This Rule deals with discontinuation of entire proceedings as well as withdrawing claims or defences in a proceeding. “Proceeding” is the umbrella term used to include actions, applications, judicial reviews and appeals (R.94.10). It includes special provisions for dealing with discontinuation of an action for debt (R.9.04).

The deadline for discontinuing an action, or withdrawing a claim or defence as of right has changed. Under the previous R.40.01 this could be done up to the time the matter is “entered for trial.” Under R.9, a party may discontinue an action as of right before the day of the trial readiness conference (which is held at least 40 days before the trial date.) Similarly, a claim or defence in an action may be withdrawn at any time before the trial readiness conference.

An application, judicial review proceeding, or appeal may be discontinued as of right at any time before the day of the hearing. A ground in an application, notice of contest, judicial review, appeal, or contention may also be withdrawn as of right before the day of the hearing. After these deadlines, they may be only discontinued or withdrawn with permission of a judge (R.9.02(2)).

Discontinuance automatically discontinues any counterclaims, crossclaims or third party claims ten days after delivery of the notice of discontinuance, unless the party making the claim files a notice continuing it (R.9.03).

Rule 9 includes more judicial flexibility on costs than the previous R.40.03. Rule 40.03 required payment of costs “to the date of giving notice.” Under R.9.06(2), this is eliminated in favour of making the stage of the proceeding a relevant factor to consider when assessing costs.

As under the previous R.40.04, discontinuance of a proceeding or withdrawal of a cause of action does not give rise to a defence of res judicata, but under R.9.07, a judge may impose terms concerning a subsequent proceeding. A subsequent proceeding that amounts to an abuse of process may be controlled under Rule 88 - Abuse of Process.