discharged; and ( iii) under these circumstances, the assertion by
274 Canada of the restrictive covenants in opposition to Icona’s
proposed redevelopment would be clearly vexatious. Icona submits,
therefore, that the restrictive covenants should be discharged.
Has Icona shown that the restrictive covenants are spent and
that their assertion by 274 Canada would be vexatious?
 Icona submits that the restrictive covenants are spent and
their assertion by 274 Canada would be vexatious. In support
of this submission, Icona relies upon the expert evidence of Mr.
Donald Given, a professional planner. In his affidavits, Mr. Given
offered the following opinions:
(a) The development restrictions relating to land use, franchise
operation, fitness area, food and beverages facilities and sale
of alcoholic beverages are inappropriate and should be
removed as these land uses and commercial permissions are
governed by provincial plans, regional and municipal official
plans and zoning by-law.
(b) Icona’s proposed redevelopment is consistent with all provincial, regional and municipal plans and policies, and implementation of the proposed redevelopment is subject to approvals
by the City of Vaughan.
(c) The proposed redevelopment is consistent with many of the
principles of the Vaughan Metropolitan Centre Urban Design
Guidelines dated January 2016, and the proposed redevelopment is a purpose which in itself will not be obnoxious to
any reasonable occupant of the 274 lands.
(d) Icona’s proposed mixed-use redevelopment, which contains
residential, retail and hotel uses which are permitted as of
right, conforms to the applicable zoning by-law.
(e) The benefit to Icona of deleting the restrictive covenants
greatly exceeds any possible detriment to 274 Canada (and
other respondents), particularly because it does not create any
loss, disadvantage or detriment to the surrounding properties
because a similar type of higher density, mixed-use redevelopment of the 274 lands is very likely to occur, and the 274
lands will benefit from the as-of-right permission in terms of
land use policies and zoning permissions provided to Icona.
(f) Enforcement of the restrictive covenants will result in the
anomalous and highly undesirable situation where, unlike
the balance of the lands in the Vaughan Metropolitan Centre,
the subject site is restricted by an adjacent owner from