This Trial consisted of two Actions (“Action 1” and “Action 2”). The Defendants brought a nonsuit Application to dismiss Action 2, pursuant to Rule 8.20. The Defendants did not apply to dismiss Action 1. A central feature of Action 1 was an allegation that the Defendants illegally concealed documents in 1986. The facts pleaded in Action 2 were essentially a continuation of Action 1, with different Defendants. The Amended Statement of Claim in Action 2 pleaded a new set of facts alleging that a letter written by an Action 2 Defendant contained a false representation and that Action 2 Defendants were complicit in a conspiracy to conceal the records from Action 1.

The Defendants made oral submissions at Trial pursuant to Rule 8.20 to dismiss Action 2 on the ground that no case had been made against the Defendants named in the Action. If all of Action 2 could not be dismissed, then the Defendants, who were all represented by the same counsel, agreed that none of the Defendants objected to one or more of the Action 2 Defendants being “let out” of the Trial at this stage. The Defendants did not submit to dismiss Action 1 and conceded that there was “some evidence” with respect to the allegations made in Action 1, such that the Defendants in that Action must be made to call evidence. Effectively, the concession dictated that, regardless of the result of the non-suit Application, the Trial must continue in relation to Action 1.

In assessing Rule 8.20 and non-suit Applications, the Court referred to Capital Estate Planning Corporation v Lynch, 2011 ABCA 224, finding that a non-suit Application will fail if the Plaintiff has adduced some evidence on each of the essential elements of his or her claim. In making such an assessment, a Judge is not to assess the weight or credibility of said evidence and must assume that the Plaintiff’s evidence is true, drawing all reasonable inferences from it. Additionally, a Trial Judge’s ruling on a non-suit Application will be reviewed on a standard of correctness.

The Court also referred to Rules 7.3 and 3.68, recognizing that the Rules allow the Court to dismiss “a claim or part of it” or that “all or any part of a Claim […] can be struck out”. Without deciding whether the Court's authority under Rule 8.20 to dismiss "the action" includes an authority to dismiss "part of the action", Justice Whitling concluded that the applicable case law confirms that fairness and efficiency concerns may often be implicated by "partial non-suit applications". Justice Whitling agreed with the approach adopted by Justice Kilback in Canadian Pacific Rwy v Saskatchewan, and particularly agreed that the Court's authority to grant a non-suit application includes an element of discretion that is informed by such foundational principles as efficiency and expediency. Justice Whitling noted that Rule 8.20 states a defendant "may request" the Court to dismiss the action at the close of the Plaintiff's case, and that nothing in the language of Rule 8.20 suggests that the Court "shall" or "must" grant such an application in every case where the test in Capital Estate Planning is met. The Court concluded that in some circumstances, granting such an application may not be in the overall interests of justice. Justice Whitling concluded that the Court enjoys a general discretion under Rule 8.20 to deny a "partial non-suit application" where such an order would "prevent justice being done when the whole of the evidence has been heard".

Having considered all circumstances of the case, the Court found that although Action 1 and Action 2 were never formally joined, for practical purposes they were one Action. Since the Defendants only applied to dismiss Action 2, the non-suit did not have the potential to bring the Action to an immediate end, and the potential time savings would be minimal. As the Defendants admitted that Action 1 was supported by evidence, and the issues in Action 2 could not be disentangled from Action 1, an Order granting a non-suit in Action 2 would create a significant risk of inconsistent determinations with respect to the same issues. In summary, the Court held that granting the nonsuit Application would not be in the interest of justice. The Application was denied.”