What is the test for election in a common law claim under The Workmen’s Compensation Act?

Now the facts in this case in reference to the claim under The Workmen’s Compensation Act are exceedingly sketchy and I am led to assume that counsel for the plaintiff felt that there was no question but that he would succeed at common law and, without due consideration, at the conclusion of the argument he asked that the learned trial judge assess the compensation under The Workmen’s Compensation Act. With every deference to the numerous cases cited by counsel for the defendant respondent, particularly Dalrymple v. C.P.R. 1920 CanLII 109 (SK CA), [1920] 3 WWR 820, I am of the opinion that there was no election in this case. In the Dalrymple v. C.P.R. case, the common-law action for damages had been withdrawn from the jury and the action dismissed. The time for election had come and counsel, knowing that his common law action was gone, applied to have compensation assessed under The Workmen’s Compensation Act, which was done and the judgment entered therefor with costs. It was held that under these circumstances no appeal from the judgment dismissing the action at common law could be maintained and on a motion to dismiss the appeal the court agreed.