STASHIN v VAN NORMAN

The Plaintiff brought a claim against her real estate solicitor and various others in respect of a property sale (the “Original Claim”). The Original Claim was summarily dismissed. The Plaintiff appealed. The Appeal was resolved by way of settlement agreement between the parties (the “Settlement Agreement”). The Plaintiff then brought a further redundant claim almost two years later (the “2025 Action”), naming the same Defendants as the Original Claim, plus the Plaintiff’s husband, as Defendants. The Plaintiff then subsequently noted her husband in default and filed a discontinuance of the 2025 Action (the “Discontinuance”). The Defendants were awarded solicitor-client costs for the 2025 Action (the “Costs Decision”). The Plaintiff sought to have her own Discontinuance set aside, and appealed the Costs Decision.

On the Application to set aside the Discontinuance, the Court considered Rule 4.36. Pursuant to Rule 4.36(5) a discontinuance is not a defence to any subsequent Action. Therefore, a Plaintiff can file a new Statement of Claim alleging the same causes of Action. A revival of a discontinued claim only becomes necessary where a limitation period has expired. As such, the test for setting aside a discontinuance is very high. According to Devlin J., “this case poses an analytical challenge in transposition of these sensible principles, because it is largely untouched by good sense or rational litigation conduct. The discontinuance here was sudden and largely inexplicable”.

The Plaintiff had to show special circumstances to revive the 2025 Action. The Plaintiff provided a doctor’s note indicating that she was experiencing vertigo. In response, the Court held that the medical letter neither supported the Plaintiff’s version of events, nor explained the Discontinuance. The Plaintiff submitted five alternative bases for setting aside the Discontinuance, none of which Justice Devlin found to be persuasive. The Court concluded that the Original Claim was meritless and the 2025 Action was a clear breach of the Settlement Agreement. Ultimately, the Court dismissed the Application to set aside the Discontinuance.

On the Appeal of the Costs Decision, Justice Devlin noted that appeals from Applications Judges are de novo hearings pursuant to Rule 6.14. However, the Appeal was dismissed because the Applicant’s arguments lacked merit.

The Court took additional steps to prevent further injustice and litigation abuse by directing that the Applicant required leave to file any further materials or Applications related to the Original Claim, the Settlement Agreement, and the 2025 Action.