Court File and Parties
Ontario — Superior Court of Justice
Between:
AMOS TAYTS, Plaintiff – and – GORDON FOX, HARVEY SHAPIRO, MAXIM ZAVET, LEVY ZAVET PROFESSIONAL CORPORATION, EMBLEM CANNABIS CORPORATION, EMBLEM CORP., KINDCANN.COM INC., MZ PRIME HOLDINGS LTD. and WHITE CEDAR PHARMACY CORPORATION, Defendants
Counsel: John J. Adair and Jacqueline Houston, for the Plaintiff Justin Necpal, for the Defendants
L. BROWNSTONE J.
Costs Endorsement
1On January 13, 2026, I released my decision and reasons in the above-noted trial. I granted the plaintiff judgment against Mr. Zavet and MZ Prime Holdings Ltd. in the amount of $1,313,495.13 for Mr. Tayts' claims in oppression and unjust enrichment. I dismissed the remainder of Mr. Tayts' claim.
2The parties have been unable to agree on costs, I have received and reviewed their submissions. This is my decision on costs of the trial.
3Fixing costs is a discretionary exercise under s. 131 of the Courts of Justice Act, R.S.O. 1990 c. C. 43. Rule 57 outlines, in a non-comprehensive list, factors that guide the exercise of this discretion. Relevant factors include the results of the proceeding, the principle of indemnity, the amount an unsuccessful party could reasonably expect to pay, the complexity of the proceeding and the importance of the issues. The conduct of a party may also factor into a costs award.
4Ultimately, I must fix an amount of costs that is proportionate, and that is fair and reasonable for the unsuccessful parties to pay: Boucher v. Public Accountants Council for the Province of Ontario at para. 26. A costs award should "reflect what is reasonably predictable and warranted for the type of activity undertaken in the circumstances of the case, rather than the amount of time that a party's lawyer is willing or permitted to expend": Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587 at para. 65.
5The plaintiff seeks costs on a partial indemnity scale against Max Zavet and MZ Prime Holdings Ltd. in the amount of $535,068.60 plus HST of $69,558.92 and disbursements of $130,225.45. The plaintiff states that its actual costs were $735,452.49 plus HST and disbursements, excluding costs in ancillary matters and costs incurred in switching to new counsel in late 2024.
6The plaintiff submits the case was moderately complex. Further, the plaintiff submits that the defendants' conduct in failing to deliver pleadings or affidavits of documents on time, refusing to acknowledge obvious facts, providing misleading testimony, and refusing to disclose documents increased the length of the trial and the work required of the plaintiff's counsel.
7The plaintiff submits that the fact he did not succeed against Mr. Fox and Mr. Shapiro is of no moment. Those defendants incurred no costs independent of Mr. Zavet to defend the action, and their evidence would have been necessary in the trial regardless of the outcome. Further, they were found to be participants in the oppressive conduct.
8The defendants agree the plaintiff is entitled to costs on a partial indemnity scale but submit the amount sought is not fair or reasonable. They submit this is a case of divided success warranting a reduction in costs. The claims against Mr. Shapiro and Mr. Fox were dismissed, as was the breach of fiduciary duty claim against Mr. Zavet and his professional corporation. Further, the sum recovered was far less than the sum the plaintiff sought in closing argument. The defendants submit it would be appropriate to reduce the costs the plaintiff seeks by 30%. This reflects the divided success and achieves a proportionate result.
9The defendants dispute that there were conduct concerns of the type that would figure into a costs award. If there were, then the conduct of the plaintiff should equally be considered. The plaintiff proceeded unsuccessfully against two defendants and advanced unsuccessful claims, all of lengthened and complicated the proceedings. The defendants submit that the disbursement for Professor Hutchinson's report ought to be disallowed or reduced, and the PwC disbursement should be reduced since the claims against Mr. Fox and Mr. Shapiro were dismissed.
10I agree with the parties that partial indemnity costs are appropriate. I also agree with the characterization of the litigation as one of moderate complexity.
11I do not view this as a case where the trial conduct of either party is a factor to consider in the costs award. I do, however, accept the plaintiff's submission that the PwC report was important as a means of providing the court with the information necessary to determine the plaintiff's damages, and also as a means of overcoming the defendants' failure to disclose full information about their disposition of their shares.
12The costs are to be considered on the basis of overall success as opposed to on an issue-by-issue basis: Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 381 at para. 11. It is against the overall result of the case that I consider the issues of reasonableness, fairness, and proportionality as well as the factors set out in Rule 57.
13I do not have the benefit of the defendants' bill of costs. The defendants, however, concede that the amount claimed by the plaintiff would be reasonable had the plaintiff achieved full success.
14I view the plaintiff as largely, but not fully, successful. Certainly, the plaintiff hoped to be awarded a significantly higher monetary sum, both on the oppression claim and on the breach of fiduciary duty claim. That partial success, and more particularly the quantum of that success, should be reflected in assessing the reasonableness and proportionality of the fees claimed. Further, given that Professor Hutchinson's evidence was only partially admissible, I agree that the disbursement for his report should be reduced.
15Applying these considerations, I find a fair and reasonable amount for Mr. Zavet and MZ Prime to pay is $400,000 plus HST in fees, and $120,000 including HST for disbursements, and order the payment of costs and disbursements in those amounts.
L. Brownstone J.
Released: February 17, 2026