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Siskinds LLP, Kalloghlian Myers LLP, and Paliare Roland Rosenberg Rothstein LLP are co-counsel to the plaintiff in a proposed 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.

***IMPORTANT NOTICE***

DISCOVERY AIR INC. CLASS ACTION

NOTICE OF CERTIFICATION AS A CLASS PROCEEDING

TO:

All persons that hold the 8.375% unsecured convertible subordinated debentures of Discovery Air Inc.

READ THIS NOTICE CAREFULLY AS IT MAY AFFECT YOUR LEGAL RIGHTS. YOU MAY NEED TO TAKE PROMPT ACTION

IMPORTANT DEADLINE:

Opt-Out Deadline (for individuals and entities that wish to exclude themselves from the Class Action. See below for more details.):

Friday, January 21, 2022

Opt-Out Forms will not be accepted after this deadline. As a result, it is necessary that you act without delay.

CERTIFICATION OF THIS ACTION AS A CLASS PROCEEDING

In November 2018, an action was commenced in the Ontario Superior Court of Justice against Clairvest Group Inc., Discovery Air Inc., Top Aces Inc., Top Aces Holdings Inc., Kenneth Rotman, Adrian Pasricha, Rod Phillips, Michael M. Grasty, G. John Krediet, Michael Mullen, Alain Benedetti, Thomas Hickey, Paul Bernards, Alan Torrie and Jacob Shavit (“Defendants”). The action alleges that the Defendants engaged in oppressive conduct towards owners of Discovery Air Inc. unsecured debentures, and seeks compensation on their behalf.

The Court has not decided whether the Plaintiff or the Defendants are right. The lawyers for the Plaintiff will have to prove the claims in Court.

On April 20, 2021, the Ontario Superior Court of Justice certified this action as a class action. This means that the lawsuit meets the requirements for a class action and may proceed to trial. If you are included, you may have legal rights and options before the Court decides whether the claims being made against the Defendants on your behalf are correct. This notice explains all of these things.

WHO IS BOUND BY THE 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.

REQUESTING EXCLUSION FROM THE CLASS

You are automatically part of the Class unless you “opt out” of (exclude yourself from) the action. If you want to keep your right to sue the Defendants on your own over the claims in this case, you need to opt out of the action.

If you want to stay in the Class, you should not opt out. You will not be able to make or maintain any other claims or legal proceeding in relation to the matters alleged in this action. There will not be any financial consequences to you if the action is not successful.

If you do not want to be bound by the class action, you must opt out. If you wish to opt out, you may do so by completing an “Opt Out Form”. If you opt out, you will exclude yourself from the class action. If the class action obtains money or other benefits you will not be able to share in them, and you will not be represented by Class Counsel. If you opt out, you will take full responsibility for initiating or continuing your lawsuit, and for the legal steps necessary to protect your claims. In order to successfully opt out, you must include all of the information requested by the Opt-Out Form.

If you wish to opt out, you must submit your fully completed Opt-Out Form to the address below, no later than Friday, January 21, 2022.

[email protected]

Tel: 1.800.461.6166

The Opt-Out Forms are available by emailing a request to the address above, or by calling the number above.

IMPORTANT: IF YOU DO NOT INTEND TO OPT-OUT OF THIS CLASS ACTION, you are requested to search your records and to submit the set of documents listed below that are in your possession. You may submit your documents through our website www.siskinds.com/discovery or by mail to Siskinds LLP 275 Dundas Street, Unit 1, London, ON N6B 3L1.

PROVIDING DOCUMENTS TO CLASS COUNSEL

PLEASE SEARCH YOUR RECORDS AND SUBMIT THE FOLLOWING SET OF DOCUMENTS:

  1. Debenture Transaction Form
  2. 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
  3. Copies of any documents authorizing any and/or all of your agents to trade in the debentures on your behalf.

THE LAWYERS THAT REPRESENT THE CLASS MEMBERS

The law firms of Siskinds LLP, Kalloghlian Myers LLP, and Paliare Roland Rosenberg Rothstein LLP (“Class Counsel”) jointly represent the Class in the Proceedings. Class Counsel will only be paid if they win a trial or if there is a settlement. The Court must approve their request to be paid. The fees and expenses could be deducted from any money obtained for the Class, or paid separately by the Defendants. Class Counsel can be reached by email or telephone, as provided below:

[email protected]

Tel: 1.800.461.6166

DISTRIBUTION OF THIS NOTICE HAS BEEN AUTHORIZED BY THE ONTARIO SUPERIOR COURT OF JUSTICE

PLEASE FIND THE FRENCH VERSION OF THIS NOTICE HERE.

Developments

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 are moving forward with the certification motion. The certification materials were previously filed with the court. At the certification hearing, Justice Koehnen will determine whether this action is properly prosecuted as a class action. The certification hearing is scheduled to be heard via Zoom on April 16, 2021.

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 decision can be found here.

Further updates will be posted as the case progresses.

 

 

 

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.

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.

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.

I still have a question. Who should I contact?

If you have any other questions, please complete the contact form below.

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 are moving forward with the certification motion. The certification materials were previously filed with the court. At the certification hearing, Justice Koehnen will determine whether this action is properly prosecuted as a class action. The certification hearing is scheduled to be heard via Zoom on April 16, 2021.

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 decision can be found here.

Further updates will be posted as the case progresses.

 

 

 

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.

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.

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.

I still have a question. Who should I contact?

If you have any other questions, please complete the contact form below.

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