Caroni – Tax Court of Canada frowns on non-suit motions

At the hearing of the taxpayer's appeal of net worth assessments, the Crown presented its case first, given that all the years were statute-barred. At the conclusion of the Crown's evidence, the taxpayer moved to have the appeal summarily allowed on the basis that the Crown's evidence was insufficient to discharge its burden of proving a misrepresentation sufficient to open up any of the years. However, the taxpayer nonetheless elected to call evidence, and Esri J reserved on the motion.

Esri J later found that the taxpayer's motion was essentially a non-suit motion, which failed because the Crown had met its evidential burden of providing some evidence to support its case (and was not, in the context of a non-suit motion, required to have made out its case on a balance of probabilities).

Esri J also stated:

[N]on-suit motions … accomplish nothing and should be more or less precluded in the Tax Court. I say that because if, as still seems to be the case, the moving party must be put to an election as to whether to call evidence or not, the suit serves no purpose. If evidence is called, then no time has been saved. If no evidence is called, then the judge does not need to decide the non-suit motion because she can simply decide the case once and for all on the basis of the record and the arguments.

Neal Armstrong. Summary of Caroni v. The King, 2025 TCC 101 under General Concepts – Onus.