( ii) First appeal decision
 The appellants appealed. By the time of the appeal, Ivon
Owen had died and the appellants had inherited his property.
Consequently, the appellants appealed in their capacity as trustees of his estate.
 On January 30, 2012, Swinton J. of the Superior Court of
Justice, sitting as a single judge of the Divisional Court, dismissed the appeal. She agreed with Deputy Judge Kilian that
Ivon Owen was bound by the obligation to pay the annual levy
because, as the registered owner of the property, he had actual
notice of the terms of the trust deed: Black v. Owen,  O.J.
No. 516, 2012 ONSC 400, 291 O.A.C. 8 (Div. Ct.).
 Before Swinton J., the appellants sought to advance the
positive covenants argument for the first time. Justice Swinton
declined to entertain this argument, stating, at paras. 39-40 of
In my view, the interests of justice do not require the resolution of this
issue on this appeal. The appellant did not raise this issue at trial,
although the case law was readily available. The fact he did not have legal
counsel at trial does not permit him to raise the issue now, as the
respondents might well have responded in a different manner if the issue
had been raised earlier.
Moreover, this issue, if resolved as the appellant argues, would call
into question the binding nature of the Trust Deed not only for the Owen
property, but for the other properties in the Park as well. If this issue is to
be litigated, it should be done in a manner that gives clear notice to the
Trustees and, through them, to others in the community who are likely to
be affected. Therefore, I decline to deal with the positive covenant argument as a ground of appeal.
( iii) Second action
 The appellants did not pay the annual levies for 2010 to
2013. As a result, in June 2012, the respondents commenced a
second Small Claims Court action against the appellants to
recover the unpaid levies. In response, the appellants relied on
the positive covenants argument as a complete answer to any
alleged liability for the levies.
 On December 4, 2014, Deputy Judge Caplan accepted the
positive covenants argument. He held that ( i) the appellants
were not precluded by reason of the first action and the first
appeal decision from defending the second action brought by the
trustees; ( ii) as the positive covenants argument had not been
argued in the first action and, in his view, the appellants had
met the pre-conditions for raising this argument outlined
by Swinton J., it was open to the appellants to advance the positive covenants argument before him; ( iii) on the authority of