In Insurance Corporation of British Columbia v. Mehat, 2018 BCCA 242, the Court of Appeal provides guidance on the procedural and functional distinction between a "no evidence" motion and an "insufficient evidence" motion.
Insurance Corporation of British Columbia v. Mehat required the Court of Appeal to address the differences between a "no evidence" motion, an "insufficient evidence" motion, and final judgment in a civil trial.
The appellant ICBC sued the respondents Mr. and Mrs. Mehat, claiming they engaged in insurance fraud. At trial, at the close of ICBC's case, the Mehats brought an insufficient evidence motion and elected to call no evidence. The trial judge dismissed the insufficient evidence motion, and then proceeded to final submissions. As indicated by the Court of Appeal, the trial judge did not contemplate procedurally that if the Mehats lost the insufficient evidence motion, this would be equivalent to ICBC proving its case.
In the context of that background, the Court explained the difference between a no evidence motion and an insufficient evidence motion.
No Evidence Motion
On a no evidence motion, the court does not engage in a final weighing of the evidence.
The test on a no evidence motion is whether a reasonable trier of fact could find in the plaintiff's favour if the trier of fact viewed the evidence most favourably and chose to accept it.
A no evidence motion has its origins in an English procedure known as a "non-suit". The test on a no evidence motion is whether the plaintiff has failed to adduce evidence on which a properly instructed jury, acting reasonably, could find for the plaintiff: Roberge v. Huberman, 1999 BCCA 196 at paras. 1819, 22. It is a question of law whether it is proper to grant a non-suit both in a civil matter (Roberge at para. 36) and in a criminal matter (Walker v. The King,  S.C.R. 214 at 217; R. v. Kyling,  S.C.R. 953 at 956).
On a civil no evidence motion the trial judge determines only whether there is any evidence "capable of" supporting the plaintiff's claim, without evaluating the quality of that evidence. The relevant question is whether a reasonable trier of fact "could" find in the plaintiff's favour, not whether the trier of fact "would" do so. If there is some circumstantial evidence, to defeat a no evidence motion the evidence must be "reasonably capable" of supporting the inferences that are necessary to prove the plaintiff's case. This may require the court to engage in a limited weighing of the evidence.
A defendant has the choice of calling evidence if unsuccessful on a no evidence motion: R. 12-5(4) and (5).
Insufficient Evidence Motion
In contrast, an insufficient evidence motion pursuant to R. 12-5(6) and (7) functionally marks the end of the calling of evidence and requires the trier of fact to determine the case on its merits. Before proceeding with the motion, the defendant must first elect not to call evidence.
The defendant's argument on such a motion is that the plaintiff's evidence, once weighed by the trier of fact, should result in the dismissal of the plaintiff's case as the plaintiff has not met its burden of proof.
An insufficient evidence motion is not a stepping stone midway between a no evidence motion and final argument; rather, it is equivalent to final argument, and requires determination of whether the plaintiff has proven its case on a balance of probabilities.
The purpose of requiring the defendant to elect not to call evidence when arguing that the plaintiff's case fails for insufficient evidence is clear: it means that the trial judge need only look at the evidence once, on the ultimate question of whether the plaintiff has proven its case on a balance of probabilities. This avoids having the judge look at the evidence in two stages, as on a no evidence motion, that is, at the stage of the no evidence motion, and then at the stage of final argument.
The Court of Appeal explained the correct procedure.
After the Mehats stated that they were bringing an insufficient evidence motion, the trial judge should have:
- confirmed that the Mehats were electing not to call evidence;
- heard final argument; and
- then determined the ultimate disposition of the case based on the balance of probabilities standard.
There is a significant difference between a no evidence motion and an insufficient evidence motion, but no practical difference between an insufficient evidence motion and final argument at trial.