- Discontinuing a claim is the formal, procedural way a plaintiff withdraws their own lawsuit.
- Generally, yes — a plaintiff has the right to discontinue their own claim, and in many circumstances can do so without needing the defendant's consent or the court's permission,…
- Here is the part that catches people off guard: discontinuing a lawsuit is not free, even though nothing was decided on the merits.
Not every lawsuit goes the distance. A plaintiff might settle privately, realize the claim is weaker than it looked at the outset, run out of appetite for the fight, or simply decide the dispute is not worth the ongoing cost and stress. In Ontario, formally withdrawing a claim before it is resolved is called discontinuing the action — and while the mechanics are relatively straightforward, the costs consequences are not always what plaintiffs expect.
This article walks through how discontinuance works and what it can mean for your wallet.
What "Discontinuing" a Lawsuit Means
Discontinuing a claim is the formal, procedural way a plaintiff withdraws their own lawsuit. It is different from a case simply going dormant or a plaintiff walking away informally — a proper discontinuance is filed with the court and served on the other parties, and it has real legal effects, including on costs and, in some cases, on your ability to bring the same claim again later.
It is also different from a settlement, where both sides agree on terms (often including payment) to resolve the dispute. A discontinuance can happen as part of a settlement, but a plaintiff can also discontinue unilaterally, without any agreement from the defendant, subject to the rules described below.
Can a Plaintiff Just Drop the Case Whenever They Want?
Generally, yes — a plaintiff has the right to discontinue their own claim, and in many circumstances can do so without needing the defendant's consent or the court's permission, particularly early in a proceeding before much has happened. As the case progresses, however, consent or court approval can become necessary in certain circumstances (for example, once a counterclaim has been filed, or at a later procedural stage), since the defendant may by then have a legitimate interest in seeing the matter through, including recovering costs already incurred.
The general trend is intuitive: the earlier a plaintiff decides to discontinue, the simpler the process tends to be; the further into the litigation, the more the defendant's interests need to be accounted for.
The Costs Consequence Most Plaintiffs Do Not Expect
Here is the part that catches people off guard: discontinuing a lawsuit is not free, even though nothing was decided on the merits. Ontario's general "loser pays" costs principle applies with real force here — a defendant who has already spent money defending a claim that the plaintiff then chooses to abandon has, in a practical sense, "won" that stage of the fight, and courts frequently order the discontinuing plaintiff to pay the defendant's costs incurred up to that point.
The amount is always at the court's discretion and depends heavily on the specific case — how far the litigation had progressed, what steps the defendant had already taken, and the complexity of the matter. There is no fixed formula or percentage that applies automatically — Ontario costs awards are fact-specific and left to the court's discretion under Rule 57.01 of the Rules of Civil Procedure.
Steps in a Typical Discontinuance
- Decide on timing. Consider how far the case has progressed and what has already been spent by both sides — this affects both the process required and the likely costs exposure.
- Prepare and file a notice of discontinuance (or, where required, a motion seeking the court's leave) setting out which claims, or which parts of the claim, are being withdrawn.
- Serve the notice on all other parties to the action, so they are formally aware the claim (or relevant part of it) is being dropped.
- Address costs. Often the parties can agree on a costs figure as part of the discontinuance; if they cannot agree, the defendant can bring a motion asking the court to fix the costs payable.
- Confirm the effect on any counterclaim. If the defendant has filed a counterclaim, discontinuing the plaintiff's own claim does not automatically end the counterclaim — that generally continues unless it, too, is separately resolved or withdrawn.
What Discontinuing Does — and Does Not — Do
| It does | It does not |
|---|---|
| Formally end the plaintiff's claim (or the discontinued part of it) | Automatically end a defendant's counterclaim |
| Typically trigger a costs obligation to the defendant | Guarantee costs will be minimal just because the case did not go to trial |
| Allow the matter to be closed procedurally | Necessarily prevent a new claim on the same facts later, though this depends heavily on the circumstances and can be barred in some situations |
| Apply to all or part of the claim, depending on how it is framed | Require a full trial or settlement negotiation to take effect |
Why Timing Matters for Limitation Periods
One important trap: discontinuing a lawsuit does not pause or reset any limitation period running on a different, related claim. If you are thinking about discontinuing one action and potentially starting a different or amended claim later, check where that separate claim stands on Ontario's general limitation timeline before you let the current action go — starting a lawsuit (or withdrawing one) does not, on its own, stop an unrelated limitation clock from continuing to run.
Frequently asked questions
Do I need the defendant's permission to discontinue my own lawsuit?
Not always — early in a case, a plaintiff can often discontinue unilaterally. Later in the process, or in certain procedural situations (such as after a counterclaim has been filed), consent or the court's permission can become necessary. The further along the case is, the more likely some form of consent or approval is required.
Will I definitely have to pay the defendant's costs if I discontinue?
Often, yes, at least in part — this is the default expectation under Ontario's general costs principles, though the exact amount is always at the court's discretion and depends on the specific case. It is not automatic in every scenario, but plaintiffs should assume some costs exposure rather than assume discontinuing is cost-free.
Can I discontinue and then sue again later on the same facts?
This depends heavily on the circumstances, including how the discontinuance is worded and what has already happened in the case. Some discontinuances can affect your ability to bring the same claim again. This is a question to work through with a lawyer before filing, not after.
What if the defendant has filed a counterclaim against me?
Discontinuing your own claim does not automatically discontinue the defendant's counterclaim — that generally proceeds on its own unless it is separately resolved, settled, or withdrawn by the defendant.
This is a litigation question
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