S-Vox Foundation v. Zoomermedia Limited, 2015 ONSC 932

COURT FILE NO.: CV-12-9871-00CL

DATE: 20150210

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: S-Vox Foundation, Applicant

AND:

Zoomermedia Limited, Respondent

BEFORE: Mr. Justice H.J. Wilton-Siegel

COUNSEL: Ronald D. Manes and Joshua L. Ginsberg, for the Applicant

Daniel F. Chitiz and Erica J. Young, for the Respondent

BY WRITTEN SUBMISSIONS

ENDORSEMENT ON COSTS

[1] The Court dismissed the application of S-Vox Foundation (“S-Vox”) seeking the appointment of a sole arbitrator pursuant to the agreement dated June 15, 2009 between S-Vox and Zoomermedia Limited (“ZML”). ZML seeks costs of $32,896.93, including fees on a partial indemnity basis to December 7, 2012 and on a substantial indemnity basis thereafter.

[2] There is no basis for fees on a substantial indemnity basis. ZML acknowledges that its offer of December 7, 2012 differed from the outcome awarded by the Court. ZML submits that its offer reflected a meaningful compromise that merits such an award. S-Vox suggests the offer was not genuine as ZML refused to provide its costs to December 7, 2012 despite two requests from S-Vox.

[3] The Court cannot determine whether the ZML offer was genuine but there is some reason to doubt that it was, given its failure to provide the costs it sought. In any event, the fact that it made an offer is not sufficient to trigger, or justify, substantial indemnity costs if the Court makes a substantially different award, as was the case here.

[4] As of the date of the Court’s endorsement, there remained the possibility that the arbitration panel would conclude that it lacked jurisdiction or that the arbitration should otherwise be conducted under section 2.8 of the Agreement. I do not think, however, that these considerations, or the other considerations addressed above, should result in an adjournment of the costs issues, a remission of the costs award to the arbitration panel or a withholding of costs, as S-Vox suggests. Any such award would fail to reflect S-Vox’s lack of success on this application.

[5] ZML suggests that the costs it seeks are within the reasonable expectations of the parties. I accept this submission. Given the absence of any costs outline from S-Vox, together with the email of S-Vox setting out its offer of December 4, 2012 which refers to costs totalling $35,000 as of that date, I think the Court is entitled to infer that the costs sought by ZML are within the range of S-Vox's reasonable expectations.

[6] More significantly, while the Court did not grant the relief sought by S-Vox, it also did not accept the position that ZML adopted in opposition to S-Vox’s application. Moreover, as S-Vox argues, ZML’s factum on this motion addressed issues that did not assist the Court. The Court based its decision instead on the principles identified by S-Vox as being applicable in the circumstances of this proceeding. I think that the foregoing considerations should result in a reduction in ZML's costs.

[7] In fixing costs, I have also had regard to the relative complexity of the issues involved, which required experienced counsel, as well as the fact that a considerable amount of money is involved. In addition, I am of the opinion that the cross-examination conducted by ZML in large measure did not address issues of relevance for this motion.

[8] Based on the foregoing, I conclude that fair and reasonable costs of the application are $22,000, on an all-inclusive basis, to be payable forthwith by S-Vox.

Wilton-Siegel J.

Date: February 10, 2015