ONTARIO SUPERIOR COURT OF JUSTICE

CITATION: Konstan v. Berkovits., 2015 ONSC 1551 COURT FILE NO.: CV-11-430602 DATE: 20150309

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

MARIA KONSTAN, JIM KONSTAN, ELAINE KONSTAN and ETTA KONSTAN

Plaintiffs

-and-

SAMUEL JACOB BERKOVITS, SAEED HOSSEINI, TED FRITZ, WILLIAM BLAIR, and TORONTO POLICE SERVICES BOARD

Defendants

-and-

SAMUEL JACOB BERKOVITS

Plaintiff by Counterclaim

-and-

MARIA KONSTAN and HAROLD GERSTEL

Defendants by Counterclaim

A N D B E T W E E N

HAROLD GERSTEL

Plaintiff by Counterclaim

-and-

SAMUEL JACOB BERKOVITS and SAEED HOSSEINI

Defendants by Counterclaim

BEFORE: F.L. Myers J.

COUNSEL: John J. Adair for the defendant by counterclaim and plaintiff by counterclaim Harold Gerstel

Brian Shiller for the plaintiff by counterclaim and defendant by counterclaim Samuel Jacob Berkovits

READ: March 1, 2015

endorsement

[1] Harold Gerstel brings a motion for summary judgment to dismiss the claim brought against him by his competitor Jack Berkovits. The issue is whether Mr. Gerstel is liable for being the mastermind in a plot to hire a hitman to kill Mr. Berkovits.

[2] The motion has been under way since September, 2014. There have been numerous interlocutory appearances before judges and masters. There are several affidavits filed. There have been several examinations of witnesses under summons under Rule 39.03. The protagonists have cross-examined each other.

[3] The defendant Saeed Hosseini is the person whom Mr. Gerstel is alleged to have had hired to kill Mr. Berkovits. Mr. Hosseini has not defended the action and has been noted in default. I need not recite the interlocutory history. Suffice it to say that Mr. Gerstel sought to examine Mr. Hosseini as a witness and has not been able to do so. There is much back-and-forth concerning who bears responsibility for this outcome. Moreover, Mr. Berkovits delivered an affidavit from Mr. Hosseini recently after already cross-examining Mr. Gerstel. The parties disagree as to whether that affidavit is admissible.

[4] I am reciting minimal evidence and making no comments on any of the issues as I have not yet heard the motion. However, as I was preparing for the hearing, it seemed clear to me that in order for the court to be “able to reach a fair and just determination on the merits” now or later, examination of Mr. Hosseini is required. See: Hryniak v. Mauldin, 2014 SCC 7 at para. 49. His testimony and credibility are major issues in the case. There would either have to be an adjournment of the motion or a mini-trial (if appropriate) to obtain Mr. Hosseini’s testimony. But, regardless, for a motion for summary judgment to proceed in the interests of justice, Mr. Hosseini’s testimony and cross—examination is required.

[5] Although Mr. Hosseini’s affidavit was delivered very late by Mr. Berkovits, it was delivered the day before Mr. Gerstel planned to examine Mr. Hosseini under summons under Rule 39.03. The effect of delivering the affidavit was to give Mr. Gerstel a sworn examination-in-chief upon which to cross-examine. To the extent that it might be claimed to provide new or different facts, it is in Mr. Gerstl’s interest to know those facts before being surprised by them on an examination under summons. Moreover, by delivering an affidavit, Mr. Berkovits has fairly denied himself of the right to cross-examine the witness under Rule 39.03(2) and has limited his own participation to re-examination, if any.

[6] Once I read the parties’ facta, I emailed counsel last night and asked for their positions on whether I should order Mr. Hosseini to attend for cross-examination at the hearing of the motion in open court on March 3, 2015. Rule 39.03(4) provides for the court to grant leave to examine a witness at the hearing of a motion in the same manner as at trial. I asked for brief written submissions by no later than 4:00 p.m. today. Both sides have now consented to the process that I suggested and Mr. Shiller has determined that Mr. Hosseini is available.

[7] Either party is at liberty to issue a summons in Form 53A under Rule 53.04(1) compelling Saeed Hosseini to attend at the hearing of the summary judgment motion at 393 University Avenue, Toronto, Courtroom 802, at 10:00 a.m. on March 3, 2015. Moreover, the court orders Mr. Hosseini to so attend. Mr. Hosseini’s affidavit sworn February 11, 2015 will serve as his examination-in-chief. Mr. Hosseini will be cross-examined and re-examined if appropriate. Then the motion argument will then proceed.

[8] I am grateful to both counsel for responding so quickly and thoroughly over a weekend. The court is very cognizant of the animosity between the high profile business competitors. All will benefit from an end to hostilities and the most expeditious outcome that is available that is consonant with the interests of justice

F.L. Myers J.

Date: March 9, 2015