Drapeau v. Canada
T-1879-93
Richard J.
26/8/96
8 pp.
Discontinuance-Motion to set aside purported discontinuance-Plaintiff filing discontinuance after filing reply to statement of defence-R. 406(1) permitting plaintiff to discontinue action after service of defence before taking any other proceeding, and thereupon shall pay defendant's costs-R. 406(3) requiring leave to discontinue action, except as otherwise provided-Wetston J. issuing direction "any other proceeding" in R. 406 not including filing of reply; leave not required-Whether matter res judicata and Wetston J.'s order final-Whether plaintiff entitled to discontinue action without leave after filing reply to statement of defence-Application allowed-Judicial decision essential for res judicata to apply-Direction issued by Wetston J. not judicial decision as not finally determining rights of parties-R. 406(1) permitting filing of discontinuance without leave only when plaintiff taking no steps after service of defendant's defence-Reply and joinder of issue "any other proceeding"-Discontinuance, as opposed to dismissal, permitting plaintiff to litigate issues again-R. 406 designed to give Court power to limit that right once issues crystallized by close of pleadings-Conclusion supported by dictionary definitions of "proceeding"-Federal Court Rules, C.R.C., c. 663, R. 406.