Mr. Reel’s evidence is that the restrictive covenants
remain of value to 274 Canada. His evidence is that if Icona’s
development proceeds, there is a potential that 274 Canada’s
plans for future mixed-use development on the 274 lands will be
negatively impacted. The 1,649 new residential units proposed by
Icona on the subject site will compete in the same market segment as the planned and future residential development on the
274 lands, and the need for possible infrastructure upgrades in
the area may delay 274 Canada’s plans.
 Icona is critical of the evidence given by Mr. Reel because
he says that Icona’s proposed redevelopment has the potential to
negatively impact 274 Canada’s future plans, that Icona’s development may utilize water and sanitary supply capacity that
would otherwise be available for future development on the
274 Lands, and that if upgrades to water and sanitary supply are
needed to serve future development on the interchange lands,
274 Canada’s plans may be delayed.
 I do not consider the criticisms of the uncertainties in
Mr. Reel’s evidence to be valid in the circumstances. Mr. Reel is
not in a position to know precisely how, or to what extent, Icona’s
proposed redevelopment may adversely affect 274 Canada. There
is no suggestion that 274 did not negotiate the restrictive covenant agreement in good faith for the purpose of protecting its
legitimate interests. Icona has not shown that these interests are
no longer legitimate because of the circumstances that are now in
place in relation to the 274 lands.
 For these reasons, I conclude that Icona has failed to show
that the restrictive covenants are spent or so unsuitable as to be
of no value, or that the circumstances are such that for 274
Canada to assert these covenants would be vexatious. I exercise
my discretion to refuse to discharge the restrictive covenants.
 For the forgoing reasons, Icona’s application is dismissed.
 274 Canada seeks costs on a partial indemnity scale in the
amount of $88,565.29, all inclusive. This is on an approach that
calculates fees based upon 60 per cent of the actual fees charged.
I have considered the factors in rule 57.01(1) [of the Rules of Civil
Procedure, R.R.O. 1990, Reg. 194] and I consider the costs
claimed to be reasonable and proportionate, given the nature and
importance of the issues for the parties. I fix costs to be paid by
Icona to 274 Canada in the amount of $88,565.29.
 RI Vaughan seeks costs representing a counsel fee for the
appearance of its counsel at the hearing of this application.
RI Vaughan did not file any material, and made only very brief