Siskinds LLP, Kalloghlian Myers LLP, and Paliare Roland Rosenberg Rothstein LLP are co-counsel to the plaintiff in a class action filed against Discovery Air Inc. (“Discovery”), certain of its directors and officers, Clairvest Group Inc. and others.
The action is brought on behalf of the holders of Discovery’s 8.375% convertible unsecured subordinated debentures and seeks, among other things, relief from oppression pursuant to section 241(3) of the Canada Business Corporations Act, including compensation of over $35 million.
This action was certified by Order of Justice Koehnen dated April 20, 2021. Please review the Notice of Certification under the “Documents” tab, below.
IMPORTANT NOTICE TO DEBENTURE HOLDERS:
If you did not opt-out of this class action, you are requested to search your records and to submit the following set of documents listed below that are in your possession:
- Debenture Transaction Form (click link to download)
- Detailed documentation concerning every transaction (including purchases and sales) of the debentures that you undertook, along with backup documents (e.g. trading confirmations, account statements, or other documentation from your broker, bank, etc. concerning those transactions); and
- Copies of any documents authorizing any and/or all of your agents to trade in the debentures on your behalf.
You may redact (i.e. black out) any information on your documentation that is not relevant to the Debentures.
You may submit your documents through this website: (please click HERE) or by mail to Siskinds LLP, 275 Dundas Street, Unit 1, London, ON N6B 3L1.
Join the action today
If you would like to be updated on developments in the Action, please click “Join” above and complete the form. Your information will be held in strict confidence. By completing the form, you are not retaining Siskinds LLP, nor do you incur any obligations in connection with the Action.
Need more information?
For inquiries, please complete the “Get in Touch” form below. For telephone inquiries, please call 1.800.461.6166.
Developments
This matter is progressing and we are working through the discovery phase before the trial of the common issues commences.
A preliminary motion in the Discovery Air Inc. class action was scheduled to be heard in late March 2020, but—because of the pandemic—was heard virtually by Justice Koehnen on May 26, 2020. At the hearing, the plaintiff asked the court to determine whether the debenture agreement precluded the proposed class action from proceeding. Justice Koehnen reserved his decision.
On August 13, 2020, Justice Koehnen released his decision. To view a copy of the decision, please click here. The plaintiff won on all counts and is permitted to move forward with the oppression class action. Justice Koehnen found that the debenture agreement did not prohibit the plaintiff from commencing the oppression action and did not require him to fulfil several preconditions contained in the debenture agreement. In the alternative, Justice Koehnen found that the plaintiff had complied with the preconditions and was authorized to proceed in his own name without further participation of the trustee.
As a result of the decision, the plaintiff and Class Counsel went forward with the certification motion. The certification materials were previously filed with the court.
The certification hearing was heard via Zoom on April 16, 2021. Justice Koehnen certified the action as against all defendants (Clairvest, Discovery Air, Top Aces, and various individuals) in his decision dated April 20, 2021. A copy of the certification order can be found here.
FAQs
What is a class action?
A class action is a lawsuit that is brought by one or more persons on behalf of a larger group of people whose claims share common legal and/or factual issues. Class actions provide a cost-effective way for groups of people with common interests to pursue a legal claim.
What does “certification” mean?
Certification is the motion where the court determines whether the action can properly be pursued as a class action. The court will consider factors such as whether the claims of the class members raise common legal and/or factual issues and whether a class action is the preferable method of pursuing the claims (as opposed to other methods, such as individual actions).
Do I have to pay anything to participate in the class action?
No. Class action will be paid on a contingency basis. This means that class counsel is only paid if successful. Class counsel will be paid a percentage of any settlement or court award, subject to court approval.
Who is affected by this class action?
The Ontario Superior Court of Justice certified the class action on behalf of the following group (the “Class”):
All persons or entities wherever they may reside or are domiciled, that are legal or beneficial owners of the 8.375% convertible unsecured subordinated debentures of Discovery Air Inc. issued pursuant to the Convertible Debenture Indenture dated May 12, 2011, together with the First Supplemental Convertible Indenture dated November 27, 2014, and the Second Supplemental Convertible Indenture dated May 26, 2017 between Discovery Air Inc. and Computershare Trust Company of Canada.
Can I join the class action?
There are no steps required to “join” the class action. Unless you opt out (exclude yourself from the class action), then assuming you fall within the scope of the class definition, you are automatically included in the class action.
Can I exclude myself from the class action?
No. The opt-out period ended on January 23, 2022. Click here to view the notice.
What should I do to protect my rights?
If you did not opt-out of this class action, you are requested to search your records and to submit the following set of documents listed below that are in your possession:
- Debenture Transaction Form(click link to download)
- Detailed documentation concerning every transaction (including purchases and sales) of the debentures that you undertook, along with backup documents (e.g. trading confirmations, account statements, or other documentation from your broker, bank, etc. concerning those transactions); and
- Copies of any documents authorizing any and/or all of your agents to trade in the debentures on your behalf.
You may redact (i.e. black out) any information on your documentation that is not relevant to the Debentures.
You may submit your documents through this website: (please click HERE) or by mail to Siskinds LLP 275 Dundas Street, Unit 1, London, ON N6B 3L1.
I still have a question. Who should I contact?
If you have any other questions, please complete the contact form below.