Court File and Parties
COURT FILE NO.: CV-18-592247 DATE: 20240424 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: JODI L. FELDMAN PROFESSIONAL CORPORATION Plaintiff – and – LYNNE CATHERINE FOULIDIS Defendant
Counsel: Sean N. Zeitz and Cora Madden, Lawyers for the Plaintiff Michael B. Miller, Lawyers for the Defendant
HEARD: January 15, 16, 17, 18, 19 and 22, 2024
G. DOW, J.
Reasons for Decision
[1] The plaintiff, Jodi L. Feldman Professional Corporation, that is the professional corporation of Jodi Feldman, a lawyer specializing in matrimonial litigation (which I shall refer to interchangeably) seeks to recover unpaid legal fees incurred in representing the defendant, Lynne Catherine Foulidis, in a divorce proceeding against her spouse, George Foulidis. The plaintiff relied on three retainer agreements, the first of which was either lost (according to the plaintiff) or an admitted oral retainer (according to the defendant).
[2] The legal services provided began in or about July, 2015 and lasted until February 15, 2018. There were six accounts dated between October 25, 2016 to February 13, 2018 which the plaintiff totalled, after deducting payments made for costs awarded and paid in favour of the defendant to be $664,323.38. This amount remains outstanding.
[3] The retainer and quantum were both in dispute prior to the trial and this matter proceeded to a trial (rather than an assessment). It was a summary trial with affidavits and/or expert reports filed as evidence in chief (and marked as exhibits) with brief oral examinations in chief followed by cross-examination and re-examination, if any, also viva voce. The documents identified and referred were also marked as exhibits for clarity and to ensure a complete record.
[4] In addition to herself, the plaintiff called Sheila Bredin, a bookkeeper and office person and an associate lawyer, Jasmeet Dhaliwal as witnesses. In addition to the defendant, Gavin MacKenzie testified on behalf of the defendant.
[5] I was requested to make preliminary rulings on the extent to which reference could be made to Law Society of Ontario discipline proceedings regarding the plaintiff and the admissibility of a report authored by Gavin MacKenzie dated January 2, 2023. For oral reasons given, I restricted the scope of cross-examination of the plaintiff with regard to a four month suspension imposed by the Law Society of Ontario to that given by her in cross-examination on affidavit evidence of Lynne Foulidis subsequent to being disciplined in 2014 for deception arising from activities in 2007 that Jodi Feldman advised all of her clients of the incident and did so with the defendant (who disagreed with this evidence).
[6] With regard to the content of Gavin MacKenzie’s report which addressed whether the plaintiff met the standard of care in her representation of Lynne Foulidis, I redacted from his report any references to and reliance on material that was not to be tendered at the trial.
Background and Liability
[7] The defendant came to the plaintiff on referral by an acquaintance of the defendant. The parties agreed after an initial consultation, the defendant was required to provide a $5,000 cash retainer. The defendant was residing in the matrimonial home, not working and parenting she and her (then) spouse’s three children (whom in 2015 would have been in or about the ages of 15, 16 and 18). She had no assets other than title in the matrimonial home being registered in her name. By comparison, her spouse operated two Tim Hortons franchises, two other restaurants, was the landlord directly or indirectly to more than one commercial property and a part or full owner to as many as 16 corporations (see paragraph 12 of Justice Horkins’ Reasons of July 27, 2016-Exhibit 27 to the Affidavit of Jodi Feldman marked as Exhibit “1”). By mid-2016 George Foulidis was embroiled in a Canada Revenue Agency (“CRA”) audit alleging he owed in excess of $3 million in unpaid taxes.
[8] It was uncontested that Lynne Foulidis sold jewelry to raise the $5,000 which was turned over to Jodi Feldman along with a request that it be held available to her in case she needed funds. Jodi Feldman admitted she complied with this request, that is, placed the cash in her petty cash box (rather than deposit it in her trust account). The funds were apparently returned over time to the defendant when required. In addition, Jodi Feldman testified providing additional funds totalling $9,300 when Lynne Foulidis was in desperate need of funds.
[9] Lynne Foulidis testified there was no written retainer, only an oral representation to her that she would be a rich woman on the payment of equalization and that her spouse would be responsible for “up to 80 percent” of the fees to be charged. No mention of Jodi Feldman’s past disciplinary suspension was made. Lynne Foulidis testified if it had been disclosed, she would have reconsidered retaining the plaintiff.
[10] Jodi Feldman testified a Retainer Agreement was signed, being her standard form and stapled to the inside cover of the orange billing file kept in her office. This document had disappeared by September 14, 2015 as evidenced in an email from Sheila Bredin on that date (Exhibit “11”), which stated “Jodi, attached is a pre-bill for Foulidis, you will have to check dockets and Emily’s time. I do not see any retainer or cash she gave you on July 13 th noted anywhere; I’m not sure how to list cash payments”.
[11] In addition, the evidence of Sheila Bredin was that she had previously seen the written Retainer Agreement in the orange billing folder.
[12] This concern was repeated in an email from Sheila Bredin to Jodi Feldman dated December 18, 2016 (Exhibit “12”) with a new draft retainer (with higher hourly rates) which was signed by Lynne Foulidis on December 18, 2016 (Exhibit “1” of Jodi Feldman’s affidavit sworn on March 28, 2023 marked as Exhibit “1” to the Trial). There was no documented evidence of any concern by Lynne Foulidis about changes to the nature of the retainer noted at or shortly after that time. Further, no concern was expressed by Lynne Foulidis at or shortly after the third retainer was signed on September 9, 2017 (Exhibit “2” of Jodi Feldman’s affidavit sworn March 28, 2023). Both written retainers are the same except for:
a) hourly rates to be charged;
b) the amount of retainer acknowledged to have been received; and
c) inclusion of daily counsel fees amounts for Jasmeet Dhaliwal in the September 9, 2017 version.
[13] Neither of the produced written retainers referred to any deferral of payment pending an order for payment of equalization by the respondent’s spouse. To the contrary, both retainers described accounts will be rendered from time to time and are payable within 30 days.
[14] I prefer and rely on the evidence of Sheila Bredin, whom I found to be straight forward, without an interest in the outcome and, as a result, significantly more reliable than either of the parties. As a result, I find the first retainer was a signed written retainer in the form of the subsequent two retainers and subsequently misplaced. It is clear and I find that the defendant owes the plaintiff for the value of legal services rendered during the period of time Jodi Feldman represented Lynne Foulidis.
[15] Subsequent to being retained, efforts began to determine Lynne Foulidis’ entitlement resulting from her marriage to George Foulidis. George Foulidis was not a willing participant in the process. It began with the apparent necessity to obtain an order for substitutional service on August, 2015. It continued through a multitude of court appearances, case conferences, changes in counsel, adjournments due to lack of production or compliance with previous court orders. This was detailed in paragraphs 30 through 112 of Jodi Feldman’s affidavit sworn on March 28, 2023. The parties’ position on the outcome of court appearances are contained in charts at paragraph 17 of the plaintiff’s written Factum and paragraph 90 of the defendant’s Factum. It will not be repeated here. It is clear the focus became attempting to obtain a reliable financial statement for George Foulidis.
[16] The financial circumstances of George Foulidis were addressed in some detail by Justice Horkins in her July 27, 2016 Endorsement (Exhibit “27” to Jodi Feldman’s affidavit sworn March 28, 2023). Justice Horkins sets out 12 types of relief sought by Lynne Foulidis (at paragraph 2). The fact the motion has been adjourned on multiple occasions at the request of George Foulidis, the rejection of George Foulidis’ position of being on the brink of insolvency” (at paragraph 66) and that his finances were a “complicated mess” (at paragraph 64) were noted. Justice Horkins’ summary of orders is a list of 13 directions (with the second order of having 8 subparts). Costs were not agreed upon and resulted in a further endorsement November 10, 2016 (Exhibit “30” to Jodi Feldman’s affidavit sworn March 28, 2023). This endorsement noted:
a) George Foulidis “caused the motion because of his non-disclosure”; and
b) George Foulidis’ conduct added unnecessary expense to this litigation and has made it impossible for the applicant to consider settlement [of] the dispute”.
[17] As a result, Lynne Foulidis was awarded $30,000 in costs of the $66,308 claimed for the motion. The comments of Justice Horkins highlighted above are to demonstrate substantial time was not only expended but required in pursuing Lynne Foulidis’ best interests.
[18] Of concern in this trial was a November 6, 2015 email chain (Exhibit “5”) between Jodi Feldman and the forensic accounting experts retained on behalf of Lynne Foulidis which attached CRA Assessments and that of George Foulidis’ accountant (Athena Mailloux). This resulted in Jodi Feldman stating to her accounting experts “I refer to the documents referenced as items 23-26, clearly not a fear or innuendo, but actually firm proof that Lynne will get nothing”. The defendant used this statement to buttress its submission that the plaintiff was aware of the risk as of that moment and undermined any value to time and effort expended subsequently. However, it would appear these documents were eventually evaluated and assessed by Justice Horkins who concluded they could not be relied upon. As a result, it does not eliminate the need for Jodi Feldman to continue to pursue, on behalf of the defendant, her entitlement to be awarded an appropriate amount, with the associated legal services rendered. The absence of any documented report to the client/defendant, confirmed in writing of the potential risk will be addressed below in reviewing the evidence of Gavin MacKenzie on behalf of the defendant.
[19] Another area of concern raised in the trial was the plaintiff’s reaction to the disclosure from counsel for George Foulidis in January, 2017 of a business deal with the restaurant company, Cara Operations, whereby George Foulidis would be paid in excess of $3 million. This resulted in additional motions and multiple appearances for preservation of any funds paid to George Foulidis or his companies including a dispute whether Cara Operations was bound by such orders. This also demonstrates the need to expend significant time and effort by the plaintiff as part of protecting the defendant’s best interests.
[20] By mid-2017, the conduct of George Foulidis had resulted in Justice Chiappetta stating in an endorsement on June 20 that it was “a direct violation of Justice Penny’s Order. It represents blameworthy, game playing tactics that will not be tolerated in this court” (Exhibit “21”). Justice Chiappetta also subsequently ordered (then) Justice Stevenson be assigned as Case Management Judge. This resulted in leave being granted for a long motion to address Lynne Foulidis’ ongoing needs to be heard on December 4, 2017.
[21] By this point, September 25, 2017, Jodi Feldman had forwarded five of the accounts in question with fees totalling in excess of $630,000. I was directed to covering emails of delivery of some of the accounts by Sheila Bredin which provided for “Please contact me if you have any questions regarding your account” (such as September 10, 2016 – Exhibit “8” and March 8, 2017 – Exhibit “38”). Lynne Foulidis’ evidence at trial maintained her limited understanding of legal matters aside from payment was not required, payment would be made from equalization and her spouse would be responsible for “up to 80 percent” of the amount owed.
[22] By the Fall of 2017, the amount of fees for time expended resulted in discussion as to how payment could be secured. This led to review of Lynne Foulidis’ only asset and her approximately $700,000 of equity in the family home estimated on the basis of it having resale value of $1.2 million. The remaining $500,000 had been drawn down by George Foulidis for business purposes.
[23] Jodie Feldman testified an idea was raised for her to sue Lynne Foulidis, that is, her own client for the debt, obtain Judgment and then place a lien on the property. In this regard, I accept the evidence of Jasmeet Dhaliwal over that of either of the parties. I do so for two reasons. First, as a salaried employee, he did not have a stake in the outcome and emails which indicated his understanding of a basic, blatant and obvious potential conflict of interest. The concerns raised by him were referenced in emails to Jodie Feldman (see the large paragraph of email dated October 5, 2017 – Exhibit “51” and email of December 11, 2017 – Exhibit “56”).
[24] Also in late 2017, Anthony Kalentzis, a former business associate of George Foulidis, and acquaintance of Lynne Foulidis, following anonymous letters, made contact with her indicating he was willing to assist her in uncovering the assets of her spouse. However, he wanted to be compensated for his knowledge. This led to a meeting held after business hours at the office of Jodi Feldman. The evidence of Jodi Feldman was that she was uncomfortable with any such arrangement and could not act for him in drafting any such agreement (Exhibit “1” – paragraphs 116 to 121 of Jodi Feldman’s affidavit sworn March 28, 2023). The evidence of Lynne Foulidis was Jodi Feldman was a willing participant in this contact (paragraphs 17-18 of her affidavit sworn June 3, 2021 and paragraphs 102-103 of her affidavit sworn July 11, 2023).
[25] It is clear that Jodi Feldman did not directly assist in the drafting or signing of an agreement dated February 14, 2018 (Exhibit “67”) signed by Lynne Foulidis irrevocably directing the payment of $1.3 million to Anthony Kalentzis from “fruits of her litigation” with her spouse in which Jodi Feldman was her counsel. The execution of this document by Lynne Foulidis, contrary to the advice of Jodi Feldman, formed the basis for the breakdown of a solicitor-client relationship.
[26] The long motion scheduled for December 4, 2017 did not proceed given George Foulidis failed to serve and file responding materials. It was adjourned on terms to February 15, 2018 which Jodi Feldman assessed as favourable to Lynne Foulidis. These were summarized in an email to Lynne Foulidis dated December 5, 2017 from Jasmeet Dhaliwal (Exhibit “49”). This included final payment of the AP Valuation Report, previously ordered, which was intended to disclose the true financial situation of George Foulidis. That report was not delivered until February 14, 2018 nor was it made an exhibit at this trial.
[27] According to an email dated December 21, 2017 from Jasmeet Dhaliwal to Jodi Feldman, the Statement of Claim resulting in this action had been drafted for review (Exhibit “55”).
[28] On February 15, 2018, the parties appeared before Justice Faieta with the substantive aspect of the motion not proceeding (Exhibit “28”) given George Foulidis’ repeated failure to serve materials.
[29] The plaintiff issued the Statement of Claim giving rise to this action later that day. The defendant left a voicemail about proceeding to complete the agreement with Anthony Kalentzis on this date (despite the signed version marked as Exhibit 67 dated February 14, 2018) which Jodi Feldman interpreted as contrary to her advice and, as indicated, a breakdown of the solicitor-client relationship.
[30] Jodi Feldman’s letter dated February 21, 2018 (Exhibit “51” to the affidavit of Jodi Feldman, sworn March 28, 2023 – Exhibit “1”), confirmed the plaintiff’s unwillingness to further represent the defendant, the issuance of the Statement of Claim to collect unpaid fees and enclosed the Form 4: Notice of Change in Representation to be executed and filed.
[31] Lynne Foulidis and George Foulidis reached a resolution of their dispute and executed Minutes of Settlement dated June 18 and 20, 2018. While it did not provide for any lump sum equalization to Lynne Foulidis, the terms included:
a) a provision for Lynne Foulidis to reside in and keep the contents of the matrimonial home in addition to payment by George Foulidis of all expenses of the home until June 14, 2025;
b) Lynne Foulidis consenting to the transfer of title in the property to George Foulidis;
c) George Foulidis to pay all expenses related to the children; and
d) Lynne Foulidis to receive an annual “salary” for 20 years escalating from $42,000 per year to $72,000 per year during its term.
[32] A counterclaim by Lynne Foulidis alleging negligence on the part of Jodi Feldman in this action was discontinued, with costs payable by March 9, 2022.
[33] With the transfer of title of the matrimonial home to George Foulidis, the plaintiff sought and was granted a charging order. In addition, an Application for a Bankruptcy Order against Lynne Foulidis was issued by Jodi Feldman which was resolved by George Foulidis giving a personal guarantee to pay any sum of money found due and owning to the plaintiff arising from this action.
[34] To summarize, I find Lynne Foulidis signed a written retainer agreement in the summer of 2015 and retained the plaintiff to advance her claims against her spouse arising from the breakdown of her marriage. I reject Lynne Foulidis’ evidence and submissions that the conduct of the plaintiff vitiated the defendant’s obligation and responsibility to pay for the value of legal services provided. This leads to what effect the conduct of the plaintiff should have on the amount the plaintiff should be awarded.
Damages
[35] Having not accepted the evidence of Lynne Foulidis about there only being an oral retainer at the outset of the solicitor-client relationship, I also have concerns about her repeated emphasis on not having to pay for legal representation and that she was only told “up to 80 percent” of the legal fees would be paid by her spouse. This evidence, at best, accepts Lynne Foulidis was going to be responsible for at least 20 percent of the legal fees incurred plus any additional amounts arising from George Foulidis being ordered to pay less than 80 percent of the legal costs incurred.
[36] The complaints and submissions regarding Jodi Feldman’s poor handling of the retainer can be summarized as follows:
a) inaccurate docketing with admitted having “rounded up and rounded down” time docket entries;
b) conducting aggressive, time intensive litigation (also referred to as “churning”), particularly after the November 6, 2015 email acknowledging production of financial material regarding George Foulidis raised the risk no equalization would be payable; and
c) breaches of the Rules of Professional Conduct to ensure effective communication has occurred, including lack of candor, conflict of interest, failure to advise the client of the merits and probable results and reporting the status and steps taken including the possibility of adverse results, instructions requested and received and confirmation of same.
[37] Regarding inaccurate dockets, evidence at the trial attempted to detail the high degree of “even” time entries which I understood to be using predominately a full hour for .5 of an hour. However, aside from counsel for the defendant attempting to give evidence of the percentage or frequency of same (which I rejected as improper and not admissible), there was no evidence of errors in docketing aside from Jodi Feldman’s admission of “rounding up and rounding down”.
[38] Using a one-tenth of an hour scale (that is, one tenth of an hour equaling 6 minutes), it would appear up to three minutes or one twentieth of an hour per entry would be statistically possible. Again, no evidence was tendered about the total number of hours docketed. As a result, I find, even if there was only “rounding up” and no “rounding down”, there is insufficient evidence to base any reduction of fees charged on this basis. I also rely on the accounts having been delivered with a covering email suggesting the bookkeeper, Sheila Bredin, could be contacted to discuss any concerns. This applies both to actual accounts delivered and “sample” bills sent to update client on time expended from the previous account.
[39] In addition, although Lynne Foulidis gave evidence of being rushed when asked to sign affidavit material, I confirm that she was literate, having completed secondary school and attended two terms at the University of Waterloo. Further, her affidavit sworn November 10, 2017 in the matrimonial proceeding and tendered at the trial indicated her awareness of her own legal expenses having exceeded $500,000 (see paragraph 206, Affidavit of Lynne Foulidis sworn November 10, 2017, Tab 26 of Volume 4 of Trial Document Brief of Plaintiff).
[40] Regarding conducting aggressive, time intensive litigation, the matrimonial dispute endorsements repeatedly indicated how the conduct of George Foulidis made it exceedingly difficult for Lynne Foulidis and her counsel. This was detailed in the reasons and orders of, for example, Justice Horkins and Justice Chiappetta, which have been referred to above. Returning to the affidavit of Lynne Foulidis sworn November 10, 2017 in support of additional relief, it was noted the CRA had attributed income to George Foulidis well in excess of $1 million per year for the years 2009, 2010 and 2011. Thus, there appeared to be a sound basis to question the income level being put forward by George Foulidis and to continue with efforts to determine his actual financial status.
[41] Regarding breaches of the Rules of Professional Conduct, given the admission of an oral retainer and subsequent signing of written retainer agreements, I find no breach of contract that could result in the dismissal of the action can or should occur. What must be completed is an assessment of what is a fair and reasonable amount in the circumstances or, as set out in the defendant’s factum whether and how much “Ms. Feldman’s claim be substantially reduced to an amount to be affixed by this Court” (at paragraph 95).
[42] In this regard, I turn to the report and evidence of Gavin MacKenzie. Unfortunately, his evidence and opinion was based on factual assumptions provided to him that generally only contemplated the version of events put forward by Lynne Foulidis, many of which I do not accept. I do not accept the evidence of Lynne Foulidis that she was assured that George Foulidis would be paying “up to eighty percent” of her legal fees. I reject that evidence on the basis it implies an award of costs throughout on a substantial indemnity scale. There was no evidence of any discussion from either litigant of same or tendering an Offer to Settle which one would expect to buttress such a result. It is clear no such Offers to Settle were made or even possible given the difficulty obtaining from, and the ongoing resistance shown by George Foulidis from the outset to disclose his true financial situation.
[43] I do accept the evidence of Lynne Foulidis that payment of accounts rendered was not a priority given the understanding 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).
[44] I do not accept the assumption given to Gavin MacKenzie of George Foulidis having net assets showing a negative value. I do accept that Jodi Feldman, on behalf of Lynne Foulidis, did not accept the accuracy of George Foulidis’ financial statement and the suspicion by both litigants in this action, that he was concealing assets.
[45] The greatest concern is the manner and extent to which Jodi Feldman kept Lynne Foulidis informed of the litigation strategy being deployed, including confirmation to Lynne Foulidis of the steps being taken, and what could occur if not successful.
[46] In this regard, the evidence at the trial of the nature and extent of reporting to the client was admitted by Jodi Feldman to be oral or partially left to her associate, Jasmeet Dhaliwal. Jasmeet Dhaliwal was hired as a salaried employee as he completed his admission to the bar and one must question the appropriateness of delegating this important task to him. While he testified about his extensive contact and numerous meetings with Lynne Foulidis, which I accept, the extent of documentation Lynne Foulidis was kept informed of the status and litigation strategy, options reviewed, advice given and instructions received appears to be limited to emails from Jasmeet Dhaliwal to Lynne Foulidis, copied to Jodi Feldman and Sheila Bredin. As a result, it falls short of the obligation and requirements under Rule 3 of the Rules of Professional Conduct as outlined by Gavin MacKenzie in his evidence and report. I agree with Gavin MacKenzie that Jodi Feldman:
a) owed a duty of care to Lynne Foulidis; and
b) the applicable standard of care was that of a reasonably competent lawyer in Ontario at the material time.
[47] However, I disagree with the conclusion of Gavin MacKenzie that Jodi Feldman failed to meet the applicable standard of care in her actions and efforts to advance the best interests of Lynne Foulidis up to February 15, 2018. Where Jodi Feldman failed to meet the standard of care was in her communication, more precisely the lack thereof, and maintaining records of her communication to Lynne Foulidis of steps being taken, confirmation of instructions to proceed and the result achieved with prior notification of the risk and effect of an adverse result.
[48] It is also clear this is what led to the situation which arose in the Fall of 2017 when, after two years of being unsuccessful in forcing George Foulidis to disclose his actual financial situation, the legal fees incurred had risen to a level where payment of same had become problematic.
[49] Regarding the conflict of interest which arose in the face of mounting legal fees and the inability to confirm an equalization payment which would exceed same, the Rules of Professional Conduct provide for same (Rule 3.4-1). The commentary regarding this rule makes it clear it is the “risk of impairment rather than the actual impairment” which governs the situation.
[50] I disagree with the assumption given to Gavin MacKenzie that Jodi Feldman at no time told Lynne Foulidis that she may have to pay Jodi Feldman’s account, personally before December, 2017. The email of October 5, 2017 from Jasmeet Dhaliwal to Jodi Feldman (Exhibit “51”) raises both Lynne Foulidis’ inquiry if making payment of the account would make a difference and the idea of using the equity in the home to ensure payment by “doing something along the lines of RBC did”. Further, the email of December 11, 2017 from Jasmeet Dhaliwal to Jodi Feldman (Exhibit “56”) makes it clear both were alive to a conflict of interest issue and what steps needed to be taken to proceed. There was evidence, which I accept, that Lynne Foulidis was referred for independent legal advice.
[51] I also do not agree with the submission of counsel for Lynne Foulidis that Jodi Feldman was in an actual conflict of interest at that point or upon drafting of the Statement of Claim. I accept Jodi Feldman’s evidence that the Statement of Claim was not issued until after she appeared before Justice Faieta on February 15, 2018.
[52] From that point onward, as evidenced by the letter from Jodi Feldman to Lynne Foulidis dated February 21, 2018 (Exhibit “51” to the affidavit of Jodie Feldman sworn March 28, 2023 – Exhibit “1” and the email dated February 22, 2018 from Jodi Feldman to Jonathan Rosenstein (Exhibit “52” to the affidavit of Jodi Feldman sworn March 28, 2023 – Exhibit “1”), Jodi Feldman made it known her firm’s interest had diverged from Lynne Foulidis’ interest, and she could no longer act for her. While the amount claimed to be owed at this point included time and effort expended on things that ought not to have been included, these were abandoned subsequently and recovery not sought at this trial.
Conclusion
[53] The parties put forward and I accept that the law requires the value of legal services to be fixed on the basis of the factors long identified for assessment of lawyer’s accounts. Those nine factors are set out in Cohen v. Kealey & Blaney, (1985) 10 O.A.C. 344 (at paragraph 11) and have been relied on with approval as recently as in the decision of Verbeek v. Kooner, 2021 ONSC 7863 (at paragraph 121), appeal dismissed (2023 ONCA 660). In short, what is a reasonable amount to award in all of the circumstances?
[54] I do not propose to do a line by line review of the legal accounts submitted nor do I believe the law requires same. I am also mindful of the governing principle in fixing costs, (or here, assessing the plaintiff’s claim) to “fix an amount that is fair and reasonable for the unsuccessful party to pay in a particular proceeding, rather than an amount fixed by the actual cost incurred by the successful litigant (Boucher et al v. Public Accountants Council for the Province of Ontario et al, [2004] O.J. No. 2634 (at paragraph 26)). I have detailed above and will not repeat the extraordinary efforts required by the plaintiff to represent the defendant in the need to determine her former spouse’s true financial status, the financial arrangement ultimately achieved from her spouse by the defendant and the deficiencies in the plaintiff’s reporting and communication to the defendant as part of determining the fees to be paid.
[55] In closing submissions and in response to my direct question, counsel for the defendant submitted the plaintiff ought not to be awarded an amount greater than $152,500 for fees. Counsel for the plaintiff submitted the accounts were reasonable as prepared and delivered but ultimately acknowledged any reduction should not exceed $100,000. I fix the amount owed to the plaintiff by the defendant to be $425,000 for fees plus HST of $55,250 and the disbursements as claimed, $669.93 (inclusive of HST) for a total of $480,919.93.
Costs
[56] At the conclusion of submissions, I required each side provide their draft Bill of Costs for this action in the event they were successful. The plaintiff provided a Bill of Costs which outlined $223,711.75 for partial indemnity fees (plus HST) and $14,118.50 for disbursements. This increased to $283,595.53 for fees (plus HST) at a substantial indemnity level.
[57] Counsel for the defendant provided a Bill of Costs from previous counsel in this matter which outlined fees of $26,583 for partial indemnity fees (plus HST) and $1,964.50 for disbursements (inclusive of HST). This increased to $39,874.50 for fees (plus HST) at a substantial indemnity level. In addition, the Bill of Costs of current counsel set out an additional of $139,748.80 for partial indemnity fees (plus HST) and disbursements totalling $62,418.61 (inclusive of HST). This increased to $182,765.07 for fees (plus HST) at a substantial indemnity level. The total amount sought by the defendant for partial indemnity fees is thus $166,331.80 (plus HST) and disbursements totalling $64,383.11 (inclusive of HST). This increased to $222,639.57 (plus HST) at a substantial indemnity level.
[58] I urge the parties to agree on costs. If the parties are unable to agree, each side may deliver to me, on or before May 24, 2024, no more than five double spaced typed written pages, compliant with Rule 4.01, the legal costs and disbursements being requested and the reasons for same. They should refer to any related items such as previous orders made for costs to be determined by the trial judge, or Offer to Settle being relied on and shall attach same separately.
Mr. Justice G. Dow Released: April 24, 2024
COURT FILE NO.: CV-18-592247 DATE: 20240424 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JODI L. FELDMAN PROFESSIONAL CORPORATION Plaintiff – and – LYNNE CATHERINE FOULIDIS Defendants
REASONS FOR DECISION Mr. Justice G. Dow Released: April 24, 2024
