principle of benefit and burden, often referred to as the doctrine
in Halsall v. Brizell,  1 All E.R. 371,  Ch. 169
(Ch. Div.), has not been and should not be imported into Ontario
law absent legislative reform in this area of the law.
 Specifically, in Amberwood, the majority concluded, at
paras. 75-76, that “it would be inadvisable to adopt [the benefit
and burden principle] in Ontario” given “the uncertainties and
the many frailties of the existing common law in England in this
area of the law” and further, that any reform to the positive cov-
enants rule “is best left to the Legislature”. The majority also
stated, at para. 19:
[T]he adoption of [the benefit and burden] doctrine as a recognized exception
to the [positive covenants] rule in the common law of this province, in much
the same way as the abolition of the rule itself, would have complex, far-
reaching and uncertain ramifications that cannot be adequately addressed
on a case by case basis.
 Thus, the benefit and burden principle does not “reflect
the current law in Ontario”. As I have already explained, neither
Wilkinson nor Wentworth Condominium Corp. could anchor
a different conclusion.
 The appeal judge also held that the appellants were
bound by Deputy Judge Kilian’s factual findings in the first
action, as later referenced by Swinton J. in the first appeal decision. This included Deputy Judge Kilian’s finding that the purpose of the trust created by the trust deed was to benefit all the
property owners within Wychwood Park, including, therefore,
the appellants, and that a landowner’s actual use of the benefits
conferred by the trust deed was immaterial.
 I disagree. I would reject the proposition, on the facts
of this case, that the appellants must be taken to benefit from
the trust deed by reason of the factual findings in the first
 While it is true that the appellants were parties to the
first action, and thus are bound by its outcome, Deputy Judge
Kilian’s factual findings in that action must be understood in
light of the critical fact that the positive covenants argument
was neither raised nor considered by him. As a result, his factual findings were made in a legal context that did not take
account of the positive covenants rule or any exceptions to that
rule that may apply in this case. The relevant legal context has
now changed and the positive covenants argument is now
squarely before this court, as it was at trial in the second
action. During oral argument of this appeal, the respondents
essentially conceded this point and did not press any res judicata or estoppel argument.