ENDORSEMENT

1Counsel for the plaintiffs has submitted a motion in writing dealing with undertakings, refusals and matters taken under advisement on the examinations of various individuals. Unfortunately, due to miscommunication the defence were not given the opportunity to respond before a draft endorsement issue.

2The defendants’ written response and a written reply from plaintiffs’ counsel have been received. In addition, a telephone conference call with counsel completed the submissions.

3The following disposition of the outstanding questions follows the written December 21, 2012 submission of counsel and to the references and numbers therein, and takes into account the further submissions.

Erez Hacohen

1 Undertaking 6

Erez Hacohen

4This matter remains outstanding. The plaintiffs may at trial be entitled to an inference to be drawn by continued failure to answer.

2 Undertaking 8

5I am satisfied with the answer. It is responsive to the undertaking.

3 Under Advisement 1

6The request is too wide. The plaintiffs are however, entitled to references in the bank records of Solar Stream which reflect receipts from persons who discussed ownership in the company.

4 Refusal 2

7This refusal can be answered by the witness as to his own awareness and is to be provided. While ultimately an issue for the trial judge, I conclude that this information is relevant at this stage and it is not only if the plaintiffs are held to be a shareholder before it is provided. It is relevant to the issue for trial.

5 Refusal 5

8This question is to be answered in both parts. I accept the position of the plaintiffs and any issue of commercial sensitivity can be dealt with by the implied undertaking rule.

6 Refusal 6

9This question is relevant and is to be answered. I am not satisfied that there is any basis for it being considered commercially sensitive.

7 Refusal 7

10I am not satisfied this information is necessary or appropriate at this stage without further allegations or information.

Stuart Lessels

1 Undertakings to 4, 5, 6, 10, 17, 18

Stuart Lessels

11None of these undertakings have been satisfactorily answered. They do not appear to have been previously answered and when examined the deponent indicated that he would confirm or provide responses on the return of Mr. Hacohen from vacation. The vacation was apparently in August 2012. The undertakings are to be completed. The witness is to provide any and all information within his power possession or control of the defendants that is responsive to the question.

8 Under Advisement 1

12While the question of relevance is one ultimately for the trial judge, the question is to be answered however. There is no basis established beyond the statement of the witness re relevance and it is for this court not him to make the conclusion at this stage.

9 Under Advisement 2, 3, 4

13I am not satisfied in the absence of specific allegations or information that the documentation is necessary or appropriate for the trial of issue.

12 Refusal 3, 4

14I am satisfied that these questions are relevant. No basis for commercial confidentiality has been established. The questions are to be answered.

Patrick Gregory

1 Under Advisement 1, 2, 3

Patrick Gregory

15Despite the objection these productions are all relevant and producible for the issue to be tried. The questions are to be answered. No valid objection has been established for commercial sensitivity. The plaintiffs are entitled to the information to make its case at trial subject to any ruling regarding relevance by the trial judge.

4 Refusal 1

16The refusal is improper. The question is relevant for the issue to be tried and no basis has been established for the commercial sensitivity of an agenda.

5 Refusal 3

17The information sought is relevant to the issue to be tried and the question is to be answered.

Costs

18Having heard further submissions on the issue of costs I conclude that the plaintiffs have been substantially successful. The defendants with the benefit of the draft endorsement did not really change their position necessitating a further round of submissions.

19I am satisfied that the plaintiffs be entitled to costs on the partial indemnity scale. Since the motion was dealt with in writing and by telephone conference, I conclude that the sum of $3500 inclusive of fees, disbursements and H.S.T. is appropriate and so order, to be payable within 30 days.

C. CAMPBELL J.

Date: January 17, 2013