Can a notice of discontinuance be set aside if the notice was intended to avoid an interlocutory order?
Ontario, Canada
The following excerpt is from Glasjam v. Freedman, 2014 ONSC 3878 (CanLII):
There is caselaw that demonstrates the court will set aside notices of discontinuance that are found to be an abuse of process. In Angelopoulos v. Angelopoulos[13] for example a plaintiff had discontinued an action with the intent of avoiding an interlocutory order made in a family law proceeding and restraining the plaintiff from entering jointly owned business premises. Henry J. found that this was an abuse of process intended solely to set aside the interlocutory order and with full intention to start the action again. The notice of discontinuance was thus set aside.
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