Executive Summary: Key Legal and Evidentiary Issues

• Plaintiffs Gojko Uzelac and G. Uzelac Trucking sought successive extensions of the deadline to set their wrongful dismissal action down for trial under Rule 48.14 of the Rules of Civil Procedure.
   
• Defendant Dufferin Aggregates (CRH) opposed both status hearing motions and separately appealed the first extension order.
   
• Associate Justice McGraw applied the two-part conjunctive test requiring an acceptable explanation for delay and an absence of non-compensable prejudice to the defendant.
   
• Evidentiary disputes arose over an articling student's affidavit describing counsel's maternity-leave-related file management lapses.
   
• Counsel changes, shifting positions on mediation timing, and an intervening appeal each contributed to delays attributed to both parties.
   
• Justice Brownstone dismissed CRH's appeal of the first extension order, finding no palpable and overriding error and no legal misdirection by Associate Justice McGraw.
   

Facts of the case

Gojko Uzelac worked as a truck driver for Dufferin Aggregates, a division of CRH Canada Group Inc., from 1962 until 2000. After reaching mandatory retirement age and losing union eligibility, he and G. Uzelac Trucking continued providing services to CRH until May 2017 through 470474 Ontario Limited, operating as Aggregate Transfer Systems (ATS). The plaintiffs commenced their action on June 12, 2017, alleging that the defendants wrongfully terminated their employment or dependent contractor services on May 11, 2017 by refusing to schedule them for work, in violation of the Human Rights Code (Ontario) and the Employment Standards Act, 2000 (Ontario). The plaintiffs claimed damages of $417,500, comprising $312,500 for wrongful dismissal and $100,000 for the alleged Human Rights Code breach.

The litigation proceeded slowly over several years, marked by repeated changes of counsel for ATS and CRH, disputes over whether mediation should precede or follow examinations for discovery, and periods of inactivity attributed variously to the pandemic, counsel's maternity leaves, and file management lapses at plaintiffs' counsel's firm. ATS ceased participating in the action in mid-2018 after facing receivership. Examinations for discovery were eventually completed in November 2020. The five-year deadline to set the action down for trial, extended by pandemic-related suspensions, expired on December 12, 2022, without the action being set down.

Policy and legislative provisions at issue

Rule 48.14 of the Rules of Civil Procedure requires dismissal of an action for delay if it has not been set down for trial by the fifth anniversary of commencement, unless the court orders otherwise. Under subrule (5), a party may bring a motion for a status hearing, at which the plaintiff must show cause why the action should not be dismissed. The well-established test, described as two-fold and conjunctive, requires the plaintiff to demonstrate an acceptable explanation for the delay and that the defendant would not suffer non-compensable or actual prejudice if the action proceeded. The underlying substantive claim invoked the Human Rights Code (Ontario), concerning alleged age-based termination, and the Employment Standards Act, 2000 (Ontario), concerning statutory entitlements.

Reasoning and analysis

On the first status hearing, Associate Justice McGraw found the plaintiffs' explanation for delay acceptable, notwithstanding evidentiary weaknesses in an articling student's affidavit describing maternity-leave-related file management problems at plaintiffs' counsel's firm. He gave that affidavit reduced weight but accepted, considering the whole record, that inadvertence rather than deliberate delay caused portions of the gap. He also weighed CRH's own contribution to delay, including five changes of counsel, a lawyer removal motion, and shifting positions on mandatory mediation, and concluded that no strong presumption of prejudice arose because discoveries had been completed and CRH had not shown that departed witnesses were actually unavailable or that memories had faded.

CRH appealed, arguing palpable and overriding factual errors and legal misdirection regarding the two-part test. Justice Brownstone dismissed the appeal, holding that the motion judge properly instructed himself on the test, permissibly considered context including counsel inadvertence, and made findings available on the record. The appellate court emphasized that courts prefer resolving matters on their merits where delay stems from counsel's errors rather than a party's own conduct.

The appeal itself, however, consumed most of the timetable set in the first order, leaving only weeks to complete mediation before the July 31, 2025 set-down deadline. On the second status hearing, Associate Justice McGraw again found the plaintiffs' explanation acceptable, emphasizing continuous efforts to schedule mediation, CRH's own non-compliance with interim deadlines, and CRH's silence about insisting on strict enforcement of the set-down date until weeks after it had passed. He declined to find plaintiffs' counsel negligent, characterizing the missed deadline as excusable inadvertence, and rejected CRH's argument that a strong presumption of prejudice arose from the action's overall age, noting no witnesses had become unavailable, no documents had been lost, and no memories had faded during the relevant period.

Ruling and overall outcome

The plaintiffs succeeded on both status hearing motions and on the appeal brought by CRH. Justice Brownstone dismissed CRH's appeal of the first extension order and ordered CRH to pay the plaintiffs costs of $12,500, all inclusive, by agreement of the parties. Associate Justice McGraw granted the plaintiffs a second extension, ordering the set-down date extended to December 31, 2026, with mediation to be completed by November 30, 2026. Costs of the second status hearing motion were left for the parties to resolve, with the court suggesting they be deferred to trial given the action's advanced stage; if unresolved, written submissions not exceeding four pages were to be filed on a timetable agreed by counsel.