Good afternoon.
Following are our summaries of the civil decisions of the Court of
Appeal for Ontario for the week of June 30, 2025.
Continue Reading
In O.K. v. M.H., the Court confirmed that costs awards for costs incurred to obtain a support order are enforceable as support orders by the Family Responsibility Office. The Court also confirmed that counsel acting pro bono was not a bar to obtaining costs. On the contrary, by awarding costs where counsel takes a case pro bono, that will encourage more lawyers to take on such cases, thereby increasing access to justice.
In Dale v Toronto Real Estate Board, the Court granted the moving party's motion for an extension in time to perfect his appeal. The overarching principle is that an extension should be granted if required by the justice of the case.
Jodi L. Feldman Professional Corporation v. Foulidis was a lawyer-client fee dispute in which the client's motion to extend the time to perfect her appeal was dismissed.
Wishing everyone an enjoyable weekend.
John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
Table of Contents
Civil Decisions
Keywords: Family Law, Support Orders, Support-Deduction Order, Enforcement, Family Responsibility Office, Civil Procedure, Costs, Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, ss. 1, 10, 11, and 12, Recommended Standard Terms for Support Orders, O. Reg. 454/07, ss. 5 and 6, 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 82 O.R. (3d) 757 (C.A.), Wildman v. Wildman (2006), 82 O.R. (3d) 401 (C.A.)
Dale v. Toronto Real Estate Board, 2025 ONCA 476
Keywords: Breach of Contract, Civil Procedure, Settlements, Setting Aside, Appeals, Perfection, Extension of Time, Rules of Civil Procedure, rr. 2.1, 3.02(1) and 49.09, Enbridge Gas Distribution Inc. v Froese, 2013 ONCA 131, Issai v Rosenzweig, 2011 ONCA 112, Jodi L. Feldman Professional Corporation v Foulidis, 2025 ONCA 150, D.G. v A.F., 2014 ONCA 436, Howard v Martin, 2014 ONCA 309
Jodi L. Feldman Professional Corporation v. Foulidis, 2025 ONCA 479
Keywords: Contracts, Lawyer and Client, Civil Procedure, Appeals, Perfection, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5), Jodi L. Feldman Professional Corporation v. Foulidis, 2024 ONSC 552, Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, Beazley v. Johnston, 2024 ONCA 813, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), Cohen v. Kealey & Blaney (1985), 26 C.P.C. (2d) 211 (Ont. C.A.), Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, 40 Park Lane Circle v. Aiello, 2019 ONCA 451
Short Civil Decisions
Keywords: Civil Procedure, Arbitration Awards, Leave to Appeal, Jurisdiction, Arbitration Act, 1991, S.O. 1991, c. 17, s. 45(1)(b), Denison Mines Ltd. v. Ontario Hydro (2001), 56 O.R. (3d) 181 C.A.), Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2023 ONCA 245, Optiva Inc. v. Tbaytel, 2022 ONCA 646, McEwen (Re), 2020 ONCA 511
CIVIL DECISIONS
[Paciocco J.A. (Motions Judge)]
Counsel:
I.C. Matthews, for the moving party
No one appearing for the responding party (O.K. was properly served but did not attend; the court proceeded in his absence).
Keywords: Family Law, Support Orders, Support-Deduction Order, Enforcement, Family Responsibility Office, Civil Procedure, Costs, Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, ss. 1, 10, 11, and 12, Recommended Standard Terms for Support Orders, O. Reg. 454/07, ss. 5 and 6, 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 82 O.R. (3d) 757 (C.A.), Wildman v. Wildman (2006), 82 O.R. (3d) 401 (C.A.)
facts:
The applicant appealed a 2024 order that required him to pay child and non-taxable spousal support. In 2025, Roberts J.A. ordered payment of three months' support arrears and security for costs (the "Roberts Order"). The applicant subsequently sought a panel review and a stay. Thorburn J.A. dismissed the motion (the "Thorburn Motion"), leaving costs to be fixed later.
issues:
1. Did the respondent have the right to bring a motion for:
a. An order awarding her costs in the Thorburn Motion and the current motion?
b. An order that constitutes the costs from the Roberts Order and the current motion to both count as enforceable support orders under the Family Responsibility and Support Arrears Enforcement Act (FRSAEA)?
c. An order to issue a support deduction order in respect of the total amounts specified in the costs orders in accordance with subsection 10(1) of the FRSAEA?
d. An order to be enforced by the Director, Family Responsibility Office (FRO), where (unless the order is withdrawn from the Director's office) amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed?
e. An order to bear interest applied at the post-judgment rate of 4%/year effective from date of order, and that a payment in default bears interest only from default date?
holding:
Motion granted.
reasoning:
1. Yes.
The Court held that there was sufficient evidence to order each of M.H.'s requests.
a. Yes.
The respondent was entitled to the costs of the Thorburn Motion because she was successful in her proceedings and the Court found no reason to deny her the benefit. Further, the Court held that pro bono representation does not bar costs awards. Such awards deter abusive conduct from non-pro bono parties and encourage future pro bono work because of potential payment from opposing parties. The partial-indemnity amounts sought were fair and reasonable.
b. Yes.
The Court treated the discussed costs as a support order because they were related to support or maintenance expenses. Subsection 1(1)(g) of the FRSAEA includes legal fees "arising in relation to support." The Court affirmed that costs in family proceedings can be enforced as support. All costs discussed related to enforcing payment of support under the FRSAEA.
c. Yes.
The Court held that once costs are deemed support orders, subsection 10(1) of the FRSAEA obliges the Court to make a support deduction order. The respondent fulfilled the requisite schedule to satisfy the Court.
d. Yes.
The Court supported the FRO Director's enforcement of support orders based on Recommended Standard Terms for Support Orders, O. Reg. 454/07.
e. Yes.
The Court upheld the recommendation found in the Recommended Standard Terms to apply interest on support orders.
Dale v. Toronto Real Estate Board, 2025 ONCA 476
[Pepall J.A]
Counsel:
S.M., the appellant and moving party, acting in person
J. Beesley, for the respondent/responding party
Keywords: Breach of Contract, Civil Procedure, Settlements, Setting Aside, Appeals, Perfection, Extension of Time, Rules of Civil Procedure, rr. 2.1, 3.02(1) and 49.09, Enbridge Gas Distribution Inc. v Froese, 2013 ONCA 131, Issai v Rosenzweig, 2011 ONCA 112, Jodi L. Feldman Professional Corporation v Foulidis, 2025 ONCA 150, D.G. v A.F., 2014 ONCA 436, Howard v Martin, 2014 ONCA 309
facts:
On March 19, 2009, the now self-represented appellant and moving party, S.M., and his co-plaintiffs issued a statement of claim against the respondent and responding party, the Toronto Real Estate Board ("TREB"), and others, for $540 million in damages relating to allegations that TREB and others conspired and improperly denied the plaintiffs access to TREB's Multiple Listing Service ("MLS") system. In October 2009, S.M. and his co-plaintiffs commenced a similar second action against TREB and others for $750 million in damages. The parties to the second action entered into a settlement agreement and the action was dismissed by way of a consent dismissal order on August 1, 2013.
On March 24, 2023, TREB brought a successful motion to dismiss the first action for delay. He determined that S.M. was no longer able to oppose the motion as he had assigned his interest in the action to one of his former co-plaintiffs.
The day before the dismissal for delay motion was heard, S.M. brought a motion under Rule 49.09 of the Rules of Civil Procedure to set aside the agreement to settle the second action based on an allegation that TREB had breached the agreement. That same day, S.M. commenced a third action against the same defendants seeking "the same set of reliefs sought" in the second action, which itself was similar to the first action that had been dismissed. TREB moved to dismiss the third action as an abuse of process and dismiss S.M.'s motion to set aside the settlement agreement relating to the second action.
On December 27, 2024, the motion judge dismissed the third action as an abuse of process, since it was an attempt to re-litigate the issues raised in the prior two actions. He also dismissed S.M.'s motion to set aside the settlement agreement. S.M. served and filed a notice of appeal from that order, stating that from 2013 until 2020, he successfully applied annually for an authorized user agreement as an unlicensed assistant, pursuant to the settlement agreement terms. However, in 2021, TREB advised that his application would be rejected. S.M. asserted that this rejection breached the settlement agreement that formed the basis of the dismissal of his second action.
S.M. moved for an order extending the time to perfect his appeal until at least August 31, 2025, under rule 3.02(1) of the Rules of Civil Procedure.
issues:
Should S.M.'s motion to extend or abridge the time to perfect his appeal be granted?
holding:
Motion granted.
reasoning:
Yes.
The justice of the case warranted granting S.M.'s motion for an extension to perfect his appeal.
Pursuant to Rule 3.02(1) of the Rules of Civil Procedure, the court may order an extension or abridgment of time on such terms as are just, with the overarching principle being that an extension should be granted if required by the "justice of the case". The Court takes into account the following factors on a Rule 3.02(1) motion: 1) whether the moving party formed a bona fide intention to appeal within the relevant time period, 2) the length of, and explanation for, the delay in filing, 3) the prejudice to the responding party caused, perpetuated or exacerbated by the delay; and 4) the merits of the proposed appeal. Further, it is appropriate to consider whether the moving party formed and maintained an intention to appeal within the relevant time period.
S.M. formed a bona fide intention to appeal and maintained that intention to appeal within the relevant time periods. S.M. filed his notice of appeal within the prescribed time frame but failed to perfect his appeal on time, and the registrar advised him that if the appeal was not perfected, it would be dismissed for delay. Prior to the deadline noted by the Registrar, S.M. brought a motion for an extension of time based on correspondence from his physician and other medical records.
The Court found that S.M.'s length of delay in bringing the motion for an extension was modest, and in light of his physician's correspondence, accepted his explanation for the delay. The Court did not find evidence of any prejudice to TREB arising from the delay in perfection. The Court also found that S.M.'s appeal was not clearly meritless. The motion judge had found that the notice of motion to set aside the settlement, standing alone, was not obviously frivolous and vexatious and had to be considered in light of the material delivered by TREB. TREB's evidence was not before the Court, which supported its conclusion that S.M. should not be denied the right to appeal.
The Court granted S. M.'s motion for an extension to perfect his appeal, but only allowed him until August 1, 2025, because his appeal was not strong, and it would be unfair to TREB to provide him with more time.
Jodi L. Feldman Professional Corporation v. Foulidis, 2025 ONCA 479
[Lauwers, Miller, George JJ.A.]
Counsel:
S. Dewart and R. Macklin, for the appellant/moving party
S.N. Zeitz and C. Madden, for the respondent/responding party
Keywords: Contracts, Lawyer and Client, Civil Procedure, Appeals, Perfection, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5), Jodi L. Feldman Professional Corporation v. Foulidis, 2024 ONSC 552, Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, Beazley v. Johnston, 2024 ONCA 813, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), Cohen v. Kealey & Blaney (1985), 26 C.P.C. (2d) 211 (Ont. C.A.), Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, 40 Park Lane Circle v. Aiello, 2019 ONCA 451
facts:
From July 2015 to February 2018, Jodi L. Feldman Professional Corporation (the "firm") represented the appellant and moving party, Ms. F, in matrimonial proceedings against her husband. In June 2018, the matrimonial case settled. Although Ms. F did not receive a lump sum, she was well provided for, a result to which the firm's efforts contributed. The firm began an action against Ms. F on account of unpaid fees and claimed damages, which the trial judge awarded. Ms. F then filed a timely notice of appeal with the Court, but her counsel did not perfect the appeal by the deadline. In January 2025, Ms. F brought a motion for an extension of time to perfect the appeal. The motion was dismissed, and the Deputy Registrar dismissed the appeal for delay.
issues:
Did the motion judge err in her decision and should the Deputy Registrar's order be set aside?
holding:
Appeal dismissed.
reasoning:
No. The appeal lacked merit, and the motion judge did not err in
so finding.
Ms. F's counsel (not counsel on this panel review) made two
arguments that the motion judge rejected. The first argument was
that the trial judge erred by relying on Boucher, in
fixing the value of the legal services rendered. This was not
pursued by counsel for the moving party before the panel. The
second argument was that the trial judge erred by failing to apply
the governing legal principles in Cohen. The motion judge
rejected this on the basis that a review of the trial judge's
analysis shows that he did consider those factors. The Court
agreed.
The Court also rejected the moving party's argument that the
motion judge took too hard a look at the grounds for appeal, in a
manner that was inconsistent with the Court's decision in
40 Park Lane Circle. In Sabatino, the Court held
that "there 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 brought into
play the principles the motion judge cited from
Codina.
The moving party also argued that the trial judge failed to grapple
with several incongruities in the facts that supported Ms. F's
version of the retainer agreement, and this was a palpable and
overriding error. The trial judge found that there were three
written retainer agreements between Ms. F and the firm and found
that there was no "pay when paid" initial retainer. The
Court was of the view that even if the trial judge was wrong in
this, the error was not palpable and overriding. The firm was
entitled to be paid for its services at some point and the retainer
dispute did not touch that point.
The trial judge did not award the firm its full claimed amount, as
he found that the firm fell below the standard of care in
communicating with Ms. F about the litigation strategy. The trial
judge acknowledged that the quantum of fees was due to Mr. F's
litigation conduct which drove the length and complexity of the
proceedings. The trial judge found that significant efforts were
made by the firm in Ms. F's best interest.
SHORT CIVIL DECISIONS
[Roberts, Zarnett, Gomery JJ.A.]
Counsel:
R. Jervis and S. Fiddes, for the appellants
R. Shastri and D. Winer, for the respondent
Keywords: Civil Procedure, Arbitration Awards, Leave to Appeal, Jurisdiction, Arbitration Act, 1991, S.O. 1991, c. 17, s. 45(1)(b), Denison Mines Ltd. v. Ontario Hydro (2001), 56 O.R. (3d) 181 C.A.), Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2023 ONCA 245, Optiva Inc. v. Tbaytel, 2022 ONCA 646, McEwen (Re), 2020 ONCA 511
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be ought about your specific circumstances.
