About this non-condo commercial dispute - as usual this is not a legal opinion.

Modern condo & strata owners & Directors in Canada at least have the comparative luxury of templates of statute law.( This can be blurred in states like Florida with discrete, concurrent & complex condo & HOA / CID laws alongside each other. )

And also the luxury of themes of condo /strata law jurisprudence albeit sometimes arguably from a Twilight Zone. And even of tribunals specialized in resolving disputes.

BUT then in contrast there's the older universes including cross-covenanted Building Schemes - amidst thousands of other WIDER modern scenarios. That's where folks try to run contractual promises - cross-covenants if valid - along properties' legal titles, often as part of complex commercial property developments . ( Just to clarify that the cross-covenanting Building Scheme model is only one of three major possible configurations listed in the landmark Renals v Cowlishaw 1878-9. )

Restrictive covenant wars from those WIDER scenarios are waged under similar criteria regardless of property types. BUT disputants can sometimes find themselves in a judicial Twilight Zone without comforting "familiar templates".

Should a botched ( non-compete ) NO COMMERCIAL ACTIVITY covenant get validated by a civil judge under section 160 of Ontario's Land Titles Act R.S.O. 1990 ch L.5 ?

1 - Fifteen years after selling - in 2001 - a 1.54 acre part of its commercial land assembly to the London Ontario Library Board for operation of a public library, the owners of ( London Ontario's ) Wonderland Power Centre got an unpleasant surprise !

They HAD believed that their 2001 lawyer had successfully embedded on all necessary legal titles a RESTRICTIVE COVENANT prohibiting commercial activity on that same 1.54 acre.

They HAD also believed - wrongly - it would prevent competition for a specified FIFTY YEARS ( subject of course to potential expiry by operation of law after 40 years unless mutually revitalized ).

But they were WRONG.

And two courts have since ruled that the 2001 embedding attempt had been botched !

2 - In 2017 the London Library Board shut its library & sold the 1.54 acre parcel to a new owner.

That new owner's legal counsel correctly recognized that registration of the intended RESTRICTIVE COVENANT had been botched in 2001 ! ( see the rationales eg : landmark decisions Zetland v Driver 1939 in England & Wales and in Canada's Supreme Court decision Galbraith v Madawaska Club 1961, respectfully a great victory for everyone's property rights )

One interestingly now gets to read Wonderland's 2001 conveyancing lawyer's description of whatever might ( ? ) have happened in 2001.

3 - But IF the COVENANT ASSERTER ( would-be 'protected' "COVENANTEE" ) cannot persuade a civil judge to somehow over-ride the 2001 botching, then it will face competition emanating from what it used to own ! And "free-riding" etc

Yes - NOT RUNNING WITH TITLE - it might have a contract claim against the original promise-maker ( "covenantor" ) Library Board. ( a person albeit non-natural ).

And maybe for 'professional standards' against its 2001 covenant-lawyer or professional insurer if applicable.

So what would happen next ? AND is it a good idea to let civil judges re-write contractual promises from what they literally show up on land titles ?

not legal advice as usual.

In 2018 Ontario Superior Court Madam Justice XXX analyzed that the 2001 title registration had been void - despite laying an "orphaned' prohibition on the 1.54 acre's title - BECAUSE IT FAILED in 2001 TO CORRESPONDINGLY IDENTIFY the Covenant Asserter Wonderland's property as the covenantee or protected property.

( Think : some sorta marriage ceremony that names only one of the folks being married.'I am married, but to whom ? ' Or issuing a vehicle mechanical safety certification that outrageously does not even bother to test / thereby discover that the brakes are totally missing - much less their state of repair! Doesn't this inspire lotsa confidence ?

As in : "as purchaser I would receive a property bearing a duty. BUT TO WHOM ? )

But in 2018 Madam Justice XXX went on to purport to have authority under these particular facts to direct that the Master of Land Titles should now insert /identify the affixture of a "missing link" to the covenant asserter Wonderland's nearby Power Centre.

Amongst her precedents was a troubling Ontario Court of Appeal ruling which on appeal had retroactively over-riden the survey boundaries agreed & granted & transacted etc years earlier to now-disputant road users ( in MacIsaac v Salo, 2013 ONCA 98 ) .

Her ruling : Wonderland Power Centre Inc. v. Post and Beam on Wonderland Inc. ( 2018 ) ONSC 7589 issued Dec 13/18 https://canlii.ca/t/hwpnb

FIRST ROUND TO THE COVENANT ASSERTER Wonderland !

not legal advice as usual.

Divisional panel also agrees with lower court Madam Justice XXX : that the disputed "no commerce" covenant - ( WITH ZERO IDENTIFIERS - on either title - of the plaintiff Wonderland’s being a PROTECTED OR COVENANTEE land ) - is unenforceable.

BUT citing the initial 12 words of section 160 of Ontario's Land Titles Act R.S.O. 1990 ch L.5 the appeal panel strikes down as beyond "the factuals" ( of this scenario ) the lower court’s so-called rectification order. Specifically . . .

That it was not in the judicial toolbox to use against this bona fide purchaser for ( full ) value without notice, a status cited as erroneously misdiagnosed by the lower court !

That a bona fide purchaser without ACTUAL KNOWLEDGE - not merely "constructive" knowledge - is entitled to rely on what's in Ontario's land title environment. That is : to rely on getting an indefeasible title.

That the covenant denier was not obligated to go out investigating the botching details. . . .

Wonderland Power Centre Inc. v. Post and Beam on Wonderland Inc. ( 2022) ONSC 2237 issued April 14/22 https://canlii.ca/t/jnpnt

AND SO : LATEST ROUND TO THE COVENANT DENIER / 2017 purchaser.

But will big bucks at stake lead these adversaries back to the justice system ?

from Aug 4/22 Land Titles Act R.S.O. 1990 ch L.5 https://www.ontario.ca/laws/statute/90l05

Part 10 Rectification of the Register ss 158-162

. . . Application to court to rectify

160 Subject to any estates or rights acquired by registration under this Act, if a person is aggrieved by an entry made, or by the omission of an entry from the register, or if default is made or unnecessary delay takes place in making an entry in the register, the person aggrieved by the entry, omission, default or delay may apply to the court for an order that the register be rectified, and the court may either refuse the application with or without costs to be paid by the applicant or may, if satisfied of the justice of the case, make an order for the rectification of the register. R.S.O. 1990, c. L.5, s. 160; 2012, c. 8, Sched. 28, s. 8

And so rolls ahead the grist mill of restrictive covenanting onto property titles. By comparison respectfully aren't the modern condo law 'templates' & jurisprudence & tribunals etc less stressful ? . . .

not legal advice as usual.

Just for the record, the Divisional Court panel tasked by ONCA ( Ontario's Court of Appeal ) revisits several valuable statements describing the main principles of Ontario's Land Titles system :

Durrani v. Augier ( 2000 ) 22410 (ONSC ) https://canlii.ca/t/1w0x7 and

1168760 Ontario Inc. v. 6706037 Canada Inc. ( 2019) ONSC 4702 https://canlii.ca/t/j2b89

from Durrani 2000 ( criminal fraud by bogus documents )

" . . [40] The land titles system was established in Ontario in 1885, and was modeled on the English Land Transfer Act of 1875. It is currently known as the Land Titles Act, R.S.O. 1990, c. L.5. Most Canadian provinces have similar legislation.

[41] The essential purpose of land titles legislation is to provide the public with security of title and facility of transfer: Di Castri, Registration of Title to Land, vol. 2 looseleaf (Toronto: Carswell, 1987) at p. 17-32.

The notion of title registration establishes title by setting up a register and guaranteeing that a person named as the owner has perfect title, subject only to registered encumbrances and enumerated statutory exceptions.

[42] The philosophy of a land titles system embodies three principles, namely,

the mirror principle, where the register is a perfect mirror of the state of title;

the curtain principle, which holds that a purchaser need not investigate the history of past dealings with the land, or search behind the title as depicted on the register; and

the insurance principle, where the state guarantees the accuracy of the register and compensates any person who suffers loss as the result of an inaccuracy.

These principles form the doctrine of indefeasibility of title and is the essence of the land titles system: Marcia Neave, "Indefeasibility of Title in the Canadian Context" (1976), 26 U.T.L.J. 173 at p. 174.

[42a] Indefeasibility of title has been defined as:

. . . a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys. This conception is central in the system of registration. It does not involve the registered proprietor being protected against any claim whatsoever . . .
there are provisions by which the entry on which he relies may be cancelled or corrected, or he may be exposed to claims in personam.

These are matters not to be overlooked when a total description of his rights is required.

But as registered proprietor, and while he remains such, no adverse claim (except as specifically admitted) may be brought against him. (Frazer v. Walker, [1967] 1 A.C. 569 (P.C.) at pp. 580-81.) . . . " - unquote

from 1168760 Ontario ( 2019 )

" . . . 13 The LTA establishes the land titles regime in Ontario. Its essential purpose is to "provide the public with security of title and facility of transfer" by setting up a register and guaranteeing that the person shown as the registered owner is the legal owner, subject only to registered encumbrances and enumerated statutory exceptions.

14 There are three principles found in the land titles regime that together embody the doctrine of indefeasibility of title:

• The mirror principle, whereby the register is the perfect
mirror of the state of title;

• The curtain principle, which holds that the purchaser need not investigate past dealing with the land, or search behind the title as depicted in the register; and

• The insurance principle, whereby the state guarantees the accuracy of the register and compensates any person who suffers loss as the result of an inaccuracy. . . ." unquote