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Ontario Superior Court of Justice Commercial List Court File No. CV-17-587463-00CL ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST B E T W E E N: THE CATALYST CAPITAL GROUP INC. and CALLIDUS CAPITAL CORPORATION Plaintiffs and WEST FACE CAPITAL INC., GREGORY BOLAND, M5V ADVISORS INC. C.O.B. ANSON GROUP CANADA, ADMIRALTY ADVISORS LLC, FRIGATE VENTURES LP, ANSON INVESTMENTS LP, ANSON CAPITAL LP, ANSON INVESTMENTS MASTER FUND LP, AIMF GP, ANSON CATALYST MASTER FUND LP, ACF GP, MOEZ KASSAM, ADAM SPEARS, SUNNY PURI, CLARITYSPRING INC., NATHAN ANDERSON, BRUCE LANGSTAFF, ROB COPELAND, KEVIN BAUMANN, JEFFREY MCFARLANE, DARRYL LEVITT, RICHARD MOLYNEUX, GERALD DUHAMEL, GEORGE WESLEY VOORHEIS, BRUCE LIVESEY and JOHN DOES #4-10 Defendants A N D B E T W E E N: WEST FACE CAPITAL INC. and GREGORY BOLAND Plaintiffs by Counterclaim and THE CATALYST CAPITAL GROUP INC., CALLIDUS CAPITAL CORPORATION, NEWTON GLASSMAN, GABRIEL DE ALBA, JAMES RILEY, VIRGINIA JAMIESON, EMMANUEL ROSEN, B.C. STRATEGY LTD. D/B/A BLACK CUBE, B.C. STRATEGY UK LTD. D/B/A BLACK CUBE and INVOP LTD. D/B/A PSY GROUP Defendants to the Counterclaim RESPONDING ANTI-SLAPP MOTION RECORD OF WEST FACE CAPITAL INC. AND GREGORY BOLAND (VOLUME 1 OF 2) DAVIES WARD PHILLIPS & VINEBERG LLP 155 Wellington Street West Toronto ON M5V 3J7 Kent E. Thomson (LSUC# 24264J) Email: [email protected] Tel: 416.863.5566 Matthew Milne-Smith (LSUC# 44266P) Email: [email protected] Tel: 416.863.5595 Andrew Carlson (LSUC# 58850N) Email: [email protected] Tel: 416.367.7437 Lawyers for the Defendants (Plaintiffs by Counterclaim), West Face Capital Inc. and Gregory Boland TO: GOWLINGS (WGL) CANADA 1 First Canadian Place Suite 1600 Toronto, ON M5X 1G5 Tel: 416.862.7525 Fax: 416.862.7661 John E. Callaghan (LSUC #29106K) [email protected] Richard G. Deardan (LSUC#019087H) [email protected] Benjamin Na (LSUC #40985O) [email protected] Matthew Karabus (LSUC #61852D) [email protected] MOORE BARRISTERS Professional Corporation 393 University Avenue Suite 1600 Toronto, ON M5G 1E6 Tel: 416.581.1818, ext. 222 Fax: 416.581.1279 David C. Moore (LSUC #16996J) david@moore barristers.ca Lawyers for the Plaintiffs and Defendants by Counterclaim Catalyst Capital Group Ltd., Callidus Capital Corporation, Newton Glassman Gabriel De Alba and James Riley INDEX Tab Document VOLUME 1 1. Affidavit of Gregory Boland sworn May 29, 2020 Ex “A” West Face Counterclaim dated October 1, 2019 Ex “B” Catalyst Amended Reply and Statement of Defence to Counterclaim dated November 29, 2019 Ex “C” Black Cube Statement of Defence dated August 15, 2018 Ex “D” Email of Dan Gagnier dated August 19, 2016 Ex “E” Financial Post Article titled “Catalyst Capital Group Inc to appeal after judge dismisses Wind Mobile lawsuit” dated August 19, 2016 Ex “F” Justice Newbould Cost Endorsement dated October 7, 2016 Ex “G” West Face Press Release dated October 13, 2016 Ex “H” Catalyst Press Release dated October 13, 2016 Ex “I” Catalyst Closing Submissions re Moyse dated June 14, 2016 Ex “J” Catalyst Responding Factum dated August 8, 2017 Ex “K” Factum of the Appellant dated July 14, 2018 Ex “L” Catalyst Superior Court of Canada – Application for Leave to Appeal dated August 1, 2019 Ex “M” Justice Newbould Decision dated January 26, 2016 Ex “N” Catalyst First Investor Letter dated August 14, 2017 Ex “O” Vincent Hanna Email dated August 11, 2017 Ex “P” Copy of IMDb Webpage re Movie Heat (1995) Tab Document VOLUME 2 Ex “Q” Copy of Runbox Webpage – Why Runbox Ex “R” Letter of West Face Counsel dated January 16, 2020 Ex “S” Letter to Danny Guy dated January 14, 2020 Ex “T” Email of Danny Guy dated January 16, 2020 Ex “U” Copy of Psy Group Marketing Materials Ex “V” Copy of Black Cube Marketing Materials Ex “W” Email of Bei Huang dated September 5, 2017 attaching Resume of Bei Huang Ex “X” Email of Newton Glassman dated September 6, 2017 REDACTED Ex “CC” Email of Daniel Daviau dated September 5, 2017 Ex “DD” Email of Newton Glassman dated September 7, 2017 Ex “EE” Email of Newton Glassman dated September 27, 2017 Ex “FF” Email of Emmanuel Rosen dated September 27, 2017 Ex “GG” Email of Virginia Jamieson dated September 15, 2017 Ex “HH” Email of Derek DeCloet dated September 17, 2017 and email of Virginia Jamieson dated September 17, 2017 Ex “II” Catalyst March Investor Letter Ex “JJ” Affidavit of Peter Brimm Sworn December 21, 2017 Ex “KK” Exclusivity Agreement dated July 23, 2014 Ex “LL” Court of Appeal Decision dated May 2, 2019 Ex “MM” Court of Appeal Endorsement dated May 2, 2019 Ex “NN” West Face Investor Communications Excerpt Ex “OO” Comparison of Scotiabank Canadian Hedge Fund Index to the performance of West Face’s Long Term Opportunities Fund Ex “PP” Comparison of Hedge Fund Performance to S&P500 2. Affidavit of Philip Elwood sworn May 12, 2020 REDACTED 1 Court File No. CV-17-587463-00CL ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST B E T W E E N: THE CATALYST CAPITAL GROUP INC. and CALLIDUS CAPITAL CORPORATION Plaintiffs and WEST FACE CAPITAL INC., GREGORY BOLAND, M5V ADVISORS INC. C.O.B. ANSON GROUP CANADA, ADMIRALTY ADVISORS LLC, FRIGATE VENTURES LP, ANSON INVESTMENTS LP, ANSON CAPITAL LP, ANSON INVESTMENTS MASTER FUND LP, AIMF GP, ANSON CATALYST MASTER FUND LP, ACF GP, MOEZ KASSAM, ADAM SPEARS, SUNNY PURI, CLARITYSPRING INC., NATHAN ANDERSON, BRUCE LANGSTAFF, ROB COPELAND, KEVIN BAUMANN, JEFFREY MCFARLANE, DARRYL LEVITT, RICHARD MOLYNEUX, GERALD DUHAMEL, GEORGE WESLEY VOORHEIS, BRUCE LIVESEY and JOHN DOES #4-10 Defendants A N D B E T W E E N: WEST FACE CAPITAL INC. and GREGORY BOLAND Plaintiffs by Counterclaim and THE CATALYST CAPITAL GROUP INC., CALLIDUS CAPITAL CORPORATION, NEWTON GLASSMAN, GABRIEL DE ALBA, JAMES RILEY, VIRGINIA JAMIESON, EMMANUEL ROSEN, B.C. STRATEGY LTD. D/B/A BLACK CUBE, B.C. STRATEGY UK LTD. D/B/A BLACK CUBE and INVOP LTD. D/B/A PSY GROUP Defendants to the Counterclaim AFFIDAVIT OF GREGORY BOLAND (SWORN MAY 29, 2020) 2 -2- AFFIDAVIT OF GREGORY BOLAND (SWORN MAY 29, 2020) I, Gregory Boland, of the City of Toronto, in the Province of Ontario, MAKE OATH AND SAY: 1. I am the Founding Principal, Chief Executive Officer and Chief Investment Officer of West Face Capital Inc. (“West Face”). West Face and I are Plaintiffs by Counterclaim in these proceedings. I have personal knowledge of the matters set out in this Affidavit, except where I have relied on information from others, in which case I have identified the source of my information and believe it to be true. 2. I swear this Affidavit in response to the motion brought by certain Defendants by Counterclaim pursuant to section 137.1(3) of the Courts of Justice Act (the “Catalyst Defendants’ Partial Anti-SLAPP Motion”). This Motion purports to extract four elements of the conspiracy pleaded in the Counterclaim from the overall context of that conspiracy, treat them in isolation, and have only our claims pertaining to those particular elements dismissed. The moving parties are The Catalyst Capital Group Inc. (“Catalyst”), Callidus Capital Corporation (“Callidus”), Newton Glassman (“Glassman”), Gabriel De Alba (“De Alba”), and James Riley (“Riley”) (collectively, the “Catalyst Defendants”). 3. To be clear, the Catalyst Defendants’ Partial Anti-SLAPP Motion does not seek to dismiss the entire Counterclaim. Rather, it seeks only to have portions of the Counterclaim dismissed in respect of four discrete publications. In that regard, the Affidavit of James Riley dated December 5, 2019 clarifies as follows: 61. This motion pursuant to section 137.1(3) of the Courts of Justice Act seeks to have the [Counterclaim] dismissed 3 -3- regarding the following publications which are attributable to the Catalyst Defendants by Counterclaim: (a) a written statement by a Catalyst spokesperson sent by email on August 19, 2016 to National Post reporter Emily Jackson for publication; (b) the October 13, 2016 Press Release by Catalyst; (c) The First Investor Letter (August 14, 2017); (d) The March Investor Letter (March 19, 2018).1 4. In an effort to avoid redundancy and to reduce the materials that will have to be reviewed by the Motions Judge, in this Affidavit I often refer to and rely on evidence that West Face has previously submitted in support of its own anti-SLAPP motion (“West Face’s Anti-SLAPP Motion”). That evidence is incorporated by reference, and relied upon by West Face and me in responding to Catalyst’s motion. Because I often refer to and rely on the evidence I gave in my Affidavit dated November 8, 2019, which was filed in support of West Face’s Anti-SLAPP Motion (my “First Affidavit”), it is recommended that my First Affidavit be read before this one. A. Summary of the Allegations Made by West Face in the Counterclaim 5. As a starting point, a copy of West Face’s Counterclaim dated October 1, 2019 (the “Counterclaim”) is attached to my Affidavit as Exhibit “A”. A copy of the Catalyst Defendants’ Amended Reply and Statement of Defence to Counterclaim dated November 29, 2019 is attached to my Affidavit as Exhibit “B”. A copy of Black Cube’s Statement of Defence dated August 15, 2018 is attached to my Affidavit as Exhibit “C”. In the Counterclaim, West Face and I allege that the Catalyst Defendants (together with the 1 Affidavit of James Riley dated December 5, 2019 (“Riley Affidavit”), at para. 61. 4 -4- other Defendants by Counterclaim) engaged in a systematic, multifaceted and unlawful conspiracy to harm both West Face and me. While the Counterclaim is lengthy and makes a number of detailed allegations, I will attempt to summarize them here.
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