Tiffany O’Hearn Davies

Following the dismissal of the plaintiff's action for breach of fiduciary duty and knowing assistance, the defendants sought costs.

The Primary Defendants sought full indemnification pursuant to the plaintiff's corporate by-laws, while the Consultant Defendants sought full indemnity costs based on the plaintiff's unfounded allegations of dishonesty and self-dealing.

The court awarded the Primary Defendants full indemnification totaling over $9.4 million, finding no reason to depart from the by-laws.

The Consultant Defendants were awarded substantial indemnity costs of approximately $2.4 million, as the plaintiff's conduct in pursuing serious, unfounded allegations justified an elevated scale of costs.

This endorsement addresses the costs of a successful motion brought by the defendants, CleanDesign Income Corp., CleanDesign Power Systems Inc., and Mark Lerohl, to remove the plaintiff's counsel, Fogler Rubinoff, due to a conflict of interest.

The court, having granted the motion to remove counsel, considered the parties' written submissions on costs.

Applying Rule 57.01 and the principle of indemnity, the court found that the successful defendants were entitled to costs.

Despite the plaintiff's arguments regarding the narrow grounds of success, conflicting caselaw, and the defendants' alleged contribution to complexity and higher fees, the court determined a fair and reasonable cost award.

The defendants brought a motion to disqualify the plaintiff's counsel, Fogler Rubinoff, citing a conflict of interest due to the firm's prior representation of the defendants.

The plaintiff argued no conflict existed, no confidential information was at risk, and the motion was tactical.

The court found that the firm owed a duty of loyalty to its former client, Clean Power, and that the current action, particularly concerning restrictive covenants, was sufficiently related to the prior retainer.

The court dismissed arguments of delay or tactical motive and ordered Fogler Rubinoff removed as counsel.

The Registrar of Alcohol, Gaming and Racing appealed a decision of the Licence Appeal Tribunal that set aside the immediate suspension and proposed revocation of the respondent's jockey licence.

The respondent had engaged in aggressive behaviour towards racing officials and caused property damage to another licensee's property after being suspended.

The Divisional Court allowed the appeal, finding that the Tribunal erred in law by interpreting 'when acting as a licensee' too narrowly.

The Tribunal failed to consider how the respondent's conduct impacted his relationship with the regulatory agency and his governability as a licensee.

The matter was remitted to the Tribunal for a re-hearing.

The Plaintiffs brought a refusals motion seeking answers to questions refused during the examinations for discovery of the Attorney General of Canada's representatives.

The questions pertained to information gathered during inquiries into the torture of Canadian citizens by foreign governments, the adoption of non-party inquiry testimony, production of in camera inquiry transcripts, and underlying evidence for allegations made against the Plaintiffs.

The court analyzed each refusal discretely, rejecting a global proportionality argument, and ordered some questions to be answered while upholding refusals for others, particularly those asking the AGC to adopt non-party testimony.

The defendants brought a motion to dismiss the plaintiff's action, arguing that a Founders' Restricted Rights Agreement explicitly mandated arbitration for all disputes.

Despite the plaintiff initially commencing an action to gain discovery advantages, both parties ultimately agreed on the validity and enforceability of the arbitration clause.

The court dismissed the action, finding the plaintiff had no right to litigate the dispute in court and should have pursued arbitration or discontinued the action earlier.

Costs were awarded to the defendants due to the plaintiff's unnecessary litigation and refusal to withdraw the action.