In the underlying Application, Justice Kirker dismissed an interlocutory injunction Application (the “Application”) brought by the Applicants noting that, while satisfied there was a serious question to be tried, the Applicants had failed, inter alia, to establish they would suffer irreparable harm if the Application was refused.

Kirker J. noted that pursuant to Rule 10.29, the successful party to an Application is entitled to a Costs award. Justice Kirker reviewed the discretionary provisions of Rule 10.31 and the factors to consider when utilizing discretion under Rule 10.33.

Her Ladyship noted the relevant jurisprudence and found that, per the Respondent’s submissions, an injunction is an intense, compact proceeding which can and often does consume many lawyer hours over a very short time period and that parties who commence such proceedings must understand the risk of a substantial Cost award against them if they fail.

Justice Kirker further noted that Cost orders are made to indemnify the successful party for only a portion of its lawyer’s fees and that only in exceptional cases will a Court direct the payor to pay a sum that substantially or fully indemnifies the other side for its legal fees. Given that the Respondent did not provide the Court with evidence of the expenses it incurred to respond to the Application, in the absence of that evidence, Kirker J. was reluctant to award Costs in the amount claimed by the Respondent as it may too closely approximate a substantial or full indemnity Costs award.

Balancing these considerations Justice Kirker concluded, guided by the tariff amounts for written argument set out in item 12 of Schedule C, that Costs of $5,000 for the Application Brief and $1,000 for the Costs Brief plus reasonable disbursements were appropriate in the circumstances.