The Defendants sought full indemnity or enhanced costs as a result of the dismissal of the Plaintiff’s Interlocutory Injunction Application (the “Application”).

Justice Mah noted that pursuant to Rule 10.29(1) the successful party is presumptively entitled to costs. Per Rule 10.31 and JBRO Holdings Inc v Dynasty Power Inc, 2022 ABCA 258, the determination of costs is inherently discretionary, and the exercise of that discretion must be based on judicial principles of reasonableness, fairness, balance, and equity. The relevant considerations for a costs award are found in Rule 10.33 and include, among other factors, the result, complexity, and whether a matter was unnecessarily or improperly brought. Having applied the above principles, Mah J. awarded enhanced costs for the entire Action at 65% of the actual costs reflected in the Bill of Costs.

The Plaintiff submitted that no costs should be awarded and that the Court should consider revisiting one of the issues. To support its submission, the Plaintiff filed an Affidavit of a professed IT expert (the “Affidavit”). Justice Mah stated that the Plaintiff’s submission presumably invoked Rule 9.13.

Justice Mah found that the Affidavit had little relevance to the issue of costs and took issue with the affiant’s opinion that one of the Defendants likely misappropriated digital information, as that opinion was based on his review of printed copies of emails and nothing else.

Further, Mah J. pointed out that the method by which the Plaintiff sought to pry open a matter already decided would lead to an impermissible case-splitting. The Plaintiff could have, and should have, adduced the evidence at the Application. The Defendants should have had the opportunity to receive it in advance of the Application in order to respond to it. As such, Mah J. was not satisfied that there was a good reason to reopen the matter under Rule 9.13.