[Edward Schnurr for The Lawyers Weekly] Click here to see full sized version.

The concept of a non-suit is well established in criminal and civil litigation. The non-suit allows courts to eliminate cases lacking merit, thereby providing a mechanism to manage finite judicial resources. It also affords defendants a measure of protection against frivolous claims.

While not common in the administrative and regulatory area, a recent Nova Scotia Utility and Review Board Planning decision (Rissesco (Re), 2009 NSUARB 78) provides context for the successful application of the non-suit in that setting.

Background

On Feb. 19, the Municipality of the District of West Hants, N.S., approved a development agreement with Falls Lake Resort Inc. authorizing a 118-unit condominium development. The approval decision followed months of consultation by the planning department with the public and other interested stakeholders.

A neighbouring resident (R) appealed the council’s decision to the Utility and Review Board under the Municipal Government Act (MGA). On the appeal, R raised concerns about potential environmental impacts associated with the development, the developer’s track record and council procedures leading to the approval decision. R was self-represented.

Under the MGA, the board’s mandate on a planning appeal is to determine whether the council’s decision is reasonably consistent with the applicable Municipal Planning Strategy (MPS) policy.

The appeal came before the board for hearing on May 25. R’s presentation relied substantially on material that had been ruled irrelevant by the board at a preliminary hearing.

R made no mention of the MPS and how the decision of council offended relevant MPS provisions. At the close of R’s case, a non-suit motion was made by the developer (supported by the municipality) for dismissal of the appeal.

Board’s decision

In considering the non-suit motion, the board affirmed the availability of the non-suit in the administrative context. The presiding board chair, David Almon, adopted the following commentary from the late Justice John Sopinka’s text, The Law of Evidence in Canada:

'…if a plaintiff fails to lead any material evidence, the plaintiff may be faced with a defendant’s non-suit motion at the close of his or her case. If such a motion is launched, it is the trial judge’s function to determine whether any facts have been established by the plaintiff from which liability can be inferred.'

The board also noted the following observation by Sopinka:

'The non-suit procedure in the various jurisdictions is followed in all civil actions and administrative proceedings...'

While the board’s rules are silent on the use of a non-suit, the board agreed that it was available by virtue of the common law.

In the case before the board, the question for the chair was not whether he believed the evidence. Rather, in considering the non-suit, the trier had to decide whether there was evidence that, if left uncontradicted, could lead a reasonable trier of fact to find in R’s favour. The board found that there was insufficient evidence to establish a prima facie case. In reaching his decision, the chair commented:

'…it would be unfair and unjust in these circumstances, where there is no evidence, to allow an appeal of this kind to proceed, where the Appellants have not even met the minimum threshold in their argument.'

R had the onus of demonstrating on a balance of probabilities that council’s decision did not reasonably carry out the intent of the MPS and had failed in that regard. The board dismissed R’s appeal.

The board’s decision represents a candid application of the legal principles behind motions for non-suit in the regulatory and administrative context.

While recognizing the balancing act that administrative tribunals must engage in, the decision signals an ability — and willingness — to summarily dismiss proceedings when the requisite evidentiary threshold has not been met. A heightened sensitivity to the potential application of non-suit should help to focus the real issues and evidence for hearing purposes and, ultimately, help facilitate effective management of tribunal resources.

Speaking practically, there is nothing better suited to misdirected claims than a non-suit. Rissesco suggests such claims are no less vulnerable in the administrative context.n

Kevin Latimer, of Cox & Palmer, Halifax, advises public and private sector clients on municipal development and regulatory matters and represented the developer in Rissesco.