COURT FILE NO.: CV-14-508355 (Toronto)

MOTION HEARD: 2020 03 12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: American Environmental Container Corp., San Juan Products Inc. and Kijo Leasing ULC, plaintiffs

v.

Paul Kennedy also known as Paul Ronald Kennedy, Leanne Kennedy also known as Leanne Dovell Kennedy, Darran Green, Darran Thomas Green, Ronald Kennedy, Colby Lyons also known as Colby James Lyons, and also known as Colby James, Christopher Lyons, San Juan Products (Canada) Ltd., c/o Paul Kennedy, SJP Enterprises (Canada) Ltd., SJP Enterprises Inc., AECC/San Juan, Oasis Fiberglass Pools Inc., Backyard Oasis, 2001530 Ontario Inc. o/a Southern Comfort, San Juan Enterprises (Canada) Inc., 1324653 Ontario Ltd., Leisure Pools Ontario Ltd., Leisure Pools Logistics Ltd., Leisure Pools GTA Ltd., Leisure Pools Canada Inc., Leisure Pools Canada Ltd, 1766846 Ontario Ltd., Leisure Products, Backyard Oasis Pools Landscaping Ltd. and Leisure Fiberglass Pools Canada Inc., defendants

BEFORE: MASTER R. A. MUIR

COUNSEL: Sydney Hodge and David Silver, counsel to the lawyers for the plaintiffs Rohit Kumar and Tina Kaye for the defendants Paul Kennedy, Leanne Kennedy, Colby Lyons, Leisure Pools GTA Ltd. and 1766846 Ontario Ltd.

James L. McDonald for the defendant Darran Green

REASONS FOR DECISION

[1] The plaintiffs bring this motion for a status hearing pursuant to Rule 48.14(5) of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the "Rules"). The plaintiffs ask for an order extending the deadline for setting this action down for trial and a timetable order for the completion of the remaining steps in this action.

[2] The defendants Paul Kennedy ("Paul"), Leanne Kennedy ("Leanne"), Colby Lyons, Leisure Pools GTA Ltd. and 1766846 Ontario Ltd. (collectively, the "Kennedy Defendants") are opposed to the relief the plaintiffs are seeking. The defendant Darran Green ("Mr. Green") is not opposed to the plaintiffs' requested relief but takes the position that if the action is not permitted to continue against the Kennedy Defendants, the just order is that it be dismissed against all defendants. Mr. Green also intends to continue with his crossclaim regardless of the outcome of this motion.

BACKGROUND

[3] The plaintiffs are related corporations that manufacture and sell prefabricated fibreglass swimming pools and spas. At some point in 2002, the plaintiffs apparently entered into dealership agreements with Paul, Leanne and Mr. Green which allowed those defendants to carry on business in Canada as the plaintiffs' dealers.

[4] The parties' business relationships deteriorated rather quickly, and the plaintiffs ultimately issued a statement of claim in 2008 naming Paul, Leanne, Mr. Green and others as defendants (the "2008 Action"). The 2008 Action alleged that the defendants had, among other things, unlawfully misappropriated and converted the plaintiffs' assets for their own use. The 2008 Action sought various relief against the defendants, including a claim for damages in the amount of $20,000,000.00.

[5] The 2008 Action was seriously contested, at least at first. In August 2009, Justice Strathy made a non-dissipation order against the defendants and also ordered the defendants to produce various books and records.

[6] It appears that the defendants failed to comply with Justice Strathy's order. Justice Frank gave the defendants a further chance to comply by way of an order dated June 17, 2013. The defendants apparently failed to comply with that further order as well and their statement of defence was struck on September 18, 2013. On October 28, 2013, the plaintiffs obtained default judgment against the defendants in the 2008 Action, including judgment against Paul, Leanne and Mr. Green. The October 28, 2013 judgment granted various relief including the payment of nearly $12,000,000.00 in damages, plus costs and interest (the "Default Judgment"). The Default Judgment remains outstanding.

[7] The plaintiffs started this action in July 2014. The plaintiffs named the defendants in the 2008 Action, along with others, as defendants in this action. The main purpose of starting this action was to enforce the Default Judgment. The statement of claim alleges fraud and conspiracy on the part of the defendants, along with various other acts intended to defeat the claims of their creditors, including the plaintiffs. This action seeks various declaratory relief regarding the ownership of several corporations allegedly controlled by the defendants in the 2008 Action, a tracing order, and various other interlocutory and permanent relief.[^1]

[8] The plaintiffs brought a without notice motion on July 23, 2014. The plaintiffs obtained a Norwich order, a Mareva injunction and a certificate of pending litigation in connection with a property apparently owned by the defendant Ronald Kennedy.

[9] Several further appearances followed between late July and September 2014 and various orders were made extending and varying the initial without notice order. Timetable orders were also made setting deadlines for the delivery of responding evidence and other steps necessary to allow for the plaintiffs' interlocutory motion to be argued on its merits. This time period is noteworthy for significant communications between the parties in connection with the pending motion and the production of a large volume of evidence generally.

[10] These initial steps were followed by a period of inactivity from October 2014 to February 2015. The plaintiffs' lawyer was dealing with family health and care issues during this time and no immediate steps were taken to reschedule the injunction motion or otherwise advance this action.

[11] The lawyers for the plaintiffs and the Kennedy Defendants resumed communications in late February 2015. Around this time, the lawyers for the Kennedy Defendants advised, for the first time, that a motion would be brought seeking to set aside the Default Judgment.

[12] It was also necessary for the plaintiffs to formally serve their statement of claim and notice of action at this time. Although it appears that the defendants had received copies of the pleadings as part of the plaintiffs' motion materials, the plaintiffs re-served these documents because they were not served together as required by the Rules. The service of these pleadings was later validated by order of Master Haberman.

[13] Over the next several months, various civil practice court appearances took place, timetables were established, affidavits were served, cross-examinations were scheduled, and rescheduled, and numerous communications were exchanged among counsel. As well, the plaintiffs amended their statement of claim in August 2015. It also appears that the plaintiffs cross-examined Leanne and the defendant Colby Lyons in August 2015.

[14] This same pattern continued throughout the fall and winter of 2015-2016. Eventually, Paul was cross-examined for three days in early April 2016. A representative of the plaintiffs was also cross-examined for three days in April 2016.

[15] Following these cross-examinations, the pending motions were once again adjourned on an unopposed basis in July 2016 and never rescheduled.

[16] Nothing further was done to advance the motions or the action, by any of the parties, until three years later in June 2019. On June 28, 2019, the plaintiffs served a trial record. The trial record could not be filed, and this action could not be set down, because no mediation had taken place as required for Toronto actions by Rule 24.1.

[17] The plaintiffs' lawyer then wrote to the defendants' lawyers in early July 2019 requesting mediation, proposing a mediator and a revised timetable for the action. The plaintiffs also served their affidavit of documents on July 12, 2019, although it had been promised as early as April 2015.

[18] The defendants were not agreeable to scheduling a mediation or fixing a timetable. The plaintiffs then served a notice of motion, also on July 12, 2019, seeking an extension of time to set this action down for trial. This motion was eventually heard by me as a status hearing motion on March 12, 2020.

ANALYSIS

[19] The relevant portions of Rule 48.14 provide as follows:

48.14 (1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):

1. The action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action

(4) Subrule (1) does not apply if, at least 30 days before the expiry of the applicable period referred to in that subrule, a party files the following documents:

1. A timetable, signed by all the parties, that,

i. identifies the steps to be completed before the action may be set down for trial or restored to a trial list, as the case may be,

ii. shows the date or dates by which the steps will be completed, and

iii. shows a date, which shall be no more than two years after the day the applicable period referred to in subrule (1) expires, before which the action shall be set down for trial or restored to a trial list.

2. A draft order establishing the timetable.

(5) If the parties do not consent to a timetable under subrule (4), any party may, before the expiry of the applicable period referred to in subrule (1), bring a motion for a status hearing.

(7) At a status hearing, the plaintiffs 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 a trial list, as the case may be, and order that it be set down for trial or restored to a 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.

[20] The parties agree on the legal principles to be applied on a status hearing motion. The case law is well settled.

[21] Rule 48.14(7) is clear. The onus is on a plaintiff to show cause why the action should not be dismissed for delay. A plaintiff must provide a satisfactory explanation for any delay. A plaintiff must also demonstrate that the defendant will not be prejudiced in the sense that a fair trial would not be possible. The test is conjunctive. It is important to note that it remains open to a presiding judge or master to dismiss a plaintiff's action at a status hearing even in situations where any delay has been satisfactorily explained. The same result may also prevail even where a plaintiff has demonstrated that the defendant would not be prejudiced. See Faris v. Eftimovski, 2013 ONCA 360 at paragraph 42; Kara v. Arnold, 2014 ONCA 871 at paragraph 8 and Southwestern Sales Corporation Limited v. Spurr Bros. Ltd., 2016 ONCA 590 at paragraph 24.

[22] In 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, the Court of Appeal described the test as follows at paragraph 32:

The test is conjunctive, not disjunctive. Even if the plaintiffs can provide a satisfactory explanation for the delay, the action will be dismissed if there would be prejudice to the defendant. And if the plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the judge to dismiss the action, even if there is no proof of actual prejudice to the defendant.

[23] It is important to note, however, that Rule 48.14(7) provides that the presiding judicial officer at a status hearing may dismiss the action for delay. The Court of Appeal stated in 1196158 Ontario Inc. that it is "open to the judge to dismiss the action" [emphasis added]. The court's decision is therefore a discretionary one. In applying the test, the court will almost invariably engage in a consideration and weighing of all relevant factors in order to reach a just result. See Kara at paragraphs 8 and 13.

[24] Status hearing motions require a careful balance between the competing values of timely and efficient justice and a resolution of disputes based on the merits. However, the fundamental goal of our system of civil justice is for disputes to be resolved on their merits. See Kara at paragraphs 9 and 10.

[25] These are the factors and principles I have considered and applied on this status hearing motion. I have concluded that it is just in the circumstances of this status hearing that the plaintiffs' action be dismissed.

DELAY

[26] I see no unexplained delay over the first two years of this action. The plaintiff took immediate steps to obtain interim injunctive and other relief. A great deal of evidence was preserved, collected and served on the defendants. There were many court appearances. The parties were in regular communication. Various events were scheduled and re-scheduled. The statement of claim was re-served and amended. Extensive cross-examinations took place. There was a brief period of delay between the fall of 2014 and early 2015 but that delay has been satisfactorily explained as arising from health and family care issues involving the plaintiffs' lawyer.

[27] It is true that no steps were taken by the plaintiffs during this period to advance the litigation by proposing and serving a discovery plan and affidavit of documents or attempting to schedule examinations for discovery. However, this absence of progress must be viewed in context. The assessment of the progress of litigation should not be a one size fits all analysis. The overall dynamics of a particular piece of litigation must be considered. See Carioca's Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592 at paragraph 54.

[28] In my view, progress in the context of this litigation clearly included the initial requirement of securing interim injunctive and related relief. This is a claim based on allegations of fraudulent conveyances and other conspiracy on the part of the defendants designed to defeat the claims of their creditors. The interim preservation of rights pending the outcome of the litigation is a sensible starting point when an action involves claims of this nature. Not every case must rigidly follow the usual steps in the Rules to make progress.

[29] I have stated in several previous decisions dealing with similar issues that a plaintiff's explanation for delay need not be perfect. It simply needs to be acceptable. The court's consideration of litigation delay should not involve a month by month forensic examination of the conduct of an action. The court must take a larger view and make an overall assessment of the steps taken in relation to the claim to determine whether a plaintiff has provided an acceptable explanation for any delay. See Tarion Warranty Corporation v. 1398796 Ontario Inc., 2017 ONSC 1742 (Master) at paragraphs 20 and 22.

[30] I do note that there was no communication of any kind between the lawyer for the plaintiffs and Mr. Green's lawyer between August 2015 and late June or early July 2019. Mr. Green and his lawyer were omitted from all communications during this period by all of the other parties. They were not served with motion material or advised of court attendances and examinations. They were unaware of any continuing intention on the part of the plaintiffs to pursue this claim against Mr. Green or anyone else.

[31] Clearly, the lack of communication with Mr. Green after August 2015 is not acceptable. He had delivered a pleading and was represented by counsel. Mr. Green and his lawyer should have been kept apprised. However, this lack of communication between August 2015 and July 2016 does not alter the conclusion that the plaintiffs were taking steps to advance the action during that 12-month period. They simply failed to tell Mr. Green about it.

[32] In my view, much was accomplished by the plaintiffs in the first two years of this action. There should have been better communication with Mr. Green's lawyer but there is no unexplained delay during that time period.

[33] I also accept the plaintiffs' explanation for delay from July to December 2016. The plaintiffs and their lawyers were preparing for trial in a related action. The related matter was scheduled for trial in November 2016 and trial preparation would have obviously been a priority during those months. That action was ultimately settled in November 2016.

[34] At the same time, the Kennedy Defendants' motion for an order setting aside the Default Judgment was still pending. In my view, as of July 2016, it made sense that the Kennedy Defendants' motion in the 2008 Action needed to be determined in some fashion as a logical next step in this litigation. This action is about enforcing the Default Judgment in the 2008 Action. It makes little sense to move ahead with full production and discovery in this action if the judgment forming the underlying basis for this claim ends up being set aside.

[35] I accept that a plaintiff bears the primary responsibility for the progress of an action. However, the conduct of a defendant may also be a relevant consideration at a status hearing, having regard to the context and dynamics of the proceeding. See Carioca's at paragraphs 53 and 54.

[36] In July 2016, the next logical step was in the hands of the Kennedy Defendants. They needed to move ahead with their motion to set aside the Default Judgment. The Kennedy Defendants' evidence is that their resources had been exhausted by that point. That may be so, but that fact was not communicated to the plaintiffs at that time.

[37] However, it is my view that the circumstances that obtained in July 2016 did not give the plaintiffs a free pass to simply sit back and wait indefinitely for the Kennedy Defendants to get on with their motion. At some point, when the lack of interest on the part of the Kennedy Defendants became clear, the onus returned to the plaintiffs to assume their primary obligation to move ahead with this proceeding.

[38] By the end of 2016, one related action had been settled and the Kennedy Defendants had not taken any further steps to move ahead with their motion in the 2008 Action. In my view, it was at that point that the plaintiffs were once again required to take active measures to advance this litigation. Unfortunately, nothing further was done by the plaintiffs for the next 30 months.

[39] In my view, the plaintiffs have not provided an adequate explanation for this extended period of delay. The plaintiffs have provided evidence that at some point after July 2016, the plaintiffs' lawyer formed the opinion that he had collected sufficient evidence from the interlocutory motions to be in a position to set this action down for trial. No further steps needed to be taken. The evidence of exactly when the plaintiffs' lawyer came to this conclusion is somewhat vague but there is no satisfactory explanation as to why the plaintiffs' lawyer failed to take the necessary steps to set this action down for trial soon after arriving at this conclusion. Instead, the plaintiffs' lawyer waited until the eve of the dismissal deadline.

[40] The plaintiffs and their lawyer were involved in a second piece of related litigation, but that action had been ongoing from before 2016 up until it was settled in September 2019. It does not make sense that this ongoing related litigation somehow prevented the plaintiffs from taking the straightforward steps of arranging for mediation and setting this action down for trial, given their lawyer's view that no other steps were necessary. There is no evidence that suggests other lawyers in the firm retained by the plaintiffs were unable to assist if the plaintiffs' lawyer was otherwise occupied. It is true that setting this action down would start the clock ticking toward trial, but it would not have had a significant or immediate impact on the ability of the plaintiffs and their lawyer to pursue other claims.

[41] While I accept the plaintiffs' evidence that this other proceeding was related to this action, there is no specific evidence that this other action needed to be resolved before this action could proceed any further. The plaintiffs' evidence in this respect simply amounts to bald assertions that the claims were related. For this reason, this case is distinguishable from Tarion Warranty Corporation, relied on by the plaintiffs, where the court made a specific factual finding that the action in issue on that motion was being advanced by the plaintiff working toward a resolution of a related proceeding. In my view, the plaintiffs' vague evidence on this motion does not support a similar finding.

[42] In my view, the circumstances of this action also placed an enhanced obligation on the plaintiffs to move forward with a reasonable degree of alacrity. The plaintiffs obtained early injunctive relief and registered a CPL on title to property owned by one of the defendants. The Mareva injunction remains in place against the Kennedy Defendants and the CPL is still on title.[^2] Those extraordinary orders have the potential of seriously limiting the ability of a person to deal with his or her property before a final determination is made on the merits. In my view, a party who obtains that kind of interim relief has an even greater burden to advance its claim within a reasonable period of time. See Ciba-Geigy Ltd. v. Novopharm Ltd., 1997 CanLII 6388 (FC), [1997] FCJ No. 1836 (FCTD) at paragraphs 17 to 19. Ciba-Geigy Ltd. is a decision on motions to dissolve injunctions, but in my view the court's statements with respect to delay are equally applicable to a motion dealing with the dismissal of an action as a whole. I also note that the failure of a party to prosecute a proceeding with reasonable diligence is an expressly stated basis for discharging a CPL under section 103(6) of the Courts of Justice Act, RSO 1990, c C.43.

[43] It is clear from the evidence that the defendants also failed to take any steps during this time period to advance this claim or the related motion to set aside the Default Judgment. The conduct of defendants may be a relevant consideration. However, this is not a situation where a defendant actively obstructed a plaintiff from moving forward with its claim. None of the parties to this proceeding took any steps to advance the litigation after July 2016. As the Court of Appeal has stated on many occasions, a plaintiff bears the primary responsibility for the progress a claim. In my view, it is the plaintiffs therefore who must bear the consequences for conducting this action in a dilatory manner.

[44] Finally, I do not view this as a situation where the errors of a lawyer are being visited upon the clients. The plaintiffs' direct evidence is limited to bald assertions that they always intended to pursue this action. The evidence suggests, however, that the plaintiffs themselves were pursuing other litigation arising from the same events while putting this action on hold. The plaintiffs have not provided specific evidence or factual detail as to what measures, if any, these sophisticated plaintiffs were taking to supervise their lawyer during this period of delay or what instructions they were communicating to their lawyer to advance this claim. This is the kind of evidence the court would expect plaintiffs such as these to file on a status hearing motion. See Southwestern Sales Corporation Limited at paragraph 22.

[45] I accept that the plaintiffs' lawyer overlooked the requirement for mandatory mediation. However, that technical misstep is not the basis for the court's conclusion on the issue of delay. Even if this action had been set down in July 2019, the fact of the unexplained 30-month delay would still be present. The plaintiffs' action would remain vulnerable to dismissal whether at a status hearing or on a motion to dismiss for delay.

[46] For these reasons, I have concluded that the plaintiffs have failed to provide an adequate explanation for the lengthy period of delay from January 2017 to June 2019.

PREJUDICE

[47] I am satisfied that there may be some minor prejudice to the defendants in relation to their ability to defend themselves at trial. The parties' business relationship began nearly 20 years ago. The first round of litigation was started in 2008. This action was started in 2014 and was nearly six years old when this motion was heard. Mr. Green was excluded from any involvement with this action for nearly four years. This action is not ready for trial. Examinations for discovery and mediation have not taken place. Additional time is required before this action can be set down for trial. Memories fade with the passage of time, giving rise to trial fairness concerns. See Wellwood v. Ontario Provincial Police, 2010 ONCA 386 at paragraph 72.

[48] However, I agree with the plaintiffs that a finding of prejudice cannot be based solely on the mere passage of time. Prejudice is a question of fact and must be linked to the question of whether a fair trial is possible. See Carioca's Import & Export Inc. at paragraphs 49 and 57.

[49] Overall, I am satisfied that the plaintiffs have met their onus on the issue of prejudice. The defendants will not suffer any significant prejudice in terms of their ability to defend themselves at trial. The defendants had early notice of this claim. The defendants who appeared on this motion have been represented by capable counsel during the course of this proceeding. Evidence has been preserved by the parties appearing on this motion. There has been a great deal of documentary production in this action and in the 2008 Action. Numerous substantive affidavits have been exchanged by the plaintiffs, the Kennedy Defendants and Mr. Green. There have been eight days of cross-examinations in this action dealing in large part with matters that will be in issue at trial. Examinations were also conducted in the 2008 Action. Transcripts are available. Important witnesses are available to give evidence at trial.

[50] The defendants have not provided persuasive evidence of actual prejudice. I accept that the Kennedy Defendants may be in difficult financial circumstances, but that is not the type of prejudice to be considered by the court, as identified by the relevant case law. In any event, Paul and Leanne remain indebted to the plaintiffs pursuant to the Default Judgment issued by this court.

[51] There is some suggestion that former employees of the Kennedy Defendants cannot be located but there is no evidence that the Kennedy Defendants have made significant attempts to locate those witnesses or what important evidence they may have. Other suggestions of prejudice involving Paul's stolen laptop and a head injury suffered by Mr. Green pre-date any delay on the part of the plaintiffs.

[52] Finally, there is no evidence that the defendants have done anything in reliance on the plaintiffs' delay that has resulted in prejudice. The plaintiffs remained silent for three years, but this action remained active. This is not a situation where a defendant has relied on a dismissal order, or a long period of delay, to its detriment. The finality principle is not a significant factor on this motion.

CONCLUSION

[53] A status hearing such as this presents the court with a difficult decision. The court is tasked with the obligation to make the order that is just in the circumstances of this action.

[54] I am satisfied that the defendants have not been prejudiced to the point where a fair trial is no longer possible. However, I have also concluded that the plaintiffs have failed to provide an adequate explanation for a lengthy period of delay. The plaintiffs were silent for three years. They have failed to adequately explain 30 months of delay. As a general rule, civil disputes should be determined on their merits, but consideration must also be given to the equally important objective of timely justice.

[55] In my view, the principle of timely justice figures prominently in the circumstances of this claim. The plaintiffs were in a position to set this action down for trial in July 2016 or soon after. They had collected all the evidence they felt they needed. Instead, they did nothing and waited in silence for three more years until the eve of a dismissal order before taking any further steps. During this period of time, the extraordinary interim remedies of a Mareva injunction and a CPL order remained in place, at least against some defendants. The plaintiffs have made serious allegations of misconduct against the defendants which the plaintiffs failed to pursue, without an adequate explanation, for an inordinate period of time. The plaintiffs' allegations have never been proven on the merits. Litigants are entitled to have disputes resolved within a reasonable period of time so they can get on with their lives.

[56] There comes a point in time where a party to litigation who fails to comply with rules designed to promote timely and efficient justice loses the right to have its dispute decided on the merits. This must be the case, otherwise the Rules and time limits would have no meaning and the goal of ensuring timely and efficient justice would be seriously eroded. In my view, this court cannot, on the facts of this case, simply overlook the plaintiffs' three years of silence and 30 months of unexplained delay. The decisions of the Court of Appeal are clear. The test on this motion is conjunctive. It is open to the court to dismiss a plaintiff's action for delay even in situations where a defendant will not be prejudiced if the action is allowed to proceed. This is one of those actions.

[57] I have therefore concluded that it is just in the circumstances of this status hearing that the plaintiffs' action be dismissed for delay.

ORDER

[58] I therefore order as follows:

(a) the plaintiffs' action is dismissed for delay; and,

(b) if necessary, Mr. Green shall have leave to continue his crossclaim.

[59] I encourage the parties to attempt to agree on the issue of costs. Of course, the responding defendants Paul, Leanne and Mr. Green appear to remain indebted to the plaintiffs in accordance with the Default Judgment.

[60] I also note the comments of the Chief Justice in his notice to the profession dated March 15, 2020:

During this temporary suspension of regular operations, the Court calls upon the cooperation of counsel and parties to engage in every effort to resolve matters.

[61] If the parties are unable to resolve the issue of costs, they shall arrange for a telephone case conference by contacting the court by email following the resumption of the court's regular operations.

Master R. A. Muir

DATE: 2020 04 27

[^1]: The defendants deny these allegations. It is important to note that that none of the allegations made against the defendants in the 2008 Action or in this action have been proven on the merits. The Default Judgment was obtained in the 2008 Action after the defendants' statement of defence had been struck and they were deemed to have admitted the plaintiffs' allegations.

[^2]: The Mareva injunction was dissolved against Ronald Kennedy by order of Justice Pattillo of July 31, 2014 but it appears that the CPL remains in place and registered on title to the subject property.