developing in accordance with the overall planning regime
and development vision of the City of Vaughan.
(g) The general balance of convenience and interests of all those
concerned favour the deletion of the restrictive covenants so
as to permit the Icona redevelopment to take place.
(h) The restrictive covenants are unsuitable and their insertion
onto the subject site is clearly vexatious since they are contrary to provincial, regional and municipal policies from a planning perspective. When he was cross-examined, Mr. Givens
acknowledged that the term “vexatious” is not a planning
term, but more of a legal term that is often used as part of
arguments made by lawyers at the Ontario Municipal Board.
 Mr. Givens is an experienced professional, and he is qualified to give opinion evidence with respect to relevant land use
planning issues. I do not consider Mr. Givens to be qualified to
give expert opinion evidence in relation to whether the restrictive
covenants are vexatious, which is a legal conclusion, and I disregard his evidence in this respect.
 Mr. Givens’ conclusion with respect to the unsuitability of
the restrictive covenants is founded on his opinion that the
restrictive covenants conflict with applicable provincial, regional
and municipal policies from a planning perspective. According to
Mr. Givens’ opinion, if a restrictive covenant operates to limit
development of a property in ways that would be contrary to prevailing planning policies, the covenant should be considered to be
unsuitable. On his cross-examination, Mr. Givens gave evidence
that his opinion “was based on understanding the policy framework that guides development in this area and that what is in
place now through those covenants would frustrate achieving
that policy framework”.
 Icona relies upon Mr. Givens’ opinions in this regard in
support of its submission that the restrictive covenants are spent
 I do not accept Mr. Givens’ opinion in this regard. If I were
to accept his opinion, I would need to conclude that the restrictive
covenants were spent when they were given, because they
operated to restrict development of the subject site according to
the planning policies that prevailed at the time. It would not,
however, have been open to Icona to apply to discharge the
restrictive covenants immediately after they were given simply
because they operated to restrict development of the subject site
in ways that would otherwise be permissible. That is the very
purpose of a contractual restrictive covenant. In order for me to