Gelinas v. Ucar, 2015 ONSC 4586

CITATION: Gelinas v. Ucar, 2015 ONSC 4586

COURT FILE NO.: CV-14-5935

DATE: 2015/07/20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Chantal Gelinas, Plaintiff

AND:

Colin David Ucar and Timmins and District Hospital, Defendants

BEFORE: Karam, J.

COUNSEL: Chantal Gelinas, acting in person

Trevor S. Fisher, for the Defendants

HEARD: June 26, 2015

ENDORSEMENT

[1] On April 24, 2015, the defendant, Colin David Ucar, brought a motion filed on April 28, 2015, seeking an order striking the statement of claim in this action and dismissing the plaintiff’s claim in its entirety. In addition, the notice of motion seeks a stay of the action pending the determination of the motion to dismiss.

[2] On June 16, 2015, the plaintiff, Chantal Gelinas, who is self-represented, filed a notice of discontinuance pursuant to rule 23.01 of the Rules of Civil Procedure, R.R.O 1990, O. Reg. 194.

[3] At the outset, the plaintiff objected to the defence being permitted to proceed with its motion to dismiss, in view of her notice of discontinuance. Her position is that since her notice of discontinuance was filed before the close of pleadings, a plain reading of the rule terminates the action but for the defendant’s right to seek costs. The defendant, on the other hand, argues that the notice of discontinuance does not preclude proceeding upon his motion for dismissal, which proceeded first and wishes to continue with it. I reserved my decision on this issue and adjourned the defendant’s motion and all other matters, including costs, to August 28, 2015.

[4] The history of this litigation is provided in written reasons of Ellies, J., dated February 25, 2015, at which time he made an order striking the entire statement of claim in this action, without prejudice to the plaintiff to file a fresh as amended statement of claim within 30 days: see Gelinas v. Ucar, 2015 ONSC 1151. Accordingly, the plaintiff complied with the order of Ellies J. and filed a fresh as amended statement of claim on March 30, 2015.

[5] It was in response to the new as amended statement of claim that the defendant brought this motion for dismissal, made returnable June 26, 2015. The plaintiff then filed her notice of discontinuance on June 16, 2015.

[6] Rule 23.01(1)(a) of the Rules of Civil Procedure states as follows:

(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

[7] Although the Rule speaks to the absence of pleadings, it does not deal with other proceedings, such as a motion to dismiss, undertaken in the interim.

[8] In Campbell v. Sterling Trusts Corp., [1948] O.W.N. 557 (H.C.), decided under Rule 323 of the rules in force at the time, a predecessor to present Rule 23, in similar circumstances, where a notice of discontinuance was served after a motion to dismiss the action had been brought, the Ontario High Court of Justice stated the following at para. 4: “The defendant’s right was not abrogated by the subsequent notice of discontinuance. Whatever may be the purpose of the defendant in continuing its application and asking that the action be dismissed, it is entitled to an order”.

[9] In Taur Management Co. v. Nir (1983), 35 C.P.C. 179 (Ont. H.C.), the issue was whether an applicant mortgagee, having initiated power of sale proceedings against the respondent mortgagor by originating notice of motion, could abandon the proceedings by service of a notice of abandonment. Counsel argued that even if a notice of abandonment is effective that does not end his right to proceed with the motion for the fulfilment of undertakings which was launched before the notice of abandonment was served. Master Peppiatt agreed and explained the following at para. 29:

These authorities support the proposition put forward by Mr. Raphael that he is entitled to have his motion heard and determined despite the notice of abandonment even if such notice is effective. This is simply an instance of the general proposition that after service of a notice of motion, as a general rule any act done by the respondent to that motion which affects the rights of the parties to the motion will be ignored by the Court, a proposition most recently applied by Clements Co. Ct. J. in C.I.B.C. v. Frederick (1982), 35 O.R. (2d) 773.

[10] I am satisfied that in the circumstances which exist in this case, the principle referred to in Campbell that a defendant’s right is not abrogated by a subsequent notice of discontinuance should apply and that the defendant should not be prevented from seeking an order for the dismissal of the claim merely because the plaintiff has filed a notice of discontinuance. Ignoring the Campbell principle would prejudice the defendant by not allowing him to take steps to prevent her from re-instituting the action.

[11] The defendant’s motion may proceed with costs to date to be fixed by the motions judge.

The Honourable Mr. Justice N. Karam

Date: July 20, 2015