is poised to take place below the plaintiff’s property and contiguous to the
defendant’s land. The defendant’s project will be dwarfed by a neighbouring
residential condominium development more than three-and-a-half times its
size at a location directly behind and in closer proximity to the plaintiff’s
property than is the defendant’s. Both developments are to be constructed on
lands which are now zoned residential, a factor not in play in 1985. The anticipated development in the area is markedly different today than it was in
1985, as is evident from the reports of the municipal planners.
 In Van Bork, the development that was poised to take place
in close proximity to the plaintiff’s estate was a condominium
development that would dwarf the defendant’s project. This differed materially from the development that was proposed in 1985
when the restrictive covenant was given. In addition, although the
restrictive covenant limited development to an office building, the
zoning of the lands on which development was planned had
changed to residential. The changes that Gans J. described in Van
Bork are not similar (in their effect on application of the test for
modification or discharge of a restrictive covenant) to the change
that Icona describes as the most significant change from the time
that the restrictive covenant agreement was made, the intended
development of the 274 lands by 274 Canada in a manner closely
aligned with Icona’s proposed redevelopment.
 Icona has not satisfied me that the circumstances that
prevailed when the restrictive covenant agreement was made in
2005 have changed in ways that are sufficiently material to allow
me to conclude that the purposes for which the restrictive covenants were given have been eliminated, such that they should be
considered to be spent. I conclude that Icona has failed to show
that the restrictive covenants are spent.
Has Icona shown that the restrictive covenants are so unsuitable as to be of no value and that their assertion by 274
Canada would be vexatious?
 Icona also submits that the restrictive covenants are so
unsuitable as to be of no value, and that the circumstances are
such that for 274 Canada to assert the restrictive covenants in
opposition to Icona’s proposed redevelopment would be clearly
vexatious. In this regard, Icona submits that the value to be
considered is the monetary value of the 274 lands. Icona submits
that it has tendered expert evidence that the monetary value of
the 274 lands will not be adversely affected by the proposed
redevelopment and that 274 Canada did not tender expert evidence to show otherwise.
 In support of its submission that the value to be considered in the determination of whether a restrictive covenant is
so unsuitable as to be of no value is the monetary value of the