Court of Appeal for Ontario

Date: 2019-01-25 Docket: C65635

Judges: Rouleau, van Rensburg and Zarnett JJ.A.

Parties

Between

Starkman Barristers Applicant (Respondent)

and

John Cardillo, Neil Proctor, Medcap Real Estate Holdings Inc. and National Racquet Club Inc. Respondents (Appellants)

Counsel

Scott Turton, for the appellants

Paul Starkman, for the respondent

Hearing and Lower Court

Heard: January 8, 2019

On appeal from: the order of Justice R. Cary Boswell of the Superior Court of Justice, dated September 21, 2017.

Appeal Book Endorsement

[1] The appellants focussed their submissions on the admission and use of business records at the assessment hearing. They argue first that the motion judge erred in concluding that the dockets and accounts were business records and were properly admitted at the assessment. They argue that the process for preparing and authenticating these records was not proven.

[2] We disagree. As we read the record of the assessment, the appellants' counsel conceded the admissibility of the business records. The only concern was as to the use that could be made of the business records.

[3] Given counsel's concession and a fair reading of the record, we agree with the motion judge's conclusion that there was no dispute as to their admissibility and, as a result, they were properly admitted as business records.

[4] The appellants further argue that, if the dockets were properly admitted, the assessment officer erred in preventing appellants' counsel from cross-examining Mr. Starkman on the dockets of his clerk. They argue that this curtailment extended to cross-examination on the work done by Mr. Starkman.

[5] Again, we disagree. As we read the record, the assessment officer did not curtail the cross-examination of Mr. Starkman on his work or on the work done by the firm generally. The limits applied only to appellants' counsel pursuing a line of questioning seeking to cross-examine Mr. Starkman on what the clerk entered in her dockets.

[6] This did not prejudice the appellants. The appellants were allowed to challenge Mr. Starkman on the work carried out by the firm. The assessment officer in the result substantially discounted the time spent by the clerk. The overall result was, as found by the motion judge, favourable to the appellants. We also see no merit in the other grounds of appeal raised in the factum that were not addressed in oral submissions.

[7] The appeal is dismissed. Costs to the respondent fixed at $10,000 inclusive of disbursements and applicable taxes.