Civil Litigation - Discontinuance. Bouragba v. Ontario College of Teachers
In Bouragba v. Ontario College of Teachers (Div Court, 2023) the Divisional Court held that a withdrawal or discontinuance of a civil proceeding, made after an interlocutory order that established procedures for advancement of the case did not literally require the matter to continue - despite the earlier order:
Effect of the Court of Appeal Order. Fibrogen, Inc. v. Akebia Therapeutics, Inc.
 Mr Bouragba argues that, in directing that the anti-SLAPP motion be remitted to the Superior Court, for a fresh hearing before a different judge, the Court of Appeal required that the anti-SLAPP motion be heard on the merits.
 In the ordinary course, an appellate court may order for a fresh hearing when it grants an appeal. Such an order returns the case to the court below to continue. Such an order does not foreclose the parties from settling the case, or the plaintiff from abandoning its claims. As an example, remitting a case for a new trial is a more common remedy in criminal than it is in civil cases. Such an order does not preclude the Crown from withdrawing the charges, or for the accused to entering a plea of guilty after plea-bargaining with the Crown. It is no different in a civil case where a matter is remitted for a fresh hearing.
 There are situations where an appellate court issues an order in the nature of mandamus, requiring a public official or decision-maker to fulfill his public obligation to attend to a matter. When these situations arise, the language of the court’s direction is clear. A routine order remitting a case back for a re-hearing is not such a situation.
 Mr Bouragba relies on Poffenroth Agri Ltd. v. Brown, 2020 SKCA 121, to argue that discontinuing the action is an abuse of process. This argument is misconceived. In Poffenroth the court gave directions about which of two courts should hear a jurisdiction motion. Purporting to discontinue the action in which the court had directed that the jurisdiction motion be heard was found to be an abuse of process, to defeat the court’s directions. This is not analogous to the present case. If, in the face of the court’s directions in Poffenroth, the plaintiff had decided to abandon all its claims against the defendants, with prejudice, the court’s directions respecting the proper forum for a jurisdiction motion would have been no impediment.
 The Master made no error in concluding that the order of the Court of Appeal directing a fresh hearing did not preclude granting leave to the plaintiff to discontinue the entire proceeding.
The Master’s Exercise of Discretion
 The Master correctly stated the test for granting leave to discontinue: R.23.01(1)(b); 1623242 Ontario Inc. v. Great Lakes Copper Inc., 2016 ONSC 1002, para. 47, Vitucci v. Dimakis, 2019 ONSC 6960, para. 18. The Master reasonably concluded that this case is closer to those where the case is not beyond the pleadings stage than those where the case is ready for trial. The Master identified the steps the parties would have to take to ready the case for trial if leave to discontinue was not granted. The Master concluded, reasonably, that both sides were seeking the same substantive result: dismissal of the proceeding.
 The Master identified potential prejudice arising from discontinuance of the proceeding and devised terms to address that potential prejudice. Discontinuance without terms would permit the plaintiff to re-commence proceedings (subject to limitations defences). Dismissal would not. Therefore, as proposed by the respondent, the Master added a term to the order precluding further litigation by the plaintiff of matters arising out of the events giving rise to the action: the court “further orders that the discontinuance shall be deemed a bar to any subsequent action(s) brought by the plaintiff arising from the same causes of action asserted in this Action.” The Master noted that Mr Bouragba would not be prejudiced respecting any claim for costs of the action because he was entitled to have this issue addressed under R.23.05(1).
 The Master rejected Mr Bouragba’s argument that he was entitled to have the merits of the anti-SLAPP motion determined. The Master’s assessment on this point was reasonable: the purpose of the anti-SLAPP provision is to provide for summary dismissal of certain claims, not to provide a forum to litigate those claims. If a plaintiff would prefer to abandon the litigation to defending the anti-SLAPP motion, there is no resulting “prejudice” to the defendant.
In Fibrogen, Inc. v. Akebia Therapeutics, Inc. (Fed CA, 2022) the Federal Court of Appeal considered the effect of 'discontinuance':
 A discontinuance of the whole of an action terminates the proceeding and closes a court file. It communicates to the parties that they can consider the matter concluded, although admittedly, in theory, a new proceeding can be started with respect to the same subject matter. Once a proceeding has ended by discontinuance, as here, any motions that were pending, die with the end of the proceeding (Olumide v. Canada, 2016 FCA 287, 272 A.C.W.S. (3d) 695 at para. 30; Philipos v. Canada (Attorney General), 2016 FCA 79,  4 F.C.R. 268 at para. 8; Mayne Pharma (Canada) Inc. v. Pfizer Canada Inc., 2007 FCA 1, 54 C.P.R. (4th) 353; Garry D. Watson & Derek McKay, Holmested and Watson: Ontario Civil Procedure, loose-leaf, (Toronto: Thomson Reuters, 2022) at § 39:8. - Effect of Discontinuance). . Kawaguchi v. Kawa Investments Inc.
In Kawaguchi v. Kawa Investments Inc. (Ont CA, 2021) the Court of Appeal considered when the service of a Notice of Discontinuance constituted an abuse of process:
(2) Did the motion judge err by setting aside the notice of discontinuance as an abuse of process?
 In Holterman v. Fish, 2017 ONCA 769,  3 C.T.C. 55, leave to appeal to S.C.C. refused, 37889 (July 5, 2018), this court discussed when a consent notice of discontinuance could be set aside at the request of the plaintiff, in exceptional circumstances that arose after the notice was delivered. The current appeal does not fall into that category.
 However, there is long-standing case law in Ontario, as well as in other provinces, that affirms that a court has the authority, in the appropriate circumstances, to set aside a notice of discontinuance that was properly delivered under the Rules as an abuse of process: see Angelopoulos v. Angelopoulos (1986), 1986 CanLII 2716 (ON SC), 55 O.R. (2d) 101 (H.C.), at 109-10; Toronto (City) v. Abasi, 1990 CarswellOnt 2289 (H.C.); Glasjam Investments Ltd. v. Freeman, 2014 ONSC 3878, at paras. 60-62; Smith v. Dueck, 1997 CarswellBC 792 (S.C.), at paras. 22-23; De Shazo v. Nations Energy Co., 2006 ABCA 400, 401 A.R. 142, at paras. 11-15; and DLC Holdings Corp. v. Payne, 2021 BCCA 31, 456 D.L.R. (4th) 337 at paras. 31-33.
 In Angelopoulos, Henry J. set aside a notice of discontinuance for abuse of process. In that case, the wife had commenced a family law proceeding against the husband. The wife then moved before a master for relief in accordance with the action. That proceeding resulted in a consent order that dealt with much of the requested relief, and also restrained the wife from attending at the premises of the parties’ jointly owned business. Following the order, the wife nevertheless continued to attend at and to disrupt the business.
 As pleadings remained open, the wife served a notice of discontinuance, with the intention to avoid the effect of the consent order and to be able to recommence the proceedings afresh. Henry J. held that while the Rules gave the plaintiff the absolute right to serve a notice of discontinuance, he had the power to set aside the notice as an abuse of process under r. 1.04, which provides:
1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. In my view, in the circumstances of this case, the motion judge was entitled to exercise the same jurisdiction under r. 1.04 as Henry J. did in Angelopoulos. By seeking an injunction to obtain interim relief based on the merits of the claim, the appellants took a significant step in the proceeding. They were successful against the main defendants in the action, which accomplished their goal of preventing the sale of the property until the authority of Lori Kawaguchi is determined at a trial. However, their claim against the respondents was found to have little or no merit. Unhappy with that result, and faced with the respondents’ indication that they intended to move for summary judgment, the appellants sought to be free to not pursue their claim against the respondents for the moment but to be able to recommence the same proceeding on the same facts at a future time. In those circumstances, the motion judge was entitled to conclude that the notice of discontinuance constituted an abusive use of the Rules.
(2) Where matters are not provided for in these rules, the practice shall be determined by analogy to them.
 In oral argument on the appeal, appellants’ counsel postulated that if the injunction were to be lifted, the respondents could again accept a listing of the property for sale, and that was why the appellants should retain the ability to recommence the action against them. However, in those circumstances, the action would be based not on the same facts, but on the new facts just described. And I would add, it is most unlikely that these respondents would accept the listing again until the now-known corporate dispute is resolved.
 The principle against allowing a plaintiff to discontinue an action once the action has proceeded past a certain point has been in place in England and followed in Canada since the late 19th century: see Fox v. Star Newspaper Company,  1 Q.B. 636 (C.A.) at 639, aff’d  A.C. 19 (H.L. (Eng.)); Schlund v. Foster (1908), 11 O.W.R. 175 (H.C.), aff’d 11 O.W.R. 314 (Div. Ct.); Blum v. Blum, 1964 CanLII 285 (ON CA),  1 O.R. 236 (C.A.), at 238-39; Hennig v. Northern Heights (Sault) Ltd. (1980), 1980 CanLII 1574 (ON CA), 30 O.R. (2d) 346 (C.A.), at 353-54; and Sampson v. City of Kingston, 1981 CarswellOnt 2747 (H.C.), at paras. 6-10. In Fox, Lord Chitty summarized the effect of the Rules of the Supreme Court, 1883 (U.K.), Order 26, r. 1, which dealt with discontinuance, as follows:
The principle of the rule is plain. It is that after the proceedings have reached a certain stage the plaintiff, who has brought his adversary into court, shall not be able to escape by a side door and avoid the contest. He is then to be no longer dominus litis, and it is for the judge to say whether the action shall be discontinued or not and upon what terms… The substance of the provision is that, after a stage of the action has been reached at which the adversaries are meeting face to face, it shall only be in the discretion of the judge whether the plaintiff shall be allowed to withdraw from the action so as to retain the right of bringing another action for the same subject-matter. This principle is continued under r. 23.01(1)(a), which allows a plaintiff to unilaterally discontinue its action until the close of pleadings. To discontinue its action after this stage, a plaintiff must obtain leave of the court or the consent of all parties (rr. 23.01(1)(b) and (c)). However, the case law demonstrates that in some circumstances, particularly where there are judicial orders or findings in the action, a court may find it to be an abuse of process for the plaintiff to seek to discontinue the action and to be able to recommence the same action, against the same defendant, on the same facts. In addition, in those circumstances, issues of res judicata and issue estoppel could potentially arise.
 I see no error in the motion judge’s exercise of his jurisdiction under r. 1.04 to set aside the notice of discontinuance in this case as an abuse of process.