The Court heard submissions from the Parties on Costs arising from the Plaintiff’s unsuccessful Application for a Mandatory Injunction. The Defendant sought full indemnity solicitor and client costs for opposing the Application. The Applicant took the position that full indemnity costs would be excessive and unreasonable.

The Defendant alleged that enhanced costs were appropriate due to allegations of bad faith conduct advanced by the Plaintiff. Justice Horner held that the allegations were not egregious enough to attract enhanced costs. The Defendants also relied upon a previously issued Settlement Offer as being supportive of an enhanced costs award, but the Court did not find the Settlement Offer to be a genuine offer to compromise and did not attract enhanced costs.

The Court considered Rule 10.31 and the relevant jurisprudence set out in McAllister and awarded Costs totalling 50% of the fees billed by the Defendant in responding to the Application.