Digital Commerce Bank (“DCB”) sought Costs following an Application by Plastk Financial & Rewards Inc. (“Plastk”) to confirm and expand interim Injunctions was dismissed. DCB’s position was that as the successful party, it was contractually entitled to full indemnity Costs in the amount of $256,602.08 but would accept $125,000, representing partial indemnity. 

Justice Little agreed that DCB was wholly successful, but disagreed that DCB was entitled to full or partial indemnity Costs. Justice Little held that while the primary contract entitled DCB to Costs of enforcement for breaches of the contract, he was not prepared to decide that any breach was entirely one-sided.

Justice Little then considered whether Costs pursuant to McAllister v Calgary (City), 2021 ABCA 25 (“McAllister”) were appropriate, holding that

… my read of McAllister is that the quantum of costs it sanctions are more appropriate in situations that involve ‘prosecuting a claim from Statement of Claim to judgment in a protracted piece of litigation involving arguably novel liability’ (para 3).

The Court found that McAllister Costs were not appropriate because the case was not yet in the “substantive phase” as it involved multiple interlocutory applications to date.

Justice Little then considered the factors in Rule 10.33, holding that most of the factors “are applicable to completed actions” and that “[f]ew of those factors play into this interlocutory application which was but one in a series of related interlocutory applications.” The Court ultimately granted DCB $25,000 in Costs, plus reasonable disbursements, recognizing that the Application was more than a routine Chambers Application, that DCB was required to expend considerable legal resources, and that Schedule C Costs would be inadequate.