Executive Summary: Key Legal and Evidentiary Issues

• Jurisdiction over appeals in Construction Act references turned on whether s. 71(1) directed the matter to the Divisional Court rather than the Court of Appeal.
• The effect of the parties’ failure to bring a timely motion opposing confirmation of the associate judge’s report was central to whether any appeal lay at all.
• Enforcement of minutes of settlement in a construction lien dispute raised questions about the finality of a negotiated judgment for $85,000 and dismissal of the owners’ counterclaim.
• The priority of specific Construction Act appeal provisions over general appeal provisions in the Courts of Justice Act determined the proper appellate route.
• Procedural default under r. 54.09(1)(b) of the Rules of Civil Procedure, through inaction within 15 days, resulted in confirmation of the report and foreclosed a direct appeal.
• The court weighed access to appellate review against the Construction Act’s policy favouring expeditious resolution of construction lien disputes when considering any remedial transfer or extension of time.

Background and renovation dispute
Dani Building System Inc. (DBS) was retained by Syed and Nasreen Hossain to renovate their house. The renovation did not proceed smoothly, leading to a dispute over payment. DBS registered and perfected a construction lien against the property in the amount of $76,618.61, and that lien remained on title when the matter came before the court.

Reference under the Construction Act
On April 21, 2023, a judgment of reference was issued under s. 58(1)(a) of the Construction Act, directing that the dispute be tried before a Construction Lien Associate Judge. Several pre-trial attendances followed. Throughout this period, all parties—including DBS and the Hossains—were represented by counsel, and the proceeding was treated as a construction lien matter governed by the specialist regime in the Construction Act and the Rules of Civil Procedure.

Settlement agreement and minutes of settlement
Following a settlement conference in the fall of 2024, the parties reached a comprehensive settlement. They agreed that judgment would be granted in favour of DBS in the amount of $85,000, and that the Hossains’ counterclaim would be dismissed. The Hossains also agreed to execute a release in favour of DBS. In return, upon receipt of the settlement funds, DBS was to discharge its construction lien from title. Payment under the settlement was to be made by March 31, 2025, and the parties signed minutes of settlement reflecting these terms. As a result, the scheduled trial dates were vacated, the case effectively being resolved by the settlement and its incorporation into the judgment.

Failure to pay and motion before the associate judge
The Hossains did not pay the $85,000 by the agreed deadline. DBS responded by bringing a motion before Associate Judge Robinson on July 25, 2025, seeking to enforce the settlement. The Hossains, in turn, sought to set aside or vacate the settlement and to obtain an order removing the lien from title. Associate Judge Robinson released reasons on October 29, 2025, which affirmed the settlement agreement and its enforceability. A Final Report issued on October 31, 2025, reflecting the outcome of the reference and confirming the settled judgment in DBS’s favour.

Appeal efforts and motion to quash
On December 11, 2025, the Hossains filed a notice of appeal to the Court of Appeal for Ontario, challenging the enforcement of the settlement and the resulting report. DBS responded by bringing a motion to quash the appeal, arguing that the Court of Appeal lacked jurisdiction because appeals from such Construction Act references lie, if at all, to the Divisional Court by virtue of s. 71(1) of the Construction Act. At the hearing of the motion, the Court of Appeal reserved its reasons but granted the motion to quash at the conclusion of argument, with written reasons to follow.

Jurisdictional framework and procedural default
In its reasons, the Court of Appeal focused first on the effect of the Rules of Civil Procedure. Under r. 54.09(1)(b), when a party does not bring a motion opposing confirmation of a report within 15 days of service, the report is deemed confirmed. The Hossains did not file such a motion within the required time; accordingly, the report was confirmed by operation of the rule. Against that procedural backdrop, the court considered the Hossains’ argument that they were appealing an order enforcing a settlement, within the general subject matter and monetary jurisdiction of the Court of Appeal under the Courts of Justice Act.

DBS countered that, because the proceeding was a construction lien reference, it was governed by specific appellate provisions in the Construction Act. Section 71(1) of that statute provides that an appeal lies to the Divisional Court from a judgment or order on a motion to oppose confirmation of a report under the Act. The Court of Appeal accepted that s. 71(1) applied. Relying on earlier authority, including MGW-Homes Design Inc. v. Pasqualino and Chaly v. Structured Restoration Inc., the court reiterated that s. 71(1) has been interpreted broadly so that it covers appeals arising out of proceedings brought solely under the Construction Act. In this case, the report the Hossains sought to challenge was a “judgment” within the meaning of s. 71(1), meaning any appeal would lie, if at all, to the Divisional Court and not to the Court of Appeal.

No transfer to the Divisional Court and the need for leave
The Hossains asked that, if the Court of Appeal concluded it lacked jurisdiction, it transfer (or “traverse”) the appeal to the Divisional Court, as had been done in some prior cases such as Chaly. The court declined to do so here. The reason was that the Hossains did not have a direct appeal as of right even to the Divisional Court. Since they never moved in a timely way to oppose confirmation of the report, there was no proper foundation for a direct statutory appeal from the reference. The Court of Appeal emphasized that, as with references under r. 54 generally, there is no automatic right of direct appeal from a reference under s. 58 of the Construction Act. The correct procedural step was to oppose confirmation of the report; failing that, the appropriate remedy is to seek leave in the Superior Court of Justice to extend the time to bring a motion opposing confirmation.

The court further noted that one of the central objectives of the Construction Act is to ensure expeditious resolution of construction disputes. In light of that policy, it cannot be assumed that an extension of time will necessarily be granted by the Superior Court. The Hossains, therefore, were left to pursue that procedural route, rather than continuing with an appeal that the Court of Appeal had no jurisdiction to entertain.

Outcome and monetary consequences
In the result, the Court of Appeal granted DBS’s motion, quashing the Hossains’ appeal for want of jurisdiction. It also awarded DBS costs of the motion in the amount of $5,000, inclusive of disbursements and HST. When that costs order is considered together with the earlier settlement judgment of $85,000 (with the Hossains’ counterclaim dismissed), DBS emerges as the successful party overall, with a total of $90,000 ordered in its favour across the proceedings.