Court File and Parties

Court of Appeal for Ontario Date: 20221013 Docket: C70271

Fairburn A.C.J.O., Huscroft and George JJ.A.

Between

Donna Nesbitt Plaintiff

and

Brian Jeffery Defendant (Respondent)

The Corporation of The Town of Midland and The County Of Simcoe and His Majesty the King in Right Of The Province of Ontario, Represented by The Minister Of Transportation for The Province Of Ontario Third Parties (Appellant)

Counsel: Marie Sydney, for the appellant Eli Pullan and Adam Giel, for the respondent

Heard: October 7, 2022

On appeal from the order of Justice Casullo of the Superior Court of Justice, dated January 6, 2022.

Reasons for Decision

[1] The appellant submits that the motions judge: 1) did not have the authority to order that the third-party action be discontinued; 2) erred by awarding costs to the respondent; and 3) erred by making the order under appeal without addressing its cross-motion.

[2] To start, we find that this court has jurisdiction. The order under appeal is one for discretionary relief, and the claim is well over the monetary limit for the Divisional Court. In either case, the appeal lies in this court.

[3] On the first ground, the appellant submits that a discontinuance must follow a two-step process where a plaintiff, after being granted leave to discontinue, must then file a notice of discontinuance. We disagree. In this case it is clear on the motion judge’s reasons that the granting of leave was subsumed in her order to discontinue the third-party claim, which was within her authority. We see no basis to interfere with the motion judge’s decision, which renders moot the issues in respect of the cross motion.

[4] As for costs, we see no reason to depart from the trial judge’s decision, which was well explained, and within her discretion.

[5] The appeal is dismissed. Costs to the respondent in the agreed amount of $8000.00 all-inclusive.

“Fairburn A.C.J.O.”

“Grant Huscroft J.A.”

“J. George J.A.”