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Summary Trials Are Not Trials For the Purpose of Discontinuing Lawsuits

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a Plaintiff can discontinue a lawsuit when a matter is set for summary trial.

In today’s case (Binary Environments Ltd v. Batyka) the Plaintiff brought a lawsuit which was set for a summary trial following a case planning conference.  Before the summary trial took place the Plaintiff unilaterally discontinued the lawsuit relying on Rule 9-8(1) which reads “At any time before a notice of trial is filed in an action, a plaintiff may discontinue it in whole or in part against a defendant by filing a notice of discontinuance in Form 36 and serving a filed copy of the notice of discontinuance on all parties of record.”.

The Defendant brought a motion seeking to set aside the discontinuance arguing “the Plaintiff cannot escape by the side door” on the cusp of summary trial.

Mr. Justice Ball dismissed the motion finding the Plaintiff was within their rights in discontinuing finding that a summary trial is not a notice of trial.  In reaching this conclusion the Court provided the following reasons:

[25]         Additionally, setting aside the notice of discontinuance would also be contrary to Rule 9-8(1) as setting a matter for summary trial is not the same as setting a matter for a full trial: Strata Plan No. 36 v. Wilson, [1998] B.C.J. No. 308 (S.C.) at para. 12. A summary trial is a distinct mechanism with its own procedures and safeguards: Inspiration Mgmt. Ltd. v. McDermid St. Lawrence Ltd.[1989] B.C.J. No. 1003 (C.A.).

[26]         I therefore decline to set aside the plaintiff’s notice of discontinuance and dismiss that application.

The Court did, however, order that the discontinuance be with prejudice should the Plaintiff ever start similar litigation.  In exercising its discretion under Rule 9-8(8) the Court reasoned as follows:

[23]         Rule 9-8(8) provides:

Unless the court otherwise orders, the discontinuance of an action in whole or in part is not a defence to a subsequent proceeding for the same or substantially the same cause of action…

[31]         The final matter which must be decided here is whether the notice of discontinuance filed by the plaintiff be order to be a defence to any subsequent proceeding for the same or substantially the same cause of action. From the review conducted by counsel for defendant of the affidavits prepared support of the summary trial application taken together with the admission by counsel for the plaintiff that he was instructed to call no evidence in the event this matter did come forward for trial, the only rational conclusion can be drawn is that this matter must in fairness finally come to an end. I therefore pursuant to Rule 9-8(8) that discontinuance of action is a defence may subsequent proceeding or the same or substantially the same cause of action.

 

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