with the “presumption” in s. 653.1. Unless counsel could point to
some material change relevant to the admissibility of the evidence,
the trial judge may well have exercised his discretion against permitting relitigation of the issue.
 In that circumstance, it would have been appropriate for
counsel to seek the admissibility of the statements, acknowledge
the presumption in s. 653.1, and the difficulty in overcoming that
presumption. Had counsel followed that course, the admissibility
of the evidence at this trial would have been in issue and counsel
would have preserved the right to raise the issue on appeal. He
could have challenged both the exercise of the trial judge’s discretion under s. 653.1 and the ultimate admissibility of the evidence.
 Experienced counsel at trial, no doubt for good reasons,
chose not to make the admissibility of the Bittorfs’ alleged statements an issue in this trial. Counsel cannot raise the issue for the
first time on appeal. I need not address the merits of the admissibility argument.
 I would dismiss the appeal.
Andrews v. Rago
2019 ONSC 800
Superior Court of Justice, Stinson J.
February 22, 2019
Real property — Restrictive covenants — Original conveyance by which
restrictive covenants were created using word “forever” — Section 119( 9)
of Land Titles Act applying as no period or date was fixed for expiry of
restrictive covenants — Restrictive covenants deemed to have expired
40 years after their registration — Land Titles Act, R.S.O. 1990, c. L. 5,
s. 119( 9).
The respondents’ predecessors in title conveyed a three-foot strip of land on the
boundary between their property (No. 97) and the neighbouring property (No. 99)
to the applicant’s predecessors in title in 1966. The deed transferred the strip with
restrictive covenants for the benefit of the grantors. When an application for first
registration under the Land Titles Act was made in 1967 in respect of No. 99, the
first registration notes expressly referenced the instruments creating the restrictive covenants. The respondents built a concrete curb and laneway on the three-foot strip of land. The applicant applied successfully to the land registrar to delete