COURT FILE NO .: 3199/01

DATE: 2012-04-05

SUPERIOR COURT OF JUSTICE - ONTARIO

B E T W E E N:

HORTICO INC., Plaintiff

AND:

DYLAN REES, carrying on business as CANADIAN ROSE COMPANY, Defendants

A N D B E T W E E N:

DYLAN REES, carrying on business as CANADIAN ROSE COMPANY, Plaintiff

AND:

HORTICO INC., and WILLIAM VAN DER KRUK and NATHAN D. LEADER and THE ENGLISH ROSE COMPANY LTD., Defendants

COURT FILE NO.: 4711/04

B E T W E E N:

NATHAN D. LEADER, and THE ENGLISH ROSE COMPANY LTD., Plaintiffs

AND:

HORTICO NURSERIES INC., WILLIAM VAN DER KRUK, DYLAN REES and REES ROSE INTERNATIONAL BUDDING LTD., Defendants

A N D B E T W E E N:

DYLAN REES, carrying on business as CANADIAN ROSE COMPANY, Plaintiff

AND:

HORTICO INC., and WILLIAM VAN DER KRUK and NATHAN D. LEADER and THE ENGLISH ROSE COMPANY LTD., Defendants

BEFORE: MURRAY J.

COUNSEL:
Herman Faber, Counsel for the Plaintiff/Defendant by Counterclaim Hortico Nurseries and William Van der Kruk

J. Leigh Dabroll, Counsel for the Defendant/Plaintiff by Counterclaim, Dylan Rees, c.o.b. as Canadian Rose Company

HEARD: January 24, 2012

ENDORSEMENT

[1] The motions in this case relate to two separate but related actions.

[2] The first action, court file 3199/01 (originally 10782/95) was originally commenced in Hamilton, Ontario and transferred to Milton.

[3] The second, court file 4711/04 (originally 95 – CU - 94621) was commenced in Toronto. This action was transferred to Milton Ontario.

[4] By order of Justice Borkovich, dated February 1, 2001, made on consent, action 10782/95 (now court file 3199/01) was transferred from Hamilton to Milton to be consolidated or heard at the same time as Toronto Court file 95 – CU – 94621 (now court file 4711/04). As of the date of these motions, no order to consolidate has been made.

[5] This flurry of motions was triggered by what the parties have stated is a Registrar’s dismissal of action 31990/01 for delay following a Status Notice dated December 3, 2010.

The Litigation

Chronology of events with respect to court file 3199/01 (originally 10782/95 )

[6] Hortico Inc. is the plaintiff in action 3199/01, originally numbered 10782/95, commenced in Hamilton, Ontario.

[7] On October 24, 1995, almost 17 years ago, Hortico Inc. (hereinafter referred to as “Hortico”) issued a claim against Dylan Rees (hereinafter referred to as “Rees”) carrying on business as Canadian Rose Company. The claim by Hortico alleged that the defendant Rees occupied a farm owned by Hortico on which Rees grew roses for Hortico. Rees was paid on the basis of the quantity and quality of the grown roses. Hortico alleged that Rees, in breach of the agreement with Hortico, sold roses directly to the public causing damage to Hortico. In addition, Hortico alleged that Rees, without any authority, cut and sold hardwood timber from the farm property owned by Hortico thereby converting the same to his own use and reducing the value of the farm property owned by Hortico.

[8] On May 15, 1997, Dylan Rees filed a statement of defence and counterclaim. The defendant Rees denied liability and denied that the plaintiff suffered any losses. Rees’ counterclaim named Hortico, William Van Der Kruk, Nathan Leader and The English Rose Company Ltd. as defendants to the counterclaim. The counterclaim by Rees alleged that Hortico and William Van Der Kruk (the owner and manager of Hortico) owed him money and that their wrongful conduct harmed his reputation and standing in the rose growing community. In addition, Rees, in his counterclaim, asserted that Nathan Leader and The English Rose Company intentionally caused damage to his business by besmirching his reputation and interfering with his economic relations with its customers.

[9] On August 17, 2000, Nathan Leader and The English Rose Company filed a defence to the counterclaim of Rees.

[10] On September 5, 2000, Hortico and William Van Der Kruk filed a defence to the counterclaim of Rees.

[11] On September 8, 2000, Rees filed a reply to defence to counterclaim in which - strangely - it asked for dismissal of the counterclaim with costs to Rees and Rees Rose International Budding Ltd., a company not named as a party in action 3199/01.

[12] On September 7 and November 2, 2000, examinations for discovery of Dylan Rees and William Van Der Kruk were held.

[13] On January 19, 2005, examinations for discovery of Nathan Leader were held.

[14] On January 19, 2005, by order of Justice Langdon of this court, the law firm of Paliare Roland was removed as solicitors of record for Nathan Leader and The English Rose Company Ltd. in action numbered 3199/01. Justice Langdon also granted leave to Nathan Leader to represent The English Rose Company Ltd.

[15] The Trial Record in the matter was served by counsel for Rees on all parties on July 21, 2004.

[16] On February 17, 2005, this action was set down for trial.

[17] A Status Notice from the Superior Court of Justice dated December 3, 2010, was issued.

[18] Mr. Justice Lemon, by order dated July 21, 2011, ordered the attendance of Nathan Leader on August 29, 2011 in Hamilton to be cross-examined on affidavits in his personal capacity and as president of The English Rose Company Ltd. This order resulted from a motion brought by Hortico Nurseries Inc. and William Van Der Kruk and Rees. Mr. Leader did not attend as required. A certificate of non-attendance was obtained.

Action 4711/04 (Originally 95 – CU - 94621)

[19] This action was commenced in Toronto by Nathan Leader and the English Rose Company Ltd. by claim dated November 24, 1995 in which Hortico Nurseries Inc. and William Van Der Kruk were named as defendants. The amended statement of claim named Hortico Nurseries Inc., William Van Der Kruk , Dylan Rees and Rees Rose International Budding Ltd. as defendants.

[20] In this action, the plaintiff Nathan Leader is described as an individual residing in Nottingham, England and the plaintiff company is a corporation incorporated pursuant to the laws of England. The statement of claim describes the defendant Rees Rose International Budding Ltd. as a company incorporated pursuant to the laws of England. This action was commenced in Toronto and was eventually transferred to Milton, Ontario on consent.

[21] In this claim, Leader describes himself as being involved in the business of growing roses. His claim asserts that the plaintiffs or one of them entered into a contract with Hortico in 1990 which provided that Leader would grow roses on the farm owned by Van Der Kruk or Hortico for a period of five years beginning in 1991, that Hortico would purchase roses grown by Leader at a fixed price and that a certain acreage would be set aside for this rose growing enterprise for the duration of the agreement. Leader further asserts that after the agreement was reached with Hortico that Leader entered into a subsequent agreement with Rees or with Rees Rose International Budding Ltd. in which it was agreed that both Leader and Rees would grow roses on the property and share expenses and profits generated by the sale of the roses. According to the claim, in April of 1993, Hortico decided to deal with Rees alone who continued growing roses on the farm and, as a result, Leader “took over” the contract between Leader and Hortico. Leader and the English Rose Company Ltd. claimed damages in tort and for breach of contract against Hortico, William Van Der Kruk , Rees and Rees Rose International Budding Ltd.

[22] On May 14, 1997, Rees and Rees Rose International Budding Ltd. filed a statement of defence and counterclaim and a cross-claim.

[23] In the statement of defence, it was asserted by Rees that Rees International Budding Ltd. was dissolved in 1994. In the statement of defence, Rees denied that there was any agreement between him or Rees Rose International Budding Ltd. and Leader in which it was agreed that both Leader and Rees would grow roses on the Hortico property and share expenses and profits. Rees asserted that any agreement that existed was between him and Hortico and William Van Der Kruk. Rees denied any liability to Nathan Leader or the English Rose Company Ltd.

[24] In the counterclaim, Rees and Rees Rose International Budding Ltd. claimed that the defendants by counterclaim, Leader and the English Rose Company Ltd., wrongfully interfered with economic relations of Rees and Rees Rose International Budding Ltd.

[25] Rees and Rees Rose International Budding Ltd. also cross-claimed against Hortico and William Van Der Kruk for, inter alia , breach of contract, damage to reputation and wrongful interference with economic relations.

[26] In May of 1997, Hortico and William Van Der Kruk filed a statement of defence in response to the claim of Nathan Leader and the English Rose Company Ltd.

[27] On September 5, 2000, filed a defence to the cross-claim of Rees and Rees Rose International Budding Ltd.

[28] On November 3, 2000, examination for discovery of Nathan Leader was conducted.

[29] On January 19, 2005, by order of Justice Langdon of this court, the law firm of Paliare Roland was removed as solicitors of record for Nathan Leader and The English Rose Company in action 4711/04. Justice Langdon also ordered that Leader be granted leave to represent The English Rose Company Ltd. Justice Langdon ordered that funds in the amount of $7,434.25, plus accrued interest, currently held in trust by Paliare Roland paid by Leader and The English Rose Company Ltd be paid forthwith into court as security for costs for Hortico Nurseries Inc. and William Van Der Kruk.

[30] On February 17, 2005 the matter was set down for trial.

[31] In an endorsement dated July 4, 2005, Justice Corbett of the Superior Court of Justice indicated that he was not satisfied with the progress of this matter and ordered the parties to schedule a supervision conference before any further steps are taken in this case.

The Motions Before the Court

[32] By motion in writing, Nathan Leader and The English Rose Company Ltd., represented by Nathan Leader, seek the following relief:

1. with respect to action 3199/01, an order confirming the Registrar’s dismissal for delay;

2. with respect to action 3199/01, an order that costs be awarded to Nathan Leader and The English Rose Company Ltd. in the amount of three times the value of the funds, plus accrued interest to date paid into court by Leader in court file 4711/04 enforceable against Rees and Hortico;

3. with respect to court file 4711/04 (originally 95 – CU - 94621), an order that the amount of $7,434.25, plus accrued interest to date, originally paid into court pursuant to the order of Justice Langdon, be repaid to Nathan Leader.

[33] The defendant/plaintiff by counterclaim Dylan Rees in his motion seeks, inter alia :

1. an order pursuant to rule 16.07(b) of the Rules of Civil Procedure to set aside the Registrar’s dismissal for delay in action 3199/01on the basis that counsel was not served with the Status Notice.

2. an order that action 3199/01 be transferred to Cayuga and that the current security for costs in the amount of $7,434.25, plus interest, be transferred to the Superior Court of Justice in Cayuga as security for costs in action 3199/01.

3. an order striking the pleadings of the defendant The English Rose Company Ltd. for delay and because, after Paliare Roland, the former solicitors of record, successfully had themselves removed from the record, the English Rose Company Ltd. did not appoint a new solicitor of record pursuant to the Rules .

[34] Hortico Inc. and William Van Der Kruk seek:

1. Hortico Nurseries Inc., William Van Der Kruk, request for an order confirming the Registrar’s dismissal of action 3199/01 for delay;

2. in the alternative, if the action 3199/01 is restored, an order dismissing action in its entirety for delay;

3. an order dismissing action 47/04 for delay;

4. an order that the costs of $7,434.25, plus interest paid into court in action 4711/04 pursuant to the order of Langdon J. dated January 19, 2005, be released to Hortico Inc.;

5. an order that any proceeding brought by the English Rose Company be dismissed and any defence filed by the English Rose Company be struck in the absence of the appointment of a qualified solicitor to act on behalf of The English Rose Company Ltd.

Analysis

[35] I now turn to the motions before me. I have considered the motion of Leader without considering the propriety of such notice being in writing.

The motions with respect to action 4711/04 (Originally 95 – CU - 94621)

[36] I will deal with the following issues:

1. Hortico’s request for an order dismissing action 4711/04;

2. Hortico’s request for an order that the costs of $7,434.25, plus interest paid into court in action 4711/04 pursuant to the order of Langdon J. dated January 19, 2005 be released to Hortico Inc.;

3. Rees’ request for an order that action 3199/01 be transferred to Cayuga and that the current security for costs in the amount of $7,434.25, plus interest, be transferred to the Superior Court of Justice in Cayuga as security for costs in action 3199/01;

4. Leader’s motion re 4711/04 in which he asks for an order that the amount of $7,434.25, plus accrued interest to date originally paid into court pursuant to the order of Justice Langdon on January 19, 2005, be repaid to Nathan Leader.

[37] It is clear from the affidavit material filed in support of the motion brought by Dylan Rees that Rees has no interest in action 4711/04 proceeding. In the affidavit of Stephanie McLaren, sworn June 16, 211, she affirms that Rees, a defendant and plaintiff by counterclaim and plaintiff by cross-claim, has recently filed a requisition seeking that this action be dismissed. In the motion presently before the Court, the fact of this requisition is relied on by Rees in support of his request for an order directing payment to him of the monies paid into court for security for costs plus accrued interest. According to Rees, if the requisition is granted there would be no requirement for the security for costs to remain in court.

[38] Neither do the plaintiffs in action 4711/04 (originally 95 – CU - 94621), Nathan Leader and the English Rose Company Ltd., have any interest in continuing this litigation. The English Rose Company Ltd. is in liquidation. Leader now seeks the return of money paid into court as security for costs, plus accrued interest.

[39] It is also obvious that the defendants Hortico Nurseries Inc. and William Van Der Kruk have no interest in this litigation being continued. They seek an order dismissing the action.

[40] There is a motion before me brought by Hortico Inc. to dismiss action 4711/04 (Originally 95 – CU - 94621) for delay. This motion is allowed.

[41] It is therefore ordered that action 4711/04, including the counterclaim and the cross-claim, is hereby dismissed.

[42] Nathan Leader, in court file 4711/04, asks for an order that the amount of $7,434.25, plus accrued interest to date originally paid into court pursuant to the order of Justice Langdon on January 19, 2005, be paid to Nathan Leader.

[43] As noted above, when Justice Langdon ordered the law firm of Paliare Roland removed as solicitors of record for Nathan Leader and The English Rose Company in action 4711/04, Justice Langdon ordered $7,434.25, plus accrued interest to be paid by Leader and The English Rose Company Ltd into court as security for costs for Hortico Nurseries Inc. and William Van Der Kruk. It is plain that Hortico Nurseries Inc. and William Van Der Kruk have a claim on these funds.

[44] Mr. Faber, counsel for Hortico and for William Van Der Kruk, has submitted a bill of costs in court file 4711/044 in the total amount of $12,970.66, including disbursements, fees and taxes. I have reviewed this bill of costs and do not find it unreasonable.

[45] Therefore, it is ordered that the funds in the amount of $7,434.25, plus accrued interest in court file 4711/044, are to be paid to Hortico Nurseries Inc. and William Van Der Kruk.

[46] The motion by Leader to have $7,434.25, plus accrued interest paid out of court to Leader, is denied.

[47] In light of my decision to order the payment of $7,434.25, plus accrued interest to Hortico Nurseries Inc. and William Van Der Kruk, and my decision (set out below), to dismiss action 3199/01, Rees’ request for an order to transfer action 3199/01 to Cayuga and to transfer security for costs in the amount of $7,434.25, plus interest in 4711/04 to the Superior Court of Justice in Cayuga as security for costs in action 3199/01is denied.

[48] Although it is unnecessary to deal with the request by Hortico Nurseries Inc. and William Van Der Kruk for an order striking the pleadings of The English Rose Company Ltd “in any proceedings,” I will comment on this request. The motion to strike the pleadings of The English Rose Company Ltd. is based on the assertion that it did not appoint a new solicitor of record pursuant to the Rules after the former solicitors of record (Paliare Roland) successfully had themselves removed from the record. This motion has no merit. The order of Langdon J. specifically granted Leader leave to represent the English Rose Company Ltd. in this action. This is an order made pursuant to Rule 15.01(2) and therefore the appointment of a solicitor of record pursuant to Rule 15.06 (6) was not required.

[49] This motion by Hortico Nurseries Inc. and William Van Der Kruk is dismissed.

The motions with respect to court file 3199/01 (originally 10782/95 )

[50] Rees, Hortico Nurseries Inc. and William Van Der Kruk ask for an order striking the pleadings of The English Rose Company Ltd in 3199/01. For reasons given above, this motion has no merit. The order of Langdon J. specifically granted Leader leave to represent the English Rose Company Ltd. in this action. This is an order made pursuant to Rule 15.01(2) and therefore the appointment of a solicitor of record pursuant to Rule 15.06 (6) was not required. This aspect of the motions by Rees and by Hortico Nurseries Inc. and William Van Der Kruk is dismissed.

[51] I will now deal with the following issues:

1. Rees’ request for an order setting aside the Registrar’s dismissal for delay in action 3199/01.

2. The request of Hortico Nurseries Inc., William Van Der Kruk, Leader and The English Rose Company Ltd. for an order confirming the Registrar’s dismissal for delay and their motion to dismiss the action for delay.

3. The motion of Hortico Nurseries Inc., William Van Der Kruk for an order dismissing action in its entirety 3199/01 for delay;

4. Leader’s motion for an order confirming the dismissal of action 3199/01, and for an order that that costs be awarded in action 3199/01 to Nathan Leader and The English Rose Company Ltd. in the amount of three times the value of the funds, plus accrued interest to date paid into court by Leader in court file 4711/04 enforceable against Rees and Hortico;

[52] At the time this action was commenced, Mr. Daboll of the firm Heelis, Williams, Little and Culliton represented Rees carrying on business as Canadian Rose Company. Mr. Daboll ceased the practice of law with this firm and opened his own firm on October 1, 2002. According to the affidavit material filed, Mr. Daboll served a Notice of Change of Representation and filed same with the Superior Court of Justice shortly thereafter. Counsel for Dylan Rees, defendant and the plaintiff by counterclaim, is Mr. J. Leigh Daboll. Mr. Daboll was an associate in the firm of Heelis, Williams, Little and Culliton when the action was commenced. Mr. Daboll opened his own law firm on October 1, 2002. In an affidavit filed in support of his motion by his law clerk, it is asserted that Mr. Daboll served a Notice of Change of Representation on all parties and filed same with the Superior Court of Justice shortly thereafter. Affidavits of service confirmed service of a Notice of Change of Representation on all parties.

[53] A Status Notice from the Superior Court of Justice dated December 3, 2010 was apparently served by fax to all parties except Mr. Daboll. Evidently, the Status Notice from the Superior Court was not sent to Mr. Daboll’s current fax number but was sent by fax to his former firm where he had not practiced since July 2002. The Status Notice erroneously served by fax on Mr. Daboll’s former law firm did not come to the attention of Mr. Daboll until after the action was administratively dismissed in 2011.

[54] According to the affidavit evidence filed, Mr. Daboll brought the motion to set aside the Registrar’s dismissal once he became aware of this administrative action. The motion was initially returnable in June of 2011 and then after a series of adjournments came before this Court on January 24, 2012.

[55] I accept that Mr. Daboll was not served with the Status Notice through no fault of his own. That being said, the motion records before me do not contain any Registrar’s order dismissing the action. Neither does the file contain any order dismissing the action. The status notice of December 3, 2010 does say that the action shall be dismissed within 90 days unless certain conditions are met. It was not unreasonable to assume such an order would be made by the Registrar after the expiry of 90 days. It appears that no such order has been issued. Therefore, any motion to set aside the Registrar’s order was based on a faulty assumption. As indicated, no order by the Registrar has been made.

[56] I now turn to the motion by Hortico to dismiss action 3199/01 for delay.

[57] I have concluded that the motion by Hortico Nurseries Inc. and William Van Der Kruk to dismiss the action because of delay should succeed. All parties have addressed this motion to dismiss on the basis that it includes the action initially commenced by Hortico Inc. against Dylan Rees, c.o.b. as Canadian Rose Company, and also includes the counterclaim commenced by Rees naming Hortico, William Van Der Kruk, Nathan Leader and The English Rose Company Ltd. as defendants to the counterclaim.

[58] At the outset, I note that Hortico Inc., as plaintiff in the 1995 action, obtained interim relief by way of an interlocutory order for the recovery of goods, including perishable stock in the form of rose plants. This interim recovery allowed the plaintiff to retrieve certain of its nursery stock from locations controlled by the defendant. As a result of the interlocutory relief obtained by it, Hortico Inc. advised that it has long since had no interest in pursuing the claims set out in action 3199/01. In reality, the only action in which anyone purports to have an interest is Rees who expresses an interest in preserving the counterclaim.

[59] The facts giving rise to this litigation arose in the early 1990’s. The litigation was commenced in 1995. No substantive steps have been taken since examinations for discovery were conducted in early 2001. For over a decade this action has languished on the back burners of lawyers’ offices without substantive activity of any sort. It is not unfair to conclude, as counsel for Hortico asserts, that this litigation has long been inactive.

[60] There is no indication that Rees through these many years has maintained an intention to take the counterclaim to trial. As Quinn J. stated in Elltoft v Mann , [2001] O.J. No. 1521, at page 4 :

Must prejudice always exist before Rule 24 can be said to apply? Almost always; but not always. A lawsuit requires a demonstrable commitment on the part of the plaintiff to have the case tried…. Here the plaintiff, effectively has abdicated his role as plaintiff. He has chosen to sojourn rather than litigate. This cannot be countenanced by the court and I believe Rule 24 is wide enough to encompass the situation.

[61] The delay in this case has been unreasonable in the sense that it is inordinate and inexcusable. (See: Belanger v. Southwestern Insulation Contractors Ltd. , (1993), 16 O.R. (3rd) 457, which was approved by the Ontario Court of Appeal in Christie Corp. v Lee , (1999) 29 C.P.C. (4th) 181 ).

[62] Rees asserts that there is no prejudice to any party that cannot be compensated by an award of costs and interest and the “fact that the parties have been running successful businesses for some time gives rise to a presumption that the parties are better able to satisfy a judgment in the action, since those businesses have grown over the span of the lawsuit.” There is no such presumption. There is no evidence to support such a presumption. Neither is it correct to suggest that the ongoing enterprise of Hortico supports a presumption that there is no prejudice to any of the defendants to the counterclaim. I will deal with the question of actual prejudice below.

[63] There is no attempt by the plaintiff by counterclaim, Rees, to rebut the presumption that there is a substantial risk that the defendants by counterclaim will not have a fair trial given the length of the delay and the impact on witness’ memories. (See: Woodheath Developments Ltd. v. Goldman(supra) ). As the Divisional Court stated in McFerrter v Drau Realty Ltd. (1986), 55 O.R. (2 nd ) 722 at 726:

… 13 years after the event, it ought in my view to be presumed that witnesses’recollections of events, even where that recollection can be refreshed by an earlier statement, will in many instances be vague, confusing and inconclusive, if indeed any recollection independent of the statement remains at all.

[64] There is no assertion by Rees that the evidence in this case will be largely documentary. The evidence of Hortico is to the contrary. Hortico asserts that the evidence in the counterclaim will largely be based on the recollection of individuals. John Van der Kruk deposes that transcripts of examination for discovery held in early 2001 have never been ordered. These transcripts are not available to help the parties refresh their memories if indeed that were possible.

[65] While the presumption of prejudice is rebuttable, the action may still be dismissed if there is convincing evidence of actual prejudice. There is such evidence in this case. I now turn to that evidence.

[66] Affidavit evidence filed by John Van der Kruk, the current president of Hortico Inc. and the son of William Van der Kruk, is that the delay in proceeding with the counterclaim has been prejudicial to Hortico Inc. and to William Van der Kruk, both of whom are defendants by counterclaim in the action. The allegations in the main action and in the counterclaim by Dylan Rees and Nathan leader all relate to events and discussions between William Van der Kruk and Messrs. Rees and Leader in 1995 and prior years. Many of the details of the relationship between Hortico, Rees and Nathan Leader are based on discussions and arrangements made between William Van der Kruk, then president and managing director of Hortico Inc., Dylan Rees and Nathan Leader. John Van der Kruk, in his affidavit filed in support of the motion to dismiss the action, deposes that his father, William Van der Kruk, suffers from Parkinson's disease and has been housebound for the past five years. He resigned as director and officer of Hortico Inc. in 2006. He is not able to speak coherently and has limited mental capacity. He is not able to drive a motor vehicle and relies on his spouse for his daily needs. John Van der Kruk deposes that his father William Van der Kruk is not capable of providing the Court with evidence and that his recollections of events going back more than 15 years is limited.

[67] There is no reason to dispute the evidence of John Van der Kruk. There is no evidence to the contrary. There was no cross-examination of John Van der Kruk on his affidavit. I conclude that there is persuasive evidence that the defendant by counterclaim, William Van der Kruk, has established actual prejudice if this action is to proceed. (See E. George Kneider Architects v Anthony Gardynick Investments Ltd. (1998), 17 CPC(4 th ) 272 (Divisional Court) .)

[68] There is no evidence from Rees relating to the merits of the counterclaim and therefore no evidence to support a conclusion that his counterclaim has any likelihood of success.

[69] I therefore conclude that the motion of William Van der Kruk and Hortico pursuant to Rule 24.01 must succeed.

[70] It is ordered that action 3199/01, including the counterclaim, is dismissed.

[71] Leader and the English Rose Company Ltd. ask for an order that costs be awarded to Nathan Leader and The English Rose Company Ltd. in the amount of three times the value of the funds plus accrued interest to date paid into Court by Leader in court file 4711/04 enforceable against Rees and Hortico. Leader has provided no basis for such an order. His motion is dismissed.

Conclusion

[72] Based on the based on the above, this court makes the following orders:

1. It is ordered that action 4711/04, including the counterclaim and the cross-claim, is hereby dismissed for delay.

2. It is ordered that funds in the amount of $7,434.25, plus accrued interest in court file 4711/044, are to be paid to Hortico Nurseries Inc. and William Van Der Kruk.

3. It is ordered that action 3199/01, including the counterclaim, is dismissed for delay.

Costs

[73] If the parties are unable to agree on costs, if any, I may be spoken to at a time convenient counsel to be scheduled through the office of the trial coordinator in Milton.

MURRAY J.

Date: April 5, 2012