Discontinuance or Dismissal?

A common term of settlement is that the case will be dismissed on consent and without costs. This is a formality to close off the case before the Courts. It’s common to indicate in the settlement who will obtain the order and usually it’s the defendant. The motion is a straightforward procedural matter within the jurisdiction of a Registrar (rule 37.02(3)(c)(x)), requiring a notice of motion, consent and draft order.

On April 1, 2019, the Court fee to file a motion rose to $320. This increase has plaintiffs and defendants looking for workarounds to avoid the filing fee and motion drafting. The solution is to discontinue the case on consent, without costs and to have the consent confirm the discontinuance is a defence to a subsequent action.

See Rule 23 of the Rules of Civil Procedure and in particular rule 23.04 concerning subsequent actions. The consent should indicate the discontinuance is a defence to a subsequent action. A release also eliminates the potential for a subsequent action.

Due to rule 23.05, it is advisable to confirm the settlement and discontinuance is without costs, both in the settlement documents, the notice of discontinuance and the consent to discontinue.

We’ve prepared the key forms (consent to discontinuance and notice of discontinuance) to save $320 and streamline the process of closing off Court cases (no drafting motion records and no need to have orders issued, entered and served). Our drafts confirm the discontinuance is without costs and a defence to a subsequent action.

As of March 2020, you can even file a consent discontinuance online – details on what can be filed online are here. Please note that when it comes time to file online, you file the following:

  1. Notice of Discontinuance;
  2. Consent to Discontinue; and
  3. Affidavit of Service.

Please click here to go to our settlement precedents to purchase the consent discontinuance documents.

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