COURT OF APPEAL FOR ONTARIO
van Rensburg, Hourigan and Brown JJ.A.
BETWEEN
David Allen Norris
Applicant (Respondent)
and
Paul Starkman and Starkman Professional Corporation c.o.b. Starkman Barristers
Respondents (Appellants)
Counsel:
Paul H. Starkman, acting in person and for the appellant Starkman Professional Corporation c.o.b. Starkman Barristers
David Allen Norris, acting in person
Heard: November 16, 2020 by video conference
On appeal from the order of Justice Dale Parayeski of the Superior Court of Justice, dated March 11, 2020.
REASONS FOR DECISION (corrected)
1The appellant, Paul Starkman, a lawyer, appeals, together with his law firm, from the application judge’s order dated March 11, 2020 directing the assessment of 14 accounts rendered by Starkman Barristers from January 18, 2008 to July 25, 2019 (the “Order”) pursuant to the Solicitors Act, R.S.O. 1990, c. S.15 (the “Act”). The Order was obtained by the respondent, David Norris, who states that he is the sole director, officer, and shareholder of Sirron Systems Inc.
2The appellant advances two main grounds of appeal.
3First, Mr. Starkman submits that the application judge erred in treating Mr. Norris as the client. He argues his client was not Mr. Norris but his corporation, Sirron Systems.
4Only one of the accounts for which an assessment was directed was included in the appeal record: an unspecified account dated June 9, 2017. That account was addressed to both the respondent, David Norris, and Sirron Systems. The appeal record contained copies of seven other accounts: January 11, 2017; February 2, 2017; March 7, 2017; May 10, 2017; two other accounts dated June 9, 2017; and July 27, 2017. All those accounts were also addressed to both Mr. Norris and Sirron Systems.
5Mr. Starkman acknowledged that, in the circumstances, it was open to this court to add Sirron Systems as an applicant client on the assessment. We do so.
6Second, Mr. Starkman submits that the application judge erred by ordering an assessment of certain accounts for which Mr. Norris did not establish the special circumstances required by s. 4 of the Act.
7In oral argument, Mr. Starkman acknowledged that Mr. Norris did not need to demonstrate special circumstances in order to obtain the assessment of the last three accounts listed in the Order: June 27, 2019; July 18, 2019; and July 25, 2019. Consequently, we do not interfere with that part of the Order.
8However, Mr. Starkman submitted that the application judge erred in holding that special circumstances existed in respect of the remaining accounts, which spanned the period January 18, 2008 until January 11, 2019 (the “Remaining Accounts”). It is difficult to discern from the application judge’s brief oral ruling his grounds for finding that special circumstances existed for those accounts. However, it appears he was under the impression that proceeds from a May 2019 settlement of litigation between Sirron Systems and Scott and Pichelli, amounting to approximately $112,500 (the “Settlement”), were used to pay those accounts.
9As became clear during the appeal, the application judge was mistaken on that point. Prior to the Settlement, Mr. Norris had not disputed the accounts rendered by the appellants. A dispute arose over the amount of the Settlement that should be used to pay some of the appellants’ unbilled work in progress. That dispute only concerns the appellants’ accounts rendered in June and July 2019. Accordingly, the dispute about the allocation of the Settlement could not constitute a special circumstance for directing the assessment of the Remaining Accounts.
10Mr. Norris contends that the factors set out in para. 30 of his factum constitute special circumstances supporting the assessment of the Remaining Accounts. We disagree that those factors amount to special circumstances for those Remaining Accounts to which s. 4 of the Act applies or justifies the exercise of the application court’s inherent jurisdiction for those Remaining Accounts to which s. 4 does not apply: McCarthy Tétrault LLP v. Guberman, 2012 ONCA 679, [2012] O.J. No. 4694, at para. 8. The factors do not explain why an assessment should be directed for old accounts, previously paid, for which the record discloses no protest by Mr. Norris or his company at the time of payment.
11Consequently, we allow the appeal in part and vary the Order as follows:
(i) Para. 1 is varied to direct an assessment only on the last three accounts: the accounts dated June 27, 2019; July 18, 2019; and July 25, 2019 (the “Assessable Accounts”);
(ii) Para. 2 is varied to order that Sirron Systems Inc. be added as an applicant client on the assessment; and
(iii) Para. 3 is varied to order the appellants to provide to Mr. Norris and Sirron Systems Inc., within 30 days of the release of these reasons: (i) copies of the Assessable Accounts; (ii) the dockets for all work billed in the Assessable Accounts; (iii) statements of account or trust ledgers that demonstrate how the Settlement funds were allocated to each of the Assessable Accounts; and (iv) all documents supporting the work that was performed and billed in the Assessable Accounts.
12Given the mixed success on the appeal, we do not order any costs of the appeal nor do we interfere with the application judge’s order that no costs were payable by anyone in respect of the application.
“K. van Rensburg J.A.”
“C.W. Hourigan J.A.”
“David Brown J.A.”