Court 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: Mark Ross and Avi Bourassa, lawyers for the Konstan Parties Daniel Naymark, Dillon Collett and Stephanie Fong, lawyers for the Berkovits Parties in each action Melvyn L. Solmon and Cameron Whetmore, lawyers for the Gerstel Parties in each action
Heard: Written Submissions
COSTS ENDORSEMENT
DIAMOND J.:
[1] At paragraph 347 of my Reasons for Decision released on January 27, 2023 (“Reasons”), I urged counsel for all parties to exert the necessary efforts to try and agree upon the costs of these six proceedings. Unfortunately, but not surprisingly, no consensus was reached and the parties have now served and filed written costs submissions in accordance with the schedule set out in my Reasons.
[2] I have now reviewed all of the written costs submissions filed by the parties. I am using the same names to describe the parties as I employed in my Reasons.
Maria’s Costs
[3] Maria and Jack disagree with respect to Maria’s claim to entitlement. Maria takes the position that she was “fully vindicated at trial”, whereas Jack opposes that submission on the basis that Maria was only successful “on a theory she did not advance”.
[4] I agree with Jack that a substantial allegation put forth by Maria (namely that Jack conspired with Hosseini to fabricate the allegations serving as the foundation for the criminal charges) was not accepted by this Court. Maria’s claims for malicious prosecution were indeed dismissed due to a finding that there was reasonable and probable cause for Jack to initiate the initial criminal process against Maria.
[5] However, Maria’s claim for damages for abuse of process (an alternative theory) was successful, and Jack was found by this Court to have acted out of malice in having Maria criminally charged with the goal of ultimately “roping Harold in” to cause significant harm and damages to his nemesis. Such conduct is reprehensible and deserving of censure in the quantum of costs to be awarded.
[6] In my view, there is no basis to support Jack’s submission that Maria be denied her costs by reason of having “squeaked one out”. On a balance of probabilities, Jack was found liable for intentional misconduct, and ought to be admonished for such behaviour. While this Court clearly did not look entirely favourably upon Maria’s conduct, her actions did not amount to any civil wrong. The same cannot be said for Jack.
[7] I do not accept Maria’s submissions that the provisions in Rule 49.10 of the Rules of Civil Procedure apply, as her Offer to Settle was not served within the required time limits. That said, the fact that Jack was found to have acted intentionally and maliciously is a factor in this Court’s disposition of the costs sought by Maria.
[8] Maria seeks costs of her proceeding on a substantial indemnity basis in the amount of $519,663.62, and on a partial indemnity basis in the amount of $346,940.63. Jack argues that Maria’s quantum is “too high”, and she has refused to disclose dockets, invoices or other supporting evidence to assess the reasonableness of her claimed costs.
[9] While the failure to produce supporting dockets and/or other documents is a relevant factor for the Court to take into consideration, as set out hereinafter Jack is seeking his costs of the six proceedings against Harold in the total amount of approximately $1,900,000.00). The majority of those costs were spent dealing with three of the six proceedings, namely the malicious prosecution/murder for hire action, the interference action and the misappropriation of personality action (the three defamation/liable actions having taken up a nominal portion of the trial).
[10] I cannot see how Jack can possibly complain about the quantum of costs sought by Maria in pursuing the malicious prosecution/murder for hire action, as the bulk of the narrative at trial was focused upon that proceeding, and the findings of fact made in that proceeding set the foundation for most of the other causes of action and defences advanced by all parties.
[11] I have reviewed Maria’s Bill of Costs. She was required to participate in many stages of the six proceedings, not just because the factual narratives were so intertwined, but also because they were all being case managed together by Justice Myers, a process which the parties agreed to, participated in and benefited from for several years.
[12] I do not find Maria’s allocation of work spent on various stages to be unreasonable. Counsel for Maria spent similar time to counsel for Jack for similar stages and events. As put by Maria in her reply costs submissions:
“Taking trial preparation and trial attendance as an example (since they represent the most significant step in the litigation), Maria’s counsel spent 665.3 hours whereas Jack’s counsel spent 3,665.6 hours. Maria’s counsel’s trial-related time represents 18.1% of Jack’s, which is less than the proportion that Jack allocates to the Murder for Hire Action (23%). The time spent by Maria’s counsel was well within Jack’s reasonable expectations, and it does not now lie in Jack’s mouth to try to criticize the hours reasonably spent by Maria’s counsel.”
[13] I agree with this submission.
[14] As held by the Court of Appeal for Ontario in Boucher v Public Accountants’ Council for the Province of Ontario, in determining costs the Court will exercise its discretion by taking the Rule 57.01 factors into account, including the principle of indemnity, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Rather than attempting to carry out an exact measure of the actual costs incurred by the successful party, a costs award ought to reflect what the Court views as a fair and reasonable contribution by the unsuccessful party to the successful party.
[15] The issues in the malicious prosecution/murder for hire action were of moderate to high complexity. However, they were of utmost importance to Maria. It took over a decade for Maria to have her day in court, and in my view her desire to see her litigation through was not only warranted but vindicated.
[16] I am mindful of my responsibility to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of the successful party with the overall goal of fostering access to justice – in other words to fashion an award that is fair and reasonable in all the circumstances.
[17] Having regard to the results achieved and the reasonable expectations of the parties to the murder for hire/malicious prosecution action, in my view a fair and reasonable result is to award Maria her costs of that proceeding against Jack and Hosseini on a joint several basis in the all inclusive amount of $425,000.00.
Harold and Jack
[18] This Court’s disposition of the costs as between Harold and Jack will be much simpler, which is ironic given the layers of convoluted factual narratives created by each of them winding through the six proceedings.
[19] In his costs submissions, Jack spends considerable time urging this Court to conclude that “on the whole”, Jack was the more successful party, and Harold should pay for Jack’s costs on a substantial indemnity basis (or alternatively a partial indemnity basis) given that Jack obtained a more successful outcome than Harold.
[20] For his part, Harold’s primary submission is that no costs should be awarded as between him and Jack (even if Jack may have been technically more successful than Harold), for the principal reason that Jack’s “reprehensible conduct leading up to and during the litigation” should act as the ultimate sanction.
[21] In my Reasons, I made numerous findings which, to say the least, did not look favourably at all upon Jack or Harold.
[22] In his costs submissions, Harold seems to have appreciated and accepted that reality. Conversely, Jack seems to continue to ignore any reality other than the one he seeks to impose upon all around him, including this Court.
[23] This Court made, inter alia, the following findings against Jack:
- He was not credible or reliable.
- He treated the truth as an elastic concept.
- He alleged police officers weren’t being truthful.
- He withheld documents and recordings from the police and the parties to this litigation.
- He gave an irreconcilable and unsupportable version of events by exaggerating, taking liberties, and tendering half-truths to the police when he gave his sworn statement to the police.
- He bordered on obsessive behaviour in trying to “rope Harold in” with the alleged murder for hire plot.
- He sought to intimidate Maria and Harold on numerous occasions.
- He gave evidence surrounding the withdrawal of Maria’s criminal charges that was so unreasonable, this Court found it to be bordering on preposterous.
- He acted out of pure malice in arranging for Maria to be criminally charged on not one but two occasions.
[24] As I stated in paragraph 347 of my Reasons, success was essentially divided between Jack and Harold. Jack argues that a “tit for tat” review of the legal issues pursued and defended in the various proceedings should tilt the balance in his favour. Given the factual findings made by this Court, Jack’s submission is somewhat tone deaf. For Jack to conclude that he was a “success” on any possible standard serves to buttress the findings made against him in my Reasons.
[25] As found by Justice Gray in Ferraro & Son General Contracting Inc. v. Gambino, an attempt to mislead the Court may result in a denial of costs. Both Jack and Harold attempted to do just that, and to award either of them costs would bring the administration of justice into disrepute.
[26] There shall be no costs awarded to either Jack or Harold in the six proceedings.
Diamond J.
Released: May 23, 2023