What is a non-suit application?
A non-suit application is an application on behalf of the respondent seeking that the case be dismissed because the applicant has not and cannot prove its case. This application is often made after the plaintiff has presented all their evidence.
Rule 8.20 of the Alberta Rules of Court, Alta Reg 124/2010, states the application of a non-suit as “at the close of the plaintiff’s case, the defendant may request the Court to dismiss the action on the ground that no case has been made, without being asked to elect whether evidence will be called.”
What factors do the court consider when determining a non-suit application?
The Ontario Court of Appeal in Prudential Securities Credit Corp v Cobrand Food  provides leading guidance on factors for the courts to consider when determining a validity of a non-suit application.
At paragraph 35, the Honourable Laskin J.A had observed that the trial judge to undertake a limited inquiry and that:
- If a plaintiff puts forward some evidence on all elements of the claim, the judge must dismiss the motion.
- In assessing whether a plaintiff has made out a prima facie case, the judge must assume the evidence to be true and must assign the most favourable meaning to such evidence capable of giving rise to competing inferences.
Subsequent case law also follow the guidance as set out in Prudential Securities. As such, in order for a non-suit application to be rejected:
- The Plaintiff needs to adduce some evidence on each of the elements of the claim.
Note: The Trial Judge does not weigh the evidence or assess the credibility. The Trial Judge must assume the Plaintiff’s evidence is true and accept all reasonable inferences.
The standard of reviewing evidence is one of “correctness” (Capital Estate Planning Corporation v Lynch  A.J. No. 820)
Capital Estate Planning Corp v Lynch  A.J. No. 820
Concerns a successful appeal by the Plaintiffs to remit the action for a new trial in the Alberta Court of Appeal.
The appellate court ruled that the Plaintiffs had made out a prima facie case and sufficient evidence to meet the evidentiary burden to reject a non-suit as upheld earlier by the trial judge.
Trial judge had erred in finding a lack of causation between the defendants’ wrongful conduct and damages pleaded.
In ruling on the contrary that a non-suit application is not applicable in this instance, the appellate court accepted the Plaintiff’s testimony of the causal link between the defendants’ wrongdoing and the damages pleaded at face-value as evidence, instead of dwelling into an in-depth analysis as to the validity and legality of the oral testimony.
Concerns an appeal of a non-suit application regarding a breach of fiduciary duty by former employees enticing former clients to leave the Plaintiff’s practice.
The Trial Judge held that a non-suit application is applicable because there was “no causal nexus between the alleged wrong conduct and the losses claimed” and that there is no evidence of loss to the Plaintiff (at para 10).
- The Trial Judge had erred in allowing a non-suit application to proceed.
Citing Prudential at paragraph 36, “the trial judge should not determine whether the competing inferences available to the defendant on the evidence rebut the plaintiff’s prima facie case. The trial judge should make that determination at the end of the trial, not on the non-suit motion”.
On assessing the quantification of damages, the appellate court noted that losses can be very difficult to quantify. Despite this, difficulties in quantification do not mean that no damages have been sustained. (at para 45)
Capital Estate Planning Corp v Lynch  A.J. No. 820 at paragraph 2 noted that, “Generally speaking, non-suits are discouraged and are rarely granted in this jurisdiction (Alberta).
The function of the trial judge in assessing the evidence is much different than at the end of the trial. Here, we are of the view that the non-suit motion should not have been granted, except with respect to one cause of action.
The result is that the trial has been unnecessarily interrupted and needless expense incurred, indicating why non-suit applications should be brought cautiously and granted only in the clearest of circumstances”.
To recap, a non-suit application can be rejected on the basis that:
- The Plaintiff has adduced some evidence on each of the essential elements of the claim.
- As noted in Capital Estate Planning, the Trial Judge should not weigh the evidence against the opposing party’s rebuttals or assess the credibility of such. Instead, a trial judge must assume the Plaintiff’s evidence is true and accept all reasonable inferences.
Moosa v Osuji  A.J. No.1645
The Plaintiff’s accounting corporation had retained in the services of the Defendant lawyers to assist in 2 prior legal actions for unpaid accounting services in Calgary.
On self-representation, the Plaintiff argued that the Defendants had failed to file court documents subsequently causing him monetary losses from his lost legal actions.
Defendants applied for a non-suit application on the following basis:
- The Plaintiff was suing on his own personal capacity rather than as a corporation, thus he has no standing in the action,
- The Plaintiff acknowledged in cross-examination that he did not expect to be successful for his previous legal actions whilst engaging with the Defendants’ services,
- The Plaintiff had no expert opinion on the standard of care that ought to be met by the Defendants.
The Plaintiff elected to proceed the proceedings on his own personal capacity. This is opposed to the previous engagement when engaging with the Defendants’ legal services as a corporation. The court noted that this is a “fatal” error on behalf of the Plaintiff acting in a personal capacity, to which that the Plaintiff does not personally have a valid action against the Defendants.
The court noted since that Plaintiff does not have standing, it is unnecessary to go over the rest of the Defendants’ submissions.
The court also commented that during trial, the Plaintiff’s presentation of evidence was “unorganized, scattered, and many times contradictory and unclear” (paragraph 2).
Non-suit Applications and the Issue with Standing
Therefore, a lack of standing can permit a non-suit application to proceed against the Plaintiff.
However, it is important to distinguish Moosa and Capital Estate Planning.
In Capital Estate Planning, counsel for the defendants had argued that the Plaintiff did not have standing because losses of commission is the entitlement of the Plaintiff in his personal capacity, to whom is not part of the action, rather than on a corporate capacity.
However, the court had accepted the Plaintiff’s rebuttal that by transferring current clients to a rival practice, the Plaintiff, in a corporate capacity, had suffered a loss of current and future earnings.
Contrarily, the Plaintiff in Mossa had failed to prove how he was adversely affected on a personal capacity.
Non-suit Applications and Limitation Periods
In Alberta, the Limitation Act s3(1) states:
“3(1) … if a claimant does not seek a remedial order within:
- 2 years after the date on which the claimant first knew, or in the circumstances ought to have known,
- That the injury for which the claimant seeks a remedial order has occurred,
- That the injury was attributable to the conduct of the defendant, and
- That the injury, assuming liability on the part of the defendant, warrants bringing a proceeding”.
A non-suit application can be filed on the basis that the limitation period has already been expired. (Bruen v University of Calgary  A.J. No. 688.
Therefore, plaintiffs should be aware that the expiration of the 2-year limitation period can give rise to the opposing parties’ action of a non-suit application.
Bruen v University of Calgary  A.J. No. 688
Appellant researcher appeals against a non-suit application filed by the University of Calgary.
Appellant researcher was notified by the University of their rejection of his research proposal in 2002.
Between correspondence dated back and forth between May and June 2002, the University had stated clearly that they were not in a position to accept the Appellant’s proposal.
On August 2002, the University had stated that it was not in a position to accept the Appellant’s amended proposal.
Appellant made further unsuccessful queries in 2003 and had argued that he did not receive a definitive indication until May 14, 2003 when his final request for a re-consideration was refused.
Appellant filed court proceedings on Mary 6, 2005.
On August 2002, the Appellant was already in acknowledgement that the University was unable to provide requisite funding based on his reamended proposal.
Appellant’s counsel argued that the definitive indication should be on May 14, 2003 and not around August 2002 due to the possibility of further consideration of the proposal from the University in the future, which was rejected because of the lack evidence to such representations.
Therefore, on the basis that the Appellant was in acknowledgement that the University had rejected his amended research proposal on August 2002, the appellant court had concluded that the limitation period started at August 2002. When the appellant filed his action on May 8, 2005, his limitation period was already expired.
Even if the Appellant had satisfied the court that the claim was not expired, the appellate court had noted that his appeal couldn’t succeed on the basis that the Appellate had failed to provide evidence on every essential element of his claim.
In particular, the trial judge was correct in concluding that the Appellant had “failed to establish the applicable duty and standard of care” because the Appellant had offered little evidence for the court to establish a “novel duty and standard of care”.
Moreover, the Appellant had failed to prove that the University had breached their duty of care. At paragraph 30, the trial judge had noted that “it cannot be the case that a university must support all research proposals and opportunities”.
Contrarily, the University had given ample opportunity for the Appellant to revise his proposals to meet with the University’s funding requirements and was advised that he could meet with University representatives on a dozen occasions to discuss that proposals. The Appellant did not contact anyone to arrange that meeting.
Other Examples of non-suit Applications and Limitation Periods
Therefore, a non-suit application is available for the defendants should the plaintiff miss the 2-year limitation period as outlined in the Alberta Limitation Act.
In NPS Farms v EI Dupont Canada Company  ABCA 124, the court upheld a non-suit decision on the basis that the plaintiffs attempted to raise a defective product claim for the first time at trial, long after the expiry of the limitation period.
In Barbagianis v Nychuk  SKQB 266, the court granted a non-suit in a bad faith damage action against the RCMP for injury to the person, finding it barred by limitation periods.
In Ford Credit Canada Limited v Auty , the court granted a nonsuit in a civil matter against one of the defendants where expiry of a limitation period was found to provide a full defence.
The Plaintiff needs to adduce some evidence on each of the elements of the claim to rebut a non-suit application, and that the trial judge should not engage in extensive evidence weighing during non-suit applications.
Finally, parties should be aware of standing and limitation period restrictions can result to a successful non-suit application to proceed.