Shelley J

3.68: Court options to deal with significant deficiencies
8.20: Application for dismissal at close of plaintiff’s case

Case Summary

The Plaintiff professors commenced an Action seeking damages for negligence against the University of Calgary and two of its administrators. Prior to the Trial in December of 2017, one of the Plaintiffs discontinued his Action against the Defendants. At Trial, after the remaining Plaintiff closed his case, the Defendants applied for a non-suit.

Justice Shelley explained that the applicable test for a non-suit Application is set out in Rule 8.20: the Defendant may request that the Action be dismissed at the close of the Plaintiff’s case, “on the ground that no case has been made, without being asked to elect whether evidence will be called”. A non-suit Application will be successful where “the plaintiff fails to provide any legal or evidentiary basis on which the lawsuit can succeed”.

The Plaintiff argued that the test should parallel the test for a motion to strike under Rule 3.68. The Court noted that the Court of Appeal in Capital Estate Planning Corp v Lynch, 2011 ABCA 224 (CanLII) rephrased the test and clarified that “a non-suit application will fail if the plaintiff has adduced some evidence on each of the essential elements of the claim”. Credibility should not be assessed, and evidence should not be weighed; the Court must assume that the Plaintiff’s evidence is true.

Justice Shelley granted the non-suit Application on the basis that Plaintiff’s Claim was time-barred pursuant to the Limitations Act, RSA 2000, c L-12. Shelley J. noted that the Plaintiff had failed to provide evidence of a duty of care, or that a standard of care was breached by the University. Further, the Plaintiff’s evidence respecting damages was “at best speculative”, and was not established by the evidence.

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