the motion judge’s order that Mr. Hartley may claim his U.S.
fees as special damages in his action against Security National.
 Counsel have agreed that $5,000 in costs, all inclusive,
should be payable to the successful party. Since the appeal has
been allowed only in part, it will be necessary to hear further
costs submissions. Written submissions of a maximum of three
pages are invited. The deadline for the appellant’s submissions
is September 22, 2017. The deadline for the respondent’s submissions is September 27, 2017.
Appeal allowed in part.
Black et al. v. Owen et al.*
[Indexed as: Black v. Owen]
2017 ONCA 397
Court of Appeal for Ontario, K.N. Feldman, Cronk and B. W. Miller JJ.A.
May 18, 2017
Real property — Covenants — Positive covenants — 1891 trust deed
requiring affected property owners to pay annual levy as contribution
to maintenance costs and taxes for common property — Trust deed stating that levy constituted charge upon land held by each property owner
or anyone claiming through them — Defendant property owners not
bound to pay levy — Positive covenants not running with freehold land
— Benefit and burden exception to that principle not recognized under
Ontario law — Conditional grant exception not applying as grants contained in trust deed were not framed as conditional upon continuing
performance of positive obligation to pay levy.
An 1891 trust deed concerning certain common property in a residential community required property owners in the community to pay an annual levy as a
contribution to the maintenance costs and taxes for the common property. The
trust deed stated that the levy constituted a charge upon the land held by each
property owner or anyone claiming through him or her. The defendants owned
and resided in a property in the community. They refused to pay the levy. The
trustees sued them to recover the outstanding levies for 2008 and 2009. The
common law rule that positive covenants do not run with freehold land was not
raised in that action. The action was allowed. The defendants appealed and
sought to raise the positive covenants rule for the first time. The appeal judge
refused to allow them to do so and dismissed the appeal. The trustees commenced a second action to recover unpaid levies for 2010 to 2013. This time, the
defendants relied on the positive covenants rule. The trial judge found in their
* Vous trouverez la version française à la p. 352, post.