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ARTICLE · 07 FEBRUARY 2022

Improperly Sued? Can You Recover Costs If The Action Is Dismissed?

McCague Borlack LLP
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In order to protect limitation periods, especially in cases where liability is yet to be determined, there is an obligation on counsel to identify, name, and pursue all parties who may be liable to the plaintiff(s).

CanadaLitigation, Mediation & Arbitration
Alan Drimer
Alan Drimer
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In order to protect limitation periods, especially in cases where liability is yet to be determined, there is an obligation on counsel to identify, name, and pursue all parties who may be liable to the plaintiff(s). However, as the discovery process begins, parties often become aware that they have added in a party that will bear no liability to the plaintiff(s). Often, parties are able to consent to a dismissal or discontinuance without costs; however, there are cases in which defendant(s) will not go out without costs. In these cases, parties can move for a ruling under Rule 23.05, which states:

Costs of Discontinuance, Deemed Dismissal

23.05 (1) If all or part of an action is discontinued, any party to the action may, within thirty days after the action is discontinued, make a motion respecting the costs of the action. O. Reg. 394/09, s. 8.

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