Election

An accused who is charged with an indictable offence is in most cases offered a choice as to mode of trial: superior court judge with a jury, superior court judge alone, or provincial court judge. In such cases, the accused is said to have an election as to mode of trial.

The doctrine of election applies where a plaintiff wishes to pursue alternative claims arising from the same factual incident but which are premised upon the assertion of inconsistent legal rights. Thus, a plaintiff may maintain an action for both specific performance and, in the alternative, damages for breach of contract, but will be required to make an election prior to judgment as to which claim he wishes to pursue. The specific performance claim is premised upon the plaintiff wishing to enforce the contract and remaining ready, willing, and able to perform, while the damages claim is premised on the plaintiff accepting the breach and treating the contract as discharged forthwith.

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