ROSS v EDMONTON (CITY), 2016 ABQB 730
8.20: Application for dismissal at close of plaintiff’s case
The Plaintiff applied to appeal a Decision of the Edmonton Local Assessment Review Board (the “Board”) which had denied her request to lower the assessment of her residential property. Veit J. noted that in any civil proceeding the Claimant must initially only provide some evidence in support of their Claim, and once that threshold is satisfied, the onus shifts to the Respondent. Veit J. considered Rule 8.20 and stated that, at the close of a Plaintiff’s case, the Defendant may request that the Court dismiss the Action on the grounds that no case has been made without being asked to elect whether evidence will be called. Following prior authority, Veit J. stated that the test for a non-suit Application under Rule 8.20 was that:
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. ...
Justice Veit observed that the Court should assume that the Plaintiff’s evidence is true and draw all reasonable inferences from it. Her Ladyship stated the burden of proof in the Board hearing was not statutorily varied.
Veit J. stated further that there was no obligation on the Plaintiff to prove her case on a balance of probabilities before the evidentiary burden shifted to the City of Edmonton to make a response. The Plaintiff had provided some evidence to the Board that the assessment was unfair, and therefore, she had met the prima facia test. The Court determined that the Board had departed from the ordinary principle of law when it required the Applicant to prove that the assessment was incorrect before assessing the totality of the evidence before it. Therefore, the Application was dismissed and the Applicant’s complaint was returned to the Board for reconsideration.View CanLII Details