Court of Appeal clarifies how tort of abuse of process interacts with criminal proceedings

Person must knowingly misinform or omit evidence in police complaint

Court of Appeal clarifies how tort of abuse of process interacts with criminal proceedings
Samara Secter, Addario Law Group

A woman falsely accused of trying to hire a hitman was unsuccessful at the Ontario Court of Appeal in proving abuse of process because she was unable to show that one of the accusers had initiated the legal proceedings against her or undermined the independence of the police’s decision to do so.

The court found that the accuser had no way of knowing that the allegations were false. His lawyer, Samara Secter, says the decision clarifies how the tort of abuse of process interacts with criminal proceedings. The ruling endorses a strict test; to engage in an abuse of process, a private citizen must knowingly supply misinformation or withhold evidence to compromise the police investigation and limit the independence of the police decision to lay charges.

Konstan v. Berkovits, 2024 ONCA 510 stemmed from a multifaceted dispute between the operators of two competing Toronto-based jewellery businesses. In 2007, Harold Gerstel’s Harold the Jewellery Buyer opened up a location across the street from Samuel Jacob Berkovits’s Omni Jewelcrafters. Two years later, Berkovits expanded into the cash-for-gold business, to which Gerstel objected because of their proximity and the level of investment he had devoted to that aspect of his business.

Their feud escalated, with Gerstel hiring people to divert customers from Omni to Harold’s, and with Berkovits publishing advertising intended to confuse potential Harold’s customers.

Court of Appeal Justice Sally Gomery said there were “examples of reprehensible conduct on both sides.”

In 2010, police charged Harold’s employee, Maria Konstan, with various criminal offences based on allegations she tried to hire a man to kill or physically assault Berkovits. The man, Saeed Hosseini, is a former mixed martial artist who had worked for Harold’s. Hosseini and Berkovits reported Konstan to the police, but her charges were eventually dropped. A court later concluded that Hosseini had fabricated the story in an attempt to get money from Harold, Berkovits, or both.

Gerstel and Berkovits got the courts involved bringing various causes of action against each other. Konstan also sued Berkovits and Hosseini for malicious prosecution, abuse of process, conspiracy to injure, and intentional infliction of emotional distress. Konstan’s claims were tried with two other actions. The trial judge granted her claim for abuse of process.

Konstan v. Berkovits, 2024 ONCA 510 comprised five consolidated appeals and cross-appeals. On the abuse of process claim, Gomery granted Berkovits’s appeal.

“The crux of the case is ensuring that the tort of abuse of process doesn't prohibit access to justice, especially when it's required in terms of somebody’s safety,” says Secter, a lawyer at Addario Law Group LLP who acted for Berkovits and his companies in the case.

A plaintiff alleging abuse of process must prove four things, according to Harris v. Glaxosmithkline Inc., 2010 ONCA 872. They must be a party to a legal process the defendant initiated. They must prove that the defendant initiated the legal process to further an “indirect, collateral, and improper objective.” The plaintiff also must prove that the defendant “took or made a definite act or threat in furtherance of the improper purpose.” And the plaintiff must show they have suffered special damages because of the defendant’s conduct.

Konstan was unable to clear the first hurdle. Gomery found that the evidence did not support a finding that Konstan was a party to a legal process that Berkovits had initiated. Gomery rejected the finding by the trial judge that by giving sworn statements to police, Berkovits and Hosseini had initiated the criminal proceedings against Konstan.

Gomery said that the trial judge “misapprehended” when, in an accused’s subsequent tort action, a complainant can be held to have initiated the criminal prosecution. It is not enough that the police would not have laid the criminal charges without the complainant’s report. The complainant must knowingly supply misinformation or withhold evidence or engage in “other wrongful conduct” compromising the police investigation or the police’s independence in the decision to lay charges.

Konstan argued that the “initiation requirement” should be relaxed, and liability should fall on those making a complaint with the “predominant purpose” of harming the accused or some other person. But Gomery said there is a “difference between relaxing the initiation requirement and eliminating it altogether.” Konstan proposed an effective collapse of the first two elements of abuse of process making the defendant’s predominant purpose the “overriding consideration,” she said.

“There is a sound policy rationale for a stringent initiation requirement in the context of an abuse of process claim arising from a criminal complaint,” said Gomery. “It ensures that individuals who genuinely believe they have information about a crime are not discouraged from reporting it to the police because they fear potential exposure to a tort claim by an accused (or some other person) if the information turns out to be inaccurate or incomplete and the prosecution does not result in a conviction.”

Gomery found that it was the police’s decision to lay charges.

Berkovits’s allegation, that he believed Maria had offered Hosseini money to harm him and he feared for his safety, was true, said the judge. He lacked the means to determine whether Hosseini’s account was genuine and did not obstruct or interfere with the police. Berkovits’s “misrepresentations, exaggerations, and omissions” did not compromise the police’s independent discretion to lay charges, she said.

Following Konstan’s arrest, Berkovits encouraged the police to investigate Gerstel’s involvement in the plot and tried to delay public disclosure of the police’s decision to drop Konstan’s charges in order to obtain a financial settlement from Gerstel.  Berkovits also spotted Konstan walking by his store, in violation of the recognizance requiring she stay away, and he had his employees go outside to talk to her so she would remain for more than a few seconds. He then took the surveillance footage to police, which the trial judge concluded was malicious and intended to result in Konstan being charged a second time after Berkovits heard her charges would be dropped.

“Even if the initiation requirement were relaxed to allow for a tort based solely on what Jack did after Maria was arrested, there was no basis to find Jack liable for abuse of process,” said Gomery.

Secter says the court has communicated that abuse of process in these circumstances will be “an extremely stringent test.”

“If there is some basis for the claim or some basis to engage the police, it becomes difficult to meet the test of abuse of process.”

“It ensures that individuals who genuinely believe they have information about a crime, they are not discouraged from reporting that crime to the police because they fear potential exposure to a tort claim, if it turns out that the information was inaccurate or incomplete.”

Related stories

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

The tale of Umar Zameer's two trials – the criminal court and the court of public opinion

Court of Appeal clarifies how tort of abuse of process interacts with criminal proceedings

Mariam Moktar elected second vice-president of the Ontario Bar Association

Ontario Superior Court grants plaintiff's motion to add new defendant in slip and fall case

Ontario Court of Appeal dismisses First Nations' appeal over environmental regulation changes

LSO bencher Murray Klippenstein given "substantial indemnity" costs in suit against legal regulator

Most Read Articles

LSO bencher Murray Klippenstein given "substantial indemnity" costs in suit against legal regulator

The tale of Umar Zameer's two trials – the criminal court and the court of public opinion

Ontario Superior Court finds plaintiff contributorily negligent in slip and fall case

Court of Appeal clarifies how tort of abuse of process interacts with criminal proceedings