4.36: Discontinuance of claim
10.28: Definition of “party”

Case Summary

The Applicant sought a Permanent Injunction from the Court. However, prior to the Application being scheduled, the Applicant decided to abandon its Application and filed a Discontinuance of the Action (the “Discontinuance”) on a Without Costs basis.

Counsel for the Respondents argued that the filing of the Discontinuance a Without Cost basis was in breach of Rule 4.36. That Rule states that, among other things, after a trial date has been set but before a trial starts, a Plaintiff may discontinue an Action only with the consent of every party or with the Court’s permission. The Court disagreed that the filing of the Discontinuance on a Without Costs basis was procedurally improper, stating that, by its nature, injunctive relief is granted sparingly and should be kept in place for no longer than is necessary. The Court further noted that the Applicant acted responsibly in filing the Discontinuance as soon as it was practicable to do so.

Counsel for two groups of unnamed Respondents each sought costs.

The Court applied Rule 10.28 and determined that, in the circumstances, unnamed Respondents represented by one counsel were not a party and therefore was not entitled to recover costs. No pleadings were filed on those unnamed Respondents’ behalf prior to the filing of the Discontinuance. In fact, the Discontinuance was filed less than 12 hours after counsel for those unnamed Respondents’ advised the Applicant that she was retained.

By contrast, the Court determined that, pursuant to Rule 10.28 and in the circumstances, the second group of unnamed Respondents would be considered a party because pleadings were filed on its behalf in contemplation of the Permanent Injunction Application. The Court awarded that group of Respondents Schedule “C” Column 1 Costs.

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