Konstan v. Berkovits, 2015 ONSC 2252

Konstan v. Berkovits, 2015 ONSC 2252

CITATION: Konstan v. Berkovits, 2015 ONSC 2252

COURT FILE NO.: CV-11-430602

DATE: 20150410

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

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

Brian Shiller, for the Plaintiff by counterclaim and Defendant by counterclaim Samuel Jacob Berkovits

John J. Adair, for the Defendant by counterclaim and Plaintiff by counterclaim Harold Gerstel

• and -

MARIA KONSTAN and HAROLD GERSTEL Defendants by Counterclaim

AND BETWEEN:

HAROLD GERSTEL Plaintiff by Counterclaim

• and -

SAMUEL BERKOVITS and SAEED HOSSEINI Defendants by Counterclaim

HEARD: March 3, 2015

REASONS FOR DECISION

F.L. MYERS J.

Background

1In this case, the defendant by counterclaim Harold Gerstel asks for summary judgment dismissing the counterclaim brought against him by the defendant/plaintiff by counterclaim Jack Berkovits. I have concluded that there is not yet sufficient evidence before the court to determine the issues. In particular, I do not yet have confidence that I can find the necessary facts to resolve this action. But, as discussed below, I see no reason to send the case to trial. The motion is adjourned pending the cross-examination of Harold Gerstel on the issues refused and on the questions for which his counsel provided answers during his cross-examination. The examination will proceed out of court in the ordinary course. If the parties cannot agree on which questions may form the basis of further questioning and follow-up questioning at a renewed examination, I will assist them to resolve that issue at a case conference under Rule 50.13. Once the cross-examination is completed, I will hear argument limited to the effect of the further cross-examination on the submissions previously made.

2Mr. Berkovits’ counsel asks the court to infer from other facts that Mr. Gerstel is not telling the truth and that he committed the torts alleged against him. Counsel asks for the inference to be drawn on the basis of, among other things, the large and inappropriate number of refusals made by Mr. Gerstel’s counsel during the cross-examination of Mr. Gerstel. In Glassman v. Honda Canada Inc. (1998), 41 O.R. (3d) 649 at 653, 1998 7192 (C.A.), Weiler J.A. wrote:

An inference is the drawing of a conclusion from a proposition. There must be a rational basis or connection between the evidence proving or establishing certain facts and the proposition before the conclusion can be drawn: see generally W. Little, ed., Shorter Oxford English Dictionary: On Historical Principles (Oxford: Oxford University Press, 1973); R. J. Delisle, Evidence: Principles and Problems, 4th ed. (Scarborough: Carswell, 1996) at p. 23; Jeffs v. Matheson, 1951 107 (ON CA), [1951] O.R. 743 (C.A.).

3Counsel for Mr. Berkovits argues that the refusals made by counsel to Mr. Gerstel prevented Mr. Berkovits’ efforts to explore issues which, while not necessarily the direct accusation, could lead to more answers that may expose a lack of credibility or would otherwise support the drawing of an inference against Mr. Gerstel.

4For example, Mr. Gerstel’s counsel refused to allow him to answer questions as to why Mr. Hosseini was hired; why he entrusted Mr. Hosseini—whom he said he barely knew—with several thousand dollars of jewelry to sell to a competitor; the financial results of the store (relevant to motive if Mr. Berkovits had cut into Mr. Gerstel’s profits); whether Mr. Gerstel told a Mr. Katz that in his religious view, hurting another person’s livelihood was the moral equivalent to murder; and evidence of Mr. Gerstel having physical confrontations with other competitors.

5The proper comportment of counsel for a party being cross-examined on a motion was discussed by Associate Chief Justice MacKinnon in Chitel et al. v. Rothbart et al. (1982), 39 O.R. (2d) 513, 1982 1956 (C.A.) as follows:

Counsel for the defendant made clear his purpose in the cross-examination which was a proper and legitimate purpose, indeed a necessary purpose if those were his instructions and if he was to discharge his responsibilities properly. By that stage the plaintiff's counsel had already advised her not to answer 18 questions in some 12 pages of transcript. After the discussion noted he continued, throughout the cross-examination, to advise his client not to answer relevant questions. In many instances, he answered questions himself, making statements of fact on the record which were not sworn to by the plaintiff, or immediately re-examined her in the course of her cross-examination in order to elicit the answer he obviously felt would recapture some ground lost in the cross-examination.

Counsel seemed to have confused, in part at least, the right to limit "fishing expeditions" on examination for discovery with a severe limitation on the extent of proper cross-examination. Counsel at trial would not, on any and every pretext, seek to frustrate proper examination. If he did, he would be quickly corrected by the trial judge. Because a judge is not present does not mean that a counsel, who is an officer of the court, should take a different position. He should not answer some obviously significant question himself before the witness answers, unless it is done by agreement with counsel for the other side, nor lead his witness immediately after the witness has given a damaging answer to explain the answer. Nor should he interrupt and prevent, time after time, questions from being answered although a legitimate ground has been given for their being asked. It seems to me that this is so in all cases, but particularly where ex parte injunctions have been granted. In such cases the matter is one of urgency which should be determined as quickly as possible by the court without the party restrained being forced to bring interlocutory motions and appeals in order to get the answers of the deponent to relevant questions. I have digressed to a certain extent but I think it important that a practice not develop which would debase the value of the right to cross-examine and effectively frustrate its legitimate purpose.

6In this case, counsel’s refusal of relevant questions and, in some cases, insisting upon answering for the witness, prevented counsel for Mr. Berkovits from attempting to prove facts that were relevant, at minimum, to issues of whether the court ought to draw an inference that Mr. Gerstel committed the torts despite his evidence to the contrary. Some questions may have been relevant to collateral facts (i.e. facts that Mr. Berkovits would not be allowed to prove independently and for which he must accept Mr. Gerstel’s evidence). But the questions, in the main, were nonetheless relevant. Mr. Gerstel should have answered them. Collateral facts can be facts upon which an inference may be built. Mr. Gerstel’s counsel ought to have heeded the Associate Chief Justice’s admonition to act as if the trial judge had been present. Had he done so, I doubt that the bulk of the refusals would have been made and counsel certainly would not have sought to answer questions for his witness.

7In considering the new approach to summary judgment in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONCA 878, [2014] O.J. No. 5815, Corbett J. concluded at para. 34 that “the test is now whether the court’s appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured.” Moreover, Corbett J. wrote that “[o]bviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it.”

8The issues on this motion are fairly narrow. Can I be confident that I can make findings of fact and apply the law on the current record so as to assess whether Mr. Berkovits has made out the torts of assault, conspiracy to injure, and intentional infliction of emotional distress? In my view, the issues will likely be amenable to resolution on the material before the court once the cross-examination of Mr. Gerstel is completed properly. I am not considering the ultimate question at this time. Nor am I assessing the credibility of any of the witnesses as yet. I am simply considering whether it is fair and just to proceed summarily. I conclude that it is fair and just to do so based on the nature of the issues and a very preliminary sense of the evidence– not formed with an eye to assessing the outcome but rather to assess whether it is of the kind, clarity, and coherence that will allow me to sort through it fairly when all of the evidence is in. Finally, I consider a summary process proportional and, in fact, especially helpful in this case to start the two warring combatants on their way to disentanglement as soon as possible. See Hryniak v. Maudin, 2014 SCC 7, at para. 159.

9One might argue that by requiring further examination of Mr. Gerstel, I am relieving Mr. Berkovits’ counsel from the consequence of his tactical decision to decline bringing a motion on refusals and arguing instead for an adverse inference from the refusals themselves. While I could draw the inference that Mr. Gerstel’s answers to the questions refused would have been unhelpful to his case, the difficulty is that Mr. Berkovits then asks me to use that finding to draw a further and ultimate inference that Mr. Gerstel is lying in his denials that he committed the various torts alleged. I do not think it fair and just to draw such an important inference from very general findings which are themselves only inferred.

10Normally, a party would not get a second chance to adduce different evidence in light of strategic choices made before the hearing of a motion for summary judgment. These choices matter. They shape the mass of evidence contained in the volumes put before the court. A corollary of the significance of counsels’ role is recognition that it would be quite unfair for a party to make a strategic choice, for example, to hold back evidence, and then be given a second kick at the can at a mini-trial or trial. If counsel can change their decisions as the process unfolds, summary judgment could thereby become a game of trial by ambush where parties just test how far the can get with minimum evidence. As discussed in Paramandham v. Holmes et al., 2015 ONSC 1903:

40. Counsel for the plaintiff made strategic choices, perhaps cost based, or not, as to how to respond to this motion. The court will hold parties to those choices. See: ThyssenKrupp Elevator (Canada) Limited v. Amos, 2014 ONSC 3910 at para. 44. The alternative would indeed be a slippery slope in which counsel are encouraged to withhold their trump cards for trial. Trial by ambush tactics are the antithesis of efficient, affordable, and proportionate procedures.

11However, as mentioned by Corbett J. in Sweda at paras. 27 and 28, an adverse inference will not necessarily follow where a party has made reasonable efforts to obtain the evidence that it seeks. I could decide that, because Mr. Berkovits did not move on refusals or bring a motion for directions, he should be denied the ultimate inference that he seeks. In my view however, in the very peculiar circumstances of this case, that result would not be either fair or just. It was not unreasonable for Mr. Berkovits to decline to bring a Master’s motion for refusals and to argue for an adverse inference. The problem is simply that he makes too big a leap, in my view, trying to leverage that adverse inference into a second adverse inference and a credibility finding against Mr. Gerstel on the main issue in the case. Moreover, the final discretionary decision lies with the court and I am not prepared to decide Mr. Gerstel’s motion for judgment where has refused to submit to necessary and proper cross-examination.

12In all, I see no basis to send this matter for trial at this time. Rather, the evidence should be completed properly and arguments can then be finalized under Rule 20.04.

13Costs are reserved to the final determination of this motion.

14If the scope of the continued examination cannot be agreed between the parties, I may be contacted by email to schedule a case conference under Rule 50.13. Counsel should have communicated in advance to discuss dates and procedural issues to accommodate the hearing being requested. Requests should include a proposed timetable and a minimal description of the matter in issue or relief sought without argument. Email communication should follow rule 1.09 and should generally be treated as if the content were being filed with the court.

15Subject to any specified exceptions, all documents to be delivered in this matter should be sent to the court as attachments to emails or on memory keys/sticks. The documents should be in searchable pdf format. Reference to case law should be by hyperlinks to an online source if necessary. If counsel need assistance with format, resort may be had to http://www.ontariocourts.ca/scj/practice/practice-directions/edelivery-scj/

16If hard copies or memory keys are being delivered to the court, they should not be filed with the registrar, but should be delivered to my attention in care of Judges’ Administration, Room 170, 361 University Avenue.

17The court will be available by email in real time to assist if any issues arise which threaten the completion of any examinations that are scheduled. Moreover any issues concerning refusals and undertakings (including questions taken under advisement) will be resolved summarily by the court. All undertakings are to be answered within 30 days of being given.

F.L. Myers J.