Court of Appeal for Ontario

Date: 2025-07-04
Docket: M55890 (COA-24-CV-0538)
Coram: Peter Lauwers, Bradley W. Miller, Jonathon George

Between:
Jodi L. Feldman Professional Corporation
Plaintiff (Respondent/Responding Party)

and

Lynne Catherine Foulidis
Defendant (Appellant/Moving Party)

Appearances:
Sean Dewart and Richard Macklin, for the appellant/moving party
Sean N. Zeitz and Cora Madden, for the respondent/responding party

Heard: 2025-06-12

On review of the endorsement of Justice Eileen E. Gillese of the Court of Appeal for Ontario, dated February 26, 2025, with reasons reported at 2025 ONCA 150.

Reasons for Decision

Background

[1] Between July 2015 and February 2018, Ms. Feldman of Jodi L. Feldman Professional Corporation (the “firm”), represented the appellant and moving party, Lynne Catherine Foulidis, in matrimonial proceedings against her husband, George Foulidis. Payment of the legal fees remained outstanding in the fall of 2017. The solicitor-client relationship began to break down in February 2018 after Ms. Foulidis acted against Ms. Feldman’s advice. The firm started an action against Ms. Foulidis on account of unpaid fees and claimed damages of approximately $665,000.

[2] After a six-day trial, the trial judge awarded the firm $480,919.93 in unpaid fees, and $240,118.50 for the costs of the action: Jodi L. Feldman Professional Corporation v. Foulidis, 2024 ONSC 552. Ms. Foulidis filed a timely notice of appeal with this court. Her counsel inadvertently did not perfect the appeal by the deadline of December 9, 2024. In late January 2025, Ms. Foulidis brought a motion for an extension of time to perfect the appeal.

The Motion Judge’s Decision

[3] The motion judge denied Ms. Foulidis’s motion. She was satisfied that Ms. Foulidis met the first three criteria to warrant an extension as enumerated in Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, at para. 2, because she showed a bona fide intention to appeal prior to the deadline, the period of delay was just under two months, and there was limited prejudice to the respondent. However, the motion judge concluded that the appeal failed on the last criterion; it had so little merit that the justice of the case ultimately warranted dismissal of the motion. After the motion judge’s decision to dismiss the motion for an extension of time, the Deputy Registrar dismissed the appeal for delay.

Panel Review and Standard

[4] Ms. Foulidis seeks panel review of the motion judge’s decision under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and moves to set aside the Deputy Registrar’s order dated March 4, 2025 dismissing the appeal for delay. The standard of panel review is well established. A panel review is not a new hearing. Because the motion judge’s discretionary decision is entitled to significant deference, the panel will not intervene unless the motion judge made a legal error or misapprehended material evidence: Beazley v. Johnston, 2024 ONCA 813, at para. 4, leave to appeal refused, 41619 (June 5, 2025).

[5] The motion judge invoked the principle that lack of merit alone can be a sufficient basis to deny an extension of time: Codina, at para. 7, citing Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 16.

Arguments Before the Motion Judge

[6] Before the motion judge, counsel for Ms. Foulidis (not counsel on this panel review) made two core arguments that the motion judge rejected. The first is that the trial judge erred by relying on Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291 (C.A.), in fixing the value of the legal services rendered. Counsel for the moving party did not pursue this alleged error in argument before the panel.

[7] The second is that the trial judge erred by failing to apply the governing legal principles in Cohen v. Kealey & Blaney (1985), 26 C.P.C. (2d) 211 (Ont. C.A.). The motion judge rejected this challenge on the basis that “[e]ven a cursory review of the trial judge’s analysis shows that he considered those factors.” We agree.

Factual Findings and Grounds of Appeal

[8] The motion judge noted that the balance of the grounds of appeal relate to alleged errors in the trial judge’s factual findings on matters such as the alleged oral retainer agreement:

The trial judge gave detailed, cogent reasons for the impugned findings, many of which were based on independent evidence and a rejection of the moving party’s evidence based on credibility concerns. The moving party did not point the court to any palpable and overriding errors in respect of the impugned factual findings.

Panel’s Analysis

[9] Counsel for the moving party focuses on two points in his argument. First, he submits that the motion judge took too hard a look at the grounds for appeal, in a manner that was inconsistent with this court’s decision in 40 Park Lane Circle v. Aiello, 2019 ONCA 451, at para. 8:

Turning to the merits of the proposed appeal, the question is only whether there is “so little merit in the proposed appeal that the appellant should be denied [his] important right of appeal”: Duca Community Credit Union Ltd. v. Giovannoli, at para. 14. Even where it is difficult to see the merits of a proposed appeal, a party is entitled to appeal and should not be deprived of that entitlement where there is no real prejudice to the other side: Denomme v. McArthur, 2013 ONCA 694, at para. 10; Auciello v. Mahadeo, 2016 ONCA 414, at para. 14.

[10] In Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, at para. 21, however, Pepall J.A. added:

“[T]here are occasions when the lack of merit in an appeal is so clear-cut that, on its own or in combination with a consideration of the other factors, a motion judge determines that leave should not be granted.”

This observation brings back into play the principle cited by the motion judge from Codina.

[11] Second, the moving party argues that the trial judge failed to grapple with several incongruities in the facts that supported Ms. Foulidis’s version of the retainer agreement. Her version was that, in view of her impecuniosity at the outset, the retainer was “pay when paid”. In other words, when the case was over and she was successful, her ex-husband would be forced to pay as much as 80% of her incurred fees. The evidence is that the firm worked for Ms. Foulidis without payment from July 2015 until February 2018, when there was a falling out. The fees by then had mounted up to about $665,000. Further, the evidence is that there were few accounts, and that the accounts that were rendered were not posted, to avoid the tax consequences, since no cash was forthcoming or expected until the case was over. This supports Ms. Foulidis’s version of the retainer as “pay when paid”.

[12] The moving party notes that the trial judge failed to grapple with these points of evidence, and that this was a palpable and overriding error. Instead, the trial judge found that there were three written retainer agreements between Ms. Foulidis and the firm. He accepted the evidence of the firm’s bookkeeper that there was an initial retainer agreement that had disappeared. He rejected Ms. Foulidis’s claim that the initial agreement was made orally rather than in writing. The signed retainer agreements noted that “accounts will be rendered from time to time and are payable within 30 days”, an obligation that was honoured only in the breach. The trial judge’s findings on the impact of the retainer agreements cannot be squared with his statement at para. 43: “I do accept the evidence of Lynne Foulidis that payment of accounts rendered was not a priority given the understanding that she was not in a position to pay and would not be in a position to pay until the proceeding concluded (with a result in her favour).”

[13] Ms. Foulidis’s difficulty is that, even if the trial judge was wrong in his finding that there was no “pay when paid” initial retainer, the error would not be palpable and overriding. The firm was entitled to be paid for its services at some point, and the retainer dispute does not touch that point.

Disposition

[14] The trial judge ultimately awarded the firm approximately $184,000 less than the amount claimed. He found that Ms. Feldman fell below the standard of care in communicating with Ms. Foulidis about the litigation strategy, including confirmation of the steps being taken and what could occur if not successful. The trial judge acknowledged that the quantum of fees was due to Mr. Foulidis’s litigation conduct which drove the length and complexity of the proceedings. He found that significant efforts were made by the firm in Ms. Foulidis’s best interests, which he outlined in paras. 15-20.

[15] In June 2018, the matrimonial case settled and the terms are set out in the trial judge’s decision at para. 31. While Ms. Foulidis did not receive a lump sum equalization payment, she was nevertheless well provided for, a result to which the firm’s efforts contributed.

[16] The appeal plainly lacks merit, and the motion judge did not err in so finding.

[17] The panel review and the motion to set aside the Deputy Registrar’s order are dismissed with costs payable by the moving party to the responding party in the amount of $8,000, all-inclusive, as agreed.

“P. Lauwers J.A.”
“B.W. Miller J.A.”
“J. George J.A.”