Daniel Z. Naymark

This is a costs endorsement following appeals and cross-appeals in three inter-related actions.

The Court of Appeal had previously granted Samuel Jacob Berkovits' appeal in the "Murder for Hire Action" and dismissed all other appeals and cross-appeals brought by Harold Gerstel and the Gerstel parties.

The parties were unable to agree on costs.

The court found the Berkovits parties to be more successful overall.

It ordered Harold Gerstel to pay $28,000 in all-inclusive costs to Samuel Jacob Berkovits for his unsuccessful cross-appeal in the Murder for Hire Action.

Additionally, the Gerstel parties were held jointly and severally liable to the Berkovits parties for $28,000 in all-inclusive costs for their unsuccessful appeal in the Interference Action.

No costs were awarded in the "Town Crier Action" due to divided success.

Maria Konstan and Samuel Jacob Berkovits had already settled their costs for the Murder for Hire appeal and trial.

This decision addresses consolidated appeals and cross-appeals arising from a protracted "turf war" between two competing cash-for-gold businesses, operated by Harold Gerstel and Samuel Jacob Berkovits (Jack).

The litigation involved three main actions: the "Murder for Hire Action" (malicious prosecution, abuse of process, intentional infliction of emotional distress), the "Interference Action" (nuisance, intentional interference with economic relations), and the "Town Crier Action" (defamation).

The trial judge found Jack liable for abuse of process to Maria Konstan (Harold's employee), Harold liable to Jack for nuisance and intentional interference, and Harold liable to Jack for defamation.

On appeal, the Court of Appeal granted Jack's appeal, setting aside the finding that he was liable to Maria for abuse of process, by clarifying the stringent "initiation" requirement for private complainants in such torts.

All other appeals and cross-appeals, including Harold's challenges to liability and damages for nuisance/interference, and Jack's cross-appeal for aggravated/punitive defamation damages, were dismissed.

The moving parties brought a motion for leave to appeal the order of Vermette J. dated December 15, 2023.

The Divisional Court dismissed the motion.

As no costs outline was submitted, the court made no order as to costs.

This endorsement addresses the costs arising from a dismissed interlocutory injunction motion brought by the Applicants and a granted cross-motion for consolidation brought by the Respondents.

The Respondents, as successful parties, sought substantial indemnity costs, citing egregious conduct and reasonable settlement offers.

The Applicants argued for costs in the cause or partial indemnity, denying bad faith.

The court ordered costs payable forthwith on a partial indemnity basis, finding no reprehensible conduct warranting substantial indemnity and noting the limited compromise in the Respondents' settlement offers.

The quantum of costs claimed by the Respondents was reduced due to excessive hours, particularly for the consolidation motion.

The applicants, a registered political party and its fund, sought judicial review of the Chief Electoral Officer's decision refusing to pay them three quarterly per-vote subsidies following the 2022 provincial election.

The applicants sought an order of mandamus compelling payment or, alternatively, a finding that the decision was unreasonable.

The Divisional Court held that the CEO had rendered a reviewable decision involving statutory interpretation, making mandamus unavailable.

Applying a reasonableness standard, the Court found the CEO's interpretation of the Election Finances Act—that the party was ineligible for the payments based on the 2021 amendments—was reasonable.

The application was dismissed.

The Gendelman Defendants sought to vary a Mareva order for the third time, requesting authorization to sell a property (Ravel Property) and access proceeds for legal fees, increased living expenses, and repayment of third-party debts.

The Plaintiff opposed the variation.

The court applied the four-part Credit Valley test for varying Mareva injunctions, finding that the Gendelman Defendants failed to establish they had no other assets available, were not fully transparent about their finances and income, and did not adequately explain significant discrepancies in their net worth statements or the nature of the debts they sought to repay.

The court dismissed the motion, emphasizing the strong prima facie case of the Plaintiff regarding alleged misappropriation of funds.

The applicants brought a motion for an interlocutory injunction in an oppression application to preserve their alleged shareholdings in a startup company and restrict the respondents' use of corporate assets.

The respondents brought a cross-motion to convert the application into an action and consolidate it with their own action against the applicants.

The court dismissed the applicants' motion, finding they failed to establish a strong prima facie case for specific performance regarding the issuance of shares and failed to show irreparable harm.

The court granted the respondents' cross-motion, ordering the application to proceed as an action and be consolidated or heard together with the respondents' action, given the overlapping issues, disputed material facts, and need for discoveries.

This is a case management order in a class action concerning the scheduling of an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act, seeking to stay or dismiss the action for unduly limiting freedom of expression.

The court set a timetable for the anti-SLAPP motion, making it returnable on October 11, 2023, and ordered that no further steps in the proceeding could be taken until this motion was resolved, in accordance with the Act.

A potential motion for change of venue was also noted but deferred.

This endorsement addresses a costs award following the dismissal of the plaintiffs' (Sanjiv Joshi and Xpert Law Inc.) motion for an interlocutory order to reinstate Joshi as an officer and remove David Grace as a director of Olympia Athletic Camps Limited and 563973 Ontario Limited.

David Grace, the successful responding party, sought substantial indemnity costs.

The court awarded Grace $103,456 in substantial indemnity costs, finding that Joshi's conduct, both in the circumstances giving rise to the litigation and in the conduct of the litigation itself, was reprehensible and justified an elevated costs award.

The court rejected Joshi's arguments for no costs or costs in the cause, and his challenges to the hours and rates claimed by Grace's counsel, while making some adjustments for former counsel's time and a previous $10,000 costs order against Grace.

This costs endorsement addresses the allocation of costs across six intertwined proceedings.

The court awarded Maria Konstan $425,000 in all-inclusive costs against Samuel Jacob Berkovits and Saeed Hosseini.

This award was based on Maria's successful abuse of process claim, despite her malicious prosecution claim being dismissed, and the finding of Berkovits's malicious conduct.

Conversely, no costs were awarded between Samuel Jacob Berkovits and Harold Gerstel, as both parties engaged in reprehensible conduct and attempted to mislead the court, which would bring the administration of justice into disrepute.

This endorsement addresses an urgent motion brought by the Grace Parties (defendants in the main oppression action) seeking to remove Sanjiv Joshi as a Director and Officer of Parent Co., alleging oppressive conduct and corporate deadlock.

The court found the motion urgent, permitted it to proceed, and set a schedule for the filing of affidavits and cross-examinations.

The judge also requested the Regional Senior Justice to appoint a Case Management Judge due to the complexity and multiple related proceedings involved in the overall litigation.

The defendants brought a motion for leave to appeal the order of Regional Senior Justice MacLeod dated December 6, 2022.

The Divisional Court dismissed the motion for leave to appeal without costs.

The applicants, Sanjiv Joshi and Xpert Law Inc., brought an interlocutory motion seeking an oppression remedy and reinstatement into the management of Olympia Athletic Camps Limited and 563973 Ontario Limited, and ultimately the removal of David Grace as Director.

The court applied the RJR-MacDonald test for interlocutory injunctions, requiring a strong prima facie case for mandatory relief.

The court found that the applicants failed to establish a strong prima facie case of oppression, noting the absence of formal agreements defining Joshi's management role and the fact that Olympia's articles only allowed for one director.

Furthermore, the court found that Joshi did not come to court with "clean hands" due to concerning conduct, including misrepresentations, conflicts of interest, and questionable financial dealings.

The court also found no irreparable harm to the applicants and that the balance of convenience favored the respondent, Grace, given his long-standing involvement and the negative impact of Joshi's conduct on staff.

The motion was dismissed, and all previous interim terms were vacated.

This endorsement addresses three causes of action (conspiracy, abuse of process, and harassment) advanced by the Gerstel parties in their counterclaims, which were not explicitly determined in the court's prior Reasons for Decision.

The court dismissed all three claims.

The conspiracy claim failed due to a lack of common design between the alleged conspirators.

The abuse of process claim failed because the primary objective of the opposing parties' action was to redress civil wrongs, not for a collateral purpose.

The novel tort of harassment was not recognized, as the facts of the consolidated proceedings did not meet the high threshold for creating a new legal remedy.

Six consolidated actions arising from a bitter, multi-year dispute between two competing 'cash for gold' businesses in Toronto.

The feud escalated into allegations of a 'murder for hire' plot, resulting in criminal charges against an employee that were later withdrawn.

The employee sued for malicious prosecution and abuse of process.

The court found the hitman liable for malicious prosecution and both the hitman and the competitor liable for abuse of process, awarding the employee $221,775 in damages.

In the corporate actions, the court found the opposing business owner liable for nuisance and intentional interference with economic relations for using 'sandwichboarders' to harass the competitor's business, awarding $200,000.

The competitor was awarded $50,000 for defamation regarding statements made to a newspaper.

The opposing business owner's claims for defamation and misappropriation of personality were dismissed.

The plaintiffs, Sanjive Joshi and Xpert Law Inc., brought motions for interim and interlocutory relief against David Grace and the companies 563973 Ontario Limited and Olympia Athletic Camps Limited, alleging oppression and seeking access to books and records.

Grace sought to file a late affidavit in response, which the plaintiffs opposed due to non-compliance with a court-ordered timetable and Rule 39.02(3).

The court, considering the interests of justice, permitted Grace to file his affidavit despite the procedural breaches, imposing terms including an adjournment, further cross-examinations, and an award of $10,000 in costs thrown away to the plaintiffs.

Interim financial controls were also ordered.

The moving party defendants in a proposed class proceeding related to the 'Freedom Convoy' sought access to $200,000 of frozen escrow funds to retain counsel.

The funds were originally frozen by a Mareva injunction and a criminal restraint order, and were raised through crowdfunding platforms to support convoy participants.

The court dismissed the motion, finding that the funds were not the personal assets of the defendants and that the moving parties failed to provide full and frank financial disclosure to demonstrate impecuniosity or an inability to defend the action without access to the frozen funds.

The plaintiffs brought a pleading amendment motion in a class proceeding.

Counsel requested an adjournment because the Public Inquiry was ongoing, and certain defendants indicated a desire to bring a motion to strike portions of the claim.

The court ordered the motion adjourned to January 2023, to be heard alongside any motion to strike, and set a timetable for the exchange of materials.

The plaintiff brought a motion to vary a 2018 consent order that dismissed its motion to set aside a registrar's dismissal order.

The plaintiff argued that its former counsel made an inadvertent mistake by agreeing to dismiss the motion against all defendants, rather than just the MEC defendants, and sought to continue the action against the Pace defendants.

The court dismissed the motion, finding no common mistake, fraud, or misrepresentation to justify varying the consent order, which accurately reflected the fairly negotiated minutes of settlement.

The court emphasized the relative sanctity of consent orders and the strong presumption in favour of the finality of settlements.

During an ongoing civil trial, the court held a voir dire to determine the admissibility of an affidavit sworn by a non-party in a separate, sealed family proceeding.

The affidavit had come into the possession of one of the defendants.

The objecting parties argued the affidavit was protected by solicitor-client privilege and was obtained unlawfully.

The court held that the sworn affidavit filed in court was not a privileged communication and that the sealing order did not reinstate privilege.

The court ruled the affidavit admissible for impeachment purposes as a prior inconsistent statement.