



COURT OF APPEAL FOR ONTARIO

CITATION: Norris v. Starkman, 2020 ONCA 744

DATE: 20201124

DOCKET: C68264

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)

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)

[1]

The appellant, Paul Starkman, a lawyer, appeals,
    together with his law firm, from the application judges 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.

[2]

The appellant advances two main grounds of
    appeal.

[3]

First, 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.

[4]

Only 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.

[5]

Mr. 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.

[6]

Second, 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.

[7]

In 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.

[8]

However, 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 judges 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.

[9]

As 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.

[10]

Mr. 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 courts 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.

[11]

Consequently, 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.

[12]

Given the mixed success on the appeal, we do not
    order any costs of the appeal nor do we interfere with the application judges
    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.


