( 1) The restrictive covenants did not expressly contain a period
or date fixed for their expiry; rather, they purported to be
permanent or perpetual.
( 2) In light of ( 1) above, the restrictive covenants fall within the
scope of s. 119( 9) of the Land Titles Act.
( 3) As a result of ( 2) above, by operation of law and the passage
of time, the restrictive covenants were deemed to have
expired and ceased to have any legal force or effect on March
3, 2006, 40 years after their registration.
( 4) In light of ( 3) above, the deletion of the restrictive covenants
by the land registrar was proper.
( 5) The applicant is no longer bound by the restrictive covenants
and the respondents no longer enjoy their benefits.
( 6) As a result, the only rights enjoyed by the respondents in
relation to the three-foot strip are a right-of-way for all purposes “in, over, along and upon” the three-foot strip for the
usual purposes associated with such a right, namely, ingress
and egress. Those rights do not include the right to construct
or alter improvements or conditions on the three-foot strip,
to park vehicles along the three-foot strip or otherwise to
interfere with the use of that portion of the applicant’s
[ 45] For these reasons, the application is granted. If the parties
are unable to agree upon the contents of an order incorporating
my disposition or should they be unable, on or before April 15,
2019, to agree upon the appropriate steps to implement my disposition, counsel should arrange a case conference with me by contacting my judicial assistant.
[ 46] Both sides submitted cost outlines. The applicants sought
partial indemnity fees and disbursements totalling $27,261.25,
while the respondents sought a total of $19,064.66. Recognizing
that some additional work by the applicant was required in order
to present the case and taking into account the complexity of the
issues, the amount of time spent, the reasonable expectations of
the parties and the Boucher factors, I conclude that a fair and
reasonable cost order would be to direct the respondents to pay
costs to the applicants in the total amount of $24,000, inclusive of
fees, disbursements and applicable taxes.