Election Still Required In Civil Non-Suits In Ontario

Non-suits are different (in Ontario) depending on whether the trial is a civil or a criminal matter.

In a civil matter on motion for non-suit the defendant is required to elect whether to call evident. If evidence is called the motion is decided only after the evidence is heard; if no evidence is called the motion is heard but if the motion fails the case is at an end. This means only a very brave, or foolish, counsel would bring a motion because if the motion fails the defendant’s case does not get to the trier of fact.

In a criminal matter there is no election and so a motion for non-suit can be brought without risk.

As a result civil non-suits are rare.

In the recent Di Martino v. Delisio, 2008 CanLII 36157 (ON S.C.) decision a motion for non-suit was brought in a civil case and counsel argued against the election. The Court required the election, saying:

[159] Mr. Bates moved for a non-suit after the plaintiff closed his case. He argued that, contrary to the established practice governing non-suits in civil cases, he should not be put to an election to call evidence. First, he submitted that the defendant’s liability should be governed by the “egregious error” test which had been applied in Ontario prior to the recent decision of the court of Appeal in Folland v. Reardon. He said that since the alleged negligence of Mr. DeLisio occurred prior to the decision of Folland v. Reardon, the court should apply the old test. Second, he contended that this negligence action is a collateral attack on the findings of the Trial Judge at the Original Trial, and that a high standard of review should be applied. I ruled that he was required to elect whether to call evidence. If he elected to do so, that evidence would be considered in ruling on the non-suit.

[160] Mr. Bates elected to call evidence. At the end of the defendant’s case he renewed the motion for a non-suit, but only with respect to some of the allegations of negligence. It was agreed that submissions on the non-suit would be made at the same time as closing argument. I reserved on these submissions.

[161] In the recent decision of the Court of Appeal in Prudential Securities Credit Corp., LLC v. Cobrand Foods Ltd. 2007 ONCA 425 (CanLII), (2007), 85 O.R. (3d) 561, 2007 ONCA 425, Mr. Justice Laskin, giving the judgment of the Court on behalf of himself, Borins and Feldman, JJ.A., questioned the value of non-suits in civil non-jury actions, at paras 12 – 14:

… I want to say a few words about non-suit motions in civil non-jury trials. The term "non-suit" refers to a motion brought by the defendant at the close of the plaintiff's evidence to dismiss the action on the ground that the plaintiff has failed to make out a case for the defendant to answer. Neither the Courts of Justice Act, R.S.O. 1990, c. C.43, nor the Rules of Civil Procedure specifically provides for non-suit motions, but judges continue to have a recognized jurisdiction to entertain these motions.

Still, I question whether in this province a non-suit motion in a civil non-jury trial has much value. In Ontario, when a defendant moves for a non-suit, the defendant must elect whether to call evidence. See Ontario v. Ontario Public Service Employees Union (OPSEU) (reflex-logo) reflex, (1990), 37 O.A.C. 218 at para. 40 (Div. Ct.). If the defendant elects to call evidence, the judge reserves on the motion until the end of the case. If the defendant elects to call no evidence - as Robert Laba elected in this case - then the judge rules on the motion immediately after it has been made.

A non-suit motion adds to the time and expense of a trial. And because of the election requirement, it has little practical value. Perhaps a defendant bringing the motion sees a tactical advantage in being able to argue first. To succeed on the motion, however, the defendant must show that the plaintiff has put forward no case to answer, in most lawsuits an onerous task. Why not simply take on the less onerous task of showing that the plaintiff's claim should fail? It is small wonder that most commentators consider that in civil judge alone trials, non-suit motions gain little and are becoming obsolete. See Phipson on Evidence, 16th ed. (London: Sweet and Maxwell, 2005) at 274, and John Sopinka, Donald B. Houston and Melanie