THE TRIAL JUDGE

 

MR. JUSTICE JOHN H. GOMERY J.S.C.

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Born in Montreal, Quebec, Mr. Justice Gomery was educated at McGill University where he received Bachelor of Arts and Bachelor of Civil Law degrees.  While at law school, Mr. Justice Gomery was a member of the McGill Law Journal.  In 1957, Mr. Justice Gomery was called to the Quebec Bar and began his legal career at the national law firm, Fasken, Martineau and Dumoulin in the areas of family law, commercial litigation and insolvency, becoming a partner in 1966.  In 1972, Mr. Justice Gomery was appointed Queen's Counsel (QC) and in 1982, he was appointed to the Quebec Superior Court, Montreal district and from 1999 to 2005 served as President of the Copyright Board of Canada.  Mr. Justice Gomery  has been a member of the Canadian Bar Association and Chambre des notaires du Québec, served as the President of the Comité Général des Juges de la Cour supérieure du Québec, the President of the Family Law Committee from 1983 to 1993, and has been a member of the Rules of Practice Committee since its formation.  After becoming a judge in 1982, Mr. Justice Gomery made important decisions in cases involving workers' rights and family law, telling journalists he was particularly proud of leading a team of judges that reformed family law. One leading Canadian jurist recently commented that Mr. Justice Gomery’s decisions and the family law reforms he advised on, have benefitted several generations of children and countless families in crisis and that his analysis and judicial rhetoric from 1991 were far ahead of his peers and his decisions remain a must-read more than 30 years later.

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In February 2004, Mr. Justice Gomery was appointed as Commissioner of Inquiry into the Sponsorship Program and Advertising Activities (informally, the Gomery Commission) to investigate the Sponsorship scandal with the mandate to determine whether there were problems with the federal sponsorship program in Quebec between 1995 and 2003.  The months-long inquiry looked into allegations of fraud related to payments of millions of dollars to Liberal Party-friendly advertising firms for little or no work.  Mr. Justice Gomery’s findings concluded that there was clear evidence of political involvement in the administration of the sponsorship program, as well as insufficient oversight at senior levels of the public service and secrecy surrounding the program's administration. Mr. Justice Gomery's report, assisted the Royal Canadian Mounted Police with further investigations, which led to criminal charges being filed and prosecuted against certain key figures in the scandal.

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Robert Leckey, Dean of the Faculty of Law at McGill University in Montreal, said the Gomery Commission helped Canadians understand how governments work.

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"The Gomery commission was really the first one where people were glued to their TVs sets and wanted to follow what was going on and to have an impartial expert trying to learn the story in the public's interest," Leckey said. "I think the Gomery Commission has left a lasting imprint on the processes and expectations around accountability widely through government and the public sector."

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In reflecting on the effect that the Gomery Commission had on the public’s perception of the political process and the need for transparency and on his legal career and legacy, Mr. Justice Gomery, in 2007 stated, that "the commission came as the cherry on the top of the cake, and it was an enormous cherry". "It was a test for me, frankly. But I haven't regretted it. And if the people remember me for that, that's fine.”

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In 2005, the Canadian Press named Mr. Justice Gomery Newsmaker of the Year with Time magazine naming him its Canadian Newsmaker of the Year for 2005.

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The trial of Aaron Gelber and Norman Sternthal v. The Estate of David Kwinter ( April 5-9, 2007) was Mr. Justice Gomery’s last civil trial as he retired from the court bench on August 9, 2007, after turning 75, the age of mandatory retirement.

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Mr. Justice Gomery passed away on May 18, 2021.

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DEFENCE COUNSEL

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ME PIERRE BOURQUE

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Me Pierre Bourque was recognized as one of the most illustrious commercial litigators in Canada practicing in the field of corporate and commercial litigation, directors’ and officers’ liability, as well as bankruptcy and insolvency.  Me Bourque was born in Montreal in 1930 and graduated from University of Montreal, with B.A. in 1948, and from McGill Law School, with a B.CL in 1952.  Mr. Bourque was called to the Quebec Bar in 1953 and was appointed Queen's Counsel in 1969.  Mr. Bourque was elected Batonnier the Bar of Montreal from 1977 to 1978. In a distinguished legal career that spanned more than 50 years where he appeared before all levels of Quebec’s courts and in the Supreme Court of Canada, Mr. Bourque called the successful results in the Estate of David Kwinter trial and subsequent appeal, one of his most satisfying cases.

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Mr. Bourque passed away on June 28, 2019.

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DAVID KWINTER

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David Kwinter was born on October 18, 1923 in Toronto, Canada.  Mr. Kwinter married  Laya Gelber in 1947, a marriage that produced two children: Hirsh Kwinter and Stephen Kwinter.  After serving for three years in the RCAF during World War II reaching the rank of Pilot Officer,  Mr. Kwinter had a distinguished business career that spanned over 4 decades, building and developing residential and commercial projects in Ontario, Quebec and in South Eastern United States. For over 10 years, Mr. Kwinter served as a Branch Manager and Vice President of Cadillac Fairview Corporation Limited's Residential Group.   In 1970, Mr. Kwinter, with the participation of Aaron Gelber and Norman Sternthal, (the "Plaintiffs") built a large residential rental property in Beaconsfield, Quebec (the "Beacon Hill Villa Project ") which each of the three developers held a one-third co-ownership interest in.  In  June of 1984, the three co-owners entered into a form of an option agreement  (the "Contested Option Agreement") that granted the Plaintiffs an option to purchase Mr. Kwinter's interest in the Beacon Hill Villa Project in the event of a dispute between the co-owners with respect to the management of the Beacon Hill Villa Project or David Kwinter's death.  Upon David Kwinter's death on December 7, 2001, the Plaintiffs, relying on the Contested Option Agreement, attempted to purchase David Kwinter's one-third interest in Beacon Hill Villa Project which attempt was resisted by the Estate of David Kwinter and resulted in a seven year litigation battle which saw both the trial judge and the Quebec Court of Appeal determine that the Contested Option Agreement signed by Mr. Kwinter was unenforceable as Mr. Kwinter's  consent to the Contested Option Agreement had been secured through fear and duress.

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LAYA GELBER KWINTER

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Laya Gelber Kwinter, who was born on September 3, 1926 in Quebec City, Canada, was the wife of David Kwinter and the mother of Hirsh Kwinter and Stephen Kwinter (the "Kwinter Brothers').  At the time of her death on October 28, 1977,  Laya Gelber Kwinter was a one-seventh owner of a number of commercial and  residential properties in Montreal and Quebec City (the "Gelber Properties") owned and controlled by the Gelber family.  Upon Laya Gelber Kwinter's death, the Kwinter Brothers, who were both trustees and beneficiaries  of their late Mother's estate, commenced negotiations with Nathan Gelber (their grandfather) and then Elieazer Gelber (their uncle), who had assumed management of the Gelber Properties, for a buyout of their Mother's interest ("Laya Kwinter's Interest") in the Gelber Properties.  When these buyout negotiations continued without conclusion for more than seven years,  the Kwinter Brothers  advised Elieazer Gelber that seeing that no reasonable buyout of the Laya Kwinter Interest was forthcoming, they would simply retain their ownership of the Laya Kwinter Interest and expect to receive all monies that were due and payable on account of their continued ownership of the Laya Kwinter Interest.  Alarmed by what he precieved was a more aggressive stance being taken by the Kwinter Brothers, Elieazer Gelber asked Aaron Gelber to speak to David Kwinter, with whom Aaron Gelber had a co-ownership interest in the Beacon Hill Villa Project, to see if he could persuade the Kwinter Brothers to accept a proposed buyout of the Laya Kwinter Interest that was highly unfavorable to the Kwinter Brothers.  Aaron Gelber agreed to assist his brother and in a series of telephone calls and meetings where Aaron Gelber repeatedly used the threat of withholding monies payable to David Kwinter with respect to his ownership interest in the Beacon Hill Villa Project, the Kwinter Brothers in May of 1984, agreed to accept the offered buyout of the Laya Kwinter Interest.  Unbeknownst to the Kwinter Brothers, in June of 1984, Aaron Gelber and Norman Sternthal (the "Plaintiffs") and David Kwinter had signed a one way option agreement (the "Contested Option Agreement")  granting the Plaintiffs the right to purchase David Kwinter's one/third co-ownership interest in the the Beacon Hill Villa Project at highly reduced amount in the event of a dispute between the co-owners with respect to the management of the Beacon Hill Villa Project or upon David Kwinter's death.  Upon David Kwinter's death in 2001, the Plaintiffs instituted a law suit, that was ultimately unsuccessful, to enforce the terms of the Contested Option Agreement .

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NATHAN GELBER

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Nathan Gelber, who was born in 1899 in Czestochowa, Poland, immigrated to Canada in early part of the 20th Century and  achieved financial success in several commercial enterprises including amassing a significant portfolio of commercial and residential properties in the Province of Quebec (the "Gelber Properties").  Nathan Gelber was the father of seven children including: Laya Gelber Kwinter, the mother of the Kwinter Brothers; Aaron Gelber, one of the plaintiff's in the legal case to enforce the terms of the contested option agreement against the Estate of David Kwinter and Elieazer Gelber, who managed the Gelber Properties and assumed the leadership role in the negotiation of the buy out of the estate of Laya Gelber Kwinter's interest in the Gelber Properties.  As Nathan Gelber aged, he created an estate plan where legal ownership of the Gelber Properties was transferred, in equal shares, to his children, including Laya Gelber Kwinter.  When several of Nathan Gelber's children tragically and unexpectedly pre-deceased him, Nathan Gelber commenced efforts and negotiations to buy back all of his children's interests in the  Gelber Properties.  When Nathan Gelber's health began to fail, the negotiations to complete the planned buy backs, including the Estate of Laya Gelber Kwinter's interest in the Gelber Properties were assumed by Elieazer Gelber.  

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Nathan Gelber passed away in 1986.

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THE KWINTER BROTHERS

 

HIRSH KWINTER

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Hirsh Kwinter, who was born on July 5, 1950 in Montreal, Canada, is the oldest son of David and Laya Kwinter.  Mr. Kwinter, who was an executor and beneficiary of both the Laya Gelber Kwinter and David Kwinter 's estates,  was the lead negotiator in the Kwinter Brothers' efforts to settle their Mother's estate which negotiations became increasingly confrontational resulting in Aaron Gelber and Norman Sternthal securing the option agreement with David Kwinter that became the focus of the trial presided over by Mr. Justice Gomery.  Mr.  Kwinter was also a participant in the infamous February 1984 taped telephone conversation in which Aaron Gelber can be heard repeatedly threatening to hold back monies that were due and payable to David Kwinter with respect to David Kwinter's co-ownership interest in the Beacon Hill Villa project unless the Kwinter Brothers accepted an outstanding offer to  settle their late Mother's estate on terms that were highly disadvantageous to the Kwinter Brothers.  Mr. Kwinter is a Montreal based businessman who, since 1999, has served as the president of Venga Aerospace Systems Inc.

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STEPHEN KWINTER

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Stephen Kwinter, who was born on July 3, 1952 in Montreal, Canada, is the younger son of David and Laya Kwinter.  Stephen Kwinter's two sons, Daniel and Ryan Kwinter, are named beneficiaries in David Kwinter's estate. Mr. Kwinter  participated in the  highly volatile and confrontational meeting with Aaron Gelber in Hirsh Kwinter's Montreal apartment in February of 1984 that was held in an effort to reach a settlement of the Kwinter Brothers' Mother's estate.  Mr. Kwinter was a principal defence witness in the trial of the action brought by Aaron Gelber and Norman Sternthal to enforce the terms of a contested  option agreement that Mr. Justice Gomery ultimately found to be void and unenforceable as a consequence of the agreement having been obtained through duress.  Mr. Kwinter, who is a graduate of McGill Law School, practiced law in Ontario for 25 years in the field of civil and criminal litigation and for 16 years was the senior managing partner of the famed Toronto based law firm: Pinkofsky, Lockyer, Kwinter.  Since 2013, Mr. Kwinter has served as the Executive Director of Indigenous Sport & Wellness Ontario. 

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ELIEAZER GELBER

 

 

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Elieazer Gelber, who was born in 1935 in Montreal, Canada, is the youngest son of Nathan Gelber, the brother of Laya Gelber Kwinter and an uncle to the Kwinter Brothers.  With the health of Nathan Gelber in decline, Elieazer Gelber assumed management of the Gelber Properties and was the lead negotiator with the Kwinter Brothers in the effort to buyout the Estate of Laya Gelber Kwinter’s interest (the "Estate's Interest") in the Gelber Properties.  When these negotiations became increasingly contentious, Elieazer Gelber approached his brother, Aaron Gelber, to enlist his assistance in securing the Kwinter Brothers’ acceptance of the offer that he, Elieazer Gelber, had  made in his efforts to purchase the Estate's Interest.  It was Aaron Gelber’s agreement to intercede in these ongoing negotiations and the ensuing threats that Aaron Gelber made to withhold monies that were due David Kwinter with respect to the completely unrelated Beacon Hill Villa Project unless the Kwinter Brothers accepted the offer made by Elieazer Gelber that was the genesis of the option agreement that Mr. Justice Gomery ultimately found to be unenforceable as having been secured by duress.

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THE PLAINTIFFS

 

AARON GELBER AND NORMAN STERNTHAL

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         AARON GELBER                          NORMAN STERNTHAL 

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Aaron Gelber, who was Laya Gelber Kwinter and Elieazer Gelber’s brother, and Norman Sternthal, who is Aaron Gelber’s brother-in-law, are noted real estate developers in Montreal. 

 

In 1970, Aaron Gelber, Norman Sternthal and David Kwinter purchased and developed the Beacon Hill Villa Project, a 74-unit residential rental development in Beaconsfield, Quebec in which each of the three developers held a one-third interest.  In late 1983, Elieazer Gelber, who at the time was encountering difficulty in persuading the Kwinter Brothers to accept an offer that would see the Kwinter Brothers selling the Estate's Interest at a highly under valued price to Elieazer Gelber, asked his brother, Aaron Gelber, to intercede, and see if he, Aaron Gelber, could persuade the Kwinter Brothers to accept the outstanding offer that was greatly advantageous to Elieazer Gelber and greatly disadvantageous to the Kwinter Brothers.  Aaron Gelber agreed to assist his brother.  The tactic or 'leverage'  adopted by Aaron Gelber to force the Kwinter Brothers to accept Elieazer Gelber's offer was to threaten to financially harm their Father.  Though the late David Kwinter’s one-third undivided interest in the Beacon Hill Villa Project formed no part of the Laya Gelber Kwinter’s estate, Aaron Gelber, openly threatened both David Kwinter and the Kwinter Brothers that unless they accepted Elieazer Gelber outstanding buyout offer for the Estate's Interest or agreed to surrender all rights to legally compel the purchase of the Estate's Interest at a fair market value, he, Aaron Gelber, would withhold money owed to David Kwinter with respect to his co- ownership interest in the Beacon Hill Village Project.  These threats were openly repeated in the infamous February, 1984 taped telephone conversation between Hirsh Kwinter and Aaron Gelber.  In this taped telephone recording, Aaron Gelber openly admits that his making the settlement of Elieazer Gelber's proposed buyout of the Estate's Interest 'joint and several' with the payment of monies owed to David Kwinter with respect to David Kwinter’s co-ownership in the Beacon Hill Villa Project, was unfair. Aaron Gelber goes on to imperiously say that David Kwinter (and by extension, the Kwinter Brothers) would have to take Aaron Gelber ‘for both the good and the bad.’  During a lengthy meeting in Hirsh Kwinter’s Montreal apartment that took place several days after the taped telephone conversation where Aaron Gelber, Hirsh Kwinter and Stephen Kwinter met to discuss settlement of the proposed purchase of the Estate's Interest,  Aaron Gelber repeated his threat to withhold monies owed to David Kwinter with respect to his co- ownership interest in the Beacon Hill Village Project unless the Kwinter Brothers agreed to accept Elieazer Gelber's offer to purchase the Estate's Interest.  When Stephen Kwinter replied that any continued withholding of monies owed to his Father was illegal and that he, Stephen Kwinter, would advise his Father to seek legal advice to secure any monies that were owed him, Aaron Gelber exploded in anger and left Hirsh Kwinter’s apartment slamming the door behind him. 

 

Unbeknownst to the Kwinter Brothers, immediately after this failed settlement meeting, Aaron Gelber began negotiating directly with David Kwinter in an attempt to secure David Kwinter’s agreement to an option agreement (the "Contested Option Agreement") granting Aaron Gelber and Norman Sternthal the right to purchase David Kwinter’s  one-third co-ownership interest in the Beacon Hill Village Project at a potentially very favorable price to Aaron Gelber and Norman Sternthal upon David Kwinter’s death or a disagreement among the co-owners’ as to the management of the Beacon Hill Village Project.  Throughout his efforts to secure the proposed Contested Option Agreement, Aaron Gelber withheld all monies owed to David Kwinter with respect to his co- ownership interest in the Beacon Hill Village Project.  

 

At the trial in the action instituted by Aaron Gelber and Norman Sternthal (the "Plaintiffs") to enforce the Contested Option Agreement, Aaron Gelber admitted under cross examination that the monies he was was withholding from David Kwinter  were only paid to David Kwinter after David Kwinter had signed the Contested Option Agreement.  Both the Trial Court and the Quebec Court of Appeal found that Aaron Gelber's actions in withholding monies otherwise due to David Kwinter for the admitted purposes of securing David Kwinter's signature to the Contested Option Agreement was  an improper and illegal tactic and dismissed the Plaintiffs' action to enforce the terms of the Contested Option Agreement.

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