Statutes referred to
Canadian Charter of Rights and Freedoms, s. 7
Authorities referred to
Halsbury’s Laws of England, 4th ed. vol. 14 (Butterworths, 1975)
APPEAL from the order of J. Wilson J.,  O.J. No. 622,
2016 ONSC 40, 345 O.A.C. 245 (S.C.J.) allowing an appeal from
a trial judgment.
Scott C. Hutchison and Matthew R. Gourlay, for appellants.
Anne E. Spafford and Shannon M. Gaudet, for respondents.
The judgment of the court was delivered by
CRONK J.A.: —
 This appeal concerns the alleged obligation of the appellants, Gerald Owen and Katherine Anderson, to pay an annual
levy as a contribution to maintenance costs and taxes for certain
private property situated in an area of Toronto known as Wychwood Park. The payment obligation is said to arise under an
1891 trust deed concerning certain common property in the park
(the “trust deed”).
 The appellants deny any liability for the contested levies.
They contend that the covenant to pay contained in the trust
deed offends the well-established common law rule that positive covenants do not run with freehold land, whether in law or
in equity. This rule is commonly referred to as the rule in
Austerberry v. Oldham Corp. (1885), 29 Ch. D. 750 (C.A.). It has
been much discussed in the English case law, including, most
notably, in Rhone v. Stephens,  2 All E.R. 65, 
2 A.C. 310 (H.L.), and has clearly been adopted in Canada:
Parkinson v. Reid,  S.C.R. 162,  S.C.J. No. 1.
See, also, Heritage Capital Corp. v. Equitable Trust Co., 
1 S.C.R. 306,  S.C.J. No. 19, 2016 SCC 19. The appellants argue that, as no exception to this general rule is recognized under Ontario law, the requirement under the trust deed
to pay the annual levy is unenforceable as against them (the
“positive covenants argument”).
 To assess the merits of the positive covenants argument, it
is necessary to examine the terms of the trust deed in light of
this court’s decision in Amberwood Investments Ltd. v. Durham
Condominium Corp. No. 123 (2002), 58 O.R. (3d) 481,