Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240806 DOCKET: COA-23-CV-0347, COA-23-CV-0365 & COA-23-CV-0371

Miller, Copeland and Gomery JJ.A.

DOCKET: COA-23-CV-0347

BETWEEN

Maria Konstan*, Jim Konstan, Elaine Konstan and Etta Konstan Plaintiffs (Respondent*)

and

Samuel Jacob Berkovits*, Saeed Hosseini, Ted Fritz, William Blair and Toronto Police Services Board Defendants (Appellant*/ Respondent by way of cross-appeal*)

AND BETWEEN

Samuel Jacob Berkovits Plaintiff by Counterclaim (Appellant/ Respondent by way of cross-appeal)

and

Maria Konstan* and Harold Gerstel** Defendants by Counterclaim (Respondent*/ Respondent**/Appellant by way of cross-appeal**)

AND BETWEEN

Harold Gerstel Plaintiff by Counterclaim (Respondent/ Appellant by way of cross-appeal)

and

Samuel Jacob Berkovits* and Saeed Hosseini Defendants by Counterclaim (Appellant*/ Respondent by way of cross-appeal*)

Docket: COA-23-CV-0365

AND BETWEEN

1539058 Ontario Inc. o/a Omni2 Jewelcrafters and Omni Jewels & Java and 2221652 Ontario Inc. o/a Omni Cash for Gold Plaintiffs (Respondents)

and

2102503 Ontario Inc. o/a Harold the Jewellery Buyer and Harold Gerstel Defendants (Appellants)

AND BETWEEN

2102503 Ontario Inc. o/a Harold the Jewellery Buyer and Harold Gerstel Plaintiffs by Counterclaim (Appellants)

and

1539058 Ontario Inc. o/a Omni2 Jewelcrafters and Omni Jewels & Java*, 2221652 Ontario Inc. o/a Omni Cash for Gold*, Saeed Hosseini, Samuel Jacob Berkovits* and Hillel Berkovits Defendants by Counterclaim (Respondents*)

Docket: COA-23-CV-0371

AND BETWEEN

Samuel Jacob Berkovits, 1539058 Ontario Inc., c.o.b. as Omni2 Jewelcrafters and Omni Jewels & Java and 2221652 Ontario Inc., c.o.b. as Omni Cash for Gold Plaintiffs (Respondents/ Appellants by way of cross-appeal)

and

Harold Gerstel*, Multimedia Nova Corporation, Lori Abittan, Eric McMillan and Shawn Star Defendants (Appellant*/ Respondent by way of cross-appeal*)

AND BETWEEN

Harold Gerstel Plaintiff by Counterclaim (Appellant/ Respondent by way of cross-appeal)

and

Samuel Jacob Berkovits, 1539058 Ontario Inc., c.o.b. as Omni2 Jewelcrafters and Omni Jewels & Java, and 2221652 Ontario Inc., c.o.b. as Omni Cash for Gold Defendants by Counterclaim (Respondents/ Appellants by way of cross-appeal)

Counsel: Samara Secter, Rebecca Amoah and Daniel Naymark, for Samuel Jacob Berkovits, 1539058 Ontario Inc. o/a Omni2 Jewelcrafters and Omni Jewels & Java, 2221652 Ontario Inc. o/a Omni Cash for Gold, on all matters under appeal. Melvyn Solmon and Cameron Wetmore, for Harold Gerstel and 2102503 Ontario Inc. o/a Harold the Jewellery Buyer, on all matters under appeal. Matthew Valitutti, for the respondent, Maria Konstan in COA-23-CV-0347.

Heard: March 20-21, 2024

On appeal from the judgment of Justice James F. Diamond of the Superior Court of Justice, dated February 21, 2023.

COSTS ENDORSEMENT

[1] On June 27, 2024, we issued our decision on appeals and cross-appeals in three inter-related actions: the “Murder for Hire Action” (COA-23-CV-0347); the “Interference Action” (COA-23-CV-0365); and the “Town Crier Action” (COA-23-CV-0371). We granted Samuel Jacob Berkovits’ appeal of the trial judge’s finding in the Murder for Hire Action that he was liable to Maria Konstan for abuse of process and set the judgment against him in that action aside. We dismissed all other appeals and cross-appeals, namely:

• Harold Gerstel’s cross-appeal in the Murder for Hire Action challenging the dismissal of his claims against Mr. Berkovits and Saeed Hosseini for abuse of process, conspiracy to injure and unlawful means conspiracy;
• The appeal by Harold Gerstel and 2102503 Ontario Inc. o/a Harold the Jewellery Buyer (collectively the “Gerstel parties”) of the judgment against them in the Interference Action requiring them to pay $200,000 to Mr. Berkovits, 1539058 Ontario Inc. o/a Omni2 Jewelcrafters and Omni Jewels & Java, 2221652 Ontario Inc. o/a Omni Cash for Gold (collectively the “Berkovits parties”) for damages for nuisance and interference with economic relations;
• Mr. Gerstel’s appeal of the judgment against him in the Town Crier Action, in which the trial judge found that Mr. Gerstel had defamed Mr. Berkovits and awarded the latter $50,000; and
• Mr. Berkovits’ cross-appeal in the Town Crier Action, in which he argued that the trial judge ought to have awarded him $100,000 in aggravated and punitive damages.

[2] We directed that, if the parties were unable to agree on the costs of the appeals and cross appeals as well as the disposition of costs awarded at trial on the Murder for Hire Action, they should file costs submissions.

[3] Mr. Berkovits and Ms. Konstan subsequently advised that they had agreed to resolve costs of the Murder for Hire appeal and the trial below. Ms. Konstan agreed to pay Mr. Berkovits $36,000, inclusive of HST, for the costs of the appeal. She agreed to consent to vacating the trial costs awarded in her favour against Mr. Berkovits, leaving the costs awarded against Mr. Hosseini in that action undisturbed. Order to go accordingly.

[4] The Berkovits parties and the Gerstel parties advised the court that they had been unable to resolve the costs issues between them and filed written submissions.

[5] The Berkovits parties say that their reasonable partial indemnity costs, inclusive of fees, disbursements, and HST, in proceedings before this court are $122,015.50. They allocate roughly 30% of these costs, or $36,000, to each of: arguing their successful appeal in the Murder for Hire Action; responding to Mr. Gerstel’s unsuccessful cross-appeal in the same Action; and responding to Mr. Gerstel’s unsuccessful appeal in the Interference Action. This leaves 10% to the Town Crier appeal and cross-appeal. The Berkovits parties argue that this costs allocation is consistent with the trial judge’s finding that the parties’ defamation claims took up only a nominal portion of the trial and with Mr. Berkovits’ and Ms. Konstan’s settlement of costs in the Murder for Hire Action.

[6] Based on this proposed allocation, the Berkovits parties seek $36,000 from Mr. Gerstel for his unsuccessful cross-appeal in the Murder for Hire Action, and $36,000 from the Gerstel parties, jointly and severally, for their unsuccessful appeal in the Interference Action. They say that, given the divided success in the Town Crier Action, no costs should be awarded in Mr. Gerkovits’ appeal and Mr. Berkovits’ cross-appeal.

[7] The Gerstel parties concede the reasonability of the Berkovits parties’ total partial indemnity costs of $122,015.50. They also agree that no costs should be awarded in the Town Crier Action. They dispute the Berkovits parties’ proposed allocation of costs across the proceedings; they submit that Mr. Berkovits should be awarded no costs or only $10,000 in the Murder for Hire Action, and only $10,000 in costs in the Interference Action.

[8] Overall, the Berkovits parties were the more successful parties before the court. Mr. Berkovits resisted Mr. Gerstel’s cross-appeal in the Murder for Hire Action as well as the Gerstel parties’ appeal in the Interference Action. We do not, however, agree that these matters consumed significantly more effort than that devoted to the Town Crier appeal and cross-appeal. Oral arguments in the Interference Action took less time, but this reflected the abandonment by the Berkovits parties of their cross-appeal prior to the hearing.

[9] Deducting the $36,000 that Ms. Konstan has agreed to pay in costs to Mr. Berkovits in the Murder for Hire Action appeal, the Berkovits parties’ remaining partial indemnity costs total roughly $86,000. We conclude that Mr. Gerstel should pay a third of this amount, or $28,000, in all-inclusive costs to Mr. Berkovits in the Murder for Hire Action cross-appeal and the Gerstel parties should be jointly and severally liable to the Berkovits parties for $28,000 in all-inclusive costs on their unsuccessful appeal in the Interference Action. No costs are awarded in the Town Crier Action.

“B.W. Miller J.A.”

“J. Copeland J.A.”

“S. Gomery J.A.”