Megan Sanford

The applicant applied for an order requiring the respondents to remove encroachments from a three-foot strip of land owned by the applicant but subject to a right-of-way and restrictive covenants in favour of the respondents.

The applicant had successfully applied to the land registrar to delete the restrictive covenants pursuant to s. 119(9) of the Land Titles Act, which deems covenants without a fixed expiry date to expire after 40 years.

The respondents argued the original deed's use of the word 'forever' constituted a fixed period.

The Superior Court held that 'forever' indicated the covenants were perpetual and lacked a fixed expiry date, meaning they were caught by s. 119(9) and deemed expired 40 years after registration.

The application was allowed, and the respondents were ordered to remove the encroachments.

The plaintiff sought summary judgment against Sebastian Danny Caputo on an alleged personal guarantee for materials supplied on credit to Elements Stone & Paving Inc. The court held there were genuine issues requiring trial, including whether Caputo signed or knew of the credit application and guarantee, and whether third-party fraud occurred.

Because key findings depended on credibility and multiple witnesses, summary judgment was refused and the motion was dismissed.