Civil Procedure Rules of Nova Scotia  
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Part 3 - Default and Discontinuance

Rule 9 - Discontinuance

Scope of Rule 9
9.01   A party who starts a proceeding may discontinue the proceeding, and a party advancing a claim or defence in a proceeding may withdraw the claim or defence, in accordance with this Rule.
       
Discontinuing a proceeding
9.02 (1) A party who starts an action may discontinue the proceeding before the day of the trial readiness conference and a party who starts an application, a proceeding for judicial review, or an appeal, may discontinue the proceeding before the day of the hearing.
  (2) A party may discontinue a proceeding at any time with the permission of a judge.
  (3) A party may discontinue a proceeding by filing a notice of discontinuance.
  (4) The notice of discontinuance must contain the standard heading, be entitled “Notice of Discontinuance”, be dated and signed, and include a statement that the party discontinues the proceeding.
  (5) A notice of discontinuance of an action, or an application, must also state that a counterclaim, crossclaim, or third party claim in a discontinued action, or a respondent's claim in a discontinued application, is also discontinued unless the party who made the claim files a notice continuing the proceeding for the purpose of the counterclaim, crossclaim, third party claim, or respondent's claim.
  (6) The notice of discontinuance may be in Form 9.02.
       
Affect on counterclaim, crossclaim, third party claim
9.03   A counterclaim, crossclaim, third party claim, or respondent's claim is discontinued ten days after the day the plaintiff delivers the notice of discontinuance to the party making the counterclaim, crossclaim, third party claim, or respondent's claim unless that party files a notice continuing the counterclaim, crossclaim, third party claim, or respondent's claim.
       
Mandatory discontinuance of action for debt
9.04 (1) A plaintiff in an action brought by notice of action for debt must deliver a receipt to the defendant when the defendant pays the amount, other than disbursements that are to be taxed, stated in the notice.
  (2) The receipt must contain the standard heading, be entitled “Receipt”, be dated and signed, and include both of the following:
   
(a)
an acknowledgement of the amount paid;
   
(b)
a statement of whether disbursements remain to be taxed and, if so, the amount claimed.
  (3) The action is discontinued when the receipt is filed, unless the receipt states that disbursements remain to be taxed.
  (4) An action in which a party files a receipt stating that disbursements remain to be taxed is discontinued when a party files an affidavit showing that the disbursements have been settled, or taxed and paid.
  (5) A receipt may be in Form 9.04.
       
Withdrawal
9.05 (1) A party may wholly withdraw a counterclaim, crossclaim, third party claim, or respondent's claim with the permission of a judge.
  (2) A party may withdraw a claim or defence in an action before a trial readiness conference.
  (3) A party may withdraw a ground in an application, notice of contest, judicial review, appeal, or contention before the day of the hearing.
  (4) A party may withdraw a claim, defence, ground, counterclaim, crossclaim, third party claim, or respondent's claim at any time with the permission of a judge.
  (5) The withdrawing party may file one of the following documents:
   
(a)
a notice of withdrawal stating the party withdraws a counterclaim, crossclaim, or third party claim;
   
(b)
a notice of withdrawal stating which of the party’s claims, defences, or grounds are withdrawn;
   
(c)
a consent to judgment stating the party withdraws all defences to a claim or all grounds contesting an application.
  (6) The notice of withdrawal, or the consent to judgment, must contain the standard heading, be entitled “Notice of Withdrawal” or “Consent to Judgment” as is applicable, be dated and signed, and include both of the following statements:
   
(a)
whether disbursements remain to be taxed and, if so, the amount claimed;
   
(b)
whether the party waives further notice the party is entitled to under Rule 31 - Notice.
  (7) A notice of withdrawal may be in Form 9.05A, and a consent to judgment may be in Form 9.05B.
       
Costs
9.06 (1) A party who files a notice of discontinuance, consent to judgment, or notice of withdrawal must, unless a judge orders otherwise, pay costs of the opposing party in an amount to be fixed under Rule 77 - Costs.
  (2) A judge or adjudicator who assesses costs must consider the stage of the proceedings at which the notice or consent was filed, among the other factors under Rule 77 - Costs.
       
Cause of action remains
9.07 (1) Discontinuance of a proceeding or withdrawal of a cause of action does not give rise to a defence in subsequent proceedings for the same, or substantially the same, cause.
  (2) A judge who allows a proceeding to be discontinued or a claim to be withdrawn may impose terms concerning a subsequent proceeding for the same cause against the same parties.
  (3) A subsequent proceeding that amounts to an abuse of process may be controlled under Rule 88 - Abuse of Process.
       

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