Consent not equal to "Not Opposing"

Brook Restoration Ltd. v. York Condominium Corporation No. 129, 2020 ONSC 1236 (CanLII)

[7] I do not accept the Owner’s argument that Brook’s position should be viewed as deemed consent. Consenting to a motion and not opposing it are distinct. Notably, the Rules themselves distinguish between opposed motions, unopposed motions and consent motions: see, for example, Rule 37.12.1, which expressly discusses the different procedures for motions in writing brought on consent, on an unopposed basis, or on an opposed basis. In my view, the Owner has erroneously equated lack of opposition with consent. The Owner provides no authority to support its argument that a party’s decision not to oppose is properly deemed a consent, other than by arguing analogy to subsection 58(1.3) of the Construction Act (which is the same provision in the former Construction Lien Act, the provisions of which remain applicable in these proceedings). That subsection provides as follows:

(1.3) A person given notice under subsection (1.1) who does not oppose the motion or does not appear at the hearing of the motion shall be deemed to consent to the reference under clause (1) (b).

[8] While subsection 58(1.3) does deem consent, that deeming provision operates specifically in the context of a motion for a judgment of reference under subsection 58(1)(b), which is a motion for reference of a construction lien action, in whole or in part, to a person agreed by the parties. No case law has been provided by the Owner supporting an interpretation of that narrow deeming provision to apply to other motions brought in construction lien actions. In my view, the Owner’s argument that Brook’s decision not to oppose is deemed consent by analogy to subsection 58(1.3) is not a reasonable analogy in the framework of either the current Construction Act or the former Construction Lien Act.