Court File and Parties

Court File No.: CV-16-011391-00CL Date: 20170622 Superior Court of Justice - Ontario

Re: Eugene Melnyk, Moving Party/Plaintiff And: Acerus Pharmaceuticals Corporation, Tom Rossi, Ihor (aka Ian) Ihnatowycz and John Does 1-6, Responding Parties/Defendants

Before: Mr. Justice H.J. Wilton-Siegel

Counsel: Kent Thomson, for the Moving Party/Plaintiff David R. Byers, Daniel S. Murdoch and Aaron Kreaden, for the Responding Parties/Defendants

Heard: In Writing

Supplementary Endorsement

[1] On February 22, 2017, I released my endorsement in this matter, as reported at 2017 ONSC 1285 (the “Endorsement”). At the parties’ request, I have been asked to deliver this supplementary endorsement to clarify the scope of the submissions that were made before me at the hearing on December 21, 2016 (the “Hearing”), as well as the basis upon which I made the Endorsement.

[2] The parties’ written submissions included argument in respect of all aspects of the test for leave to commence a derivative action set out in s. 246(2) of the Business Corporations Act (Ontario), RSO 1990 c B.16 (the “OBCA”). At the outset of the Hearing, in view of the time scheduled for this matter by the parties and the number of issues involved, I directed the parties to limit their oral submissions to the issue of whether the plaintiff could establish that the proposed derivative action is in the interests of the defendant corporation when the plaintiff has only a nominal shareholding (less than 0.0015%) in the public corporation in respect of which he seeks to bring a derivative action.

[3] In the Endorsement I assumed (without deciding) that the plaintiff could make out an arguable case on the causes of action advanced in the Amended Statement of Claim dated August 8, 2016. I did not however consider the parties’ arguments concerning whether the plaintiff has established an arguable case such that the proposed derivative action is in the interests of the corporation. I also did not consider the parties’ arguments concerning whether the proposed derivative action has been brought in good faith as required by section 246(2) of the OBCA. Accordingly, my Endorsement was not intended to prejudice the ability of the parties to advance the balance of their respective positions in respect of this motion in the event of a successful appeal.

Wilton-Siegel J. Date: June 26, 2017