Tiffany O’Hearn Davies

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 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.