8.20: Application for dismissal at close of plaintiff’s case

Case Summary

The Plaintiff sued the Defendant corporation for breach of contract and defamation. At the close of the Plaintiff’s case, the Defendant applied for a non-suit pursuant to Rule 8.20. The Court allowed the Defendant’s Application in part.

Under Rule 8.20, at the close of the Plaintiff’s case, the Defendant may ask the Court to dismiss an Action on the ground that no case has been made. Ackerl J. noted that when making an Application for a non-suit under Rule 8.20, it is no longer necessary for the Defendant to elect whether they will call evidence.

Ackerl J. cited Capital Estate Planning Corp v Lynch, 2011 ABCA 224, which sets out the test for a non-suit, and noted that there are two relevant principles that guide the inquiry: (1) if a Plaintiff puts forward some evidence on all elements of its claim, the Judge must dismiss the motion; (2)  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 evidence capable of giving rise to competing inferences. Ackerl J. commented that at this stage, the Trial Judge does not weigh the evidence or assess credibility, but assumes the Plaintiff’s evidence is true and draws all reasonable inferences from it. Ackerl J. further commented that the question is whether there is “evidence against the respondents with respect to the elements of each cause of action, which, if left uncontradicted, a reasonable trier of fact could find in its favour”.

Ackerl J. granted the Application for a non-suit with respect to the breach of contract claim.  His Lordship did so having found that the Plaintiff failed to provide any evidence that the Parties intended to enter into a legal relationship. Ackerl J. also granted the Application for a non-suit with respect to one of the defamation claim having found that there was no evidence on the record to show that the defamatory statement was published to a third party. Ackerl J. did not grant the Application for a non-suit with respect to another defamation claim, having found that the Plaintiff had put forward enough evidence, which, if true, would support that claim.

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