Court File and Parties

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Court File No. CV-11-430602 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 BETWEEN: SAMUEL JACOB BERKOVITS Plaintiff by Counterclaim – and – MARIA KONSTAN and HAROLD GERSTEL Defendants by Counterclaim

AND BETWEEN: Court File No. CV-11-436825 1539058 ONTARIO INC. O/A OMN12 JEWELCRAFTERS and OMNI JEWELS & JAVA and 2221652 ONTARIO INC. O/A OMNI CASH FOR GOLD Plaintiffs – and – 2102503 ONTARIO INC. O/A HAROLD THE JEWELLERY BUYER and HAROLD GERSTEL Defendants

AND BETWEEN: 2102503 ONTARIO INC. O/A HAROLD THE JEWELLERY BUYER and HAROLD GERSTEL Plaintiffs by Counterclaim -and- 1539058 ONTARIO INC. O/A OMN12 JEWELCRAFTERS and OMNI JEWELS & JAVA, 2221652 ONTARIO INC. O/A OMNI CASH FOR GOLD, SAEED HOSSEINI, SAMUEL JACOB BERKOVITS and HILLEL BERKOVITS Defendants by Counterclaim

AND BETWEEN: Court File No. CV-12-447394 SAMUEL JACOB BERKOVITS, 1539058 ONTARIO INC. carrying on business as OMN12 JEWELCRAFTERS and OMNI JEWELS & JAVA and 2221652 ONTARIO INC. carrying on business as OMNI CASH FOR GOLD Plaintiffs -and- HAROLD GERSTEL, MULTIMEDIA NOVA CORPORATION, LORI ABITTAN, ERIC MCMILLAN and SHAW STAR Defendants

AND BETWEEN: HAROLD GERSTEL Plaintiff by Counterclaim -and- SAMUEL JACOB BERKOVITS, 1539058 ONTARIO INC. c.o.b. as OMN12 JEWELCRAFTERS, OMNI JEWELS & JAVA and 2221652 ONTARIO INC. c.o.b. as OMNI CASH FOR GOLD Defendants by Counterclaim

AND BETWEEN: Court File No. CV-13-474051 HAROLD GERSTEL Plaintiff -and- TORONTO SUN NEWSPAPER, MIKE POWER, PUBLISHER, SUN MEDIA CORPORATION, MICHELLE MANDEL, QUEBECOR MEDIA and SAMUEL JACOB BERKOVITS Defendants

AND BETWEEN: Court File No. CV-13-476452 HAROLD GERSTEL Plaintiff -and- CFRB, ASTRAL MEDIA INC., MARK DAVIS, MIKE BENDIXEN and SAMUEL JACOB BERKOVITS Defendants

AND BETWEEN: Court File No. CV-13-483531 HAROLD GERSTEL Plaintiff -and- 1539058 ONTARIO INC. O/A OMN12 JEWELCRAFTERS AND OMNI JEWELS & JAVA, 2221652 ONTARIO INC. O/A OMNI CASH FOR GOLD, SAMUEL JACOB BERKOVITS and SHEBA BERKOVITS Defendants

AND BETWEEN: 2221652 ONTARIO INC. O/A OMNI CASH FOR GOLD Plaintiffs by Counterclaim -and- HAROLD GERSTEL, ESTHER GERSTEL, 2102503 ONTARIO INC. O/A HAROLD THE JEWELLERY BUYER and ELI OHAYON Defendants by Counterclaim

Counsel: Avi Bourassa and Mark Ross, lawyers for the Plaintiffs/Moving Parties in each action Melvyn L. Solmon and Cameron Whetmore, lawyers for the Gerstel Parties in each action Daniel Naymark, Stephanie Fong and Dillon Collett, lawyers for the Defendants in each action

Heard: In Writing

Endorsement

DIAMOND J.:

[1] Subsequent to the release of my Reasons for Decision on January 27, 2023 (“Reasons”), counsel for the Gerstel parties delivered a letter to my attention (with the express consent of the remaining parties).

[2] In that letter dated February 13, 2023, counsel for the Gerstel parties took the position, respectfully, that the Court had yet to determine three causes of action advanced by the Gerstel parties in their counterclaims in the Murder for Hire action and the Interference action (as those proceedings were referred to in my Reasons).

[3] Counsel for the Gerstel parties further requested that the Court now determine those three causes of action, which were (a) conspiracy, (b) abuse of process, and (c) harassment.

[4] I will briefly address all three causes of action in the above order.

Conspiracy to Injure/Unlawful Means Conspiracy

[5] At paragraphs 238-239 of my Reasons, I stated as follows:

Maria’s claim for conspiracy to injure fails because she cannot prove the first element of the tort. There was no agreement with a common design between Jack and Hosseini. Jack was clearly motivated to have Harold ultimately charged so that Harold/HJB would suffer significant harm and damages leading to Jack “winning the turf war”.

Hosseini was not motivated by any of those things, and simply sought to advance his own personal financial interest. He switched sides several times, all with the hope of getting paid by first Jack, and then Harold. The motivations of Jack and Hosseini were always “two ships passing in the night”, and there never was any common design between Jack and Hosseini to having Maria criminally charged.

[6] Given those findings of fact, Jack and Hosseini never acted in concert, ie. by agreement or design. As such, the first element of both the torts of conspiracy to injure and/or unlawful means conspiracy was never proven on the record before this Court.

[7] The Gerstel parties’ claims for conspiracy are therefore dismissed.

Abuse of Process

[8] The elements of the tort of abuse of process are set out in paragraph 240 of my Reasons. The governing jurisprudence is clear that both the scope and application of the tort of abuse of process is very narrow.

[9] In granting Maria’s claim for abuse of process against Jack, at paragraph 243 of my Reasons I held as follows:

In my view, and as set out above in my assessment of Jack acting with malice, Jack had a collateral purpose when initiating the criminal process against Maria. Not only was Jack interested in ultimately painting Harold with the same criminal brush, he clearly sought to harm Harold’s personal and professional reputation to benefit his own reputation. The fact that Jack gave evidence that he asked Fritz and Pirraglia to hold off announcing the withdrawal of the criminal charges against Maria so that he could pursue his own financial gain by way of a settlement with Harold is clear evidence of such collateral purposes.

[10] My Reasons are replete with findings of fact that the Gerstel parties committed tortious acts toward Jack and the Omni corporations. Unlike the Malicious Prosecution action, there was no collateral objective on the part of Jack and the Omni corporations in commencing that proceeding. Indeed, the Gerstel parties were ordered to pay damages for committing the torts of nuisance and intentional interference with economic relations.

[11] The primary objective of initiating the Interference action was to redress the civil wrongs (found to have factually and legally occurred in my Reasons) visited upon Jack and the Omni corporations. As such, the second element of the tort of abuse of process cannot be satisfied.

[12] The Gerstel parties’ claims for abuse of process are therefore dismissed.

Harassment

[13] As summarized by counsel for the Gerstel parties at paragraph 250 of their original closing submissions:

In Merrifield v. The Attorney General of Canada, 2019 ONCA 205, the Court of Appeal determined that, on the facts of the case before it, there was no compelling reason to recognize the novel tort of harassment, but left open the possibility of creation (sic) tort of harassment

[14] As held in Merrifield, the recognition of a new tort is reserved for “cases whose facts cry out for the creation of a novel legal remedy”. The facts giving rise to the six proceedings before this Court do not even remotely approach the threshold of “crying out for a new remedy”. Simply put, those facts are the distasteful by-product of ignoble actions and conduct on the part of all parties. Accordingly, there is no reason whatsoever to justify the creation of any new tort on the facts of these six proceedings.

[15] The Gerstel parties’ claims for the novel tort of harassment are therefore dismissed.

[16] Absent any agreement between the parties, their respective rounds of written costs submissions are due to be served and filed in accordance with the schedule set out at paragraph 347 of my Reasons, with the time now beginning to run from the release of this Endorsement.

Diamond J.

Released: February 21, 2023