Court File and Parties

COURT FILE NO.: CV-20-00644200-00CP

DATE: 20210927

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALEX KAN and STUART RATH, Plaintiffs

– and –

KEW MEDIA GROUP INC., STEVEN SILVER, GEOFFREY WEBB, DAVID FLECK, MAURICE KAGAN, PATRICE MERRIN, PETER SUSSMAN and ERICK KWAK, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Garth Myers, Jonathan Foreman, and Sarah Bowdon, for the Plaintiffs

David Conklin and Carly Fox, for the Defendants, Steven Silver, David Fleck, Maurice Kagan, Patrice Merrin, Peter Sussman and Erick Kwak

David Hausman and Jonathan Wansbrough, for the Defendant, Geoffrey Webb

HEARD: September 27, 2021

DISCONTINUANCE, LEAVE TO PROCEED, CERTIFICATION

[1] The corporate Defendant, Kew Media Group Inc. (“Kew”), is in insolvency proceedings that are ongoing on Commercial List. A stay of proceedings is currently in place with respect to actions against Kew. Counsel advise that a motion to lift the stay is scheduled for early this coming month.

[2] Plaintiffs have reached a number of agreements with the Defendants. They have agreed to streamline the action by discontinuing against individual Defendants David Fleck, Maurice Kagan, Patrie Merrin, Peter Sussman, and Erick Kwak, and holding the case in abeyance against individual Defendants Steven Silver and Geoffrey Webb. All applicable limitation periods will be tolled.

[3] To this end, the Plaintiffs have entered a Tolling and Standstill Agreement with the individual Defendants. They have also agreed to Consent Orders with respect to discontinuing the action against Messrs. Fleck, Kagan, Merrin, Sussman, and Kwak, and obtaining leave to proceed under Part XXIII.1 of the Securities Act against Messrs. Silver and Webb. The parties have also agreed to the terms of a Certification Order in which the action will be certified under section 5(1) of the Class Proceedings Act as against the two remaining individual Defendants, Steven Silver and Geoffrey Webb.

[4] I see no issues of concern arising from this set of agreements and Consent Orders. The case is made more efficient as a result of being streamlined, especially in view of the fact that the claim against the corporate Defendants is stayed and its future is unknown. The rights of the class members are preserved and are not adversely affected by this paring down of the action for now.

[5] There will be a Discontinuance Order, a Leave to Proceed Order, and a Certification Order to go, all as submitted by counsel.

Morgan J.

Date: September 27, 2021