After successfully resisting the extension and expansion of a commercial injunction barring solicitation, competition, and disclosure of confidential information (the “Injunction”), one of the Respondents and certain witnesses sought 100% of their legal fees, plus disbursements and other costs.

The Court considered the Respondents’ submissions and made the following findings:

• The issues in this Action were not inherently complex.
• While the Respondents alleged that they had to coordinate multiple parties and counsel, they did not point to case law anchoring enhanced costs on the need for such coordination.
• The Court did not find any of the Applicant’s allegations, on their own or collectively, as “reprehensible, scandalous, or outrageous conduct”.
• The Applicant’s conduct was not akin to those of litigants who “maintain positions or bring applications that are patently indefensible – the likelihood they will succeed is very low” or raise no “serious issue of fact or law” or “[know their] position [is] untenable” or “hopeless ... from the outset”, or “patently hopeless”.
• It was inaccurate to say the Judgment made the Injunction baseless from the start.
• Although the Applicant rejected the Respondents’ Calderbank offer to discontinue the Application on a without-costs basis, the offer was not open for a reasonable period, as allowing only three days for the Applicant to respond was unreasonable.

Based on the foregoing, Lema J. ruled that no full- or partial-indemnity costs were warranted, as on balance, the Respondents did not make out a case for enhanced costs on any of the claimed bases, individually or collectively.