CITATION: Konstan v Berkovits, 2023 ONSC 497

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: October 26, 28 and 29, 2021, November 1, 3, 4, 5, 8, 12, 15, 16, 17, 18, 19, 22, 23, 25, 29, and 30, 2021, December 6 and 22, 2021, January 4, 5, 6 and 7, 2022; and May 12, 13 and 31, 2022

REASONS FOR DECISION

DIAMOND J.:

Overview

[1] The facts giving rise to these six, separate legal proceedings started back in 2009, escalated significantly in or around mid-2010, and spiraled out of control right up to and including 2014.

[2] Over the course of those five years, what began as a concern regarding competitive business practices between corporations owned by Jack Berkovits (“Jack”) and Harold Gerstel (“Harold”) ultimately devolved into what can best be described as a “blood feud” that brought with it allegations of “murder for hire” plots, direct physical interference with the parties’ respective businesses, criminal charges, defamatory publications and, regrettably, a suicide attempt.

[3] As I will explain hereinafter, most if not all of the salient evidence in these six proceedings is incredulous; both in terms of lacking credibility and reliability, and in forcing this trier of fact to scratch his head almost daily at the sordid nature of the conduct of and the positions taken by the parties from 2009 until the end of this lengthy trial.

[4] As the case management judge assigned to oversee these six proceedings, Justice Myers previously ordered that all six proceedings be tried together by the same trial judge. This decision was made with good reason, as none of the proceedings could have possibly been untangled and determined without the Court receiving “the entire narrative” from the parties and the multitude of witnesses called over the lifespan of this trial. Justice Myers’ Order also allowed the parties to finally air their respective grievances in Court, and hopefully learn from the pitfalls of their unyielding rigidity.

[5] After having presided over this lengthy trial, and spending considerable effort in reviewing the testimony of the parties and witnesses together with the thousands of documentary exhibits, I cannot find any of the parties to be credible or reliable. I cannot accept their respective versions of events, and regardless of whatever truth may exist in the factual matrices presented to the Court, the parties’ collective treatment of the truth as a purely elastic concept rendered this Court’s task of making findings of fact as difficult as it was unenviable.

[6] Before proceeding further in these Reasons, I do not wish my comments to be reflective of the significant efforts undertaken by counsel for all parties. This was no doubt a daunting task for each of them, and the Court was and remains appreciative of those efforts which assisted in streamlining the issues as best as possible in the unfortunate circumstances of these cases.

[7] Each proceeding dealt with a separate cause(s) of action, and I will ultimately address the relief sought in each of those proceedings separately in these Reasons. For clarity, I will use the following terminology as chosen and advanced by counsel for the parties:

ACTION NO.	DESCRIPTION OF PROCEEDING
CV-11-430602	The Malicious Prosecution Action (also the Murder for Hire Action by way of Counterclaim)
CV-11-436825	The Interference Action
CV-12-447394	The Town Crier Action
CV-13-476452	The CFRB Action
CV-13-474051	The Toronto Sun Action
CV-13-483531	The Misappropriation of Personality Action

Assessment of Credibility and Reliability

[8] As the trier of fact, I am charged with determining the truth. On occasion, that task can be rendered unenviably difficult when parties are motivated to offer evidence designed to “fit” within a specific theory of the case. In Prodigy Graphics Group Inc. v. Fitz-Andrews, 2000 CarswellOnt 1178 (S.C.), at para. 46, Justice Cameron offered a non-exhaustive list of traditional criteria by which the evidence of each witness, and, where appropriate, the exhibits tendered at trial, ought to be assessed:

1. Lack of testimonial qualification

2. Demeanour of Witness: apparent honesty, forthrightness, openness, spontaneity, firm memory, accuracy, evasiveness

3. Bias/Interest in the Outcome (if a party, motive)

4. Relationship/Hostility to a party

5. Inherent probability in the circumstances i.e. in the context of the other evidence does it have an "air of reality"

6. Internal consistency i.e. with other parts of this witness' evidence at trial and on prior occasions

7. External consistency i.e. with other credible witnesses and documents

8. Factors applicable to written evidence:

(a) Presence or absence of details supporting conclusory assertions

(b) Artful drafting which shields equivocation

(c) Use of language in an affidavit which is inappropriate to the particular witness

(d) Indications that the deponent has not read the affidavit

(e) Affidavits which lack the best evidence available

(f) Lack of precision and factual errors

(g) Omission of significant facts which should be addressed, and

(h) Disguised hearsay

[9] The assessment of a witness’ credibility is especially important when bearing in mind the onus of proof. As the trial judge, I must decide whether a specific proposition of fact has or has not been established on a balance of probabilities by the party having the onus of proof. For a party to discharge its legal onus of proof, I must first be satisfied with the credibility and reliability of the evidence in order to be in a position to make the relevant findings of fact.

[10] Put another way, a moving party has the onus of factual proof of the evidence necessary to satisfy its legal burden. As stated by Justice Stinson in Zesta Engineering Ltd. v. Cloutier, 2010 ONSC 5810, at para. 65:

In certain instances it is simply not possible to reconcile some aspects of the evidence that was presented by the witnesses at this trial. In part, I liken the situation to attempting to assemble several old jig-saw puzzles whose various parts have sat, co-mingled, in the bottom of an actively-used desk drawer for a decade: some pieces are missing, some are undecipherable, some have changed over time and no longer fit together, and some are not what they seem to be, all due to the passage of time and intervening events. In this case my task is to use the pieces of evidence to re-create as clear a picture of past events as I can given the foregoing limitations, applying the “real test of…truth” as described above, drawing inferences where appropriate, and applying the rules of burden and standard of proof, as required.

[11] In R. v. Gagnon, 2006 SCC 17, at para. 20, the Supreme Court of Canada held that “[a]ssessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.”

[12] In evaluating the credibility and reliability of evidence, I look to a number of interrelated factors such as its probability, logical connection with other findings and support from independent facts or documents. As held by Justice Brown (as he then was) in Atlantic Financial Corp. v. Henderson et al., 2007 CanLII 15230 (Ont. S.C.) at para. 27:

In deciding between these two diametrically opposed positions, I am guided by the observations made about assessing the credibility of witnesses by O’Halloran, J.A. in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) where he stated, at page 357:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[13] As alluded to in the overview of these Reasons, I did not find any of the main parties, including Maria Konstan (“Maria”, an employee of Harold’s) to be credible or reliable. While I will have more to say about this subject when I attempt to make sense of the mostly diametrically (or perhaps “triametrically”) opposed versions of events between Jack, Harold and Maria, the following is a summary of why I did not find any of them to be credible or reliable.

[14] In his examination in chief, Jack sought to come across as a learned, caring and pious man. On occasion during his examination in chief, he seems to conveniently forget certain facts when they did not fit within his narrative. This only worsened during his cross-examination. Jack consistently refused to accept or admit obvious facts or inconsistencies with his evidence in chief, often displaying a cavalier and “holier than thou” attitude towards Harold, various witnesses called by Harold, and even opposing counsel.

[15] Obviously, being cross-examined in a lengthy trial can be stressful, aggravating and impact a witness’s overall demeanour. Nevertheless, the overall impression left with this Court was that Jack wanted the Court to accept all of the facts he deemed helpful to him, regardless of their inherent and objective unreasonableness, inconsistency or lack of common sense. There was very little if any room for deviation from Jack’s narrative, even when documents (such as email correspondence to and from police officers, text messages that appeared to be haphazardly produced from missing legitimate sources, and video evidence) clearly pointed to a contrary narrative.

[16] Harold was not credible or reliable for different reasons. His overall approach to the truth was to consistently adapt his narrative to fit with whatever facts or line of questioning were being put to him, even when those facts were entirely inconsistent with his own sworn evidence (at discovery for impeachment purposes, or at the trial itself). As stated, the truth is not an elastic concept designed to expand or contract to either disregard or include facts as a narrative changes. The truth is static, meant to be unshaken by other oral or documentary testimony. On occasion, it seemed that Harold wanted to leave the Court with the impression that if he was caught in a lie, “at least he was being honest about it”. In other words, Harold wore his proverbial raincoat and just kept walking into the storm of half-truths, all the while seeking “points” for when he (quite often) admitted to not being truthful or accurate.

[17] Harold’s lack of credibility and reliability was also impacted by the testimony of his wife, Esther. While I will have more to say about Esther hereinafter, her efforts to support her husband were transparent, as she was caught “red handed” with blatant inconsistencies between her trial testimony and an affidavit she swore on an ex parte Mareva injunction she brought within family proceedings commenced against Harold in early 2012. While the onus to tell the truth throughout a court proceeding is obvious, there is no higher onus to be truthful than when bringing an ex parte Mareva injunction. An affiant must, without exception, make full and fair disclosure of all material facts. For Esther to candidly admit the contents of her affidavit were knowingly untrue drives a hole through all of her testimony.

[18] Maria was unable to remember answers to numerous simple questions and appeared confused on occasion. She was impeached numerous times with inconsistent sworn evidence given at her examination for discovery. She was very argumentative with opposing counsel several times during her cross-examination. She denied being present outside the store front on Bathurst Street, even when video surveillance showed her there. When the video evidence showed her pulling aggressively on a baby stroller, she claimed she was “petting the baby”. When she was impeached, which happened quite often, some of those areas of questioning covered significant matters in issue, including whether she ever directly threatened Jack (which was part of the foundation for her defence of the Murder for Hire action). Maria denied being present at meetings with Harold and/or Saeed Hosseini (“Hosseini”, an associate of Harold’s whose Statements of Defence were struck out, but whose evidence was nevertheless heavily relied upon by all parties), and yet independent evidence confirmed her presence at such meetings.

[19] Typically, when the Court is faced with inherent credibility and/or reliability problems, it strives to find the truth somewhere between the competing narratives. At the trial of these proceedings, it was extremely difficult for this Court to locate any straight line that could lead to a reasonable interpretation of the actual narrative, which in turn rendered this Court’s task of arriving at reasonable findings of fact to be a true struggle.

[20] I will now attempt to set out what this Court believes to have “most likely” occurred, although most findings of fact barely reached the threshold of a balance of probabilities given the issues and concerns identified above.

[21] I pause to note that in the following extensive recitation of evidence, a large portion of the ensuing narrative appears to originate from Jack’s lens. This is because not only was Jack in the witness box for much longer than Harold or Maria, but also because most of the “thrust” of the facts either giving rise or in response to all six proceedings was advanced by Jack – including his defence of Maria’s malicious prosecution claim.

How did it all Start?

[22] Both Harold and Jack were born into and remain members of the Toronto Orthodox Jewish community. A large percentage of that community resides, carries on business and congregates in the area near the intersection of Bathurst Street and Lawrence Avenue.

[23] Jack was educated as an accountant, but many times during his testimony he professed to be a very learned Jewish scholar, something approaching the status of a Rabbi. He has hosted a radio show on CFRB Toronto, but his primary source of income is derived from his extensive experience in the jewellery business. Jack has worked in several capacities within the jewellery industry for nearly 45 years. Through various corporations, some of which are parties to these proceedings - 1539058 Ontario Inc. (“153”) and 2221652 Ontario Inc. (“222”) - Jack has owned and operated Omni Jewelcrafters (“Omni”) since 2002.

[24] In or around November 2003, Jack launched Omni’s second location at the northeast corner of Bathurst Street and Glencairn Avenue (“Omni Glencairn”). Within that location, Omni has and continues to operate a jewellery retail store together with a Kosher restaurant, managed and overseen by Jack’s wife, Sheba Berkovits (“Sheba”).

[25] Harold has worked in a subset of the jewellery industry for nearly 30 years, namely the “Cash for Gold” business (“CFG”). He is a proprietor of a business known as “Harold the Jewellery Buyer” (“HJB”), which operates in various locations throughout the greater Toronto area, and through corporations owned by Harold, his wife Esther and/or the corporate party 2102503 Ontario Inc. (“210”). Harold is known for his extensive TV advertising in the greater Toronto area as a purported leader in the local CFG industry. In 2007, Harold opened an HJB store on the west side of Bathurst (“Bathurst location”), a few units south of Glencairn Avenue (more or less kitty corner to the Omni Glencairn store).

[26] The evidence disclosed that, at most, until approximately 2009, Jack and Harold were known to each other and acquaintances within the Toronto Orthodox Jewish community. However, both of them testified that they were never friends. Jack and Harold were aware of each other’s businesses. Of note, when HJB began operating in the Bathurst location (kitty corner to Omni), Omni was not in the CFG business but operated solely as a jewellery retail store.

[27] Maria is presently 82 years of age. At the time of the events giving rise to these legal proceedings, Maria was in her 70s and worked for Harold at the Bathurst location. Maria lived most of her life in a home near Bathurst Street and Fairholme Avenue (south of Lawrence Avenue). Prior to working for HJB, Maria was principally a housewife but had held down a few jobs in the sales and bank industries.

Direct Competitors - the Feud Begins

[28] While Harold and Jack were not personally close, they and their respective businesses co-existed within the same intersection of Bathurst Street and Glencairn Avenue. That status quo was altered forever once Jack decided to expand the scope of Omni’s services to include a CFG business.

[29] Jack began advertising that Omni now carried on a CFG business in all of its locations including the Glencairn store. Understandably, when Harold saw advertising signs go up at the Omni Glencairn store, he was concerned because until 2009, his HJB store was the primary, if not the only, CFG operation in the surrounding area. Harold admitted that he was concerned that he would incur a significant loss of business. Harold gave evidence that he had expended millions of dollars in advertising costs each year to establish his reputation and “spot” within the CFG industry. There was no real trial evidence to the contrary to counter Harold’s evidence in terms of the amount of advertising costs he had incurred.

[30] Harold and Jack then spoke on the phone. This is likely the last time they spoke directly to each other again. According to Jack, Harold told him in that phone conversation that Jack would be “hurt” if the Omni CFG advertising signs were not taken down. Curiously, when Jack ultimately went to the police to give a sworn statement (detailed later in these Reasons), he did not mention anything about Harold threatening to hurt him. What Jack did tell the attending police officers was that Harold told him “I’ll teach you a couple of things” if the Omni CFG advertising signs were not removed.

[31] In any event, the exact contents of the phone conversation are less material and more corollary to the main findings: namely, (a) Harold was upset with Jack entering the CFG business and putting up advertising at the Omni Glencairn store, and (b) Jack refused to back down when Harold approached him about same.

[32] Interestingly, Jack viewed Omni as a “straight business” while thought that Harold and his CFG shop was “embarrassing to fellow Jews” due to his “shady” approach to conducting business. Jack admitted on cross-examination that the erection of CFG signs would “teach Harold a lesson” and fix the perception that potential CFG clients would have of Jews, thanks to dealing with a reputable business like Omni. Yet, at the same time, Jack considered the Omni customers to be of a “different ilk” than Harold’s customers.

The Feud Explodes

[33] Once Jack and Harold’s relationship soured, and they chose to maintain their respective positions, the floodgates opened. I will try to summarize the relevant and important events which took place between Jack and Harold, and also Maria, from early 2010 until early 2015.

[34] What in fact unfolded was a full-blown turf war. Unfortunately, the casualties of this war were honesty, decency, reasonableness, respect and dignity.

(a) The Sandwichboarders

[35] In response to Jack opening up a CFG business at the Omni Glencairn store, Harold clearly and admittedly went on the offensive. Harold hired several individuals to advertise for HJB by wearing “sandwichboard” signs. These individuals would effectively loiter within the intersection of Bathurst and Glencairn, patrolling the streets to divert customers from Omni back to HJB.

[36] There was evidence at trial that a number of these individuals were homeless people who resided in shelters or were suffering from drug addiction or other mental health issues.

[37] Maria confirmed that Harold commenced this sandwichboarder campaign in response to Omni’s advertising signs, and that Harold was the one who provided the sandwichboarders with their instructions (although Maria claimed to not know what those instructions were).

[38] According to Harold, he told the sandwichboarders to approach people to find out if they were looking for HJB. If customers were walking towards Omni then Harold had no problem with the sandwichboarders approaching them to “make sure” they weren’t in fact looking for HJB.

[39] There was so much evidence tendered at trial with respect to the number of sandwichboarders, their location, what they in fact did, and how often. Multiple witnesses were called on these subjects, and there were so many different versions of events surrounding these issues that it became practically impossible for this Court to make definitive findings of fact.

[40] While video surveillance and trial testimony certainly confirmed the presence of the sandwichboarders, the extent of their activity is heavily disputed. That said, their presence was obviously designed to interfere with Omni’s ability to attract and/or maintain customers for its new CFG business, and frankly other potential Omni customers (i.e., for retail jewellery). Harold appeared to feel justified in hiring and employing these sandwichboarders, as in his mind all he was doing was ensuring that people who came to look for HJB were directed to his store. This was a rather simplistic view of the cause and effect of his own decisions. Not only were the sandwichboarders found outside (and on occasion inside) the Omni Glencairn (and later the Omni Fairholme store), but their presence alone at the intersection of Bathurst Street and Glencairn Avenue was anything but a typical “sales technique”. Harold denied the presence of sandwichboarders on the northeast corner (i.e., the Omni Glencairn store), but other witnesses confirmed that Harold would ensure 1-2 sandwichboarders would patrol both sides of Bathurst Street, including one on the northeast corner. It is unclear how often sandwichboarders placed themselves outside the Omni Glencairn store, but the intention was to both encourage people to go into HJB and discourage people from taking their business to Omni.

[41] Things intensified after Jack opened a second CFG store near the intersection of Bathurst Street and Fairholme Road (“Omni Fairholme”). Due to a fire at the original HJB location, Harold relocated HJB to a store only a few doors south of where Omni Fairholme began to operate (i.e., both HJB and Omni were effectively now in the same plaza). Both Jack and Harold seemed to intimate during the trial that perhaps the other was fully or partially responsible for the original HJB location burning down. There was insufficient evidence for this Court to come to either conclusion.

[42] There was much evidence at trial from both Harold’s side and Jack’s side surrounding who first secured a unit at this new plaza. Jack testified that he obtained the consent of the landlord for Omni Fairholme sometime in or around January 2010. Harold purchased a unit in the same plaza in late April 2010, with a closing date in mid-May 2010. Harold claimed that Jack followed him to the plaza on purpose to continue to profit off new and existing HJB customers.

[43] Jack produced a copy of a purported offer to lease dated April 2010 (months after Jack supposedly secured the Omni Fairholme unit). The document is certainly not a typical offer to lease, and there is additional written evidence that the Fairholme unit was subject to an objection in favour of the previous tenant until the end of February 2010. Harold was adamant at trial that Jack somehow found out about HJB moving to the Fairholme location, and only afterwards (i.e., sometime after late April 2010) did Jack approach the landlord of the Fairholme unit, who was his friend, to commence lease negotiations. Harold submits that the purported offer to lease was backdated. Even though the landlord was a friend of Jack’s, the landlord was not called to testify, which could only lead to this Court potentially drawing an adverse inference. What is certain is that no formal, executed lease for the Omni Fairholme unit was ever tendered into evidence at trial.

[44] In any event, the sandwichboarders extended their patrolling of Bathurst Street to the Omni Fairholme store. Video surveillance and testimony from various Omni employee witnesses confirmed that there were anywhere between two to five sandwichboarders in front of the Omni Fairholme unit, and also often in the rear parking lot of the plaza (which has specific spaces earmarked for Omni Fairholme customers).

[45] There were many witnesses who confirmed the presence of sandwichboarders, although it is truly unclear how many were there on any given day, what specifically they did, and what impact upon Omni’s day to day business operations they had.

[46] Common themes among the various employee (and some independent witnesses) were that the sandwichboarders would typically interact with anyone seemingly approaching the Omni Fairholme unit with an attempt to divert them to HJB or at least confuse them to prevent them from entering Omni. While there will be more to say about Maria later in these Reasons, she herself wore a sandwichboard on a few occasions and walked outside the Omni Fairholme store along Bathurst Street. According to Maria, Harold told the sandwichboarders (of which she was one) to ensure that customers were heading to HJB and not Omni.

[47] Most of the time, anyone walking towards the Omni Fairholme store would be asked by a sandwichboarder if they were “looking for HJB”. Their presence alone created tension and discomfort for existing and potential Omni customers. Of note, Jack instructed his Omni employees to maintain daily business reports to keep track of the number of sandwichboarders and the tactics they employed. Those records varied from day to day, but the presence of sandwichboarders in some capacity was an arguably consistent event.

[48] One example of “missing evidence” was quite demonstrative to this Court. At trial, it became apparent that Harold literally picked and chose what surveillance footage from outside the HJB store he was willing to produce. This included additional available (but not produced) footage from a camera he surreptitiously set up from a restaurant on the other side of Fairholme Avenue. Despite taking positions throughout these proceedings that no such footage existed any longer, during the trial and after Jack’s evidence was completed, Harold decided to produce video surveillance which, to this Court’s view, appear to be “cobbled together” and inherently unreliable.

[49] That video surveillance footage was obviously cobbled together from a greater pool of available footage. None of the original “source footage” was ever produced and this Court can only draw an adverse inference against Harold that the footage would not have been helpful to his case. This is especially so when Harold undertook on his examination for discovery to produce any relevant video footage in his possession, but failed to do so.

(b) The Fairholme Parking Spots

[50] HJB employees, and even Harold, would on occasion use their own vehicles to block (a) the parking spots close to the Omni Fairholme stores, and (b) the laneway through which existing and potential Omni customers could access the parking lot. There was parking available in the back and on the side of the Omni Fairholme unit. According to independent witnesses, Harold had his or another car parked on the side street at least 90% of the time.

[51] The entrance to the Omni Fairholme parking lot was often blocked by Harold and/or his employees. In response, Omni Fairholme employees called the police to ensure that parking tickets were issued as leaving cars in that spot were contrary to the governing by-laws.

[52] Harold employed an individual named Eli Ohayon (“Eli”) who constantly rode a bicycle around the Omni Fairholme building. Video surveillance showed him riding very close to individuals walking on Bathurst Street and in the Fairholme parking lot. Eli was asked by Harold to “bring in Harold’s customers”. Some independent and employee witnesses testified that Eli rode towards them while staring at them, and only swerved to avoid making contact with them at the last minute.

(c) The Impact upon Omni

[53] There was evidence from Omni customers and staff about the impact of Harold’s efforts upon Omni’s business and reputation. Customers would come inside Omni and ask Omni employees why the sandwichboarders were outside, and why Omni could not simply call the police to get rid of them. One witness gave evidence that “you would close your grip on your daughter when you walked by them”.

[54] None of the Omni customers appreciated the sandwichboarders. Some customers would find the sandwichboarders very offensive, while others ignored them. Jack gave evidence that some customers told him that they even felt violated. Some customers were persuaded to not enter the Omni Fairholme unit, and in fact took their business to HJB.

[55] There was evidence from an Omni employee that he was told by a customer (clearly hearsay) that sandwichboarders had advised her that the Omni Fairholme unit had in fact closed.

[56] This Court heard evidence from Rocco Catalano (“Catalano”, an Omni customer) that a man on a bicycle had stopped Catalano outside Omni and convinced him to go to HJB. When he went to HJB, he found the prices too high and tried to leave, but Harold would not let him physically leave the store (by not pressing the button to unlock the front door) until Catalano threatened to call 911.

[57] Omni employees spent a huge percentage of their time dealing with the sandwichboarders and other efforts to interfere with Omni business. Sandwichboarders told Omni employees that they were stupid and should not even be in the neighbourhood (presumably because they were not of the Jewish faith).

[58] Morale among Omni staff was quite negative as a result of the presence of the sandwichboarders. As one Omni employee (Chellsey Blundell) put it, “it sucked working alongside Harold’s employees”. She stayed inside most of the time because she did not feel comfortable outside the Omni Fairholme unit.

[59] There was additional evidence from Omni employees that having to deal with the sandwichboarders was disturbing, unpleasant, embarrassing, humiliating and threatening. Some of the sandwichboarders blocked access to the front door by parading outside the store. On occasion, they actually came into the Omni Fairholme unit to intimidate the Omni staff, and appeared “thuggish”.

[60] Jack was forced to have his employees go on the offensive in order to defend the Omni business. Jack hired his own “sandwichboarders” with signage to try to attract customers and bring them back into Omni. The Omni sandwichboarders were there for no more than one month, and they were instructed not to go in front of HJB but to simply ensure that customers looking for Omni were brought into the store.

The Unknown Text Messages

[61] Jack gave evidence that during the month of June 2010, he received what he described as “threatening and disturbing text messages” from an unknown number, or at least a number with which Jack was not familiar. Jack’s evidence was that he learned from Telus that the phone in question was a recently activated “pay as you go” phone, and the phone was registered to a man named “Harold”.

[62] Only four of these text messages were ever produced by Jack, and the ones that were produced are in an unusual format: the texts were copied and pasted into another document. Why would a Telus representative advise Jack (or Jack’s son-in-law who apparently was the individual that contacted Telus), and inform a third-party stranger of the identity of an alleged cell phone account? This seems to defy logic in the face of obvious privacy concerns. Further, why would a customer service representative provide the name of any account holder? Indeed, evidence from a Telus representative was tendered at trial, and that evidence confirmed that Telus’ privacy policy would preclude releasing any such information (i.e., the name of an account holder) to a third party.

[63] When Jack ultimately went to the police (described later in these Reasons) he advised them that the text messages were received from an “untraceable phone”. How was it untraceable if his evidence was that he knew it belonged to someone named “Harold”?

[64] Ultimately the Telus representative confirmed that the phone was in the name of someone named “Harold Walker”. How would Jack or his son-in-law have known this name if Telus was legally forbidden from disclosing this information to any member of the public?

[65] Harold and Maria urged this Court to find that the text messages, if they even existed, were sent from a phone registered and/or initiated by Jack as part of his overall scheme to “bring Harold down”. While such a finding is possible, I do not find that it meets the “balance of probabilities” standard as it just does not seem plausible that Jack would be technically capable of arranging for same. Whether Jack is morally capable of arranging for same is a different question altogether.

The July 16, 2010 Altercation

[66] As stated, Maria was employed at the relevant time by Harold/HJB. Maria met Jack for the first time while she was wearing a sandwichboard and patrolling Bathurst Street. She said that Jack came out of the Omni Glencairn store and introduced himself as the owner of Omni.

[67] Harold gave evidence that Maria definitely had a temper and a dislike for Jack almost from their first encounter. Once the feud between Jack and Harold escalated, Harold confirmed that the animosity between Maria and Jack also escalated, and there were “flare-ups” whenever Jack and Maria had interactions in the Bathurst and Glencairn area. Verbal insults were exchanged between them on several occasions, and things often “got heated”. Maria gave evidence that she believed she was defending Harold’s business and livelihood.

[68] The evidence surrounding the verbal altercations between Jack and Maria is inconsistent amongst the various witnesses, but more importantly displayed a level of childishness and immaturity in two older individuals. This Court encountered difficulty understanding what drove the level of animosity between them. Maria had no stake in HJB other than her employment position. While Jack was understandably upset about the presence of sandwichboarders outside and/or near his places of business, the level of personal insults launched at Maria leaves this Court scratching its proverbial head.

[69] In any event, and like most of the events between 2009-2015, things further escalated between Jack and Maria, culminating in an incident when Jack and Maria had a verbal altercation in the street, after not having (ironically) interacted for several months. According to Maria, she was walking south on the east side of Bathurst back to HJB, around mid-day after purchasing items at a local fruit market. She stopped at the Glencairn crosswalk so she could walk from east to west, and then heard loud repeated honking from a vehicle stopped at the intersection. She testified that she was angry because she saw that Jack was the one honking from his car. She assumed that Jack wanted to speak to her, and his car was about three cars back from the intersection.

[70] Maria testified that she approached Jack’s car and asked why he was honking at her, and whether it was because Jack wanted to tell her that he was going to destroy Harold. Maria said that Jack told her that he would first destroy her, and then Harold. Further words were exchanged while Maria was standing in the middle of the intersection, and then she made her way back to the crosswalk.

[71] According to Jack, the interaction took place at approximately 12:00 pm. Jack admitted to honking at Maria, but he gave evidence at trial that it was Maria who yelled at Jack to let him know that she and Harold would destroy him and that “we’re going to take you down”.

[72] Jack was impeached during his cross-examination as he did not report any threats from Maria when he was examined for discovery in these proceedings.

[73] For her part, Maria gave evidence at trial that Jack also made a sexual comment to her (something about Jack showing her “a real good time”). Maria was however also impeached as she never mentioned this sexual comment during her own examination for discovery.

[74] This Court also heard evidence from Miriam Kaiser (“Mariam”), a long-time family friend of Jack and Sheba, who testified that she was on the phone with Jack during the incident, and overheard the exchanges between Jack and Maria. She gave evidence that she heard a woman screaming vulgar things, including “you’re going down … Harold’s taking you down … you are a dead man”. Miriam recalls Jack then telling her that he had to go and hanging up the phone. While Miriam appeared to be a credible witness, her evidence on this point is less than reliable as the incident took place 11 years prior to her testimony, and Jack never mentioned in his examination for discovery that he was on the phone with another individual during the altercation.

Saeed Hosseini

[75] After the car altercation described above, Maria returned to HJB. The seeds for the alleged “murder for hire” plot were planted at a meeting that same day at HJB among Harold, Maria and Hosseini. Before assessing the evidence relating to the alleged “murder for hire” plot, it is important to recount the evidence at trial relating to Hosseini. His pleadings were struck, and he never attended examination for discovery or the trial of these proceedings (leaving the parties with an affidavit Hosseini swore, a transcript from the cross-examination upon that affidavit, and his sworn statement given to the police, to be described later in these Reasons).

[76] By all accounts, Hosseini was an imposing and intimidating figure, with a martial arts background. There was evidence that he even competed (on at least one occasion) in the early days of the Ultimate Fighting Championship league.

[77] Harold gave evidence that he met Hosseini before opening HJB, when Harold was employed at Oliver’s Jewellery. Harold said he next saw Hosseini in May 2010 when he came to HJB looking for work. Harold told him to call back in July 2010 after he moved to the new Fairholme location. Harold admitted paying Hosseini to do “surveillance work” on the Omni Fairholme store on two or three occasions, sending Hosseini to track how many people were going in and out of the Omni Fairholme unit. On at least one occasion, Harold gave Hosseini jewellery to sell to Omni Fairholme, presumably to compare Omni’s prices and business practices with those of HJB.

[78] Maria testified that she was in fact afraid of Hosseini, but Harold never hired him to collect money on behalf of HJB.

[79] Hosseini was a man with several criminal convictions, including convictions for crimes of dishonesty. Some independent witnesses described Hosseini as someone hired to “make sure no bad guys came into the HJB store”. According to Esther, Hosseini was hired to be a security guard for HJB.

[80] Other independent witnesses testified that they had the impression that Hosseini worked as Harold’s “debt collector”. Harold denies this contention.

[81] Prior to July 16, 2010, Harold had seen Hosseini four times earlier that same month. However, he only knew this to be true after checking the surveillance footage from his Fairholme store (this footage was not produced until trial).

[82] On cross-examination, Maria admitted to speaking to Hosseini every time he went to spy on Omni Fairholme to ask “how it went”.

[83] Harold gave evidence that he had spoken with Hosseini about a plan to entrap Jack by tricking Jack into buying stolen gold, and that there were actual conversations about “harming Jack”, but “broadly speaking”.

[84] There was much debate between counsel over the issue of whether Hosseini’s evidence (be it his affidavit and cross-examination transcript, or the sworn statement given to the police officers) was admissible, or whether it could be afforded any weight by this Court in fulfilling its task to make findings of fact.

[85] Even if all of Hosseini’s evidence was somehow admissible (which it clearly is not), it should be afforded zero weight. Hosseini was described by all as an unsavory character, and he has been convicted of being dishonest on several occasions on the standard of beyond a reasonable doubt.

[86] What is clear to this Court based on the evidence at trial is that Hosseini was in fact intent on furthering his own interest, and only his own interest, practically switching his story (and sides) as needed to further those interests. It is truly unfortunate that the parties could not realize what was in fact happening – Hosseini was playing all sides off the middle.

[87] This Court sees no need to embark upon a detailed legal analysis about whether all or part of Hosseini’s evidence can be held admissible against any of the parties to this litigation, for the sole reason that on any objective standard, Hosseini’s evidence is simply not credible or reliable.

[88] While I have accepted on occasion that Hosseini made the statements he is said to have made, or did the things that he is said to have done, I do not rely upon anything Hosseini said or did for the truth of their contents or accuracy.

“Murder for Hire” Meeting

[89] As stated, after the car altercation, Maria returned to HJB. She gave evidence that she had a subsequent conversation with Harold, but Hosseini (who was in the room) was not part of that conversation and she never spoke with him directly. Video surveillance footage produced by Harold at trial shows that Maria was either mistaken or more likely lying about this incident. Maria clearly spoke directly and at length with Hosseini during that meeting.

[90] In her trial testimony, Maria said that she told Harold she was upset after her altercation with Jack, but no discussions about harming Jack or Omni ensued.

[91] During his evidence given on examination for discovery, Harold stated that while Maria came back to the HJB store upset after her altercation with Jack, Hosseini was never at HJB and Harold and Maria spoke alone. Obviously, Harold had to change his story once he produced the video surveillance footage, as it was clear that an extensive discussion took place between Harold, Maria and Hosseini on that date. In trying to explain his complete change of stance, Harold offered that he “made a mistake”.

[92] It was Hosseini who in fact led Maria back into the HJB store after her car altercation with Jack. Harold testified that Maria was very unhappy and “may have said some nasty things about Jack”. At some point during the conversation, Harold testified that Maria said, “she wouldn’t be unhappy if something bad were to happen to Jack”.

[93] There is no audio from the video surveillance footage produced by Harold. In his subsequent sworn statement to the police, Hosseini gave evidence that Maria wanted Jack destroyed, and asked Hosseini to name a price in exchange for breaking Jack’s legs. Ultimately, he said that a few days later, she offered him $50,000.00 to shoot and kill Jack. Harold denies hearing Maria say anything about “breaking Jack’s legs”.

[94] When asked whether she ever offered Hosseini any money to carry out any violent act against Jack, Maria denied doing so but admitted that she and her husband “probably had $25,000.00” available.

[95] During her cross-examination, Maria said that at one point, she made a joke a along the lines of “somebody should break that guy’s legs”, referring to Jack. She was adamant that it was not a serious comment at all.

[96] Without the benefit of the audio from the video surveillance footage, it is difficult for this Court to conclude what, if anything was said during the July 16, 2010 attendance at HJB about any violent act to be carried out against Jack. Based upon the totality of the evidence, and in particular Hosseini’s changing stories after July 16, 2010 (and Jack’s inconsistent and on occasion inexplicable subsequent conduct to be described below), what most likely occurred was that Maria did say something about Jack deserving his legs to be broken, but I do not find on a balance of probabilities that any actual threat, or murder/violence for hire, was discussed.

Hosseini goes to see Jack

[97] After his interaction with Maria, Jack went to Omni Glencairn and described himself as “fearful”. He was told by his staff that he had an appointment at the Omni Fairholme store. Jack proceeded to go to the Omni Fairholme unit.

[98] Around that same time, in the afternoon of July 16, 2010, Hosseini came into the Omni Fairholme store, indicating to the employees that he had a lot of gold and wanted to speak to the “person in charge”. Jack went with Hosseini for lunch. Jack had never seen Hosseini before but found him to be very intimidating. They met at the King David pizza restaurant on Bathurst Street, because Jack said “he wanted a public place for safety purposes”.

[99] Jack testified that Hosseini told him that Hosseini was an “enforcer” hired by Harold, and that Jack was in danger. Hosseini told Jack that he had heard about his altercation with Maria earlier in the day, and Jack would definitely be harmed. Hosseini then went on to state that the job he was hired for by Maria was to “harm Jack very badly, starting with breaking his legs and possibly worse”. The contract price was $25,000.00 down, and $25,000.00 on completion of the job.

[100] Jack gave evidence on cross-examination that he was not sure about the exact words used by Hosseini, or whether Hosseini said he was actually hired to kill Jack. As Jack was in shock, he could not be certain.

[101] According to testimony from an Omni Fairholme employee, Jack “looked like he had seen a ghost” on July 16, 2010.

The Police Station

[102] After leaving the King David pizza restaurant, Jack returned to the Omni Fairholme unit and advised his staff that Hosseini told him he was hired to harm Jack. Jack then went straight to see the police at 13 Division. When he arrived, he met the receptionist and asked to see a detective as someone was “trying to kill him”. Jack gave evidence that he was told to sit down as there were other people waiting to see police officers. Jack’s evidence relating to his attendance at the police station was confusing at best, as he had previously stated under oath that when he went to 13 Division, there was no actual threat to kill him, just harm him.

[103] There was evidence from police officer witnesses at trial that, in the event an individual told a police receptionist that his/her life was in danger, especially given the fact that a hit man had just reportedly confessed to being hired to harm him/her, that individual would not be sent home as his/her life was in danger. Yet that is exactly what Jack described took place at the police station; he waited so long that nobody attended to his request, and he left to return to the Omni Fairholme store.

[104] Jack then returned to the police station, and he finally saw a sergeant on his third visit there that day. Jack was told that the police would come to visit him at his home.

[105] Of note, Sonia McNardy (“McNardy”, the individual who worked at the 13 Division front desk) gave evidence that if someone had come into 13 Division advising that his/her life was in danger, she would never have let that individual leave the station, and instead would have arranged for a police car to return to the station right away to deal with the matter. This of course never happened. Further, McNardy also gave evidence that if someone attended 13 Division complaining of having received harassing text messages, she would have arranged for a radio call requesting officers to investigate the matter; this appears to have been what occurred.

The Police Officers visit Jack at Home

[106] Jack then left 13 Division again and went home. He told Sheba about his conversation with Hosseini. In her testimony, Sheba described Jack as “very traumatized and distraught”.

[107] While waiting for the police to arrive, Jack called Hosseini (as Hosseini had given him his cell number) and told Hosseini that he had attended 13 Division to file a report, but he “left Hosseini’s name out of it”. Jack did not attend synagogue on Friday night (which for him was very out of character). He stayed home and went to bed because he was scared.

[108] Two police officers arrived at Jack’s house at approximately midnight. They initiated the visit based on the front desk complaint being described as a “walk-in”.

[109] According to Jack, he told the police officers about the threatening text messages he received, his past conflict with Maria and HJB, and his interaction/discussion with Hosseini. According to Sheba, the police were there for approximately one hour and she stayed upstairs the whole time. She recalls Jack telling the police officers that he was afraid for his life and that he relayed what Hosseini had told him.

[110] The two attending officers testified at trial. Based upon their notes taken contemporaneously with the attendance, Jack had been “harassed” by Harold, but there was nothing in either officer’s notes about any “murder for hire” plot.

[111] The notes were written at the time or shortly after the visit. Jack gave evidence that the police notes could be inaccurate because they did not write them down while they were speaking to him.

[112] According to the police officers, their notes were accurate and complete as to all material matters which took place during the visit at Jack’s home. To the best of the police officers’ recollection, Jack made allegations of threats being advanced to him, but he could not access the text messages for the police officers to review due to the visit falling on the Sabbath.

[113] The police officers did not recall any mention of “kill” or “legs being broken” or “business being burnt down”. They testified that if any of those terms had been mentioned, those terms would have definitely been in their notes. Such words, or allegations, would have been “pretty serious” and would have “definitely been noted down”.

[114] The police officers advised Jack to call back or contact the police after the end of the Sabbath when he could access his phone. It was Jack’s responsibility to follow-up with the police, and not the other way around, because according to the police officers “there was no report…nothing to follow up on”.

[115] Ultimately, Jack did receive a phone call from Detective Ted Fritz (“Fritz”), who ultimately oversaw the entire police investigation initiated by Jack and Hosseini. Fritz told Jack to come in to 13 Division the following Wednesday to give a sworn statement.

Jack and Hosseini give Sworn Statements

[116] On July 20 and 21, 2010 respectively, Hosseini and Jack gave separate, sworn statements to the police. Prior to those attendances, Jack and Hosseini spoke on the phone several times. Jack recorded at least two of those phone calls he had with Hosseini, but those recordings were not provided to the police. During one of those phone conversations, Hosseini effectively promised Jack that the police would arrest and charge Maria with attempted murder and that she would be going to jail for 25 years. While I will have more to say about Hosseini’s motivations later in these Reasons, as stated it was obvious from the outset that Hosseini was looking to play all sides off the middle, as evidenced by his ever-changing accounts of what Maria allegedly hired him to do and when, and his subsequent requests for payment of money from Jack.

[117] Jack was extensively cross-examined upon the contents of his sworn statement (which were also videotaped, and those recordings were tendered as trial exhibits). This Court has reviewed the video of Jack’s and Hosseini’s sworn statements several times since the trial was completed. To begin, and not surprisingly, virtually all of Hosseini’s sworn statement is neither credible nor reliable, replete with internal and external inaccuracies (both with Hosseini’s own subsequent sworn affidavit evidence and cross-examination, and Jack’s own evidence in his sworn statement, examination for discovery, and trial testimony).

[118] Significant portions of the story Jack gave in his sworn statement were also not credible, and in this Court’s view stood as evidence of a desire on Jack’s part to use the allegations conveyed to him by Hosseini for the purpose of ruining his competitor and nemesis Harold through the initiation of criminal proceedings against Maria.

[119] Beginning with Hosseini’s sworn statement, the following is a summary of the “highlights” (or more accurately “lowlights”) of that statement:

• After telling Hosseini about her interaction with Jack at the intersection of Bathurst Street and Glencairn Avenue on July 16, 2010, Maria immediately asked Hosseini to break both Jack’s legs (i.e., not to kill him or otherwise harm him), and asked Hosseini to “name his price”. Hosseini did not mention anything about Maria offering him $50,000.00 by way of two $25,000.00 instalments.
• Even prior to the July 16, 2010 car interaction with Jack, Maria had mentioned on a daily basis doing harm to Jack and/or burning down the Omni stores. This was never shared with Jack.
• On July 18, 2010, two days after the initial request to break Jack’s legs, Maria told Hosseini at HJB that she now wanted to have Jack killed and shot, by way of a $50,000.00 payment with $25,000.00 up front and $25,000.00 upon completion of the job. In other words, according to Hosseini’s police statement, the “murder for hire” plot did not materialize until July 18, 2010. This runs completely contrary to Jack’s evidence of what Hosseini had told him on July 16, 2010, and may explain the contents of the police officers’ notes.
• When Maria approached Hosseini at HJB, Harold could hear them and was at the back of the store, 10 feet away with no wall separating them. Video surveillance footage showed that this was not true or accurate in the slightest.
• Hosseini recounted that he had spent six to eight hours a day, every day for two weeks, with Maria leading up to July 18, 2010. Again, the video surveillance shows this allegation to be false.
• Hosseini told the police officers that when Maria asked that Jack be killed, she was red faced and pointed her hand like a gun. This could only have happened on July 18, 2010, but there is no such hand gesture in the video surveillance from that day. Maria made some type of gesture (which Jack insisted was a “smoking gun” gesture) during the July 16, 2010 video surveillance, but as stated above, there was no alleged request to kill Jack on that date.
• Most importantly, Hosseini told the police that he had not told Jack what Maria was plotting, just that Jack should be careful. This is completely irreconcilable with not only Jack’s trial evidence, but Jack’s own sworn statement as he was apparently well aware what Maria had been allegedly plotting by July 21, 2010.

[120] When Jack gave his own sworn statement to the police, he prefaced his account of the discussions he had with Hosseini with a summary of being “peppered” by Harold with nasty and threatening text messages for the entire month of June 2010. Jack then described his altercation with Maria on July 16, 2010, and told police that Maria was screaming obscenities at him, saying “you’re about to go down … you’re finished”. Jack told the police that he thought he was “going to be put to death” as Maria had threatened to kill him. This was certainly an exaggeration of both (a) what Maria said during the car altercation, and (b) how Jack felt before meeting with Hosseini.

[121] Interestingly, Jack described himself as being “extremely suspicious” of Hosseini, and said he was worried that Hosseini was “a plant of Harold’s”. If Jack truly believed that Hosseini could not be trusted, any such alleged concern effectively disappeared in an instant as Jack placed virtually all his reliance upon Hosseini in support of his desire to have criminal proceedings initiated.

[122] Jack told the police that during his July 16, 2010 discussion with Hosseini, he was told by Hosseini that he was hired to break Jack’s legs at a minimum, and “take him out” at a maximum. That is inconsistent with other evidence given by Jack in this proceeding. This timeline does not make sense. Hosseini was allegedly only told about the plot to kill Jack on July 18, 2010. Jack told the police that Maria hired Hosseini to kill him on July 16, 2010, and he learned this from Hosseini on July 16, 2010. This is simply irreconcilable, and not believable.

[123] When describing what he told the two police officers who attended at his house on July 16, 2010, Jack described “giving them some of this” (i.e., what he was relaying in his sworn statement). Such a statement is troublesome; if Jack’s life was truly in danger, or even if physical harm was being threatened, why would he give the attending police officers “some of this”, especially when he went back and forth three times between Omni and 13 Division to report what Hosseini had told him in the first place?

[124] On a few occasions, Jack suggested to the police officers that Maria was not an employee at HJB, but in fact Harold’s partner. There was no evidence to support this – then or now.

Maria is Charged

[125] After both Jack and Hosseini gave their sworn statements to the police, very little, if any, further investigation was carried out by the police before criminal charges were laid against Maria.

[126] Maria was in fact arrested mere hours after the conclusion of Jack’s sworn statement during the late evening of July 21, 2010. Neither Maria, Harold (nor anyone else for that matter) was ever contacted or interviewed by the police prior to Maria being arrested.

[127] It is unclear what steps the police officers took to review and/or reconcile the inconsistencies between the sworn statements given by Jack and Hosseini. What is known is that only hours passed between Jack leaving 13 Division and Maria being arrested and charged.

[128] In any event, on the evening of July 21, 2010, Maria went to bed and was awoken (along with her husband) by knocking at her front door after midnight. When she answered the door, three police officers were present. She gave evidence that she assumed something terrible had happened to one of her daughters.

[129] Maria was advised that she was being charged with several crimes and being placed under arrest. She told the police officers that she knew nothing about any of the charges being laid against her.

[130] Maria was charged with threatening property damage (hiring Hosseini to burn down the Omni stores), threatening bodily harm (hiring Hosseini to break Jack’s legs), threatening death (hiring Hosseini to kill Jack), and two counts of counselling to commit an indictable offence.

[131] Maria called Harold, as she did not understand what was happening and did not know what to do. Given her elderly age, Maria was permitted by the police officers to spend the rest of the night at home, and come to 13 Division the following morning. She gave evidence that she was awake all night, in shock, and crying incessantly.

[132] At approximately 7:00 am the following morning, Maria’s daughter drove her to 13 Division. Maria was placed under arrest, handcuffed, and led to a small room. The room was very cold and she was concerned that the low temperature would trigger her diagnosed trigeminal neuralgia which could have resulted in surgery. She pleaded with the police to let her leave the room. She was subsequently transferred to another police station (22 Division), fingerprinted and booked. She gave evidence that she was refused her medication and water.

[133] She was transferred to the 1000 Finch West courthouse, placed in a holding cell and eventually taken before a judge. She felt beyond humiliated as her husband and daughters were sitting and waiting for her in the courtroom.

[134] Maria was released on $10,000.00 bail with several recognizance terms, and she returned home late that evening.

[135] Maria testified that throughout the entire day, she maintained her innocence persistently to anyone who would listen to her.

Who was Jack’s Real Target?

[136] It is important to stop and examine some objective evidence in the form of numerous email messages sent by Jack to the police (mostly Fritz) from the date of Maria’s charges until they were ultimately dropped by the Crown.

[137] From the moment they gave their opening submissions, counsel for Harold and Maria urged this Court to find that having Maria charged was a “strategic front” for Jack to ultimately have the police focus their efforts upon Harold, for if Harold was also charged that would do wonders for Jack in getting the “ultimate leg up” over his nemesis.

[138] There was indeed numerous email correspondence exchanged between Jack and Fritz. This Court paid close attention while those emails were put to Jack in cross-examination. Jack admitted that he was in constant communication with the police about Maria’s case, and also admitted that he ultimately wanted to see Harold (and for that matter Esther) charged.

[139] Jack certainly attempted to convince Fritz that the threatening texts Jack allegedly received from Harold were part and parcel of the murder for hire plot. From the outset of his communications with Fritz, it appeared that Jack was trying to plant the seeds that Harold must have been behind the entire plot.

[140] Jack pressed Fritz on whether the police would be issuing a press release. Why would he want these sordid events disclosed to the public if not to paint Maria – an HJB employee – in the most negative light possible?

[141] In several emails, Jack forwarded ongoing information which he was directly receiving from Hosseini. Rather than simply forward the original text messages or emails, Jack cut and pasted the information into the body of his own emails to Fritz. This was certainly odd and unnecessary behaviour.

[142] At the same time, it appears Hosseini was trying to assist Jack with the goal of getting paid from Jack. While there is insufficient evidence in the record to conclude that Jack ever wanted to pay Hosseini, there is evidence that Hosseini asked for payment on several occasions. Wouldn’t those requests for payment alone (not to mention the fact that Hosseini was a five-time convicted criminal) have caused Jack to seriously question Hosseini’s reliability and veracity?

[143] When Jack responded to Hosseini by text message, he advised Hosseini that Jack was not allowed to be “in touch with him at the present time”.

[144] Jack further advised Hosseini that any request for payment “at this time” was inappropriate and could jeopardize the case against “Maria and Harold” (emphasis added). There was obviously no actual criminal case against Harold at that time, yet clearly that is how Jack saw things.

[145] In one email dated October 2, 2010, Fritz advised Jack as follows:

I know it may be frustrating for you that Harold has not been charged but at this point there is simply no evidence to substantiate a criminal charge against him.

[146] Several months later, Jack revisited the idea yet again by emailing Fritz and alleging that Harold had confessed to Rabbi Zvi Tress (a figure known to both Jack and Harold in the Orthodox Jewish community) that Harold was the one funding the murder for hire plot. Jack wrote specifically that “it baffles me as to why there are no charges against Harold”.

[147] On his examination for discovery, Jack stated that to destroy Harold would help both Jack’s personal and business reputations. On cross-examination at trial, Jack waffled by saying he didn’t mean what he had stated under oath at discovery, and that he didn’t even need to salvage his reputation because it was “already good”.

[148] Rather than “lay low” after learning of the alleged murder for hire plot as described to him by Hosseini, it appeared obvious to this Court that Jack would not rest until that plot was extended to Harold.

[149] On October 5, 2010, Jack sent an email to Rabbi Chanoch Ehrentreu, and stated:

The police know logically and intuitively that this lady could not have been acting in her own and in her own interest. They are actively seeking a connection that is provable in Court that would incriminate her employer. How tragic that would be. In addition, failing all else there has been consideration given to bringing other charges such as ‘crimes of omission’ which are brought when someone is in a position to stop a crime from being committed and failed to do so. This is a very serious charge.

[150] “This lady” is Maria, and “her employer” is Harold. Nothing in this email was actually true, and Jack had of course received the opposite information from Fritz. This email opens a window into Jack’s mind. He clearly wanted the police to tie the alleged “murder for hire” plot back to Harold.

[151] Around the same time, Jack was actively trying, through a friend Ronny Coffer, to negotiate a potential resolution of the ongoing dispute between himself and Harold. Coffer spoke with Esther, and told her that Jack would be willing to achieve peace if:

(a) Harold stopped telling the whole city that Jack is ruining his business;

(b) Harold would pay Jack $250,000.00 to take over the lease of the Omni Fairholme unit (a lease that was never produced at trial, only the alleged offer to lease previously described in these Reasons), and

(c) Harold would cease to employ Maria.

[152] During that call, Coffer also told Esther that Jack “made it sound to him like Harold was going to be in big trouble with the police”, and that Harold was “implicated in this situation”. Coffer was Jack’s messenger, and further evidenced Jack’s obsession with ruining Harold by implicating him in the “murder for hire” plot.

The Choking Gesture

[153] Not every single event in the six-year lifespan of the turf war between Jack and Harold has found its way into these Reasons. In this Court’s view, some of the events the parties spent time detailing and pursuing at trial were essentially non-events for the purpose of determining the issues in these proceedings. However, one such event ought to be addressed as, in this Court’s view, it is a relevant consideration for Maria’s malicious prosecution claim.

[154] On May 30, 2011, Jack was walking southbound on Bathurst Street and stopped at the window of the HJB store, turning towards the storefront to peer inside the window. Video surveillance of this day was tendered at trial.

[155] Prior to May 30, 2011, Jack had been asking for the Rabbinical Court to issue a ruling surrounding his dispute with Harold, as Jack had intimated that there would be a “great possibility of violence” in the absence of such a ruling.

[156] In any event, the parties’ collective recollections of this event all differed, and were inconsistent with the actual video surveillance.

[157] Harold testified that Jack appeared at the HJB store window, and did some “throat slitting motion” straight to Maria’s face.

[158] Maria testified that Jack made a choking gesture in the HJB window directed at her.

[159] Jack gave evidence that, upon looking into the HJB window, he merely grabbed his throat because he was feeling ill and had a sore throat/cough that day. Jack testified that his actions were completely misinterpreted, and he had made no threatening gesture at all.

[160] I have reviewed the video surveillance. There is no throat-slitting motion. However, Jack does peer inside the window, and seemed to locate Maria inside (there was no dispute that she was there that day). After waiting a few seconds, Jack grabs his throat with one hand and pushes upwards/squeezes it. While this Court is not charged with determining whether such gestures were in fact legal threats, Jack’s actions were nevertheless designed to either intimidate Maria, or respond to something Maria may have said or done from inside HJB.

[161] Why would Jack stop and peer into the HJB store at all? It certainly wasn’t for curiosity, as he gave evidence at trial on several occasions that he still considered his life to be in danger. Jack’s actions, while not necessarily pre-meditated, were those of a very focused man keen on winning the never-ending turf war by any means necessary.

Hosseini has Zero Credibility

[162] While I have already explained why Hosseini is not credible or reliable, I wish to highlight an additional event which illustrates the foundation of such a finding.

[163] During the lifespan of this litigation, a motion for summary judgment was brought by Harold to dismiss Jack’s claims against him in the “murder for hire” proceeding. Hosseini had never participated in that proceeding. Jack gave evidence that he had been unable to, or did not want to, get in touch with Hosseini for some time.

[164] Hosseini had been served with a Summons to Witness on the pending motion for summary judgment. Jack, through his (former) counsel, advised Hosseini that it was very important for Hosseini to participate in the motion for summary judgment. A transcript of the phone conversation between Jack, his counsel and Hosseini was ultimately produced well after the summary judgment motion was ultimately dismissed. In that call, Jack advised Hosseini that he needed Hosseini’s testimony, and specifically evidence that Harold was aware of the money that Maria had offered Hosseini.

[165] In response, Hosseini then changed his original story and told Jack that Harold was the one providing the money (i.e., not just Maria), and that Harold himself had directly offered Hosseini the money to “kill this guy, break his leg, burn his store down … I pay you whatever it cost”.

[166] Hosseini then exaggerated his story, advising that Harold had offered him money “so many times” to “just get it done”, and the actual contract price was up to $200,000.00. It was only when Hosseini told Harold that he would not kill Jack, that Maria approached Hosseini to offer him $50,000.00 to also kill him.

[167] It is patently obvious that Hosseini’s story morphed at his whim, and he would simply change the facts (indeed, even under oath) to fit whatever narrative Jack needed, presumably to ensure that Jack would pay Hosseini some money for helping him out.

[168] Making himself even less credible, when he was cross-examined upon his responding affidavit, Hosseini could not get his story straight when asked why he did not tell the police about Harold’s alleged involvement in the “murder for hire” plot from the start. Hosseini actually tried to blame the police for “not asking him the right questions”.

[169] Hosseini admitted that what he told the police in his sworn statement did not actually implicate Harold at all, yet his sworn responding affidavit stated the exact opposite.

[170] By this time, for Jack to maintain that he was content to rely on Hosseini as a credible source of information not only defies common sense and logic, it shows the depth of Jack’s obsession with ruining Harold. How anyone in this proceeding, especially Jack, could have believed anything Hosseini said as being credible or reliable is beyond this Court’s comprehension.

Jack Refuses to Accept the Crown Dropping the Charges

[171] In an email dated June 6, 2011 from Fritz to Jack, a meeting was set up to take place on June 14, 2011. In that email, Fritz advised Jack that the police wanted to bring the matter to “an expeditious and peaceful resolution”.

[172] The meeting was set to include Fritz, Jack and the acting Crown attorney Christine Pirraglia (“Pirraglia”, who is now Madam Justice Pirraglia of the Ontario Court of Justice). In his closing submissions, counsel for Harold argued that Jack must have been aware that, given the attendees to participate at the scheduled meeting, it was very likely, if not certain, that Jack was being told by the Crown Attorney that the charges against Maria were being dropped. For his part, Jack denied this contention, but in this Court’s view that was certainly a reasonable and likely inference.

[173] On June 12, 2011 (i.e., in the 10 days between when the meeting was scheduled and in fact occurred), Jack captured video surveillance of Maria standing in front of his store for approximately 30 seconds. Extensive cross-examination and submissions were tendered by all parties surrounding the video surveillance, which shows Maria, with her daughter, originally walking by the Omni Fairholme unit around 1:00 pm and then re-attending and walking by the Omni Fairholme unit approximately one hour later wearing a sandwichboard. She was stopped by an Omni employee for approximately 30 seconds outside the store. A conversation ensued, and then Maria kept walking northbound on Bathurst Street. This brief attendance by Maria outside the Omni Fairholme unit ultimately led to a second set of criminal charges against her, which I will address in a separate section.

[174] In any event, the meeting between Jack, Fritz and Pirraglia took place as scheduled on June 14, 2011. At the meeting, the Crown clearly advised Jack that they would not be continuing with the prosecution of Maria’s charges. Pirraglia gave evidence at this trial, and while she did not have a specific recollection of what was said to Jack, she does recall Jack being disappointed.

[175] According to Jack, he asked for “additional time” to arrange a deal with Harold before Harold could learn of the withdrawal of Maria’s criminal charges. Jack gave further evidence that the Crown (i.e., Pirraglia) actually agreed to give him additional time to work on a deal with Harold before the news of the dropping of Maria’s charges was made public.

[176] The foundation of Jack’s evidence is so unreasonable it borders on being preposterous. A decision was made by the Crown attorney’s office not to continue with the criminal charges against Maria. On what basis would any Crown attorney, in light of his/her duty to discharge professional and ethical obligations, agree to maintain criminal charges for an unspecified period of time to allow a private individual to broker a settlement of a turf war with another private individual? This evidence was near the top of the “head scratching list” of incredible accusations and allegations made by all the parties.

[177] Not surprisingly, Pirraglia gave evidence that while she had no specific recollection of Jack allegedly asking for “additional time”, no Crown attorney would ever have agreed to allow “the dropping of charges as a carrot”. Fritz gave evidence that he would never have entertained the idea of using the charges as a tool for any potential settlement. Yet in the face of this evidence, and frankly common sense, Jack maintained that both the Crown attorney and police agreed with his request. Suffice it to say that Jack’s evidence is completely rejected by this Court. The only true portion of Jack’s evidence relating to this meeting was his admission that the news shared with him by Pirraglia was devastating.

[178] The Crown intended to advise Maria of the dropping of her charges prior to or at the next scheduled court appearance which was set for June 27, 2011.

[179] Of note, Jack did not use Coffer or any other third party to attempt to broker a further deal with Harold, even in the face of his (rejected) evidence that Pirraglia and Fritz gave him more time to do so. Jack testified that there was no further attempt to obtain a $250,000.00 payment from Harold, but that the settlement he wanted to obtain was to “receive recognition from Harold” for having the criminal charges against Maria dismissed – even though Jack was fighting for those charges to be maintained.

[180] Somehow, Harold’s gratitude would then result in a resolution. Jack’s evidence is not easy to understand or follow on this point, especially since he admitted wanting to use his knowledge of the “pending” withdrawal of the criminal charges against Maria as leverage towards further settlement discussions.

Jack arranges for Maria to be Criminally Charged…Again

[181] Prior to the June 16, 2011 meeting, Jack arranged to have the June 14, 2011 video footage uploaded onto a CD, and to bring the CD with him to the meeting. Unfortunately, he brought the wrong video surveillance on that CD.

[182] Jack then sent a series of emails to Fritz seeking to convince the police to have Maria charged with the breach of her recognizance terms as a result of her being within the forbidden distance of the Omni Fairholme unit (i.e., she had been ordered to stay a certain distance away from the Omni Fairholme unit).

[183] Jack sent these emails all the while knowing that Maria’s original criminal charges were being dropped. Since the charges were being dropped, Maria’s recognizance terms (while possibly still technically in place) would very soon be moot and inapplicable. On cross-examination, Jack admitted that he wanted the police to know that Maria had breached her recognizance terms even though those recognizance terms were indeed effectively moot.

[184] There was evidence to support Maria’s contention that Jack had Maria “set up” by having the Omni employees stop her if she ever walked past the Omni Fairholme unit. I find this contention to be a reasonable one given Jack’s obsession with advancing his and Omni’s interests in the turf war.

[185] In any event, the video surveillance does show that Maria was outside the Omni Fairholme for approximately 30 seconds, and even though she was stopped by Omni employees to participate in a conversation, she was nevertheless walking by the Omni Fairholme unit at the time. Had the Omni employees not stopped Maria, any technical breach of the moot recognizance terms would have lasted merely seconds.

[186] Shortly after Maria’s criminal charges were dropped on June 27, 2011, she was advised that she was being criminally charged again for breaching her recognizance terms. Maria gave evidence that the news simply devastated her, and she felt like Jack would never stop in his obsessive quest to have her “charged with crimes she did not commit”.

[187] Maria gave evidence that her life drastically turned after the original criminal charges were laid against her. She could not sleep and was crying incessantly. The media coverage was humiliating, with reporters coming to her house and her neighbours wondering what was happening. She testified that she and her husband began sleeping in separate bedrooms, as she felt ashamed.

[188] There was evidence that Maria was diagnosed with chronic major depressive disorder, post-traumatic stress disorder and anxiety. She claims to have panic attacks at night, waking up screaming on occasion.

[189] On June 29, 2011, Maria attended at 13 Division to turn herself in. The following day (June 30, 2011), Maria tried to commit suicide by taking more than 20 lorazepam pills. Lorazepam is an anti-anxiety medication that Maria had already been taking prior to her employment at HJB.

[190] Maria survived her suicide attempt. She ultimately commenced her malicious prosecution action (the second set of criminal charges were ultimately also withdrawn).

Misappropriation of Personality

[191] In the spring/summer of 2009, Jack erected large Omni banners in white and red colours, with the same effective fonts as HJB’s signs. When Harold changed his signs to yellow and blue colours, Jack followed suit and used the same colours.

[192] Ultimately, Jack’s CFG business was called Easy Cash for Gold. It initially was called Hard Cash for Gold. Harold claimed that it was an attempt on Jack’s part to confuse the public by using “Hard” instead of “Harold”. Jack gave evidence that he chose the original name because “I will give you hard cash”.

[193] Jack testified that in the summer of 2011, he was going to put up signs that read “Herald the Jewellery King”, but he began with just the letters “H” and “D” to warn Harold that he would fill it in if the sandwichboarders did not stop harassing the Omni stores.

[194] Ultimately, a blue and yellow sign called “Herald the Jewellery King as seen on TV” covered the store front window of the Omni Fairholme unit. There is no dispute that Jack instructed the sign be put up “one letter at a time” as a warning to Harold.

[195] By the fall of 2011, Jack put up a rotating, flashing sign that said “we are not Harold’s Jewellery”, but as it rotated, on occasion it would read only “Harold’s Jewellery”. That flashing, rotating sign was up for a few months.

[196] Soon after, Jack installed another electronic video sign that flashed “park here” and then “for Harold Jewellery buyer”. Jack gave evidence that this conduct was his attempt to “flex his muscles” to show Harold how much power he had.

[197] It was not until 2013 that a second round of direct competitive signage was installed by Jack. By the spring of 2013, Jack put signs on the roof of the Omni Fairholme store that read “compare Harold to Omni”. Harold gave evidence that the word “compare” was so small that people assumed the sign referred to simply HJB itself.

[198] Certain Omni employees would wear advertising vests displaying the name “Harold” but missing one or two letters.

[199] A video monitor in the storefront window of the Omni Fairholme unit displayed videos with Harold’s image. It would then flash the word “compare” momentarily, then switch to “Harold Jewellery Buyer” which would be on the monitor for a longer period of time. After those words disappeared, the words “we are not” or “we will pay more than” flashed again for a short period.

[200] Jack admitted that none of the signs that used or referred to Harold’s name specified that the Omni store was not actually associated, owned or related to HJB. Harold’s name was even displayed on Jack’s website.

[201] According to Harold, the large yellow sign that said “Compare Harold to Omni” was there for a few months. The red billboard on the roof of the Omni Fairholme unit was there for approximately a month, and Harold believed that the City of Toronto was involved to ensure that it was taken down. Harold said that the billboard was only up for approximately three weeks.

[202] While Jack intended to leave this Court with the impression that this was simply “clever advertising”, it was too clever by half. There was no doubt that it was intended to confuse the public, and was motivated, for the most part, by Jack’s desire to admittedly “flex his muscles”.

[203] Jack doesn’t dispute that Harold spends “lots of money on advertising” exploiting his personality for commercial gain. According to Harold, he was spending approximately $1.2 million per year on advertising. Around the same time, Jack’s advertising budget was approximately $35,000.00. Jack’s evidence that he simply “wanted customers to know they had options” does not have the ring of truth.

[204] Ultimately, Jack’s conduct forced Harold to bring a motion seeking an injunction precluding Jack from using his or HJB’s name for competitive purposes. That motion was heard by Justice Spence, who granted the injunction by Endorsement released on November 12, 2014. In his decision, Justice Spence held, inter alia, as follows:

The business of HJB is owned by 2102503 Ontario Inc. The Defendants submit that the proper party to bring this action and this motion is the 210 company and not the Plaintiff himself The Plaintiff is personally identified with the business in its advertising as well as its name. The Plaintiff directs the business of HJB.

The claim of misappropriation that the Plaintiff asserts is a claim relating to his own

personality which he employs in carrying on the business of the Plaintiff by presenting that business as his business. In these circumstances, the Plaintiff has a personal interest related to the manner in which his personal identity is used which is sufficient to give him standing to assert the present claim.

From the size of the name "Harold" alone (without taking into account other factors contributing to the same impression as noted below) would lead a person approaching the sign and the store beneath which it is located to infer that the store is “Harold's” store, when it is in fact Omni's store. The obvious purpose of such a sign is to divert customers to the Omni store by causing customers to believe it is Harold's.

The parties have made many allegations against each other with respect to their conduct in the course of their competitive activities. There are other cases outstanding between them. The only mention of a decided case is the ruling made by the Rabbinical Court but there is dispute about the force and effect of the ruling and it appears that the Court has not issued enforcement orders with respect to allegations of non-compliance by one party or the other.

In any event, the conduct complained by each of the parties against the other cannot be said to have been the cause or ground of the responding conduct, in any sense other than that each party is voluntarily engaging in the responsive tactics. The impugned conduct of Omni was not the result of the conduct of the Plaintiff, it was the result of Omni's own choice about how fight back.

[205] Justice Spence granted the interlocutory injunction prohibiting the use or display of the signs or vests which raised the serious issue of misappropriation of personality, specifically the name “Harold Jewellery Buyer”, “Harold Jewellery”, “Harold the Jewellery Buyer”, or “Harold”. Within a week, all of the signs were removed.

The Town Crier Article

[206] There are three remaining defamation proceedings to be determined: one commenced by Jack, and two commenced by Harold. The Town Crier action was commenced by Jack. A brief summary of events leading up to the publication of the Town Crier article is warranted.

[207] This Court heard conflicting stores from both Harold and Jack with respect to certain events surrounding the involvement of Avi Oziel (“Oziel”). Apparently, Oziel suffers from mental health issues, and has been criminally convicted for assault and fraud-related charges. Harold testified that he was not aware of Oziel’s mental health struggles or criminal record, but tried to help Oziel by providing him with some work on occasion.

[208] Jack and Oziel met in September 2011. According to Jack, Oziel offered to provide Jack with evidence to assist Jack in his fight against Harold in exchange for payment of $5,000.00. Jack says he refused. Oziel then sent a follow-up text message to Jack, asking Jack to pay him for helpful evidence. Jack continued to refuse.

[209] Harold then put Oziel in touch with a police officer with whom Harold was familiar, and Oziel showed the police officer a typed document containing a doctored version of his text exchanges with Jack. That doctored version of the text messages omitted any reference to Jack refusing to pay Oziel the requested money. When the police officer contacted Jack about the allegations, and Jack provided the actual text exchanges, Oziel confessed that he doctored the text messages, and told police that Harold was the one who fabricated the text messages in exchange for payment of silver coins. Harold denies these allegations, which were hearsay in any event.

[210] Oziel was arrested and charged with making a false statement to the police. Harold was not charged. Oziel subsequently pleaded guilty to a charge of public mischief and was given a conditional sentence of 4.5 months to be served in the community.

[211] As part of that decision, the criminal Court found Oziel “acted under the influence of Mr. Gerstel”, which was a mitigating factor in his sentencing. This was all based upon Oziel’s testimony.

[212] Harold then took the fake text messages to the Town Crier newspaper and gave an interview. An article entitled “Counter-suit Coming in Cash for Gold Wars” was published online on November 29, 2011. It garnered 64 page views and 55 unique page views. It was inserted into the December 2011 print issue, with a circulation of 21,000 copies.

[213] The Town Crier article contains the following excerpts:

• Gerstel took it a step further, showing the Town Crier what is supposedly a text message a former employee of his had received. The message, allegedly from Berkovits, says if Gerstel’s former employee does not testify against him, then Berkovits would ‘be inclined to have my lawyer drop a case even if there is no evidence to support it’.
• The message then claims to have ‘taken care of (two of Gerstel’s ex-employees) monetarily’ in exchange for testimony against Gerstel and the same would be done for this individual’s testimony as well.
• Gerstel said that goes two ways, providing an image from a video allegedly showing Berkovits making what Gerstel said is a threatening motion towards Konstan inside the Harold the Jewellery Buyer location on May 30 this year. Gerstel said charges were never laid due to lack of evidence.

The CFRB Broadcast

[214] In or around late 2012, Jack was still the host of a show on CFRB. During a December 2012 episode, he stated the following:

So that I can get you a lot more because what I did play to you is about, about the most the benign thing she said about me, uhm, but hey, when you are dealing with, what, with an adversary of this nature, you can expect whatever it is that you get to hit you between the eyes.

[215] In addition, Jack stated during this episode that the court gave him $1,500.00 in court costs against Harold because “he just chose not to show up at a discovery hearing…he just thinks of this system as made to be bent and broken and I’m not going to allow that to happen but thanks for your call”.

[216] Of note, Harold did not in fact attend a discovery hearing, but gave evidence at trial that his responding affidavit filed at the time of the motion to compel his attendance explained that he was not aware of the discovery date due to not being advised by his counsel, and Jack had been served (via his lawyer) with that affidavit at least six weeks before the CFRB episode in question.

The Toronto Sun Article

[217] During the height of the turf war, Jack approached the Toronto Sun and appeared anxious to get an article written and published.

[218] On November 14, 2012, the following article entitled “Another Chapter Closes in Toronto’s Ongoing Gold War” was published. The article provided as follows:

Embroiled in a cash-for-gold war with his archrival on Bathurst St., Jack Berkovits has endured an alleged murder plot, competing sandwich boarders outside his doors and whispers in his community.

But worse were the six long weeks when the owner of Omni Jewelcrafters was in fear of being handcuffed and placed under arrest for something he didn’t do.

Last September, a former employee of Harold “the Jewellery Buyer” Gerstel went to Toronto Police to complain Berkovits had offered him two ounces of gold to swear a false affidavit against his competitor in an upcoming lawsuit. According to a court transcript, Avi Oziel, 31, initially claimed Berkovits wanted him to falsely testify that his former boss moved assets out of his jewellery store just before it went up in flames in December 2010, “which would suggest that Mr. Gerstel was involved in the arson of his own store.”

On Oct. 5, 2011, Berkovits got a call from Det. Al Verway asking him to come into 13 Division — Oziel said he had text messages to prove he was being bribed.

“I was awestruck. I fell apart immediately,” the 60-year-old Berkovits recalled in his victim impact statement read into court this summer. “Not only was this allegation outrageous and untrue, but it was completely the opposite of what had happened.”

Berkovits and Gerstel have been involved in a long-running feud as they battled for customers in the cut-throat gold business on the Bathurst St. strip just south of Lawrence Ave. Both kippa-wearing members of the ultra Orthodox Jewish community, they even have competing lawsuits.

Berkovits says he was looking for former Gerstel employees for his civil suit but refused to deal with Oziel after the homeless man demanded $5,000 before he would sign an affidavit. So he was dumbfounded when Oziel turned the tables on him and accused him of offering a bribe.

A father of eight and grandfather of 30, Berkovits was about to leave for Israel to celebrate his grandson’s bar mitzvah. What was supposed to be a happy event was clouded by the police investigation looming over him. He lost 16 pounds and had panic attacks worrying that he wouldn’t be able to prove his innocence. “I saw myself being hauled off to jail,” Berkovits recalled Wednesday in a downtown coffee shop.

After spending more than $30,000 in legal fees, he learned on Nov. 20, 2011 that there would be no charges against him. Instead, police charged Oziel with public mischief after he confessed to fabricating the text messages, allegedly on instruction from Gerstel.

“I will never get back those six weeks of agony,” Berkovits told court at Oziel’s guilty plea in July. “I have suffered physically, emotionally and psychologically as a result of Mr. Oziel’s utterly false and fabricated criminal allegations.”

Defence lawyer Yossi Schochet told Ontario Court Justice Neil Kozloff that his client had been “manipulated” by his former employer into making the false claim. “Mr. Gerstel was the one that reported to the police of this so-called crime, of this offence. Mr. Gerstel brought a reluctant witness. Mr. Oziel was reluctant to come to the police, he was basically dragged in by Mr. Gerstel and those are the facts the Crown’s relying on, and those are the facts that are accepted.”

Reached at his store, a brusque Gerstel, who was never charged, insisted he had nothing to do with Oziel’s allegations against his rival. “That’s totally false,” he said. Oziel, he maintained, was an opportunist acting on his own.

Court heard Oziel is bipolar, suffers from ADHD and has a criminal record for fraud and assault. The judge eventually gave him a four and a half month sentence of house arrest.

Police confirm Oziel was arrested this week for allegedly breaching his conditions and is scheduled to be back in court later this month.

For Berkovits, this whole sordid saga is the latest chapter in a long, ongoing gold war: last year, charges were dropped against another Gerstel employee who was accused of hiring a hit man to kill him. The woman is now suing police and Berkovits.

“I spend 24/7 on how to avoid the bullets that keep coming my way,” he sighed. “This is an insane situation.”

[219] Harold specifically focused at trial on the last paragraph of the article, and in particular the insinuation or inference that Harold was behind “the bullets being fired” at Jack.

[220] Harold gave evidence that his reputation was damaged because it made him look like the aggressor when he was just trying to mind his business. Jack put up the article in the Omni storefront window in 2012.

[221] I will now address the substantive claims being advanced by all parties in the six proceedings.

The Malicious Prosecution Action/Murder for Hire Counterclaim

[222] In the main action, Maria claims damages from Jack and Hosseini (who are the remaining defendants after she settled with the Toronto Police Services Board) for malicious prosecution, conspiracy to injure, abuse of process and intentional infliction of mental distress. I will address each cause of action in turn.

(a) Malicious Prosecution

[223] A plaintiff must prove four well-known elements in support of a claim for malicious prosecution. Those elements were set out by the Supreme Court of Canada in Miazga v. Kvello Estate 2009 SCC 51, at para. 3:

(i) the criminal proceedings were initiated by the defendant(s);

(ii) the criminal proceedings were terminated in favour of the plaintiff;

(iii) the criminal proceedings were initiated without reasonable and probable cause; and,

(iv) the defendant(s) was motivated by malice, or a primary purpose other than that of carrying the law into effect.

[224] Maria has clearly satisfied the first two elements of the test. This Court has no hesitation in concluding that the criminal proceedings were initiated by both Jack and Hosseini. As set out in Miazga, Maria must prove that Jack and Hosseini were “actively instrumental” in setting the law in motion against Maria. Without the participation of Jack and Hosseini (who were the only witnesses interviewed by the police), Maria would never have been arrested or charged.

[225] The police’s entire investigation consisted of (a) Jack attending 13 Division to “have a file opened”, and (b) Jack and Hosseini providing their sworn statements to the police. The criminal proceedings against Maria were clearly initiated by Jack and Hosseini.

[226] The second element has also been clearly proven, as all charges (i.e., both sets of charges) were ultimately withdrawn by the Crown, and thus terminated in favour of Maria.

[227] This leaves the third and fourth elements of the test, which are typically the more difficult elements to prove. Starting first with the fourth element (the requirement to prove that Jack and/or Hosseini were motivated by malice or a primary purpose other than properly carrying the law into effect), I find that Jack was indeed motivated by malice. His pre-existing relationship with Maria was obviously contentious, adversarial and replete with strife. However, the evidence at this trial showed that Jack’s primary motivation was not to see the criminal charges through against Maria. From the moment he learned of the alleged murder for hire plot from Hosseini, Jack was clearly motivated to use that information to ultimately “rope in” Harold and hopefully cause significant harm and damages to his nemesis’ personal and professional reputations. The myriad of emails from Jack to Fritz clearly evidenced a hyper-focused attempt to lay this murder for hire plot at the feet of Harold. The email correspondence consistently delivered from Jack to Fritz exposes an effective non-stop obsession with tying Harold to the alleged murder for hire plot. Jack’s efforts did not stop at the door of the police officers, but extended into members of his own Orthodox Jewish community, including local Rabbis and other well-known members.

[228] Once Jack was told about the alleged murder for hire plot, he used the criminal process against Maria to ultimately have Harold - his “main target” - arrested and charged. This is why Jack was “devastated” (to use the words of Pirraglia) when he learned of the criminal charges against Maria being withdrawn. His malice was then compounded when, saddled with the information that Maria’s original criminal charges were being withdrawn, he “doubled down” out of sheer frustration and had Maria charged a second time for a technical breach of her terms of recognizance.

[229] Jack’s malice is also highlighted by the multitude of inconsistencies and half-truths delivered during his sworn statement given to the police. Jack knew or must have known that some of his sworn statements given to the police officers were not true, or given beyond recklessly without regard to the truth.

[230] This leaves the third element of the test for malicious prosecution. To satisfy the requirement that there was no reasonable and probable cause to have Maria charged on either occasion, this Court must conclude that (a) the entire murder for hire plot was fabricated by both Jack and Hosseini, and (b) Maria did not breach her terms of recognizance when she walked on Bathurst outside the Omni Fairholme unit.

[231] While this Court does not look favourably upon Jack’s actions in having Maria criminally charged, it cannot be said on a balance of probabilities that Jack lacked reasonable and probable cause to have Maria charged on both occasions. To begin, I do not find the presence of a conspiracy between Jack and Hosseini. On July 16, 2011, Hosseini did indeed approach Jack and tell him about the alleged murder for hire plot (which I find never actually occurred for reasons to be canvassed hereinafter). While Jack may have used this information for an improper purpose as set out above, as of the date Jack gave his sworn statement to the police (which is the date the Court must assess the elements of the tort), there was reasonable and probable cause to believe that Jack’s life or health was at risk. Ultimately, Hosseini’s statements were proven to be false, and Jack subsequently learned or must have learned that to be the case. However, as of the date Jack gave his sworn statement, there was objective reasonable and probable cause to support the criminal charges against Maria.

[232] None of the parties have provided me with case law supporting the imposition of a “duty to investigate” placed upon Jack when he learned of the alleged murder for hire plot from Hosseini. In other words, when Jack received that information, he did not have an independent duty to assess the veracity of those allegations. Indeed, that duty rested with the police officers once the information was relayed to them by Jack (and Hosseini). I cannot comment on the extent of the police officers’ investigation other than what I have found on the record before this Court as Maria’s claims against the Toronto Police Services Board have been settled.

[233] Jack exaggerated, took liberties, and tendered half-truths to the police when he gave his sworn statements. Those actions were undertaken maliciously to ultimately try to capture Harold in this murder for hire plot. Yet at that early stage of this sordid series of events, Jack held a subjective belief that his life or health was in danger. That belief was not concocted.

[234] I thus cannot find the absence of reasonable probable cause to initiate the criminal process. Accordingly, Maria’s claim for malicious prosecution against Jack is dismissed.

[235] With respect to Maria’s claim for malicious prosecution against Hosseini, I find that she has proven all four elements of the test for malicious prosecution on a balance of probabilities. Specifically, I find that the murder for hire plot never actually happened. As previously stated in these Reasons, what most likely occurred was that Maria said something about Jack deserving his legs to be broken, but there was never any actual threat or murder/violence for hire discussed during the July 16, 2010 attendance at HJB. Since there was no murder for hire plot, the third and fourth elements of the test for malicious prosecution are clearly made out against Hosseini. There can never be reasonable and probable cause for a crime that knowingly never happened.

[236] Accordingly, Maria’s claim for malicious prosecution against Hosseini is granted.

(b) Conspiracy to Injure

[237] As held by the Court of Appeal for Ontario in Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, at para. 26 the tort of conspiracy to injure requires the following five elements to be proven:

(i) the defendants acted in combination, that is, in concert, by agreement or with a common design;

(ii) the defendants’ conduct was unlawful;

(iii) the defendants’ conduct was directed towards the plaintiff;

(iv) the defendants should know that, in the circumstances, injury to the plaintiff was likely to result; and,

(v) the defendants’ conduct caused injury to the plaintiff.

[238] 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”.

[239] 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.

(c) Abuse of Process

[240] The tort of abuse of process has four elements. As held by the Court of Appeal for Ontario in Harris v. Glaxosmithkline Inc. et al., 2010 ONCA 872 at paras. 27-28, those four elements are as follows:

(i) the plaintiff is a party to a legal process initiated by the defendant;

(ii) the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective;

(iii) the defendant took or made a definite act or threat in furtherance of the improper purpose; and

(iv) some measure of special damage resulted.

[241] The essence of the tort of abuse of process is the use of legal process to achieve a collateral objective that the legal process itself would not confer. Subsequent jurisprudence has consistently held that the scope of the tort of abuse of process is a narrow one, and a defendant must have a clear, ulterior purpose in wrongfully initiating a legal process. Bad intentions may prove to be insufficient.

[242] Maria has clearly satisfied the first element. The second and third elements are intertwined: Maria satisfies the third element if this Court was to find that Jack and Hosseini’s predominant purpose in initiating the criminal process against Maria was for some collateral or improper objective.

[243] 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.

[244] In this Court’s view, having Maria charged a second time is itself an additional step in furtherance of Jack’s improper, collateral purposes.

[245] I grant Maria’s claim for abuse of process against Jack.

[246] I also grant Maria’s claim for abuse of process against Hosseini, as his improper, collateral purpose was clearly to obtain payment from Jack in exchange for his assistance, and Hosseini had no regard with respect to lying to anyone in order to achieve that purpose.

(d) Intentional Infliction of Mental Distress

[247] As held by the Court of Appeal for Ontario in Merrifield v. Canada (A.G.) 2019 ONCA 205, at para. 45, the tort of intentional infliction of mental suffering has three elements:

(i) flagrant or outrageous conduct;

(ii) the conduct was calculated to produce harm; and,

(iii) the conduct resulted in a visible and provable illness.

[248] This Court cannot conclude that the first element of the test is satisfied. Initiating a criminal process for a collateral purpose may result in a finding of abuse of process (as has occurred here), but given this Court’s finding that there was reasonable and probable cause based upon the facts relayed to Jack by Hosseini, Jack’s conduct in initiating the criminal process does not reach the level of “flagrant or outrageous conduct” required to satisfy the first element of the test for intentional infliction of mental distress. Maria’s claim against Jack for intentional infliction of mental distress is dismissed.

[249] However, Maria’s claim for intentional inflicting of mental distress against Hosseini is granted, essentially for the same reasons that I have already found Hosseini liable to Maria: Hosseini’s actions and statements were always known to be false, and Hosseini knew the ensuing criminal charges would harm Maria and result in provable illness.

(e) Damages

[250] Maria claims compensatory damages for all of her causes of action in the total amount of $196,775.00. Of that sum, Maria submits that $150,000.00 should be allocated to her general damages, together with an award in the amount of $46,775.00 to compensate her for the legal fees incurred in defending both criminal proceedings.

[251] Maria submits that her health has suffered greatly, including significant psychological damages due to, inter alia, public humiliation, jail, and her attempt to commit suicide.

[252] Jack argues that Maria’s psychological issues pre-existed the criminal charges, and worsened due to incidents that occurred after the charges were laid and had been dismissed. According to clinical notes and records from Maria’s treating physician, her brother’s death (which occurred prior to the criminal charges) was a contributing factor to her psychological issues resulting in her being previously on medication for anxiety and depression.

[253] There is no merit to Jack’s contention that he can only be liable for his proportionate share of any damages claimed by Maria due to the decision to press charges having been carried out by Fritz.

[254] I also do not find merit in Jack’s implied submission that Maria’s damages are directly caused from the stress of pursuing her claims for malicious prosecution. This legal proceeding was Maria’s only route in seeking to redress wrongs done to her, and it is inherent to that process that a plaintiff may relive the events that gave rise to such claims.

[255] A person who seeks damages for abuse of process must typically prove that injury/damages resulted from the “irregularity of the process”. I do not hesitate in finding that Maria’s general damages are causally connected to the “irregularity” of the criminal process initiated by Jack and Hosseini.

[256] There was widespread media coverage of Maria’s arrest from 2010 onward. I accept Maria’s evidence that she felt utterly humiliated, depressed, stigmatized and ashamed. After enduring the first criminal process, she tried to commit suicide when she was criminally charged a second time. Her physical and mental health greatly suffered. She experienced significant weight loss. She suffered from post-traumatic stress disorder, anxiety, difficulty sleeping, flashbacks/nightmares, and shame.

[257] Jack and Hosseini are jointly and severally liable to compensate Maria for her damages. In my view, an appropriate award to compensate Maria would be $75,000.00. I also award Maria pecuniary damages against Jack and Hosseini in the amount of $46,775.00 to compensate her for the legal fees incurred in defending both criminal proceedings.

[258] With respect to Maria’s claims for punitive and aggravated damages, I agree with her submission that despite the withdrawal of both sets of criminal charges, and the findings set out in these Reasons, she will live with the criminal charges against her for the rest of her life. The allegations against her will exist online in perpetuity, and Jack compounded Maria’s damages by insisting upon having her charged criminally a second time when he knew that the basis for those charges was purely tactical, and that Maria was likely suffering from emotional trauma. Jack’s decision to lay a second set of criminal charges at a time when he knew the first set were being withdrawn, was a calculated, deliberate act intended to cause Maria harm.

[259] After the first set of criminal charges were laid it became apparent to Jack that there was little to no merit to Hosseini’s story (as evidenced by Jack’s own inconsistent positions), and yet he insisted upon not only seeking to maintain the criminal charges against Maria for his own personal gain, but also having Maria criminally charged yet again. Such conduct was intentional and malicious, and Jack did not express much remorse for such actions at trial, even when provided with an opportunity to do so.

[260] I award Maria aggravated damages (i.e., to provide her with compensation for the wrongs committed by such intentional conduct) against Jack and Hosseini on a joint and several basis in the amount of $50,000.00.

[261] I award Maria punitive damages (i.e., to punish, deter and prevent Jack, Hosseini and other potential defendants from committing similar wrongs) against Jack and Hosseini on a joint and several basis in the amount of $50,000.00.

The Murder for Hire Counterclaim

[262] The disposition of Jack’s counterclaim is very simple: his claims against Harold and Maria for the torts of conspiracy to injure, assault and intentional infliction of mental suffering are all based upon a finding that Harold and Maria met with Hosseini and asked him to inflict harm on Jack in exchange for money.

[263] I do not find that any such request or agreement occurred. As stated in these Reasons, it was Hosseini who acted alone once he had heard Maria utter words to the effect that Jack deserved to have his legs broken. It was not a murder/injure for hire plot. It was a poor choice of words uttered by Maria in an angered state caused by her interaction with Jack moments earlier. Hosseini was the one who heard those words, saw an opportunity to make himself money, and proceeded to further his goals by convincing Jack that a murder for hire plot occurred when it did not.

[264] For this reason alone, Jack’s counterclaim in the malicious prosecution action is dismissed.

The Interference Action

[265] In this proceeding, 153 and 222 (again, the Omni corporations) claim damages against Harold and 210 (again, the HJB corporation) for (a) nuisance, (b) interference with economic relations, and (c) conspiracy to injure. Effectively, Jack’s claims seek to redress the wrongs caused upon his business operations through, inter alia, the actions of the sandwichboarders and other employees hired by Harold/HJB over the time period described in these Reasons.

(a) Nuisance

[266] The tort of nuisance is designed to protect the right to use and enjoy one’s own property. The tort creates a right of action where a defendant is responsible for substantial interference with the reasonable enjoyment of a property by its owner(s).

[267] In 1317424 Ontario Inc. v. Chrysler Canada Inc., 2015 ONCA 104 at para. 8, the Court of Appeal for Ontario found that alleged conduct giving rise to a nuisance claim must originate somewhere other than on the plaintiff’s property.

[268] The interference with a plaintiff’s reasonable use or enjoyment of its own property must be “both substantial and unreasonable”. As held by the Supreme Court of Canada in Antrim Truck Centre Ltd v. Ontario (Transportation), 2013 SCC 13 at paras. 19-21 :

A substantial interference with property is one that is non-trivial. Where this threshold is met, the inquiry proceeds to the reasonableness analysis, which is concerned with whether the non-trivial interference was also unreasonable in all of the circumstances.

The two-part approach, it must be conceded, is open to criticism. It may sometimes introduce unnecessary complexity and duplication into the analysis. When it is applied, the gravity of the harm is, in a sense, considered twice: once in order to apply the substantial interference threshold and again in deciding whether the interference was unreasonable in all of the circumstances.

On balance, however, my view is that we ought to retain the two-part approach with its threshold of a certain seriousness of the interference. The two-part approach is consistent with the authorities from this Court (as I noted above). It is also, in my view, analytically sound. Retaining a substantial interference threshold underlines the important point that not every interference, no matter how minor or transitory, is an actionable nuisance; some interferences must be accepted as part of the normal give and take of life. Finally, the threshold requirement of the two-part approach has a practical advantage: it provides a means of screening out weak claims before having to confront the more complex analysis of reasonableness.

[269] Jack relies upon several nuisance cases involving “feuding neighbours” with a view to demonstrating the types of interfering conduct that is both substantial and unreasonable. In Lipiec v. Borsa, 1996 CarswellOnt 4122 (Gen. Div.), the Court found the erection and installation of a surveillance camera aimed directly at the plaintiff’s yard to meet the nuisance threshold, as the defendant was intent upon constantly monitoring the plaintiff for the sole and/or dominant purpose of vexing and annoying him. Similar conduct was found to meet the nuisance threshold in Saelman v. Hill, 2004 CanLII 9176 (Ont. S.C.).

[270] In Garrett v. Mikalachki, 2000 CarswellOnt 1298 (S.C.), unreasonable conduct on the part of the defendants included an unending campaign of harassment to make the plaintiff’s life “a nightmare” through actions such as preventing access to roads so that deliveries would not arrive, leaving yard equipment running noisily beside the plaintiff’s property and consistently yelling at the plaintiff while they were outside the property.

[271] Jack points to the incessant conduct on the part of Harold/HJB to support his claim for nuisance. I agree with Jack that the following did occur: (a) access to the Omni Glencairn and Omni Fairholme units (including their entrances and parking areas) was obstructed; (b) HJB employees harassed, disparaged and intimidated Omni employees; (c) HJB employees interrupted, diverted and intimidated Omni’s existing and potential customers; (d) Harold/HJB subjected both the Omni Glencairn and Omni Fairholme units to constant surveillance by video cameras and HJB employees; and (e) Harold/HJB hired Eli to ride his bicycle in circles around the front, back and side of the Omni Fairholme unit.

[272] Much of the conduct described by Jack was in fact admitted by Harold during his cross-examination. Harold confirmed that sandwichboarders were right outside the front or rear doors of the Omni Glencairn and Omni Fairholme units, and that HJB employees were instructed to block access to parking areas. There is no dispute that the sandwichboarders were instructed to divert customers away from Omni. I reject Harold’s attempt to explain his instructions as merely “confirming that the customers were in fact looking for HJB”. There is a difference between establishing or maintaining an HJB presence in the Bathurst and Glencairn area, and ensuring that any existing or potential Omni customers are not only made aware of HJB, but told that they were or should be looking for HJB and not Omni. The actions of the sandwichboarders and other HJB employees constitute the latter.

[273] I agree with Jack that the conduct of the HJB sandwichboarders/employees was clearly not consistent with the character of the neighbourhood. Would any neighbourhood expect this type of conduct? The conduct was not a promotion of HJB; it was designed to adversely impact Omni business.

[274] Jack is correct when he submits that the conduct had no public utility, but instead “introduced an unsavory element to the neighbourhood and caused much community embarrassment”. Harold viewed Jack as his enemy, infiltrating upon Harold’s livelihood and seeking to capitalize on what Harold believed was his established premise in the CFG industry.

[275] Despite Harold’s protestations to the contrary, I find all of the above conduct to constitute substantial and unreasonable interference with Omni’s use of its commercial property. While I do not believe that the interference went on “all day, every day” for nearly six years (as Jack alleged several times throughout this trial), the subject conduct was substantive enough to amount to harassment and interference on the part of Harold/HJB. In this Court’s view, Harold set out to protect his niche in the CFG market, and while his general motivation could be understandable, the methods he used amounted to nuisance.

[276] The nuisance claims of 153 and 222 against Harold and 210 are therefore granted.

(b) Intentional Interference with Economic Relations

[277] As held by the Supreme Court of Canada in Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57 at para. 81, the tort of intentional interference with economic relations has three required elements:

(a) an intention on the part of the defendant to injure the plaintiff;

(b) interference on the part of the defendant with the plaintiff’s economic interest by unlawful means; and

(c) economical loss on the part of the plaintiff as a result of the defendant’s conduct.

[278] To begin, Harold argues that Jack never properly pleaded the tort, as the Statement of Claim only alleges there had been economic interference “by the unlawful means of nuisance”. The claims of 153 and 222 are to be read broadly, and while the entire “legal theory” could have been improved with further particulars, there are sufficient facts in those pleadings to ground a cause of action for intentional interference with economic relations. 153 and 222 did plead interference by unlawful means, and reading the claim broadly I am satisfied that the cause of action for intentional interference with economic relations is sufficiently pleaded.

[279] I do not accept Harold’s submission that he did not have “proper notice of these new economic interference claims”. No motion to strike or motion seeking particulars was raised before me, and despite Harold’s position that he allegedly lacked a meaningful opportunity to defend these new claims, the excerpts from transcripts from Jack’s examination for discovery produced at trial show a much different story, as the scope of Jack’s extensive discovery included salient facts surrounding this tort. Harold’s approach is overly technical, and after a trial of this length with hundreds of exhibits tendered by both sides, this Court has no hesitation making findings relating to the tort of intentional interference with economic relations.

[280] The first element of the tort is satisfied on the record before this Court. Harold intended to injure Jack’s economic interests.

[281] With respect to the second element, having already found the actions of Harold and the HJB sandwichboarders/employees to amount to nuisance, Harold’s efforts were clearly carried out through unlawful means as detailed in this Court’s disposition of the nuisance claims.

[282] Harold submits that there should be no vicarious liability upon him and/or 210 for actions on the part of the sandwichboarders because those individuals were “acting on their own account”. Such an argument is without merit. The sandwichboarders were hired to ensure customers were diverted from Omni and directed towards HJB. Those were Harold’s instructions, confirmed at trial by several witnesses.

[283] Even if the actions of the sandwichboarders were overzealous or too enthusiastic, those actions were still within the scope of the instructions provided by Harold. The conduct of the sandwichboarders was also clearly connected to their employment undertaken on behalf of Harold/HJB, and they were not being undertaken on some independent “frolic of their own”.

[284] With respect to the third element, I find that 153 and 222 suffered economic harm, although I will have more to say about this issue in my assessment of the damages claimed by 153 and 222 below.

[285] Accordingly, the claims of 153 and 222 for the tort of intentional interference with economic relations are granted.

(c) Conspiracy to Injure

[286] The elements of this tort have already been set out in these Reasons.

[287] I do not find the presence of a conspiracy on the record before this Court. There was never any “agreement” between Harold, Maria or any of the sandwichboarders/employees to act in concert with a common design. Harold’s goal was to ensure that his competitor was ruined or at least adversely impacted. The same cannot be said for the sandwichboarders/employees, who were merely looking to carry out general instructions in exchange for payment.

[288] The fact that Harold coordinated the sandwichboarders/employees to carry out his instructions does not amount to an agreement between all of them to act in concert over a common design. The claims of 153 and 222 for conspiracy to injure are therefore dismissed.

(d) Damages

[289] In support of the damages claimed by 153 and 222, Omni retained Paul Mandel of RSM Canada. Mandel is a chartered professional accountant and chartered business evaluator. Mandel was qualified as an expert for the purpose of calculating Omni’s economic damages caused by the actions of Harold and 210.

[290] Generally speaking, Mandel calculated Omni’s losses as the revenues it would have earned but for the interference less the variable costs/contribution margin. There were two categories of alleged lost revenue: (a) selling gold to refiners to be melted down (“refining revenues”), and (b) refurbishing purchased jewellery and gems for resale in Omni stores (“refurbishing revenues”).

[291] As the “comparable store”, Mandel used the performance of Omni’s Ajax location (“Omni Ajax”) as it was the only other CFG store open from 2008-2016 (i.e., transcending the years of the interference). As put by counsel for Jack in closing submissions:

In order to isolate the impact of the Interference on Fairholme’s revenues from other market-based effects, RSM compared Fairholme’s performance in the year after Interference stopped (April 2015-March 2016) to the benchmark performance of Omni’s Ajax location (the only other Omni CFG store open in both the year prior to and the year following the cessation of Interference). The Fairholme location’s revenues exceeded expected revenues based on the benchmark by 132%, a difference Mandel explained was attributable to the cessation of Interference.

[292] Mandel proceeded to use this 132% benchmark figure to determine refining revenues. Mandel was unable to do the same for the refurbishing revenues as such sales were not separately tracked in Omni’s books and records. While Jack’s evidence was that refurbishing revenues were equal to 50% of refining revenues, Mandel decided to put forth three scenarios: lost contribution margin for refurbishing revenues being 50%, 25% and 0% of refining revenues.

[293] Harold’s main criticisms of the RSM opinion (which are warranted) are that Jack failed to maintain proper financial books and records for the Omni Glencairn and Omni Fairholme units, and that the assumptions Mandel made were substantially based upon the word of Jack (which cannot be relied upon in this trial).

[294] Jack is a trained accountant with years of experience in the jewellery industry. Certainly by the fall of 2009 he was armed with enough information to conclude (and he effectively admitted same to the police) that a civil proceeding was likely going to ensue, as the turf war had already begun with no end in sight. The actions on the part of Jack and Harold were only increasing, and not decreasing. Why would Jack not ensure that the financial records for the Omni Glencairn and Omni Fairholme units were adequately and separately maintained, especially since this entire turf war was due to Jack’s decision to expand his Omni operations by entering the CFG business? Wouldn’t any prudent businessperson keep separate records of a new arm of his/her business operations?

[295] In dealing with the lack of financial information for the Omni Glencairn unit, counsel for Harold submitted as follows:

JB has not produced a summary of the cash for gold purchases nor the gold refining revenue at the Glencairn location for the period of May 2009 to December 2012. This time period includes the time period where 153 is claiming damages from July 2009 to December 2010 (see report Ex 253 par. 9a). JB did not produce any monthly sales revenue of all of the Glencairn business (cash for gold, restaurant and retail jewelry), for the time period of October 2008 to September 2009 which includes the July 2009 to September 2009 claim period.

JB did produce the combined figures for the Glencairn business from October 2009 to September 2011, which includes the claim period of October 2009 to December 2010.

The information provided intentionally leaves out the critical financial data of the business of cash for gold at Glencairn. There is no explanation of why this financial information was not available and was not provided to the expert. The inference to be drawn is that the reliable correct information of the cash for gold business was destroyed or intentionally not produced in order to hide the real figures.

Glencairn had no segregated financial information. This was JB’s intentional choice.

[296] In dealing with the lack of financial information for the Omni Fairholme unit, counsel for Harold submitted as follows:

Mr. Mandel advised in his report that the monthly revenue summary for the Fairholme location for the period July 2010 to September 2011 (i.e. the first 14 months of the business) the records of monthly revenue are missing. This is critical information for a damage calculation and to determine the effect of the alleged interference, if any.

Because of this missing information, the other numbers produced in the financial statements are combined numbers, with other numbers for the cash for gold business of a number of stores (not all disclosed) that were run through 222. As a result, the cash for gold figures at Fairholme cannot be properly reviewed as a separate business based on the financial statements.

The cost of sales on a monthly basis was not produced at all for any year. No explanation was provided of why JB refused to produce the documents showing the amount of money spent to buy gold and jewelry. The gold refining sales for Fairholme by months, for the years 2010 through 2014 inclusive were also not produced. JB did produce the years 2015 and 2016. No explanation has been given of why the relevant data has not been produced.

It is submitted that all of this information is clearly relevant and was not produced. JB chose not to produce the documentation and information. He was obligated to produce relevant documents.

[297] In response, Jack submits that the parties “already agreed” on the scope of productions when they entered into a consent Order resolving a refusals motion brought by Harold. That consent Order required Omni to produce all financial records “relied on by its expert”, and Harold could thereafter make a “request for additional records required for a responding report”. Jack argues that since Harold did not make any such request, it is inappropriate for Harold to now complain about the scope of financial production.

[298] Such an argument fails for the simple reason that he who asserts must prove. The onus of proving damages rests solely with Jack/Omni. If Jack chose not to maintain and produce relevant financial records, that decision and the consequences therefrom lay solely at the feet of Jack, not Harold.

[299] It is not Harold’s onus to disprove Jack’s claim for damages. It is the opposite. Adverse inferences are appropriate when a party under an onus of proof chooses not to produce relevant documents. This is the situation before this Court.

[300] Jack never provided an adequate explanation as to why these financial records were not available and/or provided to Mandel. When Jack expanded his business to include CFG sales, he chose not to segregate the financial records for those sales. This was his choice, and he must now live with it.

[301] In addition to this Court finding Jack to be not credible or reliable himself, some of the financial records which Jack did produce have inherent problems, including an unexplained isolated $198,000.00 management fee in 2012, and rental expense figures for Omni locations fluctuating wildly from one year to the next.

[302] From year-end 2009 to 2010, the sales at Omni Glencairn actually increased by over $1,000,000.00 even while the interference took place, and was likely as strong as any other period.

[303] Further, it is too far of a stretch to use Omni Ajax as a true comparable when arriving at the 132% benchmark. Omni Ajax is not a true comparable and there was little evidence tendered by Mandel or Jack in terms of the objective, warranted reasons Omni Ajax was chosen other than it remaining open for CFG sales during the relevant period. Omni Ajax is located in a different locale with completely different customers and target markets. Sales trends between Omni Ajax and Omni Fairholme went in opposite directions, especially in 2013-2015 when Omni Ajax revenues fell while Omni Fairholme revenues increased.

[304] The underlying assumptions and financial information provided to Mandel are simply not reliable enough to conclude that the damages calculated by Mandel are warranted and justified.

[305] That said, it is this Court’s opinion that 153 and 222 likely suffered some form of economic damage. Having found that 153 and 222 were legally wronged by Harold and 210, does this Court have a duty to assess those damages even when the expert report tendered by Jack/Omni has been found to be of little persuasion due to the inherent unreliability of its assumptions? As held by Justice Adams in Murano v. Bank of Montreal, 1995 CanLII 7410 (Ont. S.C.), at para. 163, appeal dismissed 1998 CanLII 5633 (ON CA), an “inherent difficulty in piecing together what might have happened had there been no breach or tort committed will not relieve a court of its duty to assess damages”.

[306] However, there is also case law that supports (and even mandates) an award of nominal damages when the Court is faced with a complete lack of reliable evidence. There is only partial financial evidence produced from Omni Glencairn and Omni Fairholme, and the Court is entitled to draw the appropriate adverse inference(s) against 153 and 222 (i.e., the fulsome financial evidence would not have supported the damage amounts being claimed by 153 and 222).

[307] There was evidence that Jack told a Toronto Life interviewer (for an article published during the “height” of the turf war) that as of 2010 Omni had not really suffered any significant loss of business.

[308] Jack gave unsupported evidence that the refurbishing revenues were 50% of the refining revenues. Jack’s evidence in key areas has been rejected by this Court, and I do the same here.

[309] I do not find that 153 and 222 suffered nearly the amount of damages that Mandel had put forth, mostly due to Jack being the source of the assumptions made by Mandel. In the circumstances of this case, and having reviewed the limited financial information provided by Jack/Omni, I am of the opinion that at most, 153 and 222 likely suffered no more than a 10% loss in sales revenue. Based upon the gross profits (which themselves are truly not that reliable) tendered at trial, 153’s and 222’s damages caused by the nuisance and intentional interference with economic relations as found by this Court would amount to no more than $200,000.00.

[310] I therefore award 153 and 222 damages in the sum of $200,000.00 against Harold and 210 on a joint and several basis.

The Town Crier Action

[311] As held by the Supreme Court of Canada in Grant v. Torstar Corp., 2009 SCC 61 at para. 28, to succeed in an action for defamation, a plaintiff must prove the following:

(a) the impugned words must be defamatory, in the sense they would tend to lower a plaintiff’s reputation in the eyes of a reasonable person;

(b) the words complained of refer to a plaintiff, and

(c) the words were published, meaning that they were communicated to at least one person other than the plaintiff.

[312] There is no dispute that the second and third elements are easily proven in this proceeding. The quotes in the Town Crier article attributed to Harold specifically refer to Jack, and the Town Crier article was published both in print and online.

[313] Has Jack proven that the statements attributable to Harold in the Town Crier article are defamatory? In other words, do those statements lower Jack in the estimation of right-thinking members of society? In this Court’s view, Jack has satisfied his onus. The first excerpt from the Town Crier article describes Jack sending a text message to Oziel claiming to have bribed two witnesses in the proceedings between Jack and Harold, and threatening to bring a frivolous lawsuit against Oziel in the event that Oziel did not testify against Harold. The subject matter of these allegations is dishonest conduct. As found in these reasons (and by the Court in Oziel’s criminal proceeding), those text messages were never drafted or sent, and were in fact fabricated.

[314] With respect to the second excerpt from the Town Crier article dealing with Jack making a threatening motion towards Maria from outside HJB, I have already found that while Jack did not make any throat-slitting motion, he did grab his throat with one hand and pushed upward/squeezed it, and such actions were designed to either intimidate Maria or respond to something Maria may have said or done from inside HJB.

[315] The above findings are relevant to Harold’s defence, which is essentially truth/justification. I do not find that Harold has made out such a defence in response to the first excerpt from the Town Crier article, because the text messages were never drafted or sent by Jack. A defence of truth/justification requires defamatory statements to be proven to be entirely true. There is no dispute that the text messages were fabricated. Harold claims that he did not have actual knowledge that the text messages were fabricated at the time of being interviewed for the Town Crier article (although he was “skeptical of Oziel”). Such a position is irrelevant to his defence, which must fail.

[316] I do find merit to Harold’s defence of truth/justification when dealing with the second excerpt from the Town Crier article, as Jack’s actions in the HJB window that day were threatening, and intended to be threatening. The fact that no criminal charges were laid is largely irrelevant to this court’s assessment of the Town Crier action; even if the second excerpt is defamatory, given my findings, Harold was justified, on an objective and subjective basis, in making those statements to the Town Crier reporter.

[317] In defamation actions, damages are at large and to be presumed. As held in Rutman v. Rabinowitz, 2016 ONSC 5864, at para. 214, damages are awarded to provide consolation for personal distress and repair harm/vindicate a person’s reputation. No doubt defamatory statements are more injurious to someone with a good reputation than a bad reputation.

[318] Jack gave testimony about his reputation in the community, which he claims to have fostered for several decades. No doubt he has held various leadership roles and board positions within the Orthodox Jewish community. He has also been somewhat heavily involved in the jewellery industry (and committees within that industry).

[319] All of that evidence was given by Jack in his examination in chief. Given this Court’s findings, that evidence must be balanced and/or offset with the fact that Jack has shown himself to be manipulative, cavalier, and, on some occasions, less than honest. This Court does not find Jack’s reputation to be nearly as stellar as Jack claims.

[320] Nevertheless, the subject matter of the defamatory statements paint Jack as being a dishonest criminal, bribing potential witnesses to give false testimony. Even someone with a less than stellar reputation is entitled to some redress when defamatory statements cross the line into immoral, dishonest and criminal conduct. This Court is aware that the defamatory statements were being made at a time when both Harold and Jack were entrenched in their turf war, pulling out all the stops to gain an upper hand over the other, virtually by any means necessary.

[321] In my view, a proper damage award for the harm to Jack’s reputation caused by the defamatory statements in the Town Crier article is $50,000.00, and I award Jack general damages in that amount against Harold.

[322] With respect to Jack’s claim for aggravated damages, while Harold was likely acting out of ill will in making the defamatory statements in the Town Crier article, this Court cannot conclude that Harold “knew or ought to have known” that the Oziel text messages were indeed fabricated at the relevant time. If Harold did not know (or could not have known) that the text messages were false, the type of malice required to ground an award of aggravated damages is missing. While Harold’s potential lack of knowledge of the veracity of the text messages cannot help him with his defence of truth/justification, it also cannot form the basis of an award of aggravated damages.

[323] For these reasons, Jack’s claims for aggravated (and punitive) damages are dismissed.

The CFRB Claim

[324] Harold did not lead much evidence to support the CFRB claim, nor did Harold’s counsel devote much time in closing submissions to the CFRB claim. In this Court’s view, the only excerpt from the CFRB broadcast which needs to be addressed is Jack’s statement that “the court actually gave me fifteen hundred dollars in court cost against Harold Gerstel the other day because he just chose not to show up at a discovery hearing…”.

[325] Once again, the second and third elements of the tort of defamation are clearly met. The question for this Court’s disposition is whether the above words were in fact defamatory.

[326] Harold argues that the words uttered by Jack during his CFRB broadcast were intended to mean, and understood to mean, that Harold intentionally ignored a discovery hearing, and thus “does not obey the rules of the justice system and has no respect for it”.

[327] Harold’s submission is a stretch. This is especially so when considering that Jack’s words were effectively true. Harold was ordered to pay $1,500.00 in costs thrown away as a result of his failure to attend a scheduled discovery attendance. Harold’s argument is a very narrow one: by using the words “chose”, Jack left the reasonable listener with the impression that Harold actively and intentionally chose to disobey the court rules. That was, of course, Jack’s position when bringing the original motion arising out of Harold’s non-attendance. Harold gave evidence on that motion that he was not aware of the scheduled discovery attendance as his (then) lawyer failed to inform him of same. Harold argues that Jack knew that Harold’s position was that he was unaware of the discovery attendance when Jack uttered the words during his CFRB program.

[328] Jack’s motion did not solely focus upon Harold’s failure to attend a scheduled discovery. Jack’s evidence in support of his motion included additional delays, a failure on Harold’s part to deliver an Affidavit of Documents, etc.

[329] Harold’s lawyer at the time of the motion was served with a Notice of Examination. Service upon a duly appointed lawyer is service upon Harold. Accordingly, knowledge imparted to Harold’s lawyer is knowledge imputed to Harold.

[330] The affidavit Harold swore in response to Jack’s motion was effectively a bald assertion that Harold’s lawyer had not informed him about the discovery attendance. Harold did not tender any further particulars, supporting documents or other evidence, presumably due to a desire to not waive solicitor/client privilege.

[331] I agree with Jack that the “thrust” of the alleged defamation is in fact accurate.

[332] For these reasons, Harold’s claims in the CFRB action are dismissed.

The Toronto Sun Claim

[333] Like the CFRB action, Harold did not devote much evidence or argument in support of his claims in the Toronto Sun action. In this court’s view, Harold’s only gripe consists of the following words uttered by Jack in the subject interview (emphasis in bold):

It’s been a very and tiring time for me and I just want to get it over with because my eye on the business is not on the business, my eye on the family is not on the family and its been 24/7 just trying to figure out how to avoid the bullets that keep coming my way. This is an insane situation.

[334] Assuming that the second element of the test for defamation is met (i.e., the subject words referred to Harold, which could be an inference available on the record before this Court), the meaning of Jack’s words in the entire context of the Toronto Sun article is that Harold was “behind the bullets being fired at Jack”. Harold argues that the term “bullets coming my way” is an obvious reference to the murder for hire plot that Jack had previously publicized on many occasions.

[335] At most, the impugned words may leave the reader with an “innuendo meaning” that there was violence between Harold and Jack in their turf war. I do not find these words to be defamatory. The phrase “bullets coming my way” is commonly used to describe someone experiencing a myriad of accusations or attacks, which typically lead to that person not being able to “keep up” with the number of those accusations or attacks. Harold seeks to take that common phrase out of context and ascribe it with meaning that is not intended in the Toronto Sun article.

[336] As can be seen from all of allegations launched throughout these six legal proceedings, there were indeed numerous bullets flying both ways between Harold and Jack for a number of years. A reasonable person who reviewed the Toronto Sun article in its entirety would not conclude that Harold was, directly or impliedly, behind any actual violent attack upon Jack.

[337] For these reasons, Harold’s claims in the Toronto Sun action are dismissed.

The Misappropriation of Personality Action

[338] It is important to note that the only plaintiff advancing any claims in the misappropriation of personality action is Harold. Harold’s claims for general, aggravated, punitive and exemplary damages are routed in the cause of action of misappropriation of “Harold’s name and personality”.

[339] At paragraph 3 of the Statement of Claim in the misappropriation of personality action, Harold describes 210 as the corporation (a) owned and operated by Harold, and (b) carrying on business as “Harold the Jewellery Buyer” in Toronto, Ontario. The business name “Harold the Jewellery Buyer” is registered solely to 210.

[340] Harold relies strongly upon the Endorsement dated November 12, 2014 of Justice Spence (the salient portions of same having been reproduced at paragraph 204 of these Reasons). In particular, Harold submits that Justice Spence found:

(a) that the “business of HJB” is owned by 210;

(b) that Harold is personally identified with the business of HJB with its advertising;

(c) that Harold’s misappropriation of personality claim relates to his own personality which he employs in carrying on the HJB business; and

(d) that in such circumstances, Harold has a personal interest related to the manner in which his personal identity is used, which is sufficient to give him standing to assert the misappropriation of personality claim.

[341] Jack submits that the fact that Justice Spence found Harold had standing (only) to assert a claim for misappropriation of personality at the injunction stage is irrelevant to the actual merits of Harold’s misappropriation claim. He also argues that since 210 is in fact the owner of HJB and its brand, any cause of action for misappropriation of personality squarely rests and vests with 210, and not Harold.

[342] It is clear that Harold is not seeking damages for the tort of passing off, or any trademark infringement and/or breach of copyright. In Gould Estate v. Stoddart Publishing Co. (1996), 1996 CanLII 8209 (ON SC), 30 O.R. (3d) 520 (S.C.) at paras. 8-14, appeal dismissed (1998) 1998 CanLII 5513 (ON CA), 39 O.R. (3d) 545 (C.A.), Justice Lederman provided a helpful summary of the tort of misappropriation of personality:

In Ontario, the common law tort of misappropriation of personality was first articulated by Estey J.A. in the Court of Appeal in Krouse v. Chrysler Canada Ltd. (1974), 1973 CanLII 574 (ON CA), 1 O.R. (2d) 225, 40 D.L.R. (3d) 15. While no formal definition of the tort was offered, he stated at p. 241 O.R., pp. 30-31 D.L.R.:

…there may well be circumstances in which the Courts would be justified in holding a defendant liable in damages for appropriation of a plaintiff's personality, amounting to an invasion of his right to exploit his personality by the use of his image, voice, or otherwise with damage to the plaintiff…

In Athans v. Canadian Adventure Camps Ltd. (1977), 1977 CanLII 1255 (ON SC), 17 O.R. (2d) 425 at p. 434, 80 D.L.R. (3d) 583 (H.C.J.), Henry J., citing Krouse, supra, stated:

…it is clear that Mr. Athans has a proprietary right in the exclusive marketing for gain of his personality, image and name, and that the law entitles him to protect that right, if it is invaded.

In Joseph v. Daniels (1986), 1986 CanLII 1106 (BC SC), 11 C.P.R. (3d) 544, 4 B.C.L.R. (2d) 239 (S.C.), Wallace J. also gave recognition to this fact, stating at p. 549:

…The cause of action is proprietary in nature and the interest protected is that of the individual in the exclusive use of his own identity in so far as it is represented by his name, reputation, likeness or other value.

The same type of tort, usually under the name “right of publicity”, is also well-recognized in the United States. First coined in Haelan Laboratories Inc. v. Topps Chewing Gum Inc., 202 F.2d 866 at p. 868 (2nd Cir., 1953), “right of publicity”:

has since come to signify the right of an individual, especially a public figure or a celebrity, to control the commercial value and exploitation of his name and picture or likeness and to prevent others from unfairly appropriating this value for their commercial benefit. (see Estate of Presley v. Russen, 513 F. Supp. 1339 (U.S. Dist. Ct. D.N.J. 1981)).

The Gould Estate submits that the book in question is a compilation of photographs of Gould and the act of selling the book constitutes commercial exploitation. Accordingly, it argues that this amounts to unlawful appropriation of Gould's personality.

The few Canadian cases dealing with this tort have generally involved situations in which the name or image of an individual enjoying some celebrity status has been used in the advertising or promotion of the defendant's business or products. (Note that Joseph, supra, was decided on slightly different grounds. There it was held that since it was not possible for the viewer to identify the person in the photograph, as only his torso was depicted, there could be no appropriation of personality.)

Generally then, there has been an implication that the celebrity is endorsing the activity of the defendant. This contextual factor seems to have been an important underlying consideration in the courts' reasoning. In Krouse, supra, for example, Estey J.A. pointed out, at p. 240 O.R., pp. 29-30 D.L.R.:

…Here the photograph was not used in such a way as to associate the respondent with the commercial enterprise or production of the Spotter [the name of a product], a fact which is not without legal significance.

Similarly, in Athans, Henry J. was concerned with whether the material in question had "the effect of establishing any connection in the minds of the relevant public between Mr. Athans and the [summer] camp" (p. 436). It should be pointed out that in Athans, supra, damages were ultimately awarded despite the judge's finding that people viewing the material in question would not conclude that the plaintiff was actually endorsing the defendant's waterskiing school. Instead, the plaintiff recovered on the basis that (p. 437):

…[t]he commercial use of his representational image by the defendants without his consent constituted an invasion and pro tanto an impairment of his exclusive right to market his personality and this, in my opinion, constitutes an aspect of the tort of appropriation of personality.

While at first glance this decision may seem to support the present defendants' broad interpretation of commercialization, the decision is consistent with the endorsement context. Athans was a situation where an identifiable “representational image” was utilized by a waterskiing school in the school's promotional brochure. Therefore, on the basis of these Canadian authorities it would seem open to the court to conclude, on a contextual basis, that the tort of appropriation of personality, is restricted to endorsement-type situations.

[343] I agree with Jack that unlike the tort of passing off which protects a party from having his/her business, service or product pretending to be another, the narrow tort of misappropriation of personality seeks to protect a party’s proprietary right to commercially exploit that party’s personality by endorsing a business, service or product. As found by Justice Lederman in Gould Estate, the tort of misappropriation of personality is restricted to situations where a defendant wrongfully uses a plaintiff’s “celebrity status” in the advertising or promotion of the defendant’s business, service or product.

[344] Harold submits that it was unlawful for Jack (and the corporate defendants in the misappropriation of personality action) to use Harold’s name and Harold’s image for commercial purposes without Harold’s consent. This is not the basis of the cause of action as pleaded and pursued by Harold. In his Statement of Claim, Harold pleaded that the purpose of Jack’s misappropriation of Harold’s personality was to “mislead the public into thinking” that Omni was really where HJB was located.

[345] I appreciate that Justice Spence was making a decision on an interlocutory motion based upon the evidence filed before the Court at that time. I have now had the benefit of a fulsome, lengthy trial and am able to conclude that, as Harold himself admitted, the HJB business name and brand are distinct assets owned by 210, and not Harold personally. No doubt the HJB business name and brand are based upon Harold’s name and image, but as set out in Harold’s Statement of Claim the proprietary right being protected is the goodwill associated with the HJB brand, and “not Harold’s right to sell his own endorsement”.

[346] Harold has transferred his “celebrity right” to 210, and 210 has the right to exploit Harold’s name and image for commercial purposes. Accordingly, 210 is the party vested with any cause of action for misappropriation of personality, as it is the owner of the right to assert that claim. Harold chose to not advance such a claim for passing off, and while there is certainly unlawful conduct on the part of Jack (which he effectively admitted at times during his cross-examination), this Court cannot find any merit in the misappropriation of personality claim commenced by Harold personally. Any claims resulting in potential damages vest with 210, and in the absence of 210 being a proper plaintiff, the misappropriation of personality claim must be dismissed.

Costs

[347] It appears to this Court that success has been divided between Harold and Jack. Maria was successful in pursuing some of her causes of action. If any party seeks reimbursement for their legal costs incurred to date, absent an agreement between them (and I would urge counsel to exert those necessary efforts), counsel may exchange and file written costs submissions, totalling no more than 20 pages including a Costs Outline, in accordance with the following schedule (which is patterned after the exchange of closing submissions at the conclusion of trial):

(d) Round 1 – all parties to serve and file written costs submissions within 14 business days of the release of these Reasons;

(e) Round 2 – all parties to serve and file responding written costs submissions within 14 business days of the receipt of the original costs submissions;

(f) Round 3 – all parties to serve and file reply costs submissions (if necessary) within 10 business days of the receipt of the responding costs submissions.

Diamond J.

Released: January 27, 2023