Court File and Parties

Court File No.: CV-12-0438-000 Date: 2019-08-08

Superior Court of Justice – Ontario

Between: Allan Curle, Bruce Johnson, Jeanette Johnson, Norall Group Inc. and Norall Group Contracting Inc., Plaintiffs

And: Gina Gustafson, Juanita Curle, Holly LeBrun, Carl Gustafson and D.J. Gustafson Engineering Ltd. c.o.b. as Aegus Contracting, Defendants

Counsel: Mr. M. Cupello, for Bruce Johnson and Jeanette Johnson Allan Curle, Norall Group Inc. and Norall Group Contracting Inc., not appearing Mr. M. Holervich, for Gina Gustafson and Juanita Curle Carl Gustafson, self-represented and appearing for D.J. Gustafson Engineering Ltd. c.o.b. as Aegus Contracting

Heard: August 1, 2019, at Thunder Bay, Ontario

Before: Madam Justice H. M. Pierce

Reasons on Status Hearing

Introduction

[1] At issue is whether the action should be dismissed for delay pursuant to the provisions of Rule 48.14 (1) of the Rules of Civil Procedure.

Legal Parameters

[2] With some exceptions that do not apply to this case, Rule 48.14 (1) provides that an action that has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action may be dismissed for delay.

[3] The rule also provides that a party may avoid dismissal by filing a litigation timetable 30 days before the expiry of the period. All parties must accept the timetable which shows the steps to be completed and their completion dates, and identifies a date no more than two years after the fifth anniversary when the action shall be set down for trial or restored to the trial list if previously struck off.

[4] If there is no agreement to the timetable, any party may bring a motion for a status hearing. Rule 48.14 (7) describes the procedure at a status hearing:

(7) At a status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and the court may,

(a) dismiss the action for delay; or

(b) if the court is satisfied that the action should proceed,

(i) set deadlines for the completion of the remaining steps necessary to have the action set down for trial or restored to the trial list, as the case may be, and order that it be set down for trial or restored to the trial list within a specified time,

(ii) adjourn the status hearing on such terms as are just,

(iii) if Rule 77 may apply to the action, assign the action for case management under that Rule, subject to the direction of the regional senior judge, or

(iv) make such other order as is just.

[5] The applicable test is set out in 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67, para. 12. The test is conjunctive. The plaintiff must satisfy the status hearing judge that

… there is both an explanation for the delay that justifies the continuation of the action and that there would be no prejudice to the defendant in allowing the action to proceed.

[6] At para. 35 of its analysis, the Court of Appeal required the explanation for the delay to be reasonable. The court added, at para. 16, that the decision to dismiss an action for delay at a status hearing is discretionary. Unless the decision is based on an error in law or suffers from a palpable and overriding error of fact, the decision is entitled to deference on appeal.

[7] The court is expected to strike a balance between timely and efficient justice and the desirability of having disputes decided on their merits: para. 20.

Chronology

[8] This action is inextricably linked with an application launched by Gina Gustafson and Juanita Curle on June 8, 2012. The court events recited below are not an exhaustive chronology of court proceedings, only the most salient.

[9] The applicants retained Mr. Holervich to represent them in the application. They sought a declaration that they were shareholders of the corporations and that together with Holly LeBrun, they were directors of Norall Group Inc. and Norall Group Contracting Inc. (“the corporations”). Among other relief, the applicants sought an order that the corporations be wound up.

[10] The respondents named in the application were Bruce Johnson, Allan Curle, and the corporations. The respondents retained Mr. Hacio to defend the application.

[11] On October 24, 2012, the plaintiffs Allan Curle, Bruce Johnson, Jeanette Johnson and the corporations commenced an action which is the subject of this status hearing. The defendants in the action are Gina Gustafson, Juanita Curle, Holly LeBrun, Carl Gustafson, and D.J. Gustafson c.o.b. as Aegus Contracting.

[12] The plaintiffs were represented by Mr. Hacio. They claimed the following relief arising out of the defendants’ dealings with the corporations:

a) breach of contract; b) breach of fiduciary duty; c) breach of the obligation to act in good faith; d) unjust enrichment; e) inducing breach of contract; f) intentional interference with contractual relations; g) misappropriation of business opportunities; h) breach of trust and confidence; i) civil conspiracy; j) breach of the Ontario Business Corporations Act; and k) unlawful interference with the plaintiffs’ economic and other interests.

[13] The defendants, Gina Gustafson and Juanita Curle, were represented by Mr. Holervich. The defendants, Holly LeBrun, Carl Gustafson and D.J. Gustafson Engineering c.o.b. as Aegus Contracting, were represented by Mr. Matson through much of the proceeding.

[14] On April 5, 2013, the court granted an interim interim order in the action on consent which preserved the status quo in the operation of the corporations. The order was extended from time to time by agreement.

[15] The plaintiffs’ solicitor, Mr. Hacio, wrote to Mr. Holervich on July 15, 2013 to propose dates for the delivery of pleadings, and an exchange of affidavits of documents by September 13, 2013.

[16] Mr. Hacio also proposed that examinations for discovery commence by October 11, 2013 with a pretrial to take place before December 31, 2013. Mr. Holervich responded on July 23, 2013 saying that the proposed timelines were completely unrealistic.

[17] Later that day, Mr. Hacio emailed Mr. Holervich and Mr. Matson to ask for the defendants’ statements of defence, indicating that the plaintiffs did not want further delay. He also indicated that he would ask the court for a litigation timetable if there was no agreement.

[18] On July 26, 2013, Mr. Hacio wrote again to the defendants’ lawyers asking for their response to his proposed timetable by August 9, 2013 failing which he would bring a motion to have the court order one.

[19] On August 21, 2013, Mr. Holervich replied, reiterating that the proposed timetable was unrealistic and observing that Mr. Matson’s clients had not yet served their statement of defence. He also cautioned Mr. Hacio about preliminary procedural issues: that the corporations never authorized the commencement of the action and that none of the individual plaintiffs obtained leave to bring a derivative action.

[20] Mr. Holervich also pointed out that resolving the issues in the application would narrow or resolve several issues in the action. He suggested that the action be put on hold failing which he would challenge the corporations’ involvement in the action.

[21] On August 23, 2013, Mr. Hacio replied that his clients had no intention of agreeing to stay the action pending a decision in the application. He then declared that it would be

… a complete waste of time and money to proceed with your clients’ Application and then subsequently our clients’ Action when there are a significant number of issues, facts and evidence that overlap between those two proceedings. There should be joint productions and joint cross-examinations/Examinations for Discovery.

[22] Mr. Hacio declared that it was his clients’ intention to proceed with their action. He also advised that they were working on his clients’ affidavit of documents in the action.

[23] On August 28, 2013 Mr. Hacio advised opposing counsel that he intended to move ahead with the action. He also indicated his intention to deliver his clients’ affidavit of documents within the time specified by the Rules of Civil Procedure.

[24] Ultimately, pleadings closed on November 22, 2013 when the plaintiffs served their reply to the last statement of defence delivered.

[25] On December 11, 2013, Mr. Hacio wrote to Mr. Holervich to discuss litigation issues. He observed that he thought it prudent for all parties to start working on their affidavits of documents and expected to serve his clients’ affidavit by mid-January, 2014.

[26] Mr. Cupello concedes that there is no evidence that the plaintiffs ever delivered an affidavit of documents.

[27] Half a year elapsed until Mr. Hacio corresponded again with Mr. Holervich about this case. On June 27, 2014, Mr. Hacio emailed opposing counsel indicating that he had received five letters from Mr. Holervich to which he could not reply within the time frames requested because his clients were incarcerated and he was having difficulty getting timely directions.

[28] On July 25, 2014, Mr. Hacio emailed opposing counsel again indicating that two of his clients were still in jail and that he had not spoken to them directly since their incarceration. He added that he was not sure when they would be released. Thus, he was unable to respond to two further letters from Mr. Holervich.

[29] On August 11 and 12, 2014, Mr. Holervich argued his motion dated November 28, 2013 that Mr. Hacio be removed as solicitor of record for the corporations. On October 7, 2014, Mr. Justice Fregeau ordered that Mr. Hacio be removed as solicitor for the corporations and stayed the action as against the corporations. At no time since that order has alternate counsel been appointed for the corporations or the stay been lifted.

[30] The individual plaintiffs then moved for an order that independent counsel be appointed for the corporations to “oversee and control the plaintiff corporations under the supervision of this court.” That motion was dismissed by me on November 17, 2014.

[31] The individual plaintiffs then sought leave to appeal my order to the Divisional Court.

[32] On February 27, 2015, Mr. Hacio wrote to opposing counsel expressing that his clients were anxious to move the case forward. He stated that his clients “saw little use in exchanging a Discovery Plan and moving this matter to Discoveries until our clients’ Leave Motion is resolved.”

[33] Mr. Holervich replied on March 24, 2015 advising that his clients intended to proceed with their application to wind up the corporations.

[34] The plaintiffs’ motion for leave to appeal my order was dismissed by Mr. Justice Fitzpatrick on April 2, 2015.

[35] On November 2, 2017 an order was made removing Mr. Matson and his firm as solicitors for Carl Gustafson and his company and Holly LeBrun.

[36] Apart from the motion for a status review hearing heard on October 19, 2017 and adjourned, it appears that no further substantive orders were granted in the action.

[37] Mr. Hacio’s next communication to Mr. Holervich occurred more than a year later, on May 5, 2016. In it, he proposed that a case management judge be appointed. In the 14-month interval, the applicants had been pushing their application forward.

[38] The applicants sought a date for the hearing of their application before Mr. Justice Fitzpatrick. On November 19, 2015, he noted that the date for the hearing was contested. The individual plaintiffs wanted to delay the hearing until the summer of 2016 while the applicants sought dates in April or May of 2016. Fitzpatrick J. ordered that the application be heard on April 1 and 8, 2016. He also fixed a timetable for delivery of filings to be used on the application and for cross-examinations. The individual respondents were ordered to pay costs.

[39] Unhappy with the dates, the individual respondents moved again before Justice Fitzpatrick on November 27, 2015 to change them. The applicants consented to a change in the hearing dates, which were then fixed for March 23 and 24, 2016. New filing dates were also set.

[40] The hearing dates were marked peremptory to both sides. Again, the individual respondents were ordered to pay costs. Neither of Justice Fitzpatrick’s endorsements mentions the action.

[41] On January 18, 2016, Mr. Holervich wrote to Mr. Hacio inviting Jeanette Johnson, who was shown as a shareholder in the corporations’ records, to be added as a party to the application. Mr. Holervich wrote again on January 21, 2016 asking whether Ms. Johnson intended to be added as a party to the application. No answer was given.

[42] However, Ms. Johnson filed an affidavit in the application indicating that she was not a party to the application and expressing that her financial interests and those of her family could be detrimentally affected by any order made in the application.

[43] Ms. Johnson was cross-examined on her affidavit on February 26, 2016 in the presence of Mr. Hacio. When she was asked by Mr. Holervich whether she had ever taken any steps to be added as a party to the application, Mr. Hacio instructed her not to answer.

[44] On January 29, 2016, the plaintiffs served two motions. One was styled in the action; the second in the application. Both were returnable at the hearing date for the application. The plaintiffs sought orders consolidating the application and the action, and for other relief. This was the first time since Mr. Hacio’s letter of August 13, 2013 that a motion for consolidation was served by the plaintiffs.

[45] The plaintiffs also moved for findings that the applicants were in contempt of my interim order of April 5, 2013 which they said had been breached “on dozens of occasions.”

[46] Neither motion had been raised before Justice Fitzpatrick when the hearing dates were set and then re-set. Nor were they accounted for in the scheduling order.

[47] Neither motion was heard on the application date which was devoted to argument on the merits of the application. The motions were adjourned and remain outstanding.

[48] Parenthetically, the plaintiffs attempted to have the contempt motion heard by the court on September 6, 2018. At that time, Justice Newton adjourned the motion to November 8, 2018 to be spoken to and a special date considered.

[49] As the application has now been heard and decided, the motion for consolidation is moot. I can only conclude, however, that the rationale for serving the motions at the eleventh hour was strategic and intended to delay the hearing of the application.

[50] At the hearing of the application, Mr. Johnson and Mr. Curle consented to an order liquidating the assets of the corporation but objected to the corporations being wound up.

[51] On April 26, 2016, reasons were released in the application. Factual findings on the application included the following determinations:

• Ms. Johnson holds 16% of the corporations’ shares;
• Juanita Curle holds 49% of the shares and Gina Gustafson holds 35% of the shares;
• the corporations had become so dysfunctional that they ceased to operate and should be wound up;
• the remaining chattels of the corporations should be sold and accounted for;
• outstanding legal accounts arising from defending charges that the corporations failed to pay income tax should be assessed and then paid;
• unless the parties could agree, trial of an issue was ordered with respect to invoices rendered by Mr. Gustafson’s business, Aegus.

Appeals

[52] The respondents were unhappy with the outcome of the application and launched an appeal dated May 17, 2016 to the Ontario Court of Appeal. They were self-represented on the appeal. They failed to perfect their appeal and it was dismissed for delay. After various motions in the Court of Appeal, the appeal was reinstated, perfected, and after a contested motion, was transferred to the Divisional Court where the appeal was listed for hearing on November 30, 2017.

[53] Shortly after the appeal was scheduled, Ms. Johnson served a motion returnable in the Divisional Court asking to intervene as an added party, again asserting that she may be detrimentally affected by the judgment that was being appealed. The motion was heard on October 2, 2017.

[54] As the motion was not opposed, the Divisional Court granted Ms. Johnson leave to intervene in the appeal as a party. Ms. Johnson confirmed to the Divisional Court judge hearing the matter that, as a party, she understood that she would be bound by the outcome of the appeal.

[55] The appeal of the application was heard in Divisional Court on November 28, 2017. It was dismissed on March 5, 2018. Ultimately, Mr. Curle and Mr. Johnson were ordered to pay the applicants’ costs fixed at $25,000.00. They have not yet done so.

[56] On March 20, 2018, Jeanette Johnson moved before the Court of Appeal for leave to appeal the Divisional Court decision. Her motion for leave to appeal was dismissed on September 25, 2018. She was ordered to pay the applicants’ costs fixed at $1,000.00. These costs were not paid until May 24, 2019.

[57] Bruce and Jeanette Johnson acknowledge that their appeals of the application have now been exhausted.

Case Conferences Following Judgment in the Application

[58] While the various appeal procedures were pending, I conducted case conferences in the application as follows:

[59] On August 19, 2016 orders were made for sale of the corporate assets, subject to an accounting and for legal fees to be paid as well as other procedural orders related to the winding up. Ms. Johnson was present as well as counsel for the parties in the application.

[60] On March 9, 2017, Ms. Johnson and the parties’ counsel were all present. Additional orders were made for sale of the corporations’ construction materials and equipment to Aegus Contracting, trial of an issue was ordered with respect to the Aegus Contracting invoices to complete the corporations’ contracts, and scheduling of remaining application motions were ordered. My endorsement notes that once the remaining application motions and trial of an issue were completed, motions in the action would be entertained.

[61] On March 27, 2017, the trial relating to the Aegus claim for payment on its invoices was scheduled for June 1 and 2, 2017. On June 1, counsel for Aegus advised that it was withdrawing its claim for payment on its invoices. Counsel and Ms. Johnson were directed to convene a further case conference after the Court of Appeal rendered its decision in the application, in order to schedule the four outstanding motions in the application and five motions in the action.

[62] On May 24, 2019, consent orders were made that three outstanding motions in the application were dismissed, subject to costs. Remaining issues in the application were identified for argument including costs and indemnification, payment of Jeanette Johnson’s interest, and a final accounting on the winding up.

[63] In addition, a continuation of the status hearing in the action was ordered to be scheduled. On consent, two outstanding motions in the action were dismissed, subject to costs being argued.

[64] The court also ordered that if the action is not dismissed for delay, then other outstanding motions in the action would be scheduled. However, if the action was dismissed for delay, the parties may argue costs. The status hearing was to be heard first.

Status Hearing Events

[65] In the summer of 2017, Mr. Hacio and Mr. Holervich discussed a litigation timetable in the action. On August 11, 2017, Mr. Holervich advised that it was his view that there was “no reasonable prospect for success in the Action, given the Judgment in the Application.” He indicated that his clients did not, therefore, wish to spend more resources on the action.

[66] Mr. Holervich proposed the parties agree to an order that if the appeal was dismissed, that the action and all related motions would be dismissed, subject to costs as agreed or argued. Alternatively, he suggested that if the judgment was set aside on appeal, then any outstanding motions to dismiss claims in the action be heard and decided before any timetable in the action be established.

[67] Mr. Hacio did not agree. On September 15, 2017, he served a motion seeking orders for a status hearing, that the action not be dismissed for delay, and for a litigation timetable.

[68] Mr. Hacio’s law clerk filed an affidavit on the motion for a status hearing. Appended as an exhibit to her affidavit was her email dated August 3, 2017. It was directed to Mr. Holervich and copied to Mr. Hacio. The communication asked for agreement on their clients’ proposed litigation timetable and included the following comment, undoubtedly dictated by Mr. Hacio:

We have held off on pursuing our clients’ Action because your clients chose to pursue their Application. We believed, and still believe, that Justice Pierce’s Decision on your clients’ Application has a significant effect on our clients’ Action.

Justice Pierce’s Decision is presently under Appeal. We don’t know when the Appeal is scheduled to be heard but believe it is prudent to wait until after that Appeal has been decided before we pursue our clients’ Action. We have therefore prepared a litigation timetable that takes this position into account. We don’t see the need to spend significant time and money at this point pursuing our clients Action until the Appeal has been decided.

[69] The litigation timetable proposed that affidavits of documents be delivered within 60 days after the appeal is decided, that examinations for discovery be completed within 150 days after the appeal is decided, and that the case be set down for trial and pretrial within 60 days of the completion of re-examinations or answering of all undertakings.

[70] The status hearing came before me on October 19, 2017. It was adjourned pending the outcome of the appeal scheduled to be heard by the Divisional Court on November 30, 2017.

[71] After the Divisional Court released its decision on March 5, 2018, Mr. Holervich attempted to schedule a continuation of the status hearing. Mr. Hacio refused in correspondence dated April 18, 2018 advising that his clients were seeking leave to appeal the decision of the Divisional Court to the Court of Appeal.

[72] The status hearing continued on August 14, 2018. As the Johnsons were then seeking leave to appeal to the Court of Appeal, I adjourned the status hearing to a date to be scheduled after Bruce and Jeanette Johnson had exhausted their appeals. The endorsement states, in part,

Because there are common parties and common issues in the application and the action, the most economic use of judicial resources is to await the final decision in the application before considering the arguments about whether the action should be dismissed for delay, or indeed whether the issues are res judicata or moot.

[73] As I said above, the continuation of the status hearing was ordered on May 24, 2019. Sadly, Mr. Hacio died early in 2019 and the Johnsons were forced to retain new counsel.

Analysis

[74] Rule 48.14 (1) provides that the “delay clock” starts ticking on the fifth anniversary of the commencement of the action. In this case, the action commenced on October 24, 2012. The fifth anniversary is therefore October 24, 2017.

[75] As that date has passed, the onus is on the plaintiffs to show cause why the action should not be dismissed for delay. They are obliged to show that there is both a reasonable explanation for the delay such that the action should not be dismissed and that there would be no prejudice to the defendants in allowing the action to proceed.

[76] At the status hearing, Mr. Curle did not appear, was not represented, and filed no material. He has made no appearance in court either personally or by counsel since the application was argued. He has not paid costs ordered by the Court of Appeal. I conclude that he has abandoned the action.

[77] The corporations are not represented. Their involvement in the action was stayed by Fregeau J. on October 7, 2014 when Mr. Hacio was removed as their counsel. At no time since that order has alternate counsel been appointed for the corporations or the stay been lifted. There is no evidence that the corporations, which have been ordered wound-up, have any interest in the action.

[78] The remaining two plaintiffs are Jeanette Johnson and Bruce Johnson. In the application, Ms. Johnson was declared to be a 16% shareholder in the corporations. Her financial interest in the corporations has been preserved by her fellow shareholders.

[79] Ms. Johnson filed an affidavit sworn July 31, 2019. In it she discusses her concerns about the applicants’ accounting ordered in the wind-up of the corporations after November of 2018, the failure of the applicants to abide by my interim order for the operation of the corporations made on April 4, 2013 (the contempt motion), and the failure of the applicants to pay her proportionate share of her shareholding. In fact, at the case conference of May 24, 2019, I ordered the contempt motion to be scheduled for argument if the action is not dismissed for delay.

[80] Her affidavit provides no explanation, reasonable or otherwise, for the delay in prosecuting the action between October 24, 2012 and October 24, 2017.

[81] Mr. Johnson filed an affidavit sworn July 12, 2019. He deposed that, since the outset, the plaintiffs’ position has been to consolidate the action and the application. He relates that the defendants have previously attempted, without success, to have the action dismissed: see the order of Mr. Justice McCartney dated April 26, 2013 and the order of Mr. Justice Shaw dismissing the defendants’ motion for leave to appeal dated July 15, 2013.

[82] Mr. Johnson points to the plaintiffs’ motion to consolidate the proceedings returnable at the hearing of the application in 2016 that has never been determined. There is no explanation why this motion could have not been brought in the three preceding years following the decisions of Justices McCartney and Shaw refusing to dismiss the action. Indeed, Mr. Hacio raised the possibility of joint productions and examinations as early as the summer of 2013.

[83] In my view, the timing of this motion to consolidate was strategic. It was aimed at delaying the hearing of the application. It was served after peremptory dates were ordered scheduling filings in the application and argument.

[84] It is evident that the two remaining plaintiffs were content to wait out the appeal process in the hopes of a more favourable result. This was articulated by Mr. Hacio’s law clerk in August 3, 2017:

We have held off on pursuing our clients’ Action because your clients chose to pursue their Application. We believed, and still believe, that Justice Pierce’s Decision on your clients’ Application has a significant effect on our clients’ Action.

[85] That communication advised that the appellants wished to await the results of the appeal then pending before the Divisional Court. Then they took the position that proceedings should await the further decision of the Court of Appeal.

[86] Mr. Johnson states in his affidavit that “The delay in the Action is not as a result of the conduct of the Plaintiffs Bruce and Jeanette Johnson.” However, the record suggests otherwise. It appears that the plaintiffs made a strategic decision to stand aside with their action while the applicants forged ahead with their application. Having conducted their litigation in this manner, it does not lie in their mouths to object if their action is dismissed for delay.

[87] I am not persuaded that Bruce and Jeanette Johnson have met their onus to give a reasonable explanation for the delay between October 24, 2012 and October 24, 2017, such that the action should not be dismissed. I am also mindful that the three other remaining plaintiffs have seemingly abandoned the action.

[88] Mr. Holervich submits that there is no need to consider prejudice in view of the plaintiffs’ lack of reasonable explanation for the delay.

[89] Mr. Gustafson, however, argues that he has suffered prejudice because of the delay. He also asks that the action be dismissed.

[90] Mr. Gustafson indicates in his affidavit sworn July 29, 2019 that the action is “fatally flawed” as the plaintiffs cannot succeed in their claims for damages in view of the findings made in the application and not set aside on appeal.

[91] Mr. Gustafson states that he and Aegus Contracting were served with the statement of claim in October of 2012. Although Mr. Gustafson advised counsel for the plaintiffs that he intended to defend the action and was retaining counsel, the plaintiffs noted them and Ms. LeBrun in default 30 days after service.

[92] He described a contested hearing at which the plaintiffs refused to agree to extend his time to file a defence. Ultimately, the court granted the extension and Mr. Gustafson’s counsel filed a statement of defence in August, 2013, which was the same time as the other defendants. He adds that he has seen no effort by the plaintiffs to move the case forward since 2013.

[93] Mr. Gustafson concludes that the only possible reason for the Johnsons not agreeing to wind-up the corporations is that they were attempting to “intimidate or coerce us into giving them a greater share and or they thought they could take the companies away from Gina and Juanita without compensating them for their shares.”

[94] Mr. Gustafson discusses the effect of “having a hammer hanging over your head” for seven years as follows:

The plaintiffs are attempting to use the court process as a shield from the consequences of their actions and to date have been successful. But we would say that the disposal of this proceeding is not only in our interests it is also in theirs, to bring finality to this ongoing saga that has bled the life out of three families. Our children have had to grow up in very trying circumstances, instead of what should have been a simply [sic] dissolution of the partnership of three families. Seven years and the only thing that kept the proceeding from being a simple agreement, by the parties who don’t get along any more, was the disagreement by the Johnsons. Any court would have deemed that the dispute lies in the forum of the family court as between Juanita and Allan, but the Johnsons decided that it wasn’t good enough that each family take their share and move on, they thought they could manipulate and intimidate along with Allan Curle to what one could only presume was a greater share of the proceeds.

[95] The two remaining plaintiffs have not given a reasonable explanation for the delay in prosecuting the action. The other plaintiffs have abandoned the case. Clearly, the plaintiffs decided to await the outcome of the application and took no steps to move the action forward.

[96] The substantive issues were determined in the application. The plaintiffs agreed that the corporate assets should be liquidated. That has been done.

[97] Ancillary issues relating to the winding-up will be determined in accordance with the case management order previously made.

[98] At least one significant costs order against the plaintiffs has not been paid. Other costs orders were paid late. Given this history, I infer that any further costs orders may not be paid, to the prejudice of the defendants.

[99] Allowing the action to proceed would further dissipate the assets of the corporations that have been preserved by the defendants at the cost of their time and money. Prejudice would result.

[100] The action is therefore dismissed for delay. Costs are reserved.

“original signed by”

The Hon. Madam Justice H.M. Pierce

Released: August 8, 2019