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Action allowed to proceed despite delay as plaintiffs provided acceptable explanation and defendants suffered no prejudice.
The plaintiffs brought a motion for a status hearing under Rule 48.14(5) to establish a timetable for the remainder of the action, which involved a claim for unpaid construction work on a custom home.
The defendants sought to have the action dismissed for delay.
The Master found that the plaintiffs had an acceptable explanation for the delay, as their former lawyer failed to advance the action despite their instructions, and that the defendants suffered no non-compensable prejudice.
The motion was granted, allowing the action to proceed with a new deadline to set it down for trial.
Appeal dismissed; employee's delay in starting new job based on legal advice was reasonable mitigation.
The appellant employer appealed a Small Claims Court decision finding it had constructively dismissed the respondent employee.
The sole ground of appeal was that the trial judge failed to address the issue of mitigation of damages in his reasons, as the employee delayed starting new employment for several months.
The Divisional Court dismissed the appeal, holding that while the trial judge's reasons were deficient on their face, the record clearly showed the employee acted reasonably in delaying his new employment based on legal advice regarding a potential injunction.
The court exercised its power under s. 134 of the Courts of Justice Act to find the employee had not failed to mitigate his damages.
