(1) Did the Appeal Judge err by
(a) failing to follow binding appellate precedent, namely,
the majority decision in Amberwood;
(b) finding that the benefit and burden exception forms
part of the law of Ontario and applies on the facts of
(c) finding that the conditional grant exception forms part
of the law of Ontario and applies on the facts of this
(d) finding that the principle of res judicata operates to
prevent the appellants from arguing that they receive
no benefit under the trust deed; and
(e) granting declaratory relief requiring the appellants
to pay the annual levies under the trust deed in per-
(2) Are the reasons of Deputy Judge Caplan in the second
action legally insufficient?
 In my view, it is unnecessary for the disposition of this
appeal to address all the grounds of appeal raised by the appellants. For the reasons that follow, I conclude that the appeal
judge erred in law by failing to follow binding appellate precedent, namely, this court’s majority decision in Amberwood, and
by holding that the benefit and burden and conditional grant
exceptions to the positive covenants rule apply in this case. In
light of these errors, I would allow the appeal and restore the
judgment of Deputy Judge Caplan.
(1) Failure to follow binding precedent
 The appellants argue that the appeal judge erred in law
by failing to follow the binding majority judgment of this court in
Amberwood. They submit that the appeal judge was not entitled
to adopt, as she did, the minority opinion in Amberwood as
reflecting current Ontario law, either on the basis of an alleged
evolution in the English jurisprudence concerning the positive
covenants rule or in reliance on her interpretation of the decision of another Superior Court judge in another case.
 I agree with these submissions.