



COURT OF APPEAL FOR ONTARIO

CITATION: Starkman Barristers v. Cardillo, 2019 ONCA 53

DATE: 20190125

DOCKET: C65635

Rouleau, van Rensburg and Zarnett JJ.A.

BETWEEN

Starkman Barristers

Applicant (Respondent)

and

John Cardillo
, Neil Proctor,
Medcap
Real Estate Holdings Inc.

and National Racquet Club
Inc.

Respondents (Appellants)

Scott Turton, for the appellants

Paul Starkman, for the respondent

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 counsels concession and a fair reading of the record, we agree
with the motion judges 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.




