Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff alleged wrongful termination of employment or dependent contractor status.

• Defendants sought dismissal of the action due to procedural delay in setting it down for trial.

• The motion judge extended the time for trial, accepting plaintiff’s explanation involving counsel’s maternity leave and file management lapses.

• Affidavit evidence from a law student was accepted despite weaknesses, with reduced weight.

• Appeal focused on whether the motion judge misapplied the legal test and improperly exercised discretion.

• The court upheld the lower decision, emphasizing deference to discretionary rulings and access to justice.

Plaintiff alleged wrongful termination of employment or dependent contractor status

The plaintiffs, Gojko Uzelac and G. Uzelac Trucking, brought a claim against Dufferin Aggregates and Aggregate Transfer Systems in 2017. The claim involved allegations of wrongful termination, asserting that Uzelac had either been employed by or was a dependent contractor of Dufferin and that his relationship was wrongfully ended. Over the course of the litigation, the file experienced significant procedural delays, much of which related to disputes over mediation and examinations, changes in legal counsel, and internal issues within the plaintiff’s law firm.

By 2022, the action had not been set down for trial, and Dufferin moved to dismiss the claim under Rule 48.14 for delay. The plaintiffs responded by seeking an extension of time to do so. Associate Justice McGraw granted the extension and imposed a timetable for the case to proceed, accepting the plaintiffs' explanation that delays were largely caused by law firm staffing transitions, including two maternity leaves and resulting file management problems.

Appeal centered on the motion judge’s acceptance of the delay explanation

Dufferin appealed, arguing that Associate Justice McGraw erred by accepting insufficient evidence regarding the delays, specifically citing two periods of inactivity for which they claimed no adequate explanation was provided. The contested evidence was an affidavit from an articling student who cited information from unnamed sources within the plaintiffs' law firm. Dufferin claimed this affidavit was too vague and lacked proper evidentiary grounding.

However, the appeal judge found that Associate Justice McGraw had properly acknowledged the limitations of the affidavit, assigned it reduced weight, and balanced it against the broader factual context. The motion judge's decision explicitly noted concerns about the affidavit but emphasized that the delays stemmed from inadvertence rather than intentional misconduct. Relying on appellate authority, he held that clients should not be punished with dismissal where the delay results from their counsel’s oversight.

Legal test was correctly applied and no overriding errors found

On appeal, Dufferin also argued that the judge misapplied the legal test for extending the set-down deadline, claiming he treated the test as a guideline rather than a strict rule and improperly focused on the conduct of the defendant. The court disagreed. It confirmed that the two-part test—requiring an acceptable explanation for delay and no non-compensable prejudice to the defendant—had been properly understood and applied.

The appeal judge held that the motion judge was entitled to consider the full context, including Dufferin’s own role in delaying mediation, multiple changes of counsel, and their inflexible litigation posture. Although critical of some conduct on both sides, the judge concluded that the lower court did not reverse the onus, introduce a third step, or improperly excuse the plaintiff’s responsibilities. The use of discretion was found to be appropriate and supported by the record.

Outcome emphasized access to justice and fairness

The appeal was dismissed, and the court ordered Dufferin to pay $12,500 in costs to Uzelac. The decision reinforces the principle that dismissal for delay should be a last resort and that courts must carefully consider whether a litigant should lose the right to pursue their claim due to procedural missteps—especially when those missteps stem from counsel, not the client. The ruling underscores a strong preference for deciding matters on their merits rather than on technical grounds.