1990, Regulation 194
  • Stevenson, W. and Côté, J., Civil Procedure Encyclopedia, Volume 2, Chapter 30 "Discontinuance" (Edmonton: Jurileber, 2003).
  • Supreme Court Rules (2009),  BC Reg. 221/90
  • Young v Valcourt (1982) 1 WWR 575 (BCSC)

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