Court of Appeal for Ontario
Date: 2025-10-06
Docket: M56331 (COA-25-CV-0227)
Motion Judge: Monahan J.A.
Between
1579959 Ontario Inc. operating as Fuzion Designs Plaintiff (Respondent/Responding Party)
and
Shaukat Riaz Sheikh and Neelofer Shaukat Sheikh Defendants (Appellants/Moving Parties)
Counsel:
- N. Joan Kasozi and Fatma Uyuklu, for the moving party
- Calvin Zhang and Helen Lu, for the responding party
Heard: October 2, 2025
Endorsement
I. Overview
[1] The appellants/moving parties, Shaukat Riaz Sheikh and Neelofer Shaukat Sheikh, seek an order under s. 110 of the Courts of Justice Act, R.S.O. 1990, c. C.43, transferring their appeal to the Divisional Court and extending time to serve and file a notice of appeal.
[2] The responding party, 1579959 Ontario Inc. operating as Fuzion Designs, acknowledges that this court has jurisdiction to transfer the appeal under s. 110, but opposes the motion on the basis that the moving parties have failed to satisfy the three criteria required for such an order to be made.
[3] The appeal arises from an April 15, 2021 construction contract, whereby the moving parties retained the responding party to undertake renovations on their home for a total contract price of $232,020.86, plus H.S.T.
[4] The responding party performed the renovations from approximately August 2021 to May 2022. The moving parties made payments totalling $91,598.08 but refused to pay their final invoice in May 2022, alleging that the responding party had abandoned the unfinished work. The responding party brought a lien action under the Construction Act, R.S.O. 1990, c. C.30 against the moving parties.
[5] On January 8, 2025, the trial judge found in favour of the responding party and awarded damages of $105,804.92 plus prejudgment interest of $5,642.93. The trial judge subsequently ordered the moving party to pay costs of approximately $98,000.
[6] On February 6, 2025, the moving parties served and emailed a notice of appeal of the January 8, 2025, judgment to this court.
[7] Counsel for the parties discussed a mutually agreeable timetable for the appeal between May 2, 2025, and May 6, 2025. No issue was taken at that time with respect to the whether the appeal was properly within the jurisdiction of this court.
[8] However, on May 8, 2025, counsel for the responding party advised counsel for the moving parties that an appeal of a judgment under the Construction Act properly lies with the Divisional Court pursuant to s. 71(1) of that Act, and that the 15-day period for filing an appeal under s. 71(2) had expired.
[9] On May 15, 2025, counsel for the responding party wrote a second time, inquiring whether the moving parties would be withdrawing their appeal of the January 8, 2025 judgment in this Court in light of the jurisdiction issue.
[10] That same day, counsel for the moving parties advised that, subject to instructions from their clients, they anticipated bringing a motion to transfer the appeal to the Divisional Court. They further inquired whether the responding party would consent to this transfer.
[11] The responding party did not consent to the transfer. Accordingly, on June 16, 2025, the moving parties served and filed the present motion.
II. Discussion
[12] The parties agree that the appeal lies to the Divisional Court rather than this court pursuant to s. 71(1) of the Construction Act but disagree as to whether the moving parties have satisfied the criteria for transferring an appeal under s. 110 of the CJA.
[13] In exercising the discretion to transfer an appeal under s. 110, this court has identified three factors that should be taken into consideration:
the merits of the proposed appeal;
whether the respondent will suffer undue prejudice as a result of further delay while the appeal is waiting to be heard; and
whether the appellant has moved expeditiously once it became aware that jurisdiction was in dispute: Bernard v. Fuhgeh, 2020 ONCA 529, 61 C.P.C. (8th) 231, at para. 15.
[14] The required "merits" is not a high threshold in this context. The court considers the merits of the appeal merely in its role as gatekeeper, ensuring that further judicial resources are not wasted on a frivolous appeal that obviously has little or no prospect of success.
[15] On the other hand, where an appellant raises arguable grounds of appeal, the court should resist the temptation to undertake a deep dive into the evidence and arguments in the court below on a motion to transfer, thereby turning the proceeding into a mini-appeal. This follows from the requirement that appeals be determined by panels rather single judges considering transfer requests under s. 110.
[16] The parties have joined issue on the merits of the appeal. Both have filed detailed factums along with motion records in the hundreds of pages. The moving parties allege a number of legal errors made by the trial judge, while the responding party argues that these alleged legal errors are, in reality, findings of fact or, at best, mixed fact and law that do not merit appellate intervention.
[17] I am satisfied that the moving party has identified grounds of appeal that surpass the modest arguable ground threshold.
[18] I note that the trial judgment is 54 pages long. The trial judge was required to make a number of significant evidentiary rulings and interpret relevant provisions of the parties' contract. The responding party invites me to scrutinize the trial record, the submissions of counsel at trial, and a cross-examination of one of the moving parties, in order to conclude that the trial judge made none of the legal errors alleged by the moving parties.
[19] I decline this invitation. The responding party is essentially seeking to convert this transfer proceeding into a mini-appeal which, as explained earlier, is not my role on a s. 110 transfer motion.
[20] For clarity, while I accept that the grounds of appeal are at least arguable, I have refrained from a detailed consideration of the evidence, arguments or conclusions in the court below, and thus express no opinion on the likely outcome of the appeal.
[21] Turning to the issue of prejudice, the responding party will suffer prejudice from the fact that transferring the appeal to the Divisional Court will entail further delay. That prejudice must be balanced against the fact that the moving parties have a right of appeal and if the appeal is not transferred, they will be deprived of that right due to an error by their counsel in filing the appeal in the wrong court.
[22] With respect to the third factor, I am satisfied that the moving party acted expeditiously once they became aware that they had filed the appeal in the wrong court on May 8, 2025. On May 15, 2025, counsel for the moving party indicated that they would be seeking to transfer the appeal to the Divisional Court and sought the responding party's consent. When that consent was not forthcoming, the moving parties filed the transfer motion on June 16, 2025.
Disposition
[23] I order that the moving parties' appeal be transferred to the Divisional Court, and that the time for serving and filing a notice of appeal in that court be extended until October 20, 2025.
[24] While the moving party is the successful party, the motion was made necessary by their counsel's error in filing the notice of appeal in the wrong court. I therefore reserve costs of this motion to the Divisional Court panel deciding the appeal.
"P.J. Monahan J.A."