Maxwell Leo Cohen Reedijk

The defendants moved to dismiss the plaintiff's action for delay under Rule 24.01(1)(c), arguing the plaintiff failed to set the action down for trial within six months of the close of pleadings.

The court found an inordinate and inexcusable 2.5-year delay.

This delay resulted in substantial prejudice to the defendants' ability to defend the action due to the death of Albert Gilbert, a crucial witness whose oral promises formed the basis of the plaintiff's claim.

The motion was granted, and the action was dismissed.

The appellant appealed a summary judgment decision granting the respondent payment under a labour and materials payment bond.

The respondent had performed work under a subcontract with the general contractor, which subsequently abandoned the project.

The respondent then successfully bid to complete the remaining work under a new completion subcontract at more favourable terms.

The respondent claimed against the payment bond for unpaid invoices from the original work.

The appellant argued the respondent had fully mitigated its damages through the completion subcontract and therefore suffered no loss.

The Court of Appeal upheld the summary judgment, finding that the respondent's decision to bid on the completion subcontract was not an action taken to mitigate the loss from the failure to pay for the original work, but rather was a consequence of the contractor's abandonment of the project.