Court File No. CV -12-463822-00CP

ONTARIO SUPERIOR COURT OF JUSTICE

THE HONOURABLE JUSTICE ) ~~~~b'A'1 THE '\2iAYOF

PERELL ~ ~\t...~\)..f\ ,2015

BETWEEN

DALE PAUS and GLEN WOO

- and-

CONCORD ADEX DEVELOPMENTS CORP, TODDGLEN CONSTRUCTION LIMITED, and

Plaintiff

TORONTO STANDARD CONDOMINIUM CORPORATION NO. 1438

Defendants

Proceedings under the Class Proceedings Act, 1992

CERTIFICATION ORDER

THIS MOTION, made by the plaintiffs for certification of this action as a class

proceeding, was read this day at Toronto, Ontario.

ON READING the affidavits of:

1) Andrew Eckart, sworn April 1, 2013;

2) Dale Paus, sworn April 3, 2013;

3) Andrew Kay, sworn March 11,2013;

4) Matthew Monk, sworn August 20, 2013;

5) Andrew Eckart, sworn October 3, 2013;

6) Glen Woo, sworn December 6,2013; and

7) Andrew Eckart, sworn August 7, 2015.

AND UPON being advised that the defendants Concord Adex Developments

Corp., Toronto Standard Condominium Corporation No. 1438, and Page + Steele

Incorporated consent to the motion, and that the defendant Toddglen Construction

Limited does not oppose it;

1. THIS COURT ORDERS that the capitalized terms used in this order have the

meaning indicated below:

(a) "Balcony" and "Balconies" mean the outdoor exclusive use common elements for the Units;

(b) "Balcony Railings" means the railings, including all their composite parts such as fasteners and anchors, installed on the Balconies at the Matrix;

(c) "Class" or "Class Members" means those persons, excluding the defendants and their senior officers and directors, who owned, rented and/or ordinarily resided in a residential condominium unit at the premises municipally known as 361 Front Street West (East Tower) and 373 Front Street West (West Tower) in the City of Toronto, during the period or periods of time when access to or use of the balcony associated with the residential condominium unit was restricted, during the period commencing on March 1,2011 to and including September 15,2014.

(d) "Class Counsel" means Sutts, Strosberg LLP and Charney Lawyers;

( e) "Class Period" means the period commencing on and including March 1, 2011 to and including September 15, 2014;

(f) "Concord" means Concord Adex Developments Corp.

(g) "Contract" means the agreement of purchase and sale between Concord and the Class Members who purchased Units from Concord;

(h) "Detached Railings" means Balcony Railings which were installed on Balconies at Matrix that separated from the concrete base and came away from the building during the Class Period;

(i) "Matrix" means the condominium development located at 361 Front Street West and 373 Front Street West in the City of Toronto, Ontario;

G) "Notice" means the notice, generally in accord with the draft attached as Schedule "A," advising the Class Members about this certification order and the right to opt out;

(k) "Notice Program" means the notice program particularized at paragraph 18;

(1) "Opt-Out Date" means October 12,2015 at 5:00 p.m. eastern time;

(m) "Page + Steele" means Page + Steele Incorporated;

(n) "Toddglen" means Toddglen Construction Limited;

(0) "TSCC 1438" means Toronto Standard Condominium Corporation No. 1438; and

(P) "Unit" or "Units" means a residential condominium unit, including its Balcony, at Matrix.

2. THIS COURT ORDERS that Glen Woo is added as a party plaintiff,

3. THIS COURT ORDERS that the action against Page + Steele be and is hereby

dismissed without costs.

4. THIS COURT ORDERS that this action is hereby certified as a class proceeding.

5. THIS COURT ORDERS that the Class and Class Members are defined as

follows:

those persons, excluding the defendants and their senior officers and directors, who owned, rented and/or ordinarily resided in a residential condominium unit at the premises municipally known as 361 Front Street West (East Tower) and 373 Front Street West (West Tower) in the City of Toronto, during the period or periods of time when access to or use of the balcony associated with the residential condominium unit was restricted, during the period commencing on March 1, 2011 to and including September 15,2014.

6. THIS COURT ORDERS that Dale Paus and GleI1ft Woo are hereby appointed as

representatives of the Class.

7. THIS COURT ORDERS that the title of proceedings in this order and in the

action is as follows:

BETWEEN:

Court File No. CV-12-463822-00CP

ONTARIO SUPERIOR COURT OF JUSTICE

DALE PAUS and GLEN WOO

and

CONCORD ADEX DEVELOPMENTS CORP, TODDGLEN CONSTRUCTION LIMITED, and

TORONTO STANDARD CONDOMINIUM CORPORATION NO. 1438

Proceedings under the Class Proceedings Act, 1992

Plaintiffs

Defendants

8. THIS COURT ORDERS that the plaintiffs have leave to deliver a Fresh

Statement of Claim, without interlineations, attached as Schedule "B" to this order.

9. THIS COURT DECLARES that the causes of action asserted on behalf of the

Class are negligence and breach of contract.

10. THIS COURT DECLARES that the relief sought by the Class includes various

declarations, general, special and pecuniary damages, prejUdgment interest and costs.

11. THIS COURT DECLARES that the common issues are:

1. Did any or all of the defendants owe a duty of care to the Class Members in relation to the design, construction, installation, maintenance and repair of the Balcony Railings?

2. Did any or all of the defendants breach the standard of care expected of them in relation to the design, construction, installation, maintenance and repair of the Balcony Railings. If yes, which defendants, when and how?

3. Did Concord breach the Contract with Class Members in relation to the design, construction and installation of the Balcony Railings on the Balconies? If yes, when and how was the Contract breached?

4. If the answers to any of questions 1 through 3 are "yes", did the breach or breaches cause or contribute to the Detached Railings?

5. If the answers to any of questions 1 through 3 are "yes", what degree of fault should be assigned to each defendant?

6. Should the defendants pay prejUdgment and post judgment interest, and at what annual interest rate?

7. Should the defendants pay the costs of administering and distributing any monetary judgment and/or the costs of determining eligibility and/or the individual issues? If yes, who should pay what costs, why, and in what amount?

12. THIS COURT ORDERS that the litigation plan attached as Schedule "C" to this

order is approved and may be varied by this Court.

13. THIS COURT ORDERS that a Class Member may only opt out of this action by

sending an election to opt out by ordinary mail, fax, email or courier, on or before the

Opt-Out Date, and signed by the Class Member, or their authorized representative, to:

Howie & Partners, Chartered Accountants 3063 Walker Road Windsor ON N8W 3R4 Attention: Fax to: Email to:

Matrix Class Action 519.250.1929 classaction@howieandpartners.com

14. THIS COURT ORDERS that no Class Member may opt out of this action after

the Opt-Out Date.

15. THIS COURT ORDERS that no person may opt out a minor or a mentally

incapable member of the Class from this action without the permission of the Court after

notice to The Children's Lawyer and/or the Public Guardian and Trustee, as the case

maybe.

16. THIS COURT ORDERS that, on or before November 12,2015, Sarkis Isaac of

Howie & Partners shall report to the Court and to the parties by affidavit listing the

names and addresses of those persons, if any, who have opted out of this action.

17. THIS COURT ORDERS that the Notice is hereby approved.

18. THIS COURT ORDERS that the Class shall be given notice, on or before

August 28,2015, of the certification of this action in the following manner:

(a) by:

(i) Class Counsel publishing the Notice once in a quarter page advertisement in the Toronto edition of the Toronto Star;

(ii) Class Counsel mailing the Notice by regular mail to every Unit at Matrix excluding the Units that registered with Class Counsel;

(iii) Class Counsel posting the Notice on the www.cityplaceclassaction.com website;

(iv) TSCC 1438 mailing and/or emailing the Notice to all current Unit owners who do not reside at Matrix;

(v) TSCC 1438 mailing and/or emailing the Notice to all fonner Unit owners who sold their Units at Matrix on or since March 1,2011; and

(vi) Class Counsel emailing the Notice to any person who registered with Class Counsel and provided a valid email address.

19. THIS COURT ORDERS that, on or before November 12,2015, Class Counsel

shall file an affidavit with the Court confinning compliance with paragraph 18.

20. THIS COURT ORDERS that the costs of this motion shall be in the cause.

ENTERED AT IINSCRIT A TORONft;jSTICE PERELL ON I BOOK NO: LE I DANS LE REGISTRE NO.

AUG 132015

PER/~

Schedule "A"

MATRIX TOWERS CLASS ACTION NOTICE OF CERTIFICATION AND OPT -OUT DEADLINE

This Notice may affect your rights. Please read carefully

TO CLASS MEMBERS WHO ARE:

those persons, excluding the defendants and their senior officers and directors, who owned, rented and/or ordinarily resided in a residential condominium unit at the premises municipally known as 361 Front Street West (East Tower) and 373 Front$treet West (West Tower) in the City of Toronto, during the period or periods of time when access to or use of the balcony associated with the residential condominium unit was restricted, during the period commencing on March 1, 2011 to and including September 15,2014.

CERTIFICATION

A class action was commenced in the Ontario Superior Court of Justice against Concord Adex Deyelopments Corp. Toro Aluminum Railings Inc., T dddglen Construction Limited, Toronto Standard Condominium Corporation No. 1438, and Page + Steele Incorporated.

The class action seeks damages related to the problems with the balcony railings on the balconies at Matrix Towers. The plaintiffs allege that the defendants are responsible to them and the Class Members for the lost use of their balconies and for the diminished value of their units.

On August 12, 2015, this action was certified as a class action. The court has not determined who will win this action. The certification order and the reasons for certification are posted at www.cityplaceclassaction.com.

The action against Toro Aluminum Railings Inc., has been discontinued and the action against Page + Steele Incorporated will be dismissed

without costs. The action against all remaining defendants is continuing.

DO NOTHING IF YOU WISH TO PARTICIPATE IN THE CLASS ACTION

Class Members are automatically included in the class action and need not do anything at this time if they wish to participate. They will be bound by the judgment in this action whether favourable or not.

OPTING OUT

If you are part of the Class described above and wish to be excluded from this action and do not wish to be bound by any order made in the action, you must send a signed statement saying that you wish to be excluded. The statement must include your name, address, email address, telephone number and your unit number at Matrix Towers (even if you no longer live there). The statement must be received by 5:00 p.m. eastern time on October 12, 2015, by prepaid mail, fax, courier or email to:

Howie & Partners, Chartered Accountants 3063 Walker Road Windsor ON N8W 3R4 Attention: Matrix Towers Class Action Fax: 519.250.1929 Email: c1assaction@howieandpartners.com

A person who decides not to participate in the class action, will not be bound by any future order made in the class action, and will not be eligible for any compensation in the class action.

Do not opt out if you wish to participate in the class action.

If you do not opt out of the class action on or before 5:00 p.m. eastem time on October 12, 2015, you will be part of this class action and you will be bound by the terms of any order, judgment or settlement, whether favourable or not, and will not be entitled to prosecute an independent action.

No person may exercise an opt-out option for any person under a disability without permission of the Court after notice to the Public Guardian and Trustee.

CLASS COUNSEL FEES AND DISBURSEMENTS

The representative plaintiffs and Class Counsel signed a fee agreement which provides that Class Counsel will be paid out of any recovery a percentage of the recovery as fees, plus expenses, applicable taxes and a proportionate share of the interest accruing on the recovery, but only in the event of success in the class action. The fees will be between 25% and 33~% of the recovery depending upon whether the action settles and at what stage the action settles, or proceeds to judgment after trial.

The fee agreement must be approved by the court. Class Members will not be required to pay Class Counsel unless the plaintiffs are successful in this action and then the fees will be deducted from their recovery.

INDIVIDUAL ISSUES

Individual issues may remain for determination after the trial. If a Class Member wishes to retain a lawyer to assist with these individual issues, the Class Member may have to pay additional fees for this service.

#1 099441 v4

PRESERVATION OF DOCUMENTS

Each Class Member who wishes to participate in this class action should take all reasonable steps to collect and preserve all documents and receipts relating to his/her individual claim for damages. Any Class Member with questions about what documents must be preserved should contact Class Counsel for assistance at the address listed below.

INFORMATION

This Notice was approved by the Ontario Superior Court of Justice. Inquiries should not be directed to the court.

Additional information about the class action can be found at www.cityplaceclassaction.com or www.strosberoco.com

Any questions regarding this class action, the certification order or opting out should be directed to:

Sharon Strosberg suns STROSBERG LLP 600-251 Goyeau Street Windsor ON N9A 6V4 Tel: 519.561.6296 Fax: 519.561.6203 sharon@strosbergco.com

INTERPRETATION

Ted Charney CHARNEY LAWYERS 890-151 Bloor St. W. Toronto ON M5S 1S4 Tel: 416.964.7950 Fax: 416.964.7416 tedc@chameylawyers.com

This Notice is a summary of some of the terms of the certification order. If there is a conflict between the provisions of this Notice and the terms of the certification order, the certification order shall prevail.

Schedule "B"

Court File No.: CV-12-463822-00CP

BETWEEN:

ONTARIO SUPERIOR COURT OF JUSTICE

DALE PADS and GLEN WOO

-and-

CONCORD ADEX DEVELOPMENTS CORP., TODDGLEN CONSTRUCTION LIMITED, and

Plaintiffs

TORONTO STANDARD CONDOMINIUM CORPORATION NO. 1438

Defendants

Proceeding under the Class Proceedings Act, 1992

FRESH STATEMENT OF CLAIM

TO THE DEFENDANTS:

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the plaintiffs. The claim made against you is set out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must prepare a statement of defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on the plaintiffs' lawyers or, where the plaintiffs do not have a lawyer, serve it on the plaintiffs, and file it, with proof of service, in this court office, WITHIN TWENTY DAYS after this notice of action is served on you, if you are served in Ontario.

If you are served in another province or territory of Canada or in the United States of America, the period for serving and filing your statement of defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days.

Instead of serving and filing a statement of defence, you may serve and file a notice of intent to defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to serve and file your statement of defence.

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IF YOU FAIL TO DEFEND THIS PROCEEDING, mDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE Al\TD WITHOUT FURTHER NOT1CE TO YOU. IF YOU WISH TO DEFEND TIDS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES LEGAL AID MAYBE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.

Date:

TO: CONCORD ADEX DEVELOPMENTS CORP. 23 Spadina Ave. Toronto, Ontario M5V 3M5

AND TO: TODDGLEN CONSTRUCTION LIMITED 2225 Sheppard Ave. East Atria III, Suite 1100 Toronto, ON M2J 5C2

AND TO: TORONTO STANDARD CONDOMINIUM CORPORA nON No. 1438 361 Front Street West Toronto, ON M5V 3R5

Issued by:

Registrar

Address of Court Office: 393 University Ave. - 10th FI. Toronto, Ontario M5G 1E6

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CLAIM

DEFIl'lTIONS

1. The following definitions apply for the purposes of this statement of claim:

(a) "Balcony" and "Balconies" mean the outdoor exclusive use common elements for the Units;

(b) "Balcony Railings" means the railings, including all their composite parts such as fasteners and anchors, installed on the Balconies at the Matrix;

(c) "Builders" means Concord and Toddglen;

(d) "Class" and «Class Members" means those persons, excluding the defendants and their senior officers and directors, who owned, rented, and/or ordinarily resided in a residential condominium unit, and had the right to use its balcony, at the premises municipally known as 361 Front Street West and 373 Front Street West, in the City of Taranto, during the period or periods of time when access to or use of the balcony associated with the residential condominium unit was restricted during the period commencing on March 1, 2011 to and including September 15,2014;

(e) "Class Period" means the period from and including March 1,2011, to September 15, 2014 or such other period as determined by the court;

(f) "CJA" means the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended;

(g) "Concord" means Concord Adex Developments Corp.

(h) "CondominiumAcf' means the Condominium Act, 1998, s.o. 1998, c. 19, as amended;

(i) "CPA" means the Class Proceedings Act, 1992, S.O. 1992, c. 6, as amended;

G) "Dale" means Dale Paus;

(k) "Detached Railings" means Balcony Railings which were installed on Balconies at Matrix that separated from the concrete base and came away from the building during the Class Period;

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(I) "Glen" means Glen Woo;

(m) "New Home Warranties Plan Act' means the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. 0.31, as amended;

(n) "Matrix" means the condominium development located at 361 Front Street West and 373 Front Street West in the City of Toronto, Ontario;

(0) ··Ontario Building Code" means the Building Code Act, 1992, S.O. 1992, c. 23 and O. Reg. 350106, as amended;

(P) "Toddglen" means Toddglen Construction Limited;

(q) ·'TSCC 1438" means Toronto Standard Condominium Corporation No. 1438; and

(r) "Unit" or "Units" means a condominium unit or an apartment, including its Balcony, at Matrix.

RELIEF SOUGHT

2. Dale and Glen claim on their O\VIl behalf, and on behalf of all other Class Members:

(a) an order certifying this action as a class proceeding and appointing them as the representative plaintiffs for the Class;

(b) a declaration that the Builders were negligent in monitoring the design, installation, and supply of the Balcony Railings and are liable in damages to the Cla<)s;

(c) a declaration that TSCC 1438 was negligent in failing to comply with its statutory duty under the Condominium Act to repair and maintain the Balconies and is liable in damages to the Class;

(d) a declaration that Concord was in breach of contract and is liable in damages to Class Members who purchased Units from Concord;

(e) general damages in the amount of$15,000,000.00, or such other sum as this Honourable Court finds appropriate;

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(f) special damages and the costs of administering the plan of distribution of the recovery of this action in the amount of $4,000,000.00, or such other sum as this Honourable Court finds appropriate;

(g) such further and other special damages as may be incurred from the date hereof until trial, or final disposition oftrus action, particulars of which will ultimately be furnished to the defendants;

(h) an order directing reference or giving such other directions as may be necessary to detennine issues not detennined at the trial of the common issues;

(i) prejudgment and post judgment interest, compounded, or pursuant to ss. 128 and 129 of the ClA;

G) costs of this action on a substantial indemnity basis or in an amount that provides full indemnity plus the costs of distribution of an award under ss. 24 or 25 of the CPA, including the costs of notice associated with the distribution and the fees payable to a person administering the distribution pursuant to s. 26(9) of the CPA; and

(k) such further and other relief as to this Honourable Court seems just.

3. The plaintiffs will not seek to recover damages from TSCC 1438 for amounts in excess

of its available insurance policy limits and will not seek to recover from the defendants

any amounts owing by TSCC 1438 in excess of its available insurance policy limits.

OVERVIEW OF TillS ACTION

4. The Matrix is a real estate development in the City of Toronto which consists oftwo

buildings, an east tower which is a 32 storey residential condominium and a west tower

which is a 28 storey residential condominium building. Collectively, the two Matrix

towers contain 642 residential units, 688 parking units, and 12 commercial units, among

other things.

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5. In or around March 1, 2011, a Balcony Railing detached from the concrete platform of a

Balcony in a Unit in one of the Matrix towers.

6. As a result of the detached railing, TSCC 1438 sealed all of the Balconies. Class

Members have thereby suffered from the loss of the use of their Balconies, loss of

enjoyment of their Units, disruption of their privacy, delay in the resale of their Units,

diminution in the value of their Units, and diminution of their rental income.

PARTIES

The Plaintiffs

7. Dale purchased Unit 3607 in the east tower of Matrix from a previous owner on August

27,2002.

8. Glen and his girlfriend have been tenants of Unit 2306 in the west tower of Matrix since

May 2010.

The Defendants

9. Concord is a corporation incorporated under the laws of Canada with its head office

located in the City of Toronto. Concord carries on the business of, inter alia, developing

and building residential and commercial real estate. Concord was the owner, developer

and construction manager of Matrix. It is vicariously liable for the acts and omissions of

its employees, agents and servants.

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10. On June 6, 2002, Concord registered a Declaration and Description for Matrix, thereby

naming itself the "declarant" within the meaning of the Condominium Act. Concord

marketed and sold the Units in Matrix.

11. Concord assisted in the development and/or construction of Matrix including its

Balconies. It also selected the trade contractors and supenrised and controlled their

access to, and their construction of, the Balconies in Matrix.

12. Toddglen is a corporation incorporated under the laws of Ontario \vith its head office

located in the City of Toronto. Toddglen carries on the business of, inter alia, developing

and constructing residential and commercial real estate. Toddglen was the owner,

developer and construction manager of the development of Matrix.

B. Toddglen assisted in the development and/or construction of the Matrix, including its

Balconies. It also selected the trade contractors and supervised and controlled their

access to, and their construction of, the Balconies. Toddglen is vicariously liable for the

acts and omissions of its employees, agents, and servants.

14. TSCC 1438 is a condominiwn corporation created pursuant to the Condominium Act. It

was created on June 6, 2002, by registration of a Description and a Declaration in the

Land Registry Office for the Land Titles Division of the Toronto Registry Office (No.

66). TSCC 1438 was responsible for hiring the contractors to perform repairs on the

Balconies. TSCC 1438 is vicariously liable for the acts and omissions of its employees,

agents, and senrants.

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15. TSCC 1438 has a statutory duty pursuant to sections 17, 89, and 90 of the Condominium

Act to promptly repair and maintain the Balcony Railing systems for all Units.

FACTS SUPPORTING CLASS MEMBERS' CLAIMS AGAINST THE DEFENDANTS

16. In or around the late 1990s, Concord and Toddglen proposed to build a condominium

project on or around 361 Front Street West and 373 Front Street West in the City of

Toronto. The Builders began excavation for the construction of Matrix shortly thereafter.

17. In or around that time, Concord also began to promote and market the sale of Units in

Matrix to the general public.

18. On or about March 1,2011, a Balcony Railing became dislodged from the concrete base

of a Balcony in a Unit in Matrix due to the premature failure of the fasteners and/or

anchors holding the Balcony Railing to the floor of the balcony. This resulted in an

extremely dangerous condition because of the propensity of the Balcony Railings to

become dislodged and fall from the Balconies.

19. In or around March 2011, TSCC 1438 hired an outside consulting firm to determine the

cause of the Detached Railings. While that firm's investigation was ongoing, TSCC

1438 employees entered into Dale, Glen and the Class Members' Units and sealed the

sliding doors to the Balconies so that they could not open more than three inches.

Notices were posted on the Balcony doors of every Unit prohibiting use of the Balcony

and/or tampering with the device that limited the opening of the Balcony doors.

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20. The consulting firm eventually concluded that the Balcony Railings and anchors on

several Balconies showed signs of premature failure.

21. As a result of the Detached Railing and the subsequent sealing of the Balconies, Dale,

Glen and all other members of the Class have not been able to access their Balconies and

have thereby suffered from a loss of use and enjoyment of their Units, among other

things.

FACTS REGARDING THE PLAINTIFFS' INDIVIDUAL CIRCUMSTANCES

22. In or about August 2002, Dale and his spouse purchased Unit 3607 in Matrix from a

previous ovmer. In August 2004, the Unit was transferred into Dale's name only.

23. In or about April 2011, employees andlor contractors hired by one of the defendants,

entered Dale's Unit, inspected the Balcony and sealed the Balcony doors such that the

Balcony could not be accessed. To date, Dale and other Class Members are still unable to

access their Balconies.

24. TSCC 1438 employees, agents and/or contractors have since entered Dale's Unit on

several occasions under other auspices to ensure that the door to Dale's Balcony

remained secured and that the device securing the door had not detached.

25. As a result of his inability to access his Balcony, Dale has sustained a complete loss of

use and enjoyment of his outdoor living space. He also sustained a loss of enjoyment of

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his indoor living space because the sealed Balcony door means that his major source of

fresh air has been dramatically reduced.

26. On or about May 5, 2010, Glen and his girlfriend entered into a lease agreement to rent

Unit 2306 in the west tower of Matrix.

27. In or about March and April 2011, employees of one of the defendants entered into

Glen's Unit and sealed the Balcony doors such that they could not be opened from the

inside.

28. The common area, which contains barbeques which are free to be used by residents, was

often inaccessible and when it was accessible, there were often construction materials and

crews there which made the use of the area unenjoyable. Glen has not used the

barbeques because of this since the Detached Railing incident on or about March I, 2011.

29. During the period in which Glen was locked out from his Balcony, his Balcony Railings

were removed and were eventually replaced in or around July 2013. He regained access

to his Balcony in or around the end of July 2013.

30. Glen and Class Members who occupied Units have therefore suffered from the loss of the

use of their Balconies, loss of enjoyment of their Units and common areas, and a

disruption of their privacy.

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CAUSES OF ACTION

Breach of Contract

31. Class Members who purchased Units directly from Concord entered into Agreements of

Purchase and Sale (the "Contracts").

32. The Contracts contained the following terms:

(a) That the Units and the common elements in the Matrix would be completed in the manner specified in the plans and specifications for Matrix filed with the City of Toronto and contained in the Description; and

(b) That the Units and the common elements in Matrix would be completed in a good and workmanlike manner in accordance with the Ontario Building Code and good construction practice.

33. Section 13 of the New Homes Warranties Plan Act is incorporated into the terms of the

Contract. As a result, Concord warranted to Class Members who purchased Units

directly from Concord that the Units and the common elements in the Matrix were:

(a) constructed in a workmanlike manner and free from defects in material;

(b) fit for habitation;

(c) constructed in accordance 'With the Ontario BUilding Code; and

(d) free from structural defects.

34. All Class Members who purchased Units from Concord entered into Contracts 'with

Concord on similar terms.

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35. Concord also warranted that they were developers or builders of Matrix by placing its

mark, "Concord" on the marketing material; by displaying it at the presentation centre; by

placing it on the web site for the Matrix development; by having Concord executives act

as spokespersons in media announcements; and by stating the project was a Concord

project.

36. The Balcony Railings at Matrix are deficient in that they were manufactured, designed,

supplied, andlor installed in an improper and defective manner by the Builders to the

terms of the Contract as set out in paragraphs 32 and 33 of this claim.

37. Dale pleads on the behalf of each Class Member who purchased Units directly from

Concord that as a result the aforesaid breaches of contract and statutory warranties,

Concord is liable to them in damages.

NEGLIGENCE

38. On or about March 1, 2011, a Balcony Railing became dislodged from the concrete base

of a Balcony in a Unit in Matrix due to the premature failure of the fasteners andlor

anchors holding the Balcony Railing to the floor of the balcony. 1ms resulted in an

extremely dangerous condition because of the propensity of the Balcony Railings to

become dislodged and fall from the Balconies.

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Negligence o/the Builders

39. The Builders owed a duty of care to the plaintiffs and other Class Members to carefully

monitor the construction of the Balconies and to protect against any incidents of

Detached Railings.

40. The circumstances of the Builders being in the business of developing and constructing

condominiwns for sale to the plaintiffs and other Class Members are such that they were

under an obligation to be mindful of the plaintiffs and other Class Members when

constructing Matrix.

41. The Builders knew or ought to have known that if they constructed, or authorized their

contractors or subcontractors to construct Balconies in a manner whereby the Balcony

Railings would be unsafe, fail prematurely and would not be secure and free from defects

which could cause them to become detached, it was likely that Detached Railings would

cause damage to the Class Members' property, restrict their access to the Balconies,

decrease their enjoyment of the Units, delay in the resale of the Units, diminish the value

of the Units, and decrease rental income generated from the rent of Units.

42. There was a sufficient degree of proximity between the plaintiffs and other Class

Members and the Builders to establish a duty of care because:

(a) The Builders entered into a contract or a collateral contract with purchasers of Units;

(b) It was reasonable for the plaintiffs and other Class Members to expect that the Builders had implemented adequate safeguards to ensure that the Balcony Railings were constructed in a manner that they would be fit for habitation;

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(c) The nature of the Builders' business, the construction and development of residential and commercial real estate, had a direct causal connection to ilie incident of a Detached Railing;

(d) The plaintiffs and other Class Members were vulnerable to any failure on the part of the Builders to ensure the safety and quality of the Balcony Railings, as they had no way of ensuring sufficient inspection and supelV'ision of the materials were taken, and no way of protecting themselves if sufficient measures were not taken; and

(e) Concord and T oddglen warranted that they were builders.

43. The Builders breached their duty of care to the plaintiffs and to the Class Members and

were negligent, as particularized below:

(a) they failed to have the Balcony Railings installed and manufactured in accordance with the Ontario Building Code and/or in a good and workmanlike manner in accordance with industry standard;

(b) they failed to have the Balcony Railings installed in accordance Vvith the plans and specifications for the Balcony Railings filed with the City of Toronto and contained in the Description;

(c) they failed to properly supervise and inspect the supply and installation of the Balcony Railings by contractors and/or sub-contractors; and

(d) they failed to require their contraCtors and/or subcontractors to have any or adequate quality controls to be certain that the Balcony Railings were free of defects and met industry standards prior to their installation.

Negligence of TSCC 1438

44. TSCC 1438 owed a duty of care to the plaintiffs and the Class Members pursuant to

sections 17, 89, and 90 of the Condominium Act to promptly arrange for the maintenance

and repairs of the common elements including the Balconies.

- 15 -

45. TSCC 1438 knew or ought to have known that if the plaintiff" and Class Members were

locked out of their Balconies for an wrreasonable length of time 'without any repairs to

the Balcony Railings being performed, it was likely that the restriction to their access to

the Balconies would result in a loss of use and enjoyment of the Units, delay in the resale

of the Units, diminish the value of the Units, and decrease rental income generated from

the rent of Units.

46. TSCC 1438 breached its duty of care to the plaintiffs and to the Class Members and was

negligent, as particularized below:

(a) it failed to approach the Builders with reasonable diligence to correct and/or repair the defective Balcony Railings;

(b) in the alternative, it failed to hire a contractor or sub-contractor with reasonable diligence to correct and/or repair the defective Balcony Railings; and

(c) in the further alternative, it failed to make a statutory claim pursuant to the New Homes Warranties Plan Act with reac;onable diligence to cover the costs of the repair of the defective Balcony Railings; and

(d) in the further alternative, it failed to commence proceedings against the Builders with reasonable diligence to seek a court order compelling them to correct or repair the defective Balcony Railings.

47. IfTSCC 1438 had exercised reasonable diligence, Dale, Glen, and the other Class

Members' damages would have been reduced because they would have gained access to

the Balconies much earlier.

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DAMAGES

48. The plaintiffs plead that by virtue of the defendants' breach of contract and negligence as

outlined above, the defendants are jointly and severally liable in damages to them and to

all Class Members for:

(a) the loss of access to the Balconies;

(b) the loss of access to some common areas;

(c) the loss of enjoyment of their Units; and

(d) the disruption of their privacy due to one or more of the Defendants' employees entering Units in order to access the Balconies.

49. The defendants are also liable in damages to Dale and all Class Members who owned

Units during the Class Period for:

(a) the diminution in the value of their Units;

(b) the delayed resale of Units; and

(c) the diminution in rental income.

THE RELEV ANf STATUTES

50. The plaintiffs plead and rely on the CIA, CPA, the Condominium Act, the Ontario

BUilding Code, the New Homes Warranties Act, and the Negligence Act, R.S.O. 1990.

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THE PLACE OF TRIAL

51. The plaintiffs propose that this action be tried at the City of Toronto.

Date:

1279931

CHARNEY LAWYERS 151 Bloor Street West, Suite 890 Toronto, ON M5S IP7

Tel: (416) 964-7950 Fax: (416) 964-7416

Theodore P. Charney (LSUC #26853E)

-and-

SUITS, STROSBERG LLP LAWYERS 600-521 Goyeau Street Windsor, ON N9A 6V4

Tel: (519) 561-6228 Fax: (519) 561-6203

Harvey T. Strosberg (LSUC #126400) Sharon Strosberg (LSUC #44233W) Andrew J. Eckart (LSUC #60080R)

Lawyers for the plaintiffs

DEFINITIONS

Schedule "e"

LITIGATION PLAN MATRIX CLASS ACTION

I. Unless otherwise stated, capitalized terms that are not defined in this litigation plan

have the definitions assigned to them in the statement of claim. In addition, the following

defined terms apply:

(a) "Action" means this proposed class proceeding, court fIle No. CV-12-463 822CP, commenced in the Court;

(b) "Administrator" means a person appointed by the Court to carry out the functions described in the Plan;

(c) "Administrator's Eligibility Decision" means the Administrator's written decision on eligibility;

(d) "Balcony" and "Balconies" means the outdoor exclusive use common elements for the Units;

(e) "Balcony Railings" means the railings, including all their composite parts such as fasteners and anchors, installed on the "Balconies at the Matrix;

(f) "Chief Referee" means a person appointed by the Court to carry out the functions described in the Plan;

(g) "Claim Form" means a claim form, in the form to be approved by the Court, to be completed by the Class Members and submitted to the Administrator in order for the Class Members to participate in the procedure described herein;

(h) "Claims Deadline" means the date by which each Class Member must file a Claim Form;

(i) "Class Counsel" means the law firms of Sutts, Strosberg LLP and Charney Lawyers;

G) "Class" and "Class Members" means those persons, excluding the defendants and their senior officers and directors, who owned, rented, and/or ordinarily resided in a residential condominium unit, and had the right to use its balcony, at the premises municipally known as 361 Front Street West and 373 Front Street West, in the City of Toronto, during the period or periods of time when access to or use of the balcony associated

2

with the residential condominium unit was restricted during the period commencing on March 1,2011 to and including September 15, 2014;

(k) "Class Period" means the period from and including March 1, 2011, to and including September 15,2014;

(1) "Court" means the Ontario Superior Court of Justice;

(m) "CPA" means Class Proceedings Act, 1992, S.O. 1992, c. 6, as amended;

(n) "Detached Railings" means Balcony Railings which were installed on Balconies at Matrix that separated from the concrete base and came away from the building during the Class Period;

(0) "Matrix" means the premises municipally described as 361 Front Street West and 373 Front Street West, in Toronto, Ontario;

(P) "N otice Program" means the method of distributing the Notice described in paragraph 26( c);

(q) "Notice" means the notice to the Class of the certification of the Action as a class proceeding;

(r) "Plan" means this litigation plan;

(s) "Property" or "Properties" means the property, including moveable property and real property located within Matrix;

(t) "Referee" or "Referees" means a person or persons appointed by the Court to carry out the functions described in the Plan;

(u) "Resolution Notice" means the notice of resolution of the common issues;

(v) "Statement of Opposition" means a defendant's concise statement of material facts responding to a Claim Form;

(w) "TSCC 1438" means Toronto Standard Condominium Corporation No. 1438;

(x) "Unit" or "Units" means a residential condominium unit, including its Balcony in Matrix; and

(y) "Website" means the website developed and maintained by Class Counsel at www.citvolaceclassaction.com.

3

OVERVIEW

2. This Plan contemplates a detennination of eligibility and an assessment of

damages for each Class Member after the determination of the common issues.

CLASS COUNSEL

3. Class Counsel is comprised of the law finns of Sutts, Strosberg LLP and Charney

Lawyers. Class Counsel has the requisite knowledge, skill, experience, personnel and

financial resources to prosecute this class action to conclusion.

4. Class Counsel intends to add other lawyers and other professionals to their

complement if they consider it necessary. These other professionals may be paid on a

contingency basis and Class Counsel intends to seek Court approval to have their usual

fees increased by the multiplier, if any, which will be applied to Class Counsel's base

fees.

5. Class Counsel anticipates that prosecuting this action will require:

(a) reading, organizing, profiling, scanning, managing and analyzing thousands of documents; and

(b) extensive expert evidence with respect to the cause of the Detached Railings.

CLASS DEFINITION

6. The plaintiffs seek to represent a Class defined as follows:

those persons, excluding the defendants and their senior officers and directors, who owned, rented, and/or ordinarily resided in a residential condominium unit, and had the right to use its balcony, at the premises

4

municipally known as 361 Front Street West and 373 Front Street West. in the City o/Toronto, during the period or periods o/time when access to or use of the balcony associated with the residential condominium unit was restricted during the period commencing on March 1, 2011 to and including September 15, 2014.

REPORTING TO AND COMMUNICATING WITH THE CLASS MEMBERS

7. There are 642 residential Units in Matrix.

8. Class COlUlsel created the Website which contains information about the status of

the action and explains how a class action operates. Copies of some of the publicly filed

Court documents, Court decisions and notices and other information relating to the action

will be posted on or will be accessible from the Website from time to time. This will

allow Class Counsel to keep the Class Members, wherever resident, informed of the

status of the action.

9. Class Counsel created a questionnaire which permits Class Members to register

and provide Class Counsel with infonnation about the damages of the Class as a result of

the Detached Railings such as lost or lowered rental income, the number of days they lost

the use of their Balconies, the number of days they endured workers in their Units to fix

the Balconies, and problems with resale of the Units.

10. Class Counsel has contacted the registered Class Members, and in some instances,

obtain further infonnation about their damages.

5

11. The Website also lists the direct-dial telephone number of some of the lawyers

who are prosecuting this action.

12. From time to time, Class Counsel will send email updates reporting on the status

of the action directly to Class Members who provided email addresses. They will also

post these updates on the Website.

LITIGATION SCHEDULE

13. Justice PereH has been appointed as the case management judge to oversee the

conduct of this action.

14. Following the certification of this Action as a class proceeding, Class Counsel

will ask Justice Perell to set a litigation schedule for:

(a) allY preliminary motions to be brought by any of the parties;

(b) the completion of pleadings;

(c) the documentary production and delivery of affidavits of documents by the parties;

(d) the examinations for discovery, including the location and length of the examinations;

(e) the delivery of experts' reports; and

(f) the trial of the common issues.

15. Class Counsel and counsel for the defendants will likely request that the litigation

schedule be amended from time to time, as required.

6

ACCESS TO AND PRESERVATION OF EVIDENCE

16. Some of the defendants have been asked to or will be asked to preserve and

protect all relevant information and business documents whether in electronic or paper

form including all docwnents relating to the design, construction and installation of the

Detached Railings on the Balconies and all other documents in their power, possession or

control.

PRODUCTION FROM NON-PARTIES

17. If necessary, the plaintiffs may pursue motions with respect to the production of

documents in the possession and control or power of persons who are not parties to this

action.

DOCUMENT EXCHANGE AND MANAGEMENT

18. The defendants possess most, if not all of the documents relating to the common

issues such as the documents relating to the design, construction and installation of the

Balcony Railings on the Balconies. These documents will be produced to Class Counsel

through the normal production, cross-examination and examination for discovery

processes. The plaintiffs will produce all documents in their possession.

19. Class Counsel anticipate and are able to handle the intake and organization of the

large number of documents that will likely be produced by the defendants. Class Counsel

will use data management systems to organize, code and manage the documents.

7

20. If required, the documents may be maintained on a secure, password-protected

internet website for the purposes of access by members of Class Counsel via the world

wide web.

21. The same data management systems will be used to organize and manage all

relevant documents in the possession of the plaintiffs, although the plaintiffs have

virtually no documentation relating to the common issues other than what is available in

the public domain.

PLAINTIFFS' EXPERTS

22. The plaintiffs have retained or intend to retain experts to provide assistance in the

construction, design and maintenance of the Balconies, as required.

23. The plaintiffs will probably retain other experts as necessary as the action

proceeds.

MEDIATION

24. The plaintiffs will participate in mediation or non-binding alternative dispute

resolution efforts if the defendants are prepared to do so.

8

THE FOLLOWING TERMS OF THIS PLAN PRESUPPOSE THAT mE COURT CERTIFIES THE ACTION AS A CLASS PROCEEDING

NOTICE OF CERTIFICATION OF THE ACTION AS A CLASS PROCEEDING

25. Class Counsel know the addresses of all Units in order to conduct a mail drop.

26. As part of the certification order the Court will be asked to:

(a) set an opt-out date that is sixty (60) days after the date of the order certifying the Action as a class proceeding, subject to further direction of the court or written agreement of the parties;

(b) settle the form and content Of the Notice in the form agreed upon by the parties;

(c) settle the particulars of the Notice Programs as foHows:

(i) published once in a quarter page advertisement in the Toronto edition of the Toronto Star~

(ii) mailed to all Units in Matrix by Class Counsel;

(iii) posted on the class action website at v{ww.cityplaceclassaction.com by Class Counsel;

(iv) mailed andlor emailed by TSCC 1438 to all current Unit owners who do not reside at Matrix;

(v) mailed and/or emailed by TSCC 1438 to all former Unit ov..ners who sold their Units at Matrix on or since March 1,2011; and

(vi) delivered by email by Class Counsel to any person who registered with Class Counsel and provided a valid email address and to any person who requests it.

(d) approve the following opt-out procedure:

(i) a person may out of the class proceeding by sending a written election to opt-out to a person designated by the Court before a date to be fixed by the Court;

(ii) no person may opt out after the expiration ofthe opt-out period unless there is a reasonable explanation for missing the opt -out

9

period which is acceptable to all counsel, or alternatively which is approved by the court; and

(e) appoint Sarkis Isaac, an accountant with Howie & Partners in Windsor, to receive the written elections to opt out of the class action and, within thirty (30) days after the expiration of the opt-out period, to deliver to the Court and the counsel for the parties an affidavit listing the names and addresses of all persons who have opted out of this class action. Mr. Isaac has repeatedly been appointed by the Court to fulfill these tasks.

EXAMINATIONS FOR DISCOVERY

27. Class Counsel intend to examine for discovery at least one representative of each

defendant and estimate that, subject to undertakings and refusals, these examinations will

take 3 days. Counsel for the defendants may examine either or both of the representative

plaintiffs.

28. The plaintiffs may ask the Court for an order allowing them to examine multiple

representatives of the corporate defendants, if necessary.

CLARIFICATION OF COMMON ISSUES

29. From time to time, the plaintiffs may ask the Court for an order to amend, clarify

and/or redefine the common issues.

30. The plaintiffs Vvi11 ask the Court to set a date for the trial of the common issues

within six months after the completion of examinations for discovery, including the

delivery of answers to the undertakings and the resolution of any refusals motions.

10

31. The findings of fact and conclusions on the common issues will pennit the judge

at the cornmon issues trial to give directions, pursuant to s. 25(3) of the CPA to deal with

any remaining individual issues.

THE TRIAL AND AGGREGATE DAMAGES

32. At the trial of the common issues, the Court will be asked:

(a) to assess the damages for each of the representative plaintiffs;

(b) to award damages in the aggregate. For example, damages in the aggregate may include compensation per month for lost use of the Balconies; and

(c) to establish guidelines or grids for damages for Class Members as particularized in paragraphs 35(b) and (c) below.

33. If such an aggregate award is made, the Court will be asked to approve a

distribution protocoL The findings of fact and conclusions on the common issues will

permit the judge at the common issues trial to give directions to deal with any remaining

individuals. The remaining individual issues are set out with more particularity in the

paragraphs below.

AFTER THE RESOLUTION OF THE COMMON ISSUES

34. Assuming that the common issues are resolved by judgment in favour of the

Class, it v.ri.11 be necessary for the Court to establish and supervise a claims and

assessment procedure. The precise structure of the assessment process will depend upon

the conclusions reached by the judge at the common issues trial. The defendant(s) who,

as a result of the common issues trial may be required to pay monies to some or all of the

11

Class Members may participate in the process described in the following paragraphs.

35. The plaintiffs will ask the Court to:

(a) settle the form and content of the Resolution Notice and the Claim Form, including the Damages Grid referred to below;

(b) set guidelines to clarify how a Class Member qualifies to be compensated for lost use of the Balconies, property damage, lost rental income, diminished value of the Units, delayed resale of the Units, inconvenience and lost privacy if workers were in the Units during remediation;

( c) establish and approve of a compulsory Damages Grid to be applied by the Administrator which sets out how much compensation a Class Member will receive for each type of damages;

(d) order that the Resolution Notice be disseminated substantially in accordance with the Notice Program set out at paragraph 26( c), except that the Notice of Resolution shall not be mailed to any person who validly opted out in accordance with the procedure set by the certification order;

(e) set a Claims Deadline by which date Class Members will be required to file their Claim Form;

(f) appoint an Administrator to hold any monies recovered at the common issues trial and to implement this Plan by, among other things, receiving and evaluating Claim Forms in accordance with protocols approved by the Court, including deciding how much compensation each individual Class Member will receive under the Damages Grid;

(g) appoint a Referee to decide any issues not decided at the common issues trial including quantum of damages. Depending on the number of Class Members, the Court may decide to appoint more than one Referee. In that event, the Court may decide to designate one Referee as the Chief Referee to oversee the dispute resolution process to ensure uniformity in the process; and

(h) appoint a Class Counsel Representative to represent the interests of the Class in dealing with issues of general application relating to the damages assessment process.

12

THE CLAIMS PROCESS AND THE ADMINISTRATOR'S ROLE

36. The plaintiffs will ask the Court to specify with respect to the claims process and

the Administrator's role that:

(a) the Claim Form:

(i) be equivalent to a statement of claim and affidavit of documents; and

(ii) include a Damages Grid which will set out the type of compensable damages including an amount of compensation for each da oflost Balcony use, among other things.

(b) before the Claims Deadline, each claimant deliver to the Administrator a completed Claim Form with the relevant documents in their possession and that Class Members be encouraged to deliver their Claim Forms and relevant documents electronically;

(c) the Administrator be directed to assist the Class Members in filling out the Claim Form, if they require such assistance;

(d) in and with the Claim Form, the claimant will, among other things:

(i) assert the basis of his or her eligibility as a Class Member, namely, that the Claimant was present or rented or resided in Matrix during the Class Period;

(ii) address any issues that are not determined at the common issues trial such as, for example, requiring the Class Member to provide particulars about the size of their Balcony and the number of days the Balconies were inaccessible, among other things;

(iii) deliver all relevant documents in his or her possession and under his or her control;

(iv) provide details of all out-of-pocket expenses actually incurred; and

(v) specify how much compensation the Class Member asserts slbe is entitled to receive, based upon the category they fall into in the Damages Grid.

(c) electronically, the Administrator will make a copy of each of the Claim Fonus and accompanying materials available to each of the defendants who, as a result of the findings at the common issues trial, have an interest in this process;

.'

13

(f) these defendant(s) shall have 30 days after receipt of the Claim Form and accompanying material to ftle electronically with the Administrator a written Statement of Opposition (which cannot exceed one page of written submissions) and ali relevant documents in their possession or under their control. The Statement of Opposition shall be treated as if it is a statement of defence and affidavit of documents, and shall address both eligibility and damages issues. Electronically, the Administrator will make available to the claimant, a copy of the Statement of Opposition and any documents delivered by the defendant(s). The claimant, within 10 days of receipt of the Statement of Opposition, may electronically deliver a written Repl to the Administrator who will, electronically, make it available to the defendant( s);

(g) electronically, the Administrator will receive the Claim Fonn, Statement of Opposition, Reply and all documents unless in the exercise of its discretion, the Administrator decides to receive documents from a particular Class Member in paper form, because, for example, a Class Member does not have access to a computer with internet capability;

(h) Class Counsel will transfer the Website (without privileged material) to the control of the Administrator; thereafter, the Administrator will operate the Website and a section of the Website will remain public and will be accessible to all Class Members and the general public;

(i) the Administrator will establish a secure section of the Website which will require user ID and a password to gain access;

(j) each Class Member will select a user ID and password which will be disclosed only to the Administrator to allow each Class Member access to the secure section of a database on the Website which is relevant only to their claim in this secure section, the Class Member may complete the Claim Form, the Reply, and/or upload documents which have not already been produced to Class Counselor the Administrator may upload the documents that may be transmitted electronically from the Class Member to it;

(k) each defendant will select a user ID and password which will be disclosed only to the Administrator to allow each defendant access to the secure section of the database which is relevant only to the claim of a specific Class Member and in this secure section, the defendant( s) may review the Claim Form and documents, complete and deliver their Statement of Opposition, review any Reply and upload their documents;

(1) in this secure section, the Administrator and the Referee may communicate with the Class Member and the defendant(s) and post any written decisions; and

14

(m) the Administrator be directed to apply the amounts set out in the Damages Grid to detennine how much a Class Member will receive. The Damages Grid is compulsory, so the Administrator cannot depart from the amounts set out therein.

THE ADMINISTRATOR'S ELIGIBILITY DECISION

37. The plaintiffs will ask the Court to specifY with respect to the Administrator's

Eligibility Decisions that:

(a) on the basis of the documents delivered to it, the Administrator shall decide whether or not a claimant is a Class Member who is entitled to claim under this Plan and the Administrator's Eligibility Decision shall be in ~'Iiting and the Administrator shall, electronically, deliver this decision to the claimants and the defendant(s) by uploading it to the relevant secure section of the Website; and

(b) within 15 days of receipt of the Administrator's Eligibility Decision, the claimant or the defendant(s) may in writing deliver to the Administrator a demand that the Referee review the Administrator's Eligibility Decision, failing which the Administrator's Eligibility Decision is [mal.

REVIEW OF ADMINISTRATOR'S ELIGIBILITY DECISION BY THE REFEREE

38. The plaintiffs will ask the Court to specifY with respect to the review of the

Administrator's Eligibility Decisions that:

(a) the Court will designate a single referee to deal with all eligibility issues. The eligibility review will be dealt with only on the basis of the "vritten record, without oral evidence, unless the Referee orders other\vise;

(b) the review of the Administrator's Eligibility Decision shall proceed in such manner as the Referee directs and the Referee shall have the power to award costs of the review to the successful party;

(c) the Referee's decision on eligibility is a report which will be confmned on the expiration of 15 days after a copy is uploaded to the relevant secure section of the Website, or mailed or faxed to the claimant and the defendant(s) unless a notice of motion to oppose confinnation is served within that time as required by rule 54.09(1)(b); and

15

(d) for greater certainty, the eligibility decisions described in paragraph 37 will determine only whether or not a claimant is a Class Member.

CLASS COUNSELS' ONGOING REPRESENTATION OF THE CLASS MEMBERS

39. Class Counsel may decide to continue to act as the lawyer for a particular Class

Member after the common issues are resolved if requested to do so by the Class Member.

The Class Member will be required to pay fees, disbursements and taxes for these

services which are not included as part of Class Counsel's contingency fee agreement. If

a Class Member retains other lawyers or a representative, the Class Member must pay the

fees, disbursements and taxes for their services on whatever basis they privately agree.

THE ASSESSMENT OF AGGREGATE DAMAGES

40. As stated above at paragraphs 32 and 33, the plaintiffs will ask the Court to award

some amount of damages in the aggregate at the trial of the common issues. If such an

aggregate award is made, the Class Members will have the right to claim additional

damages in the Claim Form.

THE PROCEDURE FOR RESOLUTION OF THE INDIVIDUAL ISSUES

41. After determining the common issues, the trial judge may be asked to give

directions as to the procedure for the determination of the individual issues which may

include holding separate mini trials for each Class Member or may include having a

referee appointed to dea1 with some of the claims. The type of hearing v.ill depend upon

the nature and complexity of the claim and the amount of damages claimed by the Class

Member.

16

42. The Court may be asked to authorize a hearing or hearings before the Referee(s)

to allow the Class Members and the defendant(s) to adduce general and expert evidence

which may be applicable to some or all individual claims. The type of evidence which

may be of general application is, for example, expert evidence about the diminished

resale and rental market for the Units.

43. A claimant may appear at the individual stage of the proceedings in person or

with counselor such other representative as be or she may designate in writing. A

claimant Vvill be responsible for the cost of such representation. A defendant may appear

by counsel or in person.

44. The Court will be asked to approve protocols for the reference process that:

(a) establish the procedures to be followed;

(b) direct that there be no examinations for discovery;

(c) direct that the Referee may depart from the Damages Grid in appropriate circumstances;

(d) limit examinations for discovery of each Class Member to a maximum of two hours and two hours for each defendant if the claim of the Class Member(s) is more than $25,000 but no more than $100,000 exclusive of prejudgment interest;

(e) limit examinations for discovery of each Class Member to a maximum of seven hours if the claim of the Class Member(s) is more than $100,000 exclusive of prejudgment interest;

(f) direct that the time limits for examinations for discovery may only be exceeded by agreement of the parties or by order of the Referee;

(g) provide that a Referee should have the power to award prejudgment interest and costs of each hearing;

17

(h) provide that a Referee should have the power to make any order necessary for a fair determination of each hearing; and

(i) permit the Referee to hear evidence that is generic in nature in an efficient manner to eliminate the need for duplication.

44. Following every hearing, the Referee shall prepare a written report setting out

hislher reasons for decision. The Referee will deliver this decision to the Class Member,

the defendant(s) and the Administrator by uploading it to the relevant section of the

Website, and/or by mailing it and/or by faxing it to the Class Member and filing it with

the Court. The Referee's report shall be confirmed upon the expiration of 15 days after it

is filed with the Court unless the defendant(s) or the Class Member serves a notice of

motion to oppose confirmation of the report within that 15 day period as required by rule

54.09(1 )(b).

THE DISTRIBUTION PROCESS

45. If an aggregate award is made at the common issues trial, it shall be paid to the

Administrator who shall hold the monies in a segregated trust account as the Court

directs. The Administrator will not make any distribution to eligible Class Members until

authorized by the Court.

46. The defendant(s) should be ordered to pay to the Administrator the amount of

each assessment immediately after each report becomes final. The Administrator shall

hold this money in the segregated trust accoWlt and invest it as the Court directs. The

Court will decide when the Administrator may make payments to Class Members.

18

47. As soon as practicable after all of the Referee's hearings are completed, the

Administrator shall by motion, on notice to the Class Members, Class Counsel

Representative and the defendant(s), report to the CotUt the proposed distribution for

each Class Member including his or her prorated share of any punitive damages award

and/or prejudgment interest award.

48. Each eligible Class Member shall sign such documents as the Administrator may

require in accordance with a protocol approved by the Court as a condition precedent to

receiving any distribution.

INSUFFICIENT RECOVERED MONIES

49. In the event that the defendant(s) do not pay all of the assessed damages in full,

the Court will be asked to give further directions to determine whether there should be

any priorities of payment among eligible Class Members.

CLASS COUNSEL FEES AND ADMINISTRATION EXPENSES

50. At the conclusion of the common issues trial, the Court will be asked to fix the

amount of Class Counsel fees, disbursements and applicable taxes ("Class Counsel

Fees"). Class Counsel will ask the Court to direct the Administrator or the defendants to

pay the Class Counsel Fees out of any monies recovered. Class Counsel Fees are a first

charge on every recovery.

19

51. The Court will be asked to fix the costs of the persons appointed to implement

and oversee the Plan such as the Administrator, the Referee(s) and Class Counsel

Representative and order the defendant(s) to pay these costs.

FINAL REPORT

52. After the Administrator makes the [mal distribution to Class Members, the

Administrator shall make its final report to the Court in such manner as the Court directs

and the Court will be asked to then make an order discharging the Administrator.

REVIEW OF THE LITIGATION PLAN

53. The Court may revise this Plan before the determination of the certification

motion and/or before and/or after the detennination of the common issues at the common

issues trial or otherwise.

MOTIONS FOR DIRECTIONS

54. The Administrator, Class Counsel, the defendant(s) and the Class Counsel

Representative may apply to the Court for directions.

1016105vl0

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Plaintiffs

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Defendants

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arristers and Solicitors

600-251 Goyeau S

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N

9A 6V

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Harvey T. S

trosberg, Q.C

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SUC

#: 126400

Sharon S

trosberg L

SU

C #44233W

A

ndrew E

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C #60080R

Tel:

519.561.6228/519.561.6244/519.561.6215 Fax:

519.561.6203

CH

AR

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AW

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151 B

loor Street W

est, Suite 890

Toronto O

N

M5S IP

7

Theodore P. C

harney L

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C #26853E

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el: 416.964.7950

Fax: 416.964.7416

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