SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: C-710-10

DATE: 2013-07-29

RE: Tajdin Abdula, Plaintiff

AND:

Canadian Solar Inc., Shawn Xiaohua Qu and Arthur Chen, Defendants, Defendants

BEFORE: The Honourable Mr. Justice G. E. Taylor

COUNSEL: Douglas Worndl and Anthony O’Brien Counsel, for the Plaintiff

Bryan Finlay, Q.C.and Michael Statham Counsel, for the Defendants

HEARD: July 29, 2009

ENDORSEMENT

[1] This is a motion by the plaintiff for an order that the defendants answer questions and produce documents that were refused during the cross examination of Michael G. Potter, on an affidavit sworn March 25, 2013.

[2] Eventually, the plaintiff will seek to be appointed the representative plaintiff pursuant to the Class Proceedings Act for other individuals who claim to have suffered similar losses. The plaintiff will also seek leave to pursue a cause of action pursuant to Part XXIII.1 of the Ontario Securities Act.

[3] The defendants filed the affidavit of Michael G. Potter in response to the motion for certification. The defendants intentionally have not filed an affidavit in response to the motion for leave.

• 2 -

[4] The result of this motion turns on the interpretation of section 138.8 (2) of the Ontario Securities Act, which reads as follows:

Upon an application under this section, the plaintiff and each defendant shall serve and file one or more affidavits setting forth the material facts upon which each intends to rely.

Section 138.8 is found in Part XXIII.1 of the Act.

[5] Several cases beginning with Ainslie v. CV Technologies Inc. (2008), 2008 63217 (ON SC), 93 O.R. (3d) 200 have interpreted section 138.8 (2) to mean that a defendant is only required to serve and file an affidavit if it intends to lead evidence of material facts in response to the motion for leave. Other cases which have followed the decision in Ainslie include Sharma v. Timminco Limited, 2010 ONSC 790, Dobbie v. Arctic Glacier Income Fund, 2011 ONSC 25 and Dugal v. Manulife Financial Corporation, a decision of Belobaba J. released December 7, 2012.

[6] In Silver v. Imax Corp., [2008] O.J. NO. 1844, van Rensburg J. held that section 138.8 (2) created a mandatory requirement for each defendant to file an affidavit setting out the facts on which the defendant intended to rely. It is to be noted that the defendant in that case had filed an affidavit in response to the motion for leave.

[7] The plaintiff submits that Ainslie and its progeny do not apply to the present case because the defendants have filed an affidavit, albeit in response only to the motion for certification. In Labourers’ Pension Fund of Central and Eastern Canada v. Sino-Forest Corp., 2012 ONSC 1924, Perell J. ruled against a request by the defendants to deal with the certification and leave

• 3 -

the motions separately. In my view, it is likely that, except in unusual circumstances, the certification and leave motions will be heard together. Therefore, the effect of the plaintiffs submission in this case would be that if a defendant wishes to deliver an affidavit in response to the motion for certification, that defendant will be compelled to answer questions in relation to the leave motion even though that defendant does not file an affidavit pursuant to section 138.8 (2) of the Ontario Securities Act.

[8] Were not for the decisions in Ainslie and the cases that have followed it, I would be inclined to interpret section 138.8 (2) in the same way as it was interpreted by van Rensburg J. in Silver. In my view, the wording of the section is clear. Each defendant is required to deliver an affidavit setting out the material facts on which the defendant intends to rely. If a defendant only intends to rely on facts set out in the plaintiff’s affidavit that can be made clear in the defendant’s affidavit.

[9] That said, I feel I should follow the line of cases beginning with Ainslie in 2008 and continuing through until Dugal in 2012 and hold that the defendants in this case are not required to deliver an affidavit in response to the motion for leave pursuant to Part XXIII.1 of the Ontario Securities Act. It follows therefore that if the defendants are not required to deliver an affidavit, they should not be compelled to answer questions which will be used by the plaintiff on the argument that it should be permitted leave to pursue a cause of action pursuant to Part XXIII.1 of the Ontario Securities Act.

[10] For these reasons, the motion is dismissed. As I indicated to counsel during the course of oral argument, it is my hope that leave to appeal this ruling is sought and obtained in order that

• 4 -

the Divisional Court can provide appropriate guidance with respect to the interpretation of section 138.8 (2) of the Ontario Securities Act.

[11] I was advised by counsel at the conclusion of oral argument that it would be appropriate for me to order costs of this motion to be in the cause of the certification and leave the motion and I so order.

G.E. Taylor J.

Date: July 29, 2013