Cora Madden

The Court of Appeal for Ontario dismissed Lynne Catherine Foulidis’s motion for a panel review and to set aside the Deputy Registrar’s order dismissing her appeal for delay.

The court found that the motion judge correctly concluded the appeal lacked merit and that the criteria for an extension of time to perfect the appeal were not met.

The court reviewed the trial judge’s findings regarding the retainer agreement and legal fees, and found no palpable and overriding error.

Costs were awarded to the respondent.

The plaintiff, Datamy Inc., brought a motion for summary judgment against the defendants, Ka-Hang Yung and Vivien Yung, for breach of an Agreement of Purchase and Sale (APS) relating to a residential property.

The defendants failed to pay a second deposit of $140,000 as required by the APS.

The court held that the plaintiff was entitled to summary judgment for the unpaid deposit, rejecting the defendants’ arguments for relief from forfeiture and finding the deposit amount reasonable.

Alternatively, the court calculated damages based on the difference in sale price and related costs, but ultimately awarded the full unpaid deposit.

The moving party sought an extension of time to perfect her appeal from a trial judgment awarding her former legal counsel approximately $481,000 in unpaid legal fees.

The responding party opposed the motion.

The Court of Appeal dismissed the motion, finding that while the moving party met the criteria for continuing intention to appeal, explanation for delay, and lack of prejudice, the putative appeal had virtually no chance of success as it primarily attacked the trial judge's factual findings without demonstrating palpable and overriding error.

The Bank of Nova Scotia brought a motion for default judgment against Carlos Manuel Rosario Rosado for a professional student line of credit obtained through fraudulent misrepresentation.

The defendant failed to file a statement of defence and was noted in default.

The court found the defendant liable for the outstanding loan amount, awarded punitive damages for the fraudulent conduct, granted an accounting order, and preserved the Bank's right to elect between constructive trust/equitable lien and damages.

The court also made a finding of fraudulent misrepresentation relevant to the Bankruptcy and Insolvency Act.

The plaintiff, Jodi L. Feldman Professional Corporation, sought costs following a successful trial against the defendant, Lynne Catherine Foulidis, for legal services rendered.

The trial assessed the value of services at $480,919.93.

The plaintiff sought $276,631.63 in costs, applying partial indemnity to an Offer to Settle date and substantial indemnity thereafter.

The defendant objected on grounds of reasonableness, proportionality, insufficient docket details, and an alleged agreement for summary trial costs limits.

The court largely agreed with the plaintiff's entitlement to costs but made reductions for excessive claims related to statement of claim drafting, a charging order motion, and mediation, ultimately fixing costs at $240,118.50 all-inclusive.

The Heidari Creditors, as assignees of the trustee in bankruptcy, sought an order compelling a representative of Sherwood Custom Homes Inc. to be examined under subsection 163(1) of the Bankruptcy and Insolvency Act.

Their theory was that the bankrupt's former spouse's salary at Sherwood might represent funds earned by the bankrupt.

The court dismissed the motion, finding that the creditors failed to establish that Sherwood reasonably had knowledge of the bankrupt's affairs or property, and that the evidence did not reasonably support the theory that the spouse's income represented the bankrupt's earnings.

The plaintiff, Jodi L. Feldman Professional Corporation, a matrimonial lawyer, sued her former client, Lynne Catherine Foulidis, for unpaid legal fees totaling $664,323.38 incurred during a divorce proceeding.

The dispute centered on the existence of a written retainer, the quantum of fees, and alleged breaches of professional conduct by the plaintiff, including communication deficiencies and potential conflicts of interest.

The court found a valid written retainer existed and that the plaintiff's efforts were largely necessary due to the ex-spouse's non-disclosure.

While rejecting claims of excessive litigation or actual conflict of interest, the court found the plaintiff failed to meet the standard of care in communication and record-keeping regarding litigation strategy and risks.

The court fixed the amount owed for fees at $425,000 plus HST and disbursements, a reduction from the amount claimed, but significantly more than the defendant's proposed amount.

The appellants sought to overturn a summary judgment granting the respondent recovery on a $460,000 loan secured by a promissory note.

They argued the motion judge erred in applying the summary judgment test from Hryniak v. Mauldin, failing to apply the Statute of Frauds, and enforcing an oppressive interest rate.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the motion judge's conclusion that there was no genuine issue requiring a trial.

The court affirmed that the promissory note was valid and enforceable, the Statute of Frauds did not apply due to existing written documentation and the parties' conduct, and the agreed-upon interest rate was valid.