COURT FILE NO.: CV-11-430602
DATE: 20211129
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, TORONTO POLICE SERVICES BOARD
Defendants
Avi Bourassa and Mark Ross, lawyers for the Plaintiffs
Melvyn L. Solmon and Cameron Whetmore, lawyers for the Gerstel parties
Daniel Naymark, Stephanie Fong and Dillon Collett, lawyers for the Defendants
HEARD: November 25, 2021
RULING ON VOIR DIRE
DIAMOND J.:
[1] This Endorsement applies to all seven legal proceedings (this action plus court file nos. CV-11-436825, CV-13-483531, CV-12-447394, CV-13,476452, CV-14-476939 and CV-14- 474051) currently being tried before me.
[2] In anticipation of the Berkovits parties shortly closing their case, and the Gerstel parties calling their own evidence, the Court was asked to hold a voir dire to determine an evidentiary issue which arose between the parties well prior to trial. The Gerstel parties objected to the admissibility of an affidavit affirmed by Esther Gerstel (“Esther”) on March 19, 2012 in Court File FS-12-376961-0000 (“the family proceeding”).
[3] During the voir dire, I heard viva voce evidence from Esther and her husband Harold Gerstel (“Harold”). For reasons described hereinafter, I did not hear viva voce evidence from Jack Berkovits (“Jack”), but I received evidence Jack gave at his examination for discovery as his evidence on the voir dire.
The Family Proceeding
[4] In or around late May 2012, and while the dispute between the Gerstel parties, the Konstan parties and the Berkovits parties (which ultimately led to the trial of these proceedings) was ongoing, Esther commenced the family proceeding against Harold. Contemporaneous with issuing her Application, Esther brought an ex parte motion seeking, inter alia, an Anton Piller order, a Mareva injunction, a sealing order and a publication ban. In support of her ex parte motion, Esther tendered her affidavit affirmed on March 19, 2012 (“Esther’s affidavit”).
[5] Justice Mesbur heard Esther’s ex parte motion on March 20, 2012, and she granted both the Anton Piller order and Mareva injunction.
[6] At the time of Justice Mesbur’s order, Esther and Harold were still residing together in the matrimonial home. Harold was subsequently served with Justice Mesbur’s order and motion materials at his place of business.
[7] As the family proceeding unfolded, Esther and Harold were both represented by separate legal counsel. The parties then participated in negotiations which led to an agreement that they would proceed to mediation/arbitration, and the family proceeding would be abandoned on consent.
[8] Prior to commencing the mediation/arbitration process, Esther brought a consent motion seeking a sealing order (specifically, an order requiring that “all documents filed in the family application be sealed and not form part of the public record”), together with an order initializing the names of Esther and Harold in the family proceeding’s style of cause.
[9] Justice Czutrin heard and granted the consent order on May 30, 2012. Esther and Harold’s names were initialized, and a sealing order was issued. No publication ban was sought or granted by the Court in the family proceeding.
Esther’s Affidavit
[10] Despite the family proceeding court file being sealed, a copy of Esther’s affidavit found its way into Jack’s possession. In Schedule “A” to Jack’s Further Supplementary Affidavit of Documents sworn on September 18, 2017 in this proceeding, he listed “various court documents from the family proceeding, including an application record and attached affidavits with exhibits”. Included in that series of documents was a copy of Esther’s affidavit. A review of the documents filed on the voir dire discloses that Jack was in fact in possession of Esther’s affidavit prior to September 2017, as during a 2016 cross-examination of Harold upon an affidavit, he was asked questions relating to the existence of the family proceeding and documents filed therein.
[11] At Jack’s examination for discovery he was asked, inter alia, the following questions:
• To advise from where he obtained the family proceeding documents listed in his Further Supplementary Affidavit of Documents.
• To advise if he obtained the subject documents from the court file in the family proceeding.
• If he did not get the subject documents from the court file in the family proceeding, to advise from whom he obtained the subject documents; and,
• To advise who gave him the subject documents.
[12] All of those questions were refused at discovery. In subsequent correspondence, counsel for the Berkovits parties advised that Jack did not obtain the subject documents from the family proceeding’s court file, but he did not know who provided him with the subject documents.
[13] During the voir dire, Jack intended to give further viva voce evidence expanding on his above position. Relying upon Rule 31.07 of the Rules of Civil Procedure, I refused to grant Jack leave to give any further evidence other than what he provided in his subsequent answer to the originally refused questions It was far too late in the day for Jack to provide further evidence in response to questions refused in 2017, and there was prejudice to the Gerstel parties given that they structured their position and argument on the voir dire well in advance of trial based upon positions Jack had already taken and maintained for years.
Where did Esther’s affidavit come from?
[14] As stated, Jack’s position is that Esther’s affidavit somehow found its way into his possession, but not directly from the family proceeding’s court file.
[15] The copy of Esther’s affidavit in Jack’s possession (a) is fully sworn and commissioned (ie. not a draft), and (b) its contents are identical to the affidavit filed by Esther in the family proceeding’s court file.
[16] Both Esther and Harold gave evidence on the voir dire that neither of them maintained any copy of Esther’s affidavit. Esther testified that she “never brought any court papers home with her” as she wanted to initially keep the family proceeding hidden from Harold. Esther never kept her own copy of the affidavit, or any court documents from the family proceeding.
[17] Harold gave evidence that after being served with the ex parte motion materials (including Esther’s affidavit), he provided same to his family lawyer and never personally retained copies of any of the documents from the family proceeding.
[18] While each of Esther and Harold have their own suspicions as to how Jack came into possession of a copy of Esther’s affidavit, neither of them could offer any direct evidence on the issue. Both Esther and Harold took the position on the voir dire that since the only other individuals who had copies of Esther’s affidavit were their respective lawyers, the source of the disclosure of Esther’s affidavit had to be one of those lawyers. The Gerstel parties have thus asked that, given Jack’s limited response to the questions posed to him on discovery, the Court should draw an adverse inference against Jack and make a finding that on a balance of probabilities, the copy of Esther’s affidavit in Jack’s possession did in fact originally come from one of the lawyers representing Esther and/or Harold.
[19] Of note, when Esther was cross-examined upon some of the contents of her affidavit during the voir dire, and specifically those paragraphs relating to Harold and why she sought the relief on her ex parte motion, she gave evidence that those contents of her affidavit were “exaggerated” and “not true” as she was “trying to make Harold look as bad as possible in order to obtain the Anton Piller order”.
[20] While I make no general findings of credibility against any of the parties at this stage (as the trial is still ongoing and the Gerstel parties have yet to open their case), it is quite troubling to receive evidence that Esther gave at best misleading, and at worst untruthful, evidence in support of an ex parte Anton Piller order and Mareva injunction. As held by the Court of Appeal for Ontario in A.M. v. J.M. 2016 ONCA 644:
“An ex parte order is intended to be used only in exigent situations where the delay required to serve the motion would probably have serious consequences, or where the giving of notice by the service itself would probably have serious consequences. A judge hearing an ex parte motion who is not satisfied of the probability of those consequences will decide that the motion cannot proceed ex parte and order that notice be given.
Where a motion is brought without notice, the person bringing the motion must make full and fair disclosure of all material facts (rule 39(6) of the Rules of Civil Procedure), including facts that may not be helpful to that party’s position. An ex parte order that is obtained without full and fair disclosure, even if the lack of full disclosure was unintended, is subject to being set aside. See for example, Rinaldi v. Rinaldi, 2013 ONSC 7368.
Notice and the opportunity to be heard are basic tenets of our justice system. Ex parte orders are therefore made only in very limited circumstances. The requirement for full and frank disclosure is essential to allow a court to fairly make a temporary order that will affect the rights of another person in an emergency situation where the court has not heard both sides of the story.”
[21] When a party moves on an ex parte basis, the Court seeks to review what it presumes to be a reasonable, balanced summary of all relevant, truthful facts that could affect the outcome of the motion. Esther’s evidence on the voir dire supports a finding that she breached her duty to the Court, and to Harold for that matter.
Is Esther’s affidavit admissible?
[22] The Gerstel parties’ position is that if this Court finds on a balance of probabilities that the copy of Esther’s affidavit in Jack’s possession originated from a lawyer representing the Gerstel parties, then Esther’s affidavit is protected by solicitor/client privilege. The Gerstel parties rely upon the Supreme Court of Canada’s decision in Canada (Attorney General) v. Chambre des Notaires du Québec 2016 SCC 20 in support of their position that any documents that originate from the files of a solicitor are protected by solicitor/client privilege and immune from disclosure.
[23] I have reviewed the Chambre decision, and do not agree that the Supreme Court of Canada made such a bright line rule as suggested by the Gerstel parties. Documents are not automatically protected by solicitor/client privilege simply because those documents are found within a lawyer’s file. What the Supreme Court of Canada actually held is that information protected by solicitor/client privilege that is in the possession of a legal advisor is immune from disclosure.
[24] Indeed, in 2000768 Ontario Inc. v. 514052 Ontario Limited 2006 CanLII 37124 (ONSC), another decision relied upon by the Gerstel parties, Justice Van Melle held as follows (my emphasis in bold):
“In circumstances where a solicitor receives documents from opposing counsel that are governed by solicitor/client privilege, he has a duty to return the documents without retaining copies and, if possible, without reading the documents.”
[25] The relevant scope of inquiry is therefore whether Esther’s affidavit is itself protected by solicitor/client privilege. I find that it is clearly not.
[26] There is no dispute that solicitor/client privilege is fundamental to the integrity of the justice system, and a key component to the public’s confidence in the administration of the justice generally. As recently held in Cnooc Petroleum North American ULC v. 801 Seventh Inc. 2021 ABQB 861, the fundamental purpose of solicitor/client privilege is “to allow for and to protect full and frank communication between client and lawyer” where legal advice is being sought or given.
[27] Esther’s affidavit is not a communication between her and her lawyer(s), and it does not necessitate or relate to the seeking or giving of legal advice intended to be confidential. On the contrary, it is her affirmed evidence tendered to the Court to secure an Anton Piller order and Mareva injunction. Had the copy of Esther’s affidavit in Jack’s position been in draft format, it is arguable that such a document could attract solicitor/client privilege, as draft affidavits typically form part of the exchange of communications between a client and his/her lawyer, and the obtaining and securing of legal advice. The copy of Esther’s affidavit in Jack’s possession is not a draft, and Esther confirmed during her testimony at the voir dire that it is a copy of the actual affidavit found within the family proceeding’s court file.
[28] To the extent that Esther’s affidavit could ever be found to be protected by solicitor/client privilege (and I find the opposite), that privilege was obviously waived when it was filed with the Court in the family proceeding. Esther’s affidavit did not reclaim its privilege status by the issuance of a sealing order. As held by Justice Myers in Konstan v. Berkovits 2016 ONSC 7958, “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.”
[29] The Gerstel parties further submit that the copy of Esther’s affidavit in Jack’s possession was obtained “unlawfully or illegally”. There is simply no evidence that Esther’s affidavit was unlawfully obtained by Jack, and I am not prepared to make such a finding on the record before the Court. While it is technically open for the Court to draw an adverse inference against Jack in the circumstances, given (a) my findings with respect to the Gerstel parties’ own evidence on the voir dire, (b) the lack of a publication ban, (c) the fact that there are several ways that Esther’s affidavit could have been obtained without breaching the sealing order, and (d) Esther’s affidavit is not protected by solicitor/client privilege in any event, I decline to draw the requested adverse inference. The potential use of Esther’s affidavit as a prior inconsistent affirmed statement is fundamentally important to the Court’s search for the truth.
[30] In addition, it is certainly arguable that, given at least some of the contents of Esther’s affidavit, the Gerstel parties had an obligation to disclose the existence of Esther’s affidavit in their affidavits of documents served in these proceedings.
[31] The Konstan parties submit that there are similar fact evidence concerns by tendering Esther’s affidavit at the trial of these proceedings. Specifically, the Konstan parties argue that the admission of Esther’s affidavit amounts to evidence of similar acts that “create moral prejudice against them”. I have reviewed the contents of Esther’s affidavit, and I understand the Konstan parties to be concerned about some of Esther’s evidence suggesting criminality or actionable conduct on the part of Harold. While there is some potential prejudice in admitting those contents of Esther’s affidavit at trial, I nevertheless find that Esther’s affidavit has sufficient probative value to render it admissible. Obviously, to the extent that Esther’s affidavit contains evidence that is truly irrelevant to the issues in these proceedings, the Gerstel parties and the Konstan parties can object if and when that evidence is put to either Esther or Harold, and I will rule upon those objections at the relevant time.
[32] For these reasons, the copy of Esther’s affidavit in Jack’s possession is admissible at the trial of these proceedings. As discussed during argument at the voir dire, this finding does not mean that the copy of Esther’s affidavit in Jack’s possession will simply be marked as an exhibit at trial. Esther’s affidavit can be used for impeachment purposes as a prior affirmed statement. It may be that Esther agrees with questions put to her with respect to issues raised in her affidavit, thereby precluding the need for Esther’s affidavit to be marked as an exhibit at all. Much will obviously depend upon the evidence of Esther and Harold once they testify.
[33] Finally, if Esther’s affidavit does ultimately need to be marked as an exhibit at trial, to the extent that there are portions of her affidavit which are clearly irrelevant to the issues in these proceedings, I am willing to entertain a request that any such irrelevant portions of Esther’s affidavit be redacted in the circumstances. If I ultimately make such an order (if requested), then the final, redacted copy of Esther’s affidavit will be marked as a trial exhibit.
[34] Order accordingly.
Diamond J.
Released: November 29, 2021
COURT FILE NO.: CV-11-430602
DATE: 20211129
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, TORONTO POLICE SERVICES BOARD
Defendants
RULING ON VOIR DIRE
Mr. Justice Diamond
Released: November 29, 2021