(1) A plaintiff may discontinue all or part of an action against any defendant,
(a) before the close of pleadings, by serving on all parties who have been served with the statement of claim a notice of discontinuance (Form 23A) and filing the notice with proof of service;
(b) after the close of pleadings, with leave of the court; or
(c) at any time, by filing the consent of all parties. R.R.O. 1990, Reg. 194, r. 23.01 (1); O. Reg. 427/01, s. 10.
(2) If a party to an action is under disability, the action may be discontinued by or against the party only with leave of a judge obtained on motion under rule 7.07.1. O. Reg. 19/03, s. 6.
Where an action is discontinued against a defendant who has counterclaimed, the defendant may deliver within thirty days after the discontinuance a notice of election to proceed with the counterclaim (Form 23B), and if the defendant fails to do so, the counterclaim shall be deemed to be discontinued without costs. R.R.O. 1990, Reg. 194, r. 23.02.
(1) Where an action is discontinued against a defendant who has crossclaimed or made a third party claim, the crossclaim or third party claim shall be deemed to be dismissed with costs thirty days after the discontinuance unless the court orders otherwise during the thirty-day period. R.R.O. 1990, Reg. 194, r. 23.03.
Effect of deemed dismissal on subsequent action
(2) The deemed dismissal is not a defence to a subsequent action unless the court orders otherwise during the thirty-day period. O. Reg. 770/92, s. 6.
(1) The discontinuance of all or part of an action is not a defence to a subsequent action, unless the order giving leave to discontinue or a consent filed by the parties provides otherwise. R.R.O. 1990, Reg. 194, r. 23.04 (1).
(2) Where a plaintiff has discontinued and is liable for costs of an action, and another action involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest before payment of the costs of the discontinued action, the court may order a stay of the subsequent action until the costs of the discontinued action have been paid. R.R.O. 1990, Reg. 194, r. 23.04 (2).
Where a plaintiff discontinues an action against a defendant,
(a) the defendant is entitled to the costs of the action; and
(b) where the defendant has made a crossclaim or third party claim that is deemed to be dismissed under rule 23.03, the defendant is entitled to recover from the plaintiff,
(i) the costs payable under rule 23.03, and
(ii) the defendant’s own costs of the crossclaim or third party claim,
unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 23.05.
(1) A defendant may withdraw all or part of the statement of defence with respect to any plaintiff at any time by delivering to all parties a notice of withdrawal of defence (Form 23C), but,
(a) where the defendant has crossclaimed or made a third party claim, leave to withdraw must be obtained from the court; and
(b) where the defendant seeks to withdraw an admission in the statement of defence, rule 51.05 (withdrawal of admission) applies. R.R.O. 1990, Reg. 194, r. 23.06 (1).
(2) Where a defendant withdraws the whole of the statement of defence, the defendant shall be deemed to be noted in default. R.R.O. 1990, Reg. 194, r. 23.06 (2).
Rules 23.01 to 23.06 apply, with necessary modifications, to counterclaims, crossclaims and third party claims. R.R.O. 1990, Reg. 194, r. 23.07.