THE UNUSED LETTER / FRESH EVIDENCE

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THE UNUSED LETTER / FRESH EVIDENCE: HOW THE CONTESTED OPTION AGREEMENT WAS SIGNED

From the very beginning of the Kwinter Brother's effort to contest the validity of the June 11, 1984 option agreement (the "Contested Option Agreement") , the circumstances surrounding David Kwinter's actual signing of the Contested Option Agreement largely remained an unsolved mystery. How and where David Kwinter signed the Contested Option Agreement was never settled at the trial as none of the evidence adduced either in the pre-trial examinations or at trial convincingly established the exact details surrounding the signing of this pivotal Contested Option Agreement. Such a determination could well have supported the Kwinter Brothers' assertion of duress if it could be proved that at the time of his signing of the Contested Option Agreement, David Kwinter didn't have immediate access to and advice from his lawyer. Did David Kwinter travel to Montreal to sign the agreement thereby placing himself thousands of miles from his lawyer? Or did Aaron Gelber hastily travel to Florida to pressure David Kwinter in a face- to-face confrontation to secure David Kwinter's signature? Or was it a simple case of the Contested Option Agreement being sent by mail or courier to David Kwinter, or his lawyer, for signature? One would tend to agree that in the latter circumstances, i.e. that the Contested Option Agreement was simply sent to David Kwinter, or his lawyer, and there was no direct interaction or pressure brought to bear by Aaron Gelber through an in-person meeting, the assertion of duress or fear would be considerably undermined. The matter of the circumstances surrounding the signing of the Contested Option Agreement was made even murkier by the fact that Aaron Gelber and Norman Sternthal (the “Plaintiffs") never produced an original version of the signed option agreement and relied on a photocopy version of the document where David Kwinter's two required signatures on the signature page of the document are, despite supposedly being signed on the same day and time, in different forms:

On closer examination of the signature page one can quickly note that the text of the paragraph preceding the first series of signatures does not align horizontally with the text of the paragraph preceding the second series of signatures and that the text of the first paragraph is slightly larger than the text of the second paragraph. These marked differences seem to support a conclusion that the signature page was somehow crudely altered to indicate that David Kwinter has signed the Contested Option Agreement. The Trial Judge in his judgment specifically notes that: "None of the signatures on the Agreement are witnessed". Of equal interest, and almost acting as an open acknowledgment of guilt, was the Plaintiffs' counsel's repeated questions of the Kwinter Brothers during their pre-trial discoveries as to whether they had any issues with the manner by which David Kwinter had signed the Contested Option Agreement.

In this section of the website we will canvas the known facts surrounding the circumstance of David Kwinter's signing of the Contested Option Agreement, including fresh evidence that was not available at trial, which will, it is submitted, conclusively prove the following: 1) that to secure David Kwinter's signature on the Contested Option Agreement, Aaron Gelber flew to Florida and met David Kwinter without the presence of David Kwinter's lawyers; 2) having been advised by their own lawyers that he, Aaron Gelber, needed to amend the now signed Option Agreement to include a jurisdictional clause, Aaron Gelber inserted the required additional clause to the signature page of the Contested Option Agreement by cutting and pasting David Kwinter's signature from an extract or portion of a completely separate document baring David Kwinter's signature and 3) to cover up or mask the Plaintiffs' improper addition of David Kwinter's second signature to the Option Agreement, the Plaintiffs falsely claimed that the original signed version of the Contested Option Agreement was missing or lost and that only a rough photocopy of the fully signed Contested Option Agreement existed.

THE ORAL EVIDENCE

With both party litigants agreeing that Norman Sternthal had no direct involvement or knowledge of the circumstances of how, when and where David Kwinter signed the Contested Option Agreement, Aaron Gelber’s testimony, the person who initiated the demand for the Contested Option Agreement and who had directly negotiated with David Kwinter, should have been largely determinative of this crucial matter. Fortunately for the Estate of the Late David Kwinter (the "Defendant"), whether purposely or on account of a failing memory, Aaron Gelber’s evidence as to the circumstances of David Kwinter’s signing of the Contested Option Agreement was so contradictory, that the Trial Judge held that "the inescapable conclusion is that Aaron Gelber was not a truthful witness at the trial” and that no reliance could be placed on his evidence as to the circumstances of David Kwinter’s execution of the Contested Option Agreement. A close review of Aaron Gelber's contradictory and uncertain testimony at both his pre-trial discoveries and at the trial clearly confirms the reason why the Trial Judge was unable to place any reliance on Aaron Gelber's testimony, including the circumstances of how David Kwinter came to sign the Contested Option Agreement. At his initial examination for discovery held on December 12, 2003, Aaron Gelber was questioned as to his knowledge as to how David Kwinter came to sign the Contested Option Agreement:

Me. Bourque:

Q. 4 Okay. To the best of your knowledge, was this agreement signed in Montreal?

Aaron Gelber:

A. Yes, to the best of my knowledge.

Me. Bourque:

Q. 5 I see. And to the best of your knowledge, at what location in Montreal would it have been signed?

Aaron Gelber:

A. That I can’t tell you, I don’t remember.

Me. Bourque:

Q.6 I see.

Aaron Gelber:

A. But it was in Montreal, from my recollection.

Me. Bourque:

Q. 7 You say you don’t remember who was present; may I simply press upon your memory a little bit? To the best of your recollection, was Mr. David Kwinter present?

Aaron Gelber:

A. In my recollection, he was not present. I’m assuming it was done in Montreal and I don’t ever remember him being in Montreal for this agreement.

Me. Bourque:

Q. 8 Are you saying, therefore, that Mr. Kwinter signed this document elsewhere?

Aaron Gelber:

A. I’m not saying that. I said I did not remember.

Me. Bourque:

Q. 9 You don’t remember David Kwinter signing this document in Montreal?

Aaron Gelber:

A. No.

Me. Bourque:

Q. 10 But you signed it in Montreal?

Aaron Gelber:

A. It’s my signature, I signed it.

Me. Bourque:

Q. 11 Yes, but my question is ……

Aaron Gelber:

A. Yes.

Me. Bourque:

Q. 12 …. You signed it in Montreal?

Aaron Gelber:

A. From my recollection.

Me. Bourque:

Q. 13 And from your recollection, Mr. Kwinter did not sign it in Montreal?

Aaron Gelber:

A. I would say that’s reasonable, yes.

At his continuing examination for discovery held on July 6, 2004, Aaron Gelber was again questioned as to his knowledge of the circumstances surrounding David Kwinter's execution of the Contested Option Agreement:

Me. Bourque:

Q. 245 I see. In what fashion did you send it. If you did , to Mr. Kwinter?

Aaron Gelber:

A. I don't know sir.

Me. Bourque:

Q. 246 Did ...

Aaron Gelber:

A. Your question is how did I send it?.

Me. Bourque:

Q. 247 Did you send it by courier? Did you meet him in Florida? Did you ...

Aaron Gelber:

A. I don't remember, sir.

Me. Bourque:

Q. 263 How do you know ...

Aaron Gelber:

A. I think he was in town and signed it when he came into town.

Me. Bourque:

Q. 264 Did he sign it in front of you?

Aaron Gelber:

A. I signed it. Mr. Sternthal signed it and he signed it. I'm assuming that when he was in Montrel he signed it.

Me. Bourque:

Q. 265 OK.

Aaron Gelber:

A. I'm making an assumption.

Me. Bourque:

Q. 266 Okay. So, you're saying, therefore ....

Aaron Gelber:

A. I'm not sure.

At trial, Aaron Gelber was again questioned as to the circumstances surrounding David Kwinter's signing of the Contested Option Agreement:

Me. Bourque:

Q. 357 Thank you. I noticed that... First of all, did Mr. Kwinter sign in your presence?

Aaron Gelber:

A. No.

Me. Bourque:

Q. 358 How did you get the document?

Aaron Gelber:

A. I found a letter, as I said, about two or three weeks ago, in Mr. Sternthal's file. We were going to court and I asked: "Could I go through all of your paper, to see if I discover ..." I discovered a letter from Mr. Fishman who sent me a letter with the agreement, the signed agreement from Mr. Kwinter and he suggested that I add a clause to the agreement.

Me. Bourque:

Q. 359 Which you did.

Aaron Gelber:

A. Which we did.

Me. Bourque:

Q. 360 And you signed the agreement and you added the clause.

Aaron Gelber:

A. That's what the letter says, yes.

Me. Bourque:

Q. 362 Was Mr. Kwinter in Montreal when he allegedly signed this?

Aaron Gelber:

A. How this got signed, I don't know..

Me. Bourque:

Q. 363 But you signed it.

Aaron Gelber:

A. I signed it.

Me. Bourque:

Q. 364 Mr. Sternthal signed it.

Aaron Gelber:

A. And it's Mr. Kwinter's signature. How it got signed and where it got signed, I don't know.

Me. Bourque:

Q. 365 I remind you that at one time, you stated that you assumed that Mr. Kwinter was in Montreal.

Aaron Gelber:

A. I assumed it.

Me. Bourque:

Q. 366 Okay.

Aaron Gelber:

A. But I found a letter that told me how this clause put in and I can produce ...

THE PROBLEMATIC UNUSED LETTER

During the course of the legal proceedings both sides in accordance with the rules of civil proceedings provided the other side with copies of the documentation that was in their possession and control that was relevant to the matters that were the subject of the legal proceedings. Among the documents produced by the Plaintiffs was the following letter dated June 19, 1984 from the lawyer, Avram Fishman to his client, Aaron Gelber:

This letter was never entered into evidence by either party. The reason for this 'omission' is readily apparent on a close reading of this letter as it is raises issues and inferences that were potentially harmful to both sides' positions. This letter is a great example of an evidentiary double-edged sword. For the Defendant, Mr. Fishman's reference that "the other changes made by Mr. Kwinter's attorney are of a minor nature" acts to undermine the Defendant's central argument that David Kwinter only signed the Contested Option Agreement on account of Aaron Gelber's coercive actions, a theme and narrative that was adopted by Mr. Justice Gomery when in his Judgment he writes [David Kwinter] "on June 11th, signed the Agreement which the Plaintiffs now invoke. There is no evidence that Bond [David Kwinter's lawyer] was consulted by him after May 18th or that he was present at the signature of the agreement by David Kwinter." Later, the Trial Judge in his Judgment concludes: "It is apparent that in signing this document David Kwinter abandoned all of the advice, proposals and suggestions that had been made on his behalf by his lawyer, and accepted totally the terms and conditions that had been proposed by Aaron's lawyer." It may well be that the overwhelming weight of the evidence produced at trial by the Defendant conclusively supported the Trial Judge's ultimate finding that it was "impossible to imagine what benefit David Kwinter would realize by the signature of the agreement, except to satisfy the desire of Aaron Gelber that he do so." and that any adverse inferences raised in the Fishman letter would have had little effect on the Trial Judge's ultimate determination. Nevertheless, the introduction of this letter, and those adverse references that could have been raised, however modest, from the line: "the other changes made by Mr. Kwinter's lawyer," could have added an element of support to the Plaintiffs' strongest rebuttal or answer to the Defendant's claim of coercion: that David Kwinter had the presence and benefit of independent legal advice right up to the time of his execution of the Contested Option Agreement. Of course, when David Kwinter's lawyer's suggested changes to the Contested Option Agreement were made is unclear. It is arguable that the referenced changes were made early in the ongoing negotiation process, well before the delivery of David Kwinter's lawyer's 'final' May18, 1984 correspondence.

Conversely, the rationale behind the Plaintiffs' lawyer's decision to not enter the Fishman letter into evidence is equally obvious. The fact that the letter is dated June 19, 1984, which is after the putative or presumed date that the Parties signed the Contested Option Agreement [June 11, 1984] and that the letter confirms that even at this later date the Plaintiffs had yet to sign the Contested Option Agreement, provides an even greater level of uncertainty as to the circumstances surrounding the execution of the Contested Option Agreement. But the most problematic factor for the Plaintiffs was Fishman's advice that notwithstanding that the Contested Option Agreement had already been signed by David Kwinter the following paragraph be added at the end of the agreement:

"The present agreement shall be construed in accordance with the laws of the Province of Quebec. Any legal proceedings instituted between the parties thereto and relating in whole or in part to the present agreement shall be instituted before the courts of the Province of Quebec, which alone shall have jurisdiction."

In compliance with their lawyer's advice and instruction, the Plaintiffs added the required paragraph to the already signed Option Agreement. It was this added paragraph that the Plaintiffs were hoping would be seen as having been signed by David Kwinter in a manner similar to and concurrently with the way he had originally signed the Contested Option Agreement. The suspicions raised by Fishman's request for the addition to the already signed Contested Option Agreement, coupled with the different forms of David Kwinter's signatures as same appears on the Contested Option Agreement and the Plaintiffs' somewhat convenient inability to produce the original of this pivotal document, fully explains why the Plaintiffs were hesitant in relying on this problematic letter.

FRESH EVIDENCE

Several years after the Quebec Court of Appeal's decision that uphold the Trial Judge's decision setting aside the Contested Option Agreement, Hirsh Kwinter, while rummaging through a stack of his late Father's papers and effects that had been stored away and remained untouched for almost a decade, found his Father's flight log book that he had maintained while he was still actively flying his own private aircraft. The entries for the months of June 1984 provide a much clearer, if not conclusive, picture as to how the the Contested Option Agreement came to be signed by David Kwinter. In the flight log for June 9, 1984, only two days before the Contested Option Agreement was initially signed by David Kwinter, it shows that Aaron Gelber was a passenger in David Kwinter's plane during a local flight that David Kwinter had piloted in the Fort Lauderdale, Florida area. Interestingly, during his cross-examination at Trial, Aaron Gelber, despite his professed spotty memory surrounding many aspects of the facts in issue in this case, had a clear memory of flying in David Kwinter's private aircraft:

Me. Bourque:

Q. 197 So go ahead, please. You were talking about nineteen .... when he moved to Florida. He had his second wife, Gaile Cowan.

Aaron Gelber:

A. Yes. We saw them on several occasions when we went north. We went out to dinner with them. It was a short period, relatively, and they separated or divorced, whatever. And after that, he had a girlfriend, Eisenberg. who I knew from the ... Anyway. We used to meet with them, socialize. I was on his plane. Whenever I could, I saw him.

This new piece of evidence now provides irrefutable evidence as to circumstances of the timing and location of David Kwinter's signing of the Contested Option Agreement. It is clear, that in the face of the financial pressure and threats that were being imposed by the Plaintiffs, David Kwinter called Aaron Gelber to advise that in return for the release of the monies that Aaron Gelber was improperly withholding from him, David Kwinter would be willing to sign the Contested Option Agreement. It is clear that after hearing that David Kwinter was willing to sign the Contested Option Agreement, Aaron Gelber hurriedly flew down to Florida to obtain David Kwinter's signature. Aaron Gelber most probably travelled to Florida with a cheque representing the withheld monies and once David Kwinter signed the Contested Option Agreement, Aaron Gelber, as he admitted at Trial, handed David Kwinter the cheque. After this unpleasant transaction was completed and behind them, David Kwinter and Aaron Gelber went for a celebratory flight in David Kwinter's private plane. It was only after Aaron Gelber returned to Montreal and forwarded the signed Contested Option Agreement to his lawyer that he received the advice that the additional paragraph addressing jurisdictional issues needed to be added to the now signed Contested Option Agreement. Aaron Gelber, in an effort to avoid having to again ask David Kwinter to re-execute the Contested Option Agreement, simply inserted the additional clause, by cutting and pasting David Kwinter's signature from a different agreement onto the already signed Contested Option Agreement. In order to mask the crude addition, Aaron Gelber photocopied the altered and now fully signed Contested Option Agreement and disposed of the 'tainted' and altered original agreement.

CERTAIN UNCERTAINITIES

While the entry into evidence at the trial of both the certainty of events set out in David Kwinter's meticulous kept flight log and the uncertainties set out in Fishman's June 19, 1984 letter may well have had no material effect on the ultimate outcome of the trial, these 'missing' pieces of evidence only add to the aura of what can only be described as an extraordinary legal saga that, in the end, righted and answered a forty year search for justice.