Background
Dani Building System Inc. (“DBS”) was engaged by Syed and Nasreen Hossain to renovate their home. The project broke down, and DBS filed and perfected a construction lien for $76,618.61 that remained on title. Following a judgment of reference under s. 58(1)(a) of the Construction Act, the matter was sent to the Construction Lien Associate Judge for trial.
In the fall of 2024, the parties — all then represented by counsel — reached a settlement at a settlement conference. The Hossains agreed to pay DBS $85,000, their counterclaim was dismissed, and DBS was to discharge the lien upon receipt of funds. Minutes of settlement were signed and trial dates vacated. The Hossains did not pay by the March 31, 2025 deadline.
DBS moved to enforce the settlement before Associate Judge Robinson, while the Hossains sought to vacate it and remove the lien. The Associate Judge affirmed the settlement in reasons released October 29, 2025, and issued a Final Report on October 31, 2025. The Hossains, now self-represented, filed a notice of appeal to the Court of Appeal on December 11, 2025. DBS responded with a motion to quash for want of jurisdiction.
The Court’s Holding
The Court of Appeal granted the motion to quash, holding that it lacked jurisdiction to hear the appeal. Under s. 71(1) of the Construction Act, appeals from judgments or orders on motions to oppose confirmation of a referee’s report lie to the Divisional Court, not the Court of Appeal. The court reaffirmed its prior decisions in MGW-Homes Design Inc. v. Pasqualino, 2024 ONCA 422, and Chaly v. Structured Restoration Inc., 2025 ONCA 901, that s. 71(1) applies broadly to all appeals involving proceedings brought under the Construction Act.
The court also declined to traverse the appeal to the Divisional Court, as it had done in Chaly. The critical distinction was that the Hossains had never opposed confirmation of the Final Report within the required 15-day period under r. 54.09(1)(b) of the Rules of Civil Procedure, meaning the report was automatically confirmed. There is no right of direct appeal from a reference conducted under s. 58 of the Construction Act; the proper step was to oppose confirmation of the report in a timely manner.
The court noted that the Hossains’ only remaining avenue is to seek leave in the Superior Court to extend the time to file a motion opposing confirmation of the report — a result that is not guaranteed given the Construction Act‘s policy goal of promoting expeditious resolution of disputes. DBS was awarded costs of the motion in the amount of $5,000 inclusive of disbursements and HST.
Key Takeaways
- Section 71(1) of the Construction Act channels all appeals in construction lien proceedings to the Divisional Court, not the Court of Appeal, regardless of the amount in dispute or the general subject-matter jurisdiction rules that would otherwise apply.
- A party who fails to oppose confirmation of a referee’s report within the 15-day window under r. 54.09(1)(b) of the Rules of Civil Procedure loses the right to a direct appeal; the report is automatically confirmed and the proper remedy is to seek leave to extend time in the Superior Court.
- The Court of Appeal will not traverse a construction lien appeal to the Divisional Court where the appellant failed to exhaust the required procedural steps — distinguishing this case from Chaly, where traversal was permitted.
- Parties to construction lien settlements and references must monitor procedural deadlines closely; missing the confirmation-opposition window can foreclose appellate rights entirely.
Why It Matters
This decision reinforces the strict jurisdictional channelling built into Ontario’s Construction Act and clarifies the limits of the Court of Appeal’s willingness to assist litigants who have missed mandatory procedural steps. Practitioners advising clients in construction lien matters — particularly those who settled during a reference — must ensure they monitor the confirmation timeline and act promptly if the client wishes to challenge the outcome.
For self-represented litigants and their former counsel alike, the case is a cautionary tale: signing minutes of settlement does not end procedural obligations, and failure to oppose confirmation of a Final Report on time can render an appeal route unavailable regardless of the merits of the underlying dispute.