Summary Trials Are Not Trials For the Purpose of Discontinuing Lawsuits

Written by admin on . Posted in BCSC Civil Rule 9.

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.
 

bc injury law, Binary Environments Ltd v. Batyka, Mr. Justice Ball, Notice of Discontinuance, Rule 9, Rule 9-8, Rule 9-8(1), Rule 9-8(8)

Comments (54)

  • hop over to this website

    I simply want to mention I am all new to weblog and actually enjoyed your page. More than likely I’m planning to bookmark your blog post . You certainly come with superb writings. With thanks for sharing your blog.

  • 릴게임

    I have not checked in here for some time since I thought it was getting boring, but the last few posts are great quality so I guess I will add you back to my everyday bloglist. You deserve it my friend 🙂

  • W88 Thailand

    A person essentially assist to make critically posts I’d state. That is the first time I frequented your web page and to this point? I surprised with the analysis you made to create this particular publish amazing. Magnificent job!

  • 먹튀폴리스 장원

    Generally I don’t read article on blogs, however I wish to say that this write-up very compelled me to check out and do so! Your writing taste has been amazed me. Thank you, very nice post.

  • beast TV

    I have been absent for a while, but now I remember why I used to love this web site. Thanks, I’ll try and check back more often. How frequently you update your web site?

  • agen poker online

    Hello there! Quick question that’s totally off topic. Do you know how to make your site mobile friendly? My blog looks weird when viewing from my iphone 4. I’m trying to find a theme or plugin that might be able to correct this issue. If you have any recommendations, please share. Many thanks!

  • poker online

    Hello this is kinda of off topic but I was wanting to know if blogs use WYSIWYG editors or if you have to manually code with HTML. I’m starting a blog soon but have no coding skills so I wanted to get advice from someone with experience. Any help would be enormously appreciated!

  • online poker

    I believe this is among the such a lot significant information for me. And i am satisfied studying your article. However want to commentary on few basic issues, The website style is perfect, the articles is in point of fact great : D. Good process, cheers

  • poker

    I think this is among the most important info for me. And i’m glad reading your article. But want to remark on some general things, The web site style is great, the articles is really excellent : D. Good job, cheers

  • m w88

    I love your blog.. very nice colors & theme. Did you create this website yourself or did you hire someone to do it for you? Plz reply as I’m looking to create my own blog and would like to know where u got this from. cheers

  • låna pengar

    Youre so cool! I dont suppose Ive learn something like this before. So nice to find someone with some authentic ideas on this subject. realy thank you for starting this up. this website is one thing that’s needed on the net, someone with a bit of originality. helpful job for bringing one thing new to the web!

  • 토토사이트

    hello there and thank you for your information – I’ve definitely picked up anything new from right here. I did however expertise some technical issues using this site, as I experienced to reload the web site a lot of times previous to I could get it to load correctly. I had been wondering if your hosting is OK? Not that I am complaining, but slow loading instances times will sometimes affect your placement in google and could damage your high quality score if advertising and marketing with Adwords. Anyway I’m adding this RSS to my email and could look out for a lot more of your respective interesting content. Make sure you update this again soon..

  • lifeguard courses near me

    There are some interesting closing dates on this article however I don’t know if I see all of them center to heart. There is some validity but I will take maintain opinion until I look into it further. Good article , thanks and we want extra! Added to FeedBurner as nicely

  • 안전놀이터 문의

    Thanks a lot for sharing this with all of us you actually know what you are talking about! Bookmarked. Please also visit my website =). We could have a link exchange contract between us!

  • 야마토 게임

    I and also my pals were found to be checking the excellent ideas found on the blog and so suddenly developed an awful feeling I had not thanked the site owner for them. Most of the men appeared to be as a consequence stimulated to read through all of them and have clearly been enjoying those things. We appreciate you indeed being indeed kind and then for having certain marvelous subjects millions of individuals are really eager to learn about. Our honest regret for not expressing appreciation to you earlier.

  • 토토사이트 추천

    I like this web blog very much, Its a really nice spot to read and find info . “There is no human problem which could not be solved if people would simply do as I advise.” by Gore Vidal.

  • watch game of thrones season 1

    It is appropriate time to make some plans for the future and it is time to be happy. I’ve read this post and if I could I want to suggest you some interesting things or tips. Perhaps you could write next articles referring to this article. I want to read more things about it!

  • 토토사이트 추천

    Thanks so much for providing individuals with such a memorable possiblity to read articles and blog posts from this web site. It’s usually so superb plus jam-packed with a great time for me personally and my office colleagues to visit your website at minimum thrice a week to learn the fresh guidance you have. Of course, I am certainly fulfilled concerning the amazing knowledge you serve. Selected 2 facts in this post are in truth the very best I have ever had.

  • 메이저사이트추천

    I am glad for commenting to make you understand what a helpful discovery my cousin’s girl found reading through your web page. She mastered so many issues, including what it’s like to have a great coaching nature to have other folks smoothly know precisely specified tortuous things. You undoubtedly surpassed readers’ expected results. Many thanks for coming up with these effective, safe, revealing and also cool thoughts on this topic to Jane.

  • 먹튀폴리스

    wonderful points altogether, you simply gained a emblem new reader. What could you suggest about your submit that you simply made a few days in the past? Any positive?

  • 메이저토토

    Attractive section of content. I just stumbled upon your site and in accession capital to assert that I acquire in fact enjoyed account your blog posts. Any way I’ll be subscribing to your augment and even I achievement you access consistently fast.

  • smco magnets

    I simply wanted to develop a quick note in order to thank you for all of the lovely strategies you are sharing at this website. My time consuming internet search has at the end of the day been honored with high-quality concept to go over with my pals. I ‘d point out that most of us website visitors are definitely endowed to dwell in a magnificent network with many marvellous people with interesting guidelines. I feel somewhat happy to have used your website page and look forward to so many more awesome moments reading here. Thanks once more for everything.

  • 먹튀폴리스 가족방

    Does your website have a contact page? I’m having problems locating it but, I’d like to send you an email. I’ve got some creative ideas for your blog you might be interested in hearing. Either way, great blog and I look forward to seeing it grow over time.

  • custom tshirt

    great points altogether, you just gained a brand new reader. What would you recommend in regards to your post that you made some days ago? Any positive?

  • 먹튀폴리스

    Do you have a spam problem on this blog; I also am a blogger, and I was curious about your situation; many of us have developed some nice methods and we are looking to exchange solutions with other folks, please shoot me an e-mail if interested.

  • obat kuat

    Whoa! This blog looks exactly like my old one! It’s on a totally different topic but it has pretty much the same layout and design. Great choice of colors!

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

    Disclaimer