agreement and the restrictive covenants contained in it had been
varied by the conduct of the original purchasers and their assignees such that the restrictive covenants were no longer enforceable
((1991), 2 O.R. (3d) 689,  O.J. No. 447 (Gen. Div.)). In
Lafortune, there had been both minor and major violations of the
 The building scheme at King’s Landing remains intact
notwithstanding any alleged violations or exceptions to the
enforcement of s. 6.2. There is no evidence to the contrary. I conclude that s. 6.2 of the co-tenancy agreement has not been rendered obsolete. It continues to be enforceable.
 Section 6.2 of the co-tenancy agreement is valid and
enforceable. The application is dismissed.
 The parties are encouraged to try to reach an agreement
on costs of the application failing which they may make written
submissions limited to a maximum of three pages, double-spaced,
exclusive of a costs outline. The respondents shall deliver their
costs submissions within 14 days. The applicants shall deliver
their costs submissions 14 days following the receipt of the
respondents’ costs submissions.
Her Majesty the Queen v. Cubillan
[Indexed as: R. v. Cubillan]
2018 ONCA 811
Court of Appeal for Ontario, Sharpe, Lauwers and van Rensburg JJ.A.
October 10, 2018
Criminal law — Trial — Counsel — Ineffective assistance — Accused
convicted of sexual assault — Case turning on credibility — Trial
counsel having strong view accused should not testify prior to trial but
asserting that accused deciding not to testify at close of Crown’s case
— Based on Crown’s case should have been obvious that accused likely
to be convicted unless he testified — Whole of record including
evidence of trial defence counsel’s file not supporting counsel’s assertions — Trial defence counsel denying accused opportunity to testify
— Denial resulting in miscarriage of justice — Trial counsel also failing to conduct effective cross-examination of complainant and failing
to introduce expert toxicologist’s report that might have assisted
accused in his defence — Accused’s appeal from conviction allowed
and new trial ordered.