Konstan v. Berkovits, 2016 ONSC 7958
Court File and Parties
CITATION: Konstan v. Berkovits 2016 ONSC 7958
COURT FILE NO.: CV-11-430602
DATE: 2016-12-17
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
Maria Konstan et al., Plaintiffs
– and –
Samuel Jacob Berkovits et al., Defendants
BEFORE: F.L. Myers J.
COUNSEL: Wendy Greenspoon-Soer and Matthew Gottlieb, for the Harold Gerstel Brian Schiller, for Jack Berkovits
HEARD: December 15, 2016
Case Conference Endorsement
[1] Several related actions among Mr. Gerstel and Mr. Berkovits including this action are being actively case managed by the court. An unusual procedural issue has arisen that requires a decision as to process.
[2] Originally, the court heard a motion for summary judgment including oral evidence of a witness at the hearing. The court found that further evidence was required before it could determine if the action could be resolved summarily or required a trial. As the parties continued gathering evidence they were deflected by a witness who recanted his testimony and then Mr. Gerstel changed counsel. A cross-examination of Mr. Gerstel ensued that led to a refusals motion concerning both the recanting witness and Mr. Berkovits’s desire to elicit information about a sealed court file that might have been a matrimonial file involving Mr.Gerstel and his wife and which might have contained financial information about Mr. Gerstel or his business that could be relevant to the issues in this proceeding.
[3] As a result of the tactical maneuvers of both sides, discussed in in my Endorsement dated November 12, 2015, reported at 2015 ONSC 6955, the court determined that a summary disposition was not appropriate and all of the cases were assigned to case management.
[4] In the same Endorsement, the court upheld Mr. Gerstel’s refusal to answer questions regarding the sealed court file and made the following comments:
At the cross-examination, Mr. Berkovits’s counsel asked Mr. Gerstel a number of questions designed to determine if a court file that bears the initials of Mr. Gerstel and his wife is a sealed matrimonial proceeding between them and, if so, whether Mrs. Gerstel obtained either a Mareva injunction or an Anton Piller Order against Mr. Gerstel in that proceeding. Counsel for Mr. Gerstel objected to these questions on the basis that they are irrelevant.
In my view, this is a naked fishing expedition for embarrassing intimate details that have no bearing on any issue relevant to the motion that is before me…
Finally, I would not allow a fishing expedition to try to get behind a sealing order in a matrimonial proceeding even if I knew that there was a Mareva injunction or an Anton Piller order made in those proceedings. The risk of mischief and prejudice to the parties in the matrimonial proceedings and the risk of abuse by the threat of inappropriate use of very private information, whether explicit or implicit, greatly outweighs any probative value that the evidence could be argued to have in this proceeding.
[5] In a recent case conference, counsel for Mr. Berkovits disclosed that his client had come into possession of draft documents that appear to relate to sealed matrimonial proceedings that do indeed involve Mr. Gerstel. Mr. Gerstel’s counsel provided me with a copy of the court’s sealing order in those proceedings, the operative wording of which is:
THIS COURT ORDERS ON CONSENT THAT:
All documents filed in this application be sealed and not form part of the public record.
The parties and witnesses in this proceeding shall not be identified in any ruling, reasons or transcripts, related to these proceedings, other than by reference to their status in the proceedings, or by initials.
[6] Mr. Berkovits proposes to use in this proceeding financial information taken from the draft documents that he has obtained. He therefore asks to schedule a motion to lift the sealing order. Not surprisingly, Mr. Gerstel takes strong objection to this proposal.
[7] The sealing order was made under s. 137 of the Courts of Justice Act, R.S.O. 1990, c. C.43. which provides as follows:
- (1) On payment of the prescribed fee, a person is entitled to see any document filed in a civil proceeding in a court, unless an Act or an order of the court provides otherwise.
Sealing documents
(2) A court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.
[8] It is important to distinguish between a sealing order and a publication ban or other injunctive relief. A sealing order simply prevents the public from obtaining access to documents contained in a court file to which they would otherwise have access upon paying the prescribed fee. The order was not made on notice to the press. It does not prohibit dissemination of information about the lawsuit. It does not impose confidentiality obligations on any person. A sealing order is just what it says – a sealing of the court file.
[9] If sealed documents were obtained from the court’s files, a breach of the sealing order occurred. If the documents were obtained surreptitiously from the parties or their lawyers’ offices, criminal misconduct may have occurred. But there are also innocent explanations for how Mr. Berkovits came into possession of the documents. For example, they may have been disclosed by Mr. or Mrs. Gerstel either to Mr. Berkovits or to someone else who gave them to Mr. Berkovits. The sealing order is not necessarily relevant at all to whether Mr. Berkovits is entitled to possess or to use the documents that he says he has.
[10] The case conference before me this week was to discuss scheduling a motion by Mr. Berkovits to lift the sealing order. Mr. Gertsel objects and wants to know what documents Mr. Berkovits has and how he obtained them before any other steps are taken. Mr. Berkovits’s counsel advises that if required to give evidence, he expects that his client will say that he does not know where the documents came from or how they were obtained.
[11] I am not inclined to see these parties once again deflected from the path of trial preparation. Nothing will end these parties’ disputes until there is a trial verdict and appeal decision(s). Whether the parties ever decide to settle and focus their resources on more profitable matters is beyond the court’s control. The court can control however the measure of its resources devoted to this feud.
[12] There is no substantive motion outstanding for which the disputed documents are being advanced as evidence. Moreover, if they are just draft affidavits, it is not clear what use could be made of them in any event. If the documents contain financial information that is relevant to the issues in this action, then the information is discoverable in this action in any event.
[13] Mr. Gottlieb fairly argues that it is efficient to recognize now that issues are coming as to whether the documents may be used by Mr. Berkovits on discovery or at trial. I am not going to prejudge admissibility at trial. That is for the trial judge who may or may not be me (see para. 37 of the Nov. 11, 2015 Endorsement). It can be fairly assumed that Mr. Berkovits wishes to use the documents on discovery and that Mr. Gerstel would object to that use. As noted above, until evidence is adduced showing that documents were obtained from a sealed court file, I do not see how a motion to lift the sealing order addresses the issues. In my view, the issue properly framed is whether Mr. Gerstel is entitled to refuse to answer questions on discovery based on the documents. Put another way, is Mr. Berkovits entitled to use the documents in evidence in this case before the trial?
[14] Most recently the parties had been moving toward completing documentary and oral discovery. Some issues have been narrowed; others broadened. One of the defamation cases has settled, but Ms. Konstan’s claims have re-surfaced.
[15] The procedural challenges in these related cases have proven formidable. In my view, the completion of discovery and the scheduling of the trial(s) are the issues of utmost priority in this and the related actions. My determination is to keep discovery on track but to permit an early consideration of whether the draft documents can be used at discovery if Mr. Berkovits proposes to do so.
[16] I therefore direct counsel to Mr. Berkovits to determine whether he wishes or bring a motion under Rule 34.15 on the basis of an assumed refusal to answer questions concerning the draft documents in Mr. Berkovits’s possession, power, or control.
[17] If Mr. Berkovits wishes to do so, he shall serve motion materials by December 23, 2016. Mr. Berkovits’s motion materials shall identify all of the documents in his possession, power, or control that may have emanated from the Gerstels’ matrimonial proceedings and shall disclose Mr. Berkovits’s full knowledge, information, and belief as to how he obtained access to those documents. Mr. Gerstel shall advise within five (5) days of receiving Mr. Berkowits’s motion record whether Mr. Gerstel proposes to adduce evidence on the motion. If Mr. Gerstel chooses to deliver affidavit material, he shall do so within fourteen (14) days of the receipt of Mr. Berkovoit’s material. Once the materials are delivered by both sides, counsel will convene a case conference with the court by telephone to discuss scheduling any further steps and the hearing of the motion.
[18] If Mr. Berkovits chooses to refrain from bringing a motion at this time, then discoveries shall proceed on the basis that Mr. Berkovits may not ask any questions about the draft documents on discovery of Mr. Gerstel. There will be no way to tell definitively if, rather than putting the draft documents to Mr. Gerstel on discovery, Mr. Berkovits’s counsel just asks questions based on information learned from the draft documents. But if the questions elicit relevant evidence, I do not see how that is objectionable.
[19] If Mr. Gerstel wishes to bring proceedings based on the documents being in Mr. Berkovits’s possession, whether contempt proceedings in the family law case, as discussed during the recent case conference, or new proceedings, if he thinks he has a cause of action, that is his business. The only issue in this proceeding and the existing proceedings that I am case managing is whether evidence adduced by a party is admissible and that is all that I will schedule to be heard in these proceedings at this time. There has to be a sense of proportion. I cannot stop other proceedings from being brought. If they are frivolous, that can be dealt with in those proceedings. If they are valid and yield remedies, that is fine too. But the current proceedings should not be hijacked by yet another extraneous procedural skirmish. I will deal with admissibility on discovery now if Mr. Berkovitz proposes to use the draft documents on discovery. Otherwise the issue may be for the trial judge if Mr. Berkovits seeks to use the documents at trial.
F.L. Myers J.
Date: December 17, 2016