A.G. Clark Holdings Ltd., Giebelhaus Developments Ltd., 680262 Alberta Ltd. (“680262”), and Douglas Cannam (“Cannam”) (collectively the “Defendants”) applied for a Non-Suit against the Plaintiffs Laird Kulak and DLK Management Services Ltd. at the conclusion of the Plaintiffs’ case. The Plaintiffs alleged that they held a partnership interest in the corporate partnership of the Defendants and that shares in 680262 were held in trust by Cannam on behalf of the Plaintiffs.

Rule 8.20 provides that 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. Justice Verville cited Prudential Securities Credit Corp, LLC v Cobrand Foods Ltd, 2007 ONCA 425, in setting out the test on a Non-Suit Motion:

On a non-suit motion, the trial judge undertakes a limited inquiry. Two relevant principles that guide this inquiry are these. First, if a plaintiff puts forward some evidence on all elements of its claim, the judge must dismiss the motion. Second, 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.

The Plaintiffs produced financial statements which suggested that they received net profits from the Defendants’ partnership and draws from the capital of the partnership. Also, the Plaintiffs produced organizational documents which contemplated that Cannam may have held shares in 680262 on behalf of the Plaintiffs.

The Court found that the Plaintiffs led some evidence to further their Claim against the Defendants, and added that Non-Suit Motions should be granted rarely unless there are the clearest of circumstances. Giving the Plaintiffs’ evidence “the most favourable meaning”, his Lordship concluded that the evidence was capable of giving rise to competing inferences and the Application was dismissed accordingly.