expiry, the condition, restriction or covenant is deemed to have expired forty
years after the condition, restriction or covenant was registered, and may be
deleted from the register by the land registrar.
[ 18] In 2018, the applicant submitted an application to the land
registrar pursuant to s. 119( 9), seeking to delete the restrictive
covenants from the register. In light of the fact that more than 40
years had expired since the registration of the restrictive covenants, the land registrar made an order that they be deleted from
the title to No. 99. As a result, the property description for No. 99
under the Land Titles Act now recites merely that it is subject to
the right-of-way in favour of the owners of No. 97 and no longer
references that it is subject to the restrictive covenants.
[ 19] No notice was given by the applicant to the respondents in
relation to her application to the land registrar for the deletion of
the restrictive covenants pursuant to s. 119( 9).
The Present Application
[ 20] In the present application, the applicant seeks an order
that the respondents must remove all encroachments on the
applicant's property or, in the alternative, an order that the appli-
cant has the right to remove those encroachments. The applicant
also seeks an order that the deeded right-of-way to the benefit of
the respondents is only for ingress and egress and not occupation,
possession or exclusive control over the three-foot strip. Effectively,
the applicant wants an order that would result in the removal of all
fixtures, chattels, paving stones, vegetation, structures, fences,
canopies, gates and motor vehicles that encroach on the appli-
cant’s titled property.
[ 21] The respondents resist the application, asserting that they
should continue to enjoy the rights afforded by the restrictive
covenants. In addition to an order dismissing the application,
they seek an order requiring the land registrar to revise the title
description for No. 99 to include the restrictive covenant, as if the
land registrar’s order of July 2018 had not been obtained.
Although the respondents had not brought a formal cross-application seeking this relief, counsel for both sides agreed that
the application could be argued as if such relief had been properly
Positions of the parties
[ 22] Counsel for the applicant acknowledges that his client is
bound by the right-of-way in favour of the respondents and fur-
ther that the applicant cannot interfere with the respondents’