Ontario Court of Appeal twice confirms that lack of merit alone is sufficient to dismiss a motion for an extension of time to perfect an appeal.

In Jodi L. Feldman Professional Corporation v. Foulidis, 2025 ONCA 479, Sean N. Zeitz and Cora Madden were twice successful at the Court of Appeal: first in opposing the defendant’s motion to extend the time to perfect her appeal and then in defeating her motion for a panel review, thereby upholding their client’s trial success (reasons reported at 2024 ONSC 552).

The plaintiff, Jodi L. Feldman Professional Corporation (the “Firm”), was awarded $480,919.93 at trial for unpaid legal fees owing by the defendant in addition to costs of $240,118.50. The defendant appealed, alleging the trial judge erred in applying the applicable legal principles and in weighing the evidence. 

When the defendant failed to perfect her appeal on time, the Firm moved to dismiss the appeal for delay. In response, the defendant brought a motion to extend the time to perfect the appeal and delivered her appeal factum.  In dismissing the defendant’s motion, Justice Gillese found that “given the lack of merit of the putative appeal, the justice of the case requires that the motion be dismissed” (2025 ONCA 150). The defendant thereafter sought a review of the motion judge’s decision before a full panel of the Court of Appeal. 

The Panel affirmed the motion judge’s decision denying the requested extension. In so doing, the Panel confirmed that even where other criteria warranting an extension of time to perfect an appeal are met (i.e. bona fide intention to appeal, length of and explanation for the delay, and limited prejudice to the respondent), the extension should nevertheless be denied where the proposed appeal clearly lacks merit.

This case provides a valuable warning to appellants who fail to perfect their appeals on time. Although there is generally an automatic right to appeal a final order for payment of money, failing to perfect on time exposes an appeal to a preliminary “merits” assessment, which can result in an early dismissal of the appeal before it is heard on a full evidentiary record.

Written by: Sean N. Zeitz and Cora Madden