What is the test applied in an application for a non-suit?

As to the trial judge’s comment to the effect that an application for a non-suit would not be successful, it does not assist in this analysis. The test applied in an application for non-suit does not involve any weighing of evidence. The question on an application for a non-suit is whether there is enough evidence, if left uncontradicted, upon which a jury could decide in favour of the plaintiff or defendant where, as here, the defendant has the burden of proof. (Rowe v. Sears Canada, 2005 NLCA 65) The duty of good faith requires more of an insurer than the adversary system normally demands. It requires an insurer to assess the merits of the claim in a balanced and reasonable manner. Here, the evidence related to arson must be assessed not with a view to whether a prima facie case against the insured can be made out, but to decide whether on all of the evidence the defence of arson is a reasonable one. Further, an application for a non-suit is based on the evidence before the court, it does not consider whether the investigation, which produces the evidence for the insurer, was conducted fairly.