How to Discontinue an Action Before the Close of Pleadings
When a plaintiff wants to discontinue an action against a defendant before the close of pleadings in Ontario, they have the right to do so by serving a Notice of Discontinuance on all parties served with a statement of claim and filing the notice with proof of service in the registrar’s office. Rule 25.05 governs the close of pleadings and provides that pleadings are closed when the plaintiff has delivered a reply to every defence in the action or the time for delivery of a reply has expired, and every defendant who is in default in delivering a defence in the action has been noted in default. It’s worth noting that if a defendant has not been served with a statement of claim, the plaintiff isn’t required to serve the notice of discontinuance on that defendant. Additionally, it’s not possible for any party or the court to compel another party to discontinue an action, and so long as a limitation period hasn’t expired or the plaintiff is not prohibited from doing so, they can commence a further action.
How to Discontinue an Action After the Close of Pleadings
The ability of a plaintiff to discontinue an action without leave of the court is limited to a certain stage in the proceedings, after which the court must consider all relevant circumstances in deciding whether or not to grant leave to discontinue. The court must balance and weigh the rights and interests of both parties, taking into account the potential prejudice to each party. Prejudice may include the loss of evidence or witnesses, the denial of a trial, and the potential for further litigation. If the court decides to grant leave to discontinue, it may impose terms to address any prejudice to the defendant. The court may also refuse leave to discontinue if there is a concern of abuse or substantial prejudice to the defendant, which would require compelling evidence from the opposing party. If a plaintiff seeks to discontinue an action for the purpose of circumventing an interim order or to evade the effect of an order, it may be considered an abuse of process. In such cases, the plaintiff may be required to provide an undertaking not to bring any further actions for the same cause of action.
