A defendant sought costs following the discontinuance of an action commenced in a different county that duplicated relief already pursued in an existing representative proceeding.
The court considered Rule 23.05 of the Rules of Civil Procedure and the “justified action test” applicable to discontinued actions.
It held the plaintiff had no justification for commencing the second action because it duplicated claims already being advanced in an ongoing Toronto proceeding.
The court characterized the conduct as violating the rule against multiplicity of proceedings and as litigation behaviour warranting sanction.
Substantial indemnity costs were awarded to the defendant despite the absence of formal service of the statement of claim.
