Court File and Parties

Court File No.: CV-11-430602 Date: 20170627 Superior Court of Justice - Ontario

B E T W E E N: Maria Konstan et al., Plaintiffs – and – Samuel Jacob Berkovits et al ., Defendants

BEFORE: F.L. Myers J.

COUNSEL: Melvyn L. Solmon, for Harold Gerstel Mark Ross, for Maria Konstan Brian Schiller, for Jack Berkovits

HEARD: June 26, 2017

Case Conference Endorsement

[1] Several related actions among Mr. Gerstel and Mr. Berkovits including this action are being actively case managed by the court.

[2] The parties agree to an order that examinations for discovery are to be held on September 18, 19, 25, 26, 27, 28, and October 2 and 3, 2017. The parties agree that these examinations cannot be cancelled by a party acting unilaterally. They are peremptory to all parties.

[3] The parties also agree that the examinations for discovery will proceed despite the existence of an issue as to whether Mr. Gerstel ought to be required to produce detailed sales records to support the claim for disgorgement of profits. A motion may be brought on this issue after the examinations are completed subject to scheduling at a Case Conference.

[4] A Case Conference is to be scheduled for November, 2017 to commence trial management. Prior to that Case Conference, the parties will exchange lists of issues for trial.

[5] Mr. Gerstel asks the court to consider ordering the parties to mediation. While the parties know of the court’s view that it is in the interests of all involved for them to be separated so each can concentrate on his or her own affairs, the parties do not seem ready to be finished with each other as yet. There is still debate as to whether one or the other, or both, are taking external steps to prejudice the other in business, in the community, and in the litigation. In the circumstances, the sooner this case is heard on the merits the better.

[6] Mr. Gerstel raises again the issue of Mr. Berkovits’s possession of documents that were sealed in Mr. Gerstel’s matrimonial proceedings. In an endorsement dated December 17, 2016, reported at 2016 ONSC 7958 I dealt with the issue already.

[7] Mr. Solmon argues that I should order Mr. Berkovits to provide particulars as to how he came into possession of documents that were filed under seal. In December, I had been told that the documents were perhaps drafts. It now appears that they are copies of the final documents as filed with the court. Moreover, rather than, or in addition to, dealing with Mr. Gerstel’s financial information, they may deal with allegations concerning the conduct of Mr. Gerstel in relation to one or more third party witnesses in this proceeding.

[8] Mr. Berkovits has or is about to list the documents in a supplemental affidavit of documents.

[9] Mr. Solmon argues that for Mr. Berkovits to have the documents there must necessarily have been a breach of the sealing order made in the matrimonial proceedings. He argues that there is an onus on Mr. Berkovits to show how he obtained the documents. I do not agree with either submission.

[10] As I said in my prior endorsement, the sealing order simply prevents the public from accessing the sealed documents in the court file. I am not aware of any confidentiality injunction that prevents others who have the documents from copying or transmitting them. There are many ways that the sealed documents might have been obtained by Mr. Berkovits other than from the sealed court file. Moreover, even if the documents were obtained unlawfully, that does not necessarily affect their admissibility. In any event, again, as I noted previously, there is no proceeding in play in which the admissibility of the documents is in issue. There is no motion outstanding and I am not functioning as the trial judge at this time. I know of no free-standing burden on a plaintiff to explain where he obtained documents listed in his affidavit of documents. Perhaps that will become an issue on discovery or in a motion. It is not in issue in an extant proceeding now.

[11] Mr. Gerstel remains free to seek relief relating to the sealing order in the matrimonial proceeding in which it was made.

[12] I do not see how the changes in what I have been told about the contents of the documents affects any of these determinations.

I remain of the view that “[T]he current proceedings should not be hijacked by yet another extraneous procedural skirmish.”

F.L. Myers J. Date: June 27, 2017