L. Honickman

The applicants sought a declaration that they were permitted to install solar panels on their home's roof despite a restrictive covenant requiring the developer's approval for any 'structures'.

The developer had demanded the removal of the partially installed solar panels.

The court found that while solar panels do constitute a 'structure' under the covenant, the covenant itself was unenforceable for uncertainty.

The provision gave the developer unfettered discretion to approve or reject structures without setting out any objective criteria.

Consequently, the applicants did not require the developer's approval to proceed with the installation.

The defendants moved for security for costs under Rule 56.01(1)(e) of the Rules of Civil Procedure in a civil action alleging wrongful arrest, excessive force, unlawful entry, and negligent police investigation arising from a warrantless entry into a residence and the use of a Taser.

The moving parties argued that the plaintiffs lacked sufficient assets in Ontario to satisfy a potential costs award and that the action was frivolous and vexatious.

The court held that the defendants failed to establish that the plaintiffs lacked sufficient assets, noting that the asset search was superficial and did not account for property interests on reserve lands.

The court further found that the claim was not clearly devoid of merit, particularly given unresolved issues regarding exigent circumstances, use of force, and the adequacy of the police investigation.

As both branches of the conjunctive test under Rule 56.01(1)(e) were not satisfied, the motion for security for costs was dismissed.