The Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corporation, 2019 BCCA 145
As noted in the reasons for judgment, this was said to be the first case in Canada enforcing a positive covenant in an easement on the basis of pre-incorporation contract principles.
As appeal counsel, Ken McEwan, K.C. and Emily Kirkpatrick were successful in arguing that the decision of the trial court declaring a parking agreement entered into between a developer and the plaintiff strata’s predecessor in title was unenforceable and should be overturned. While, for reasons given in the companion case of The Owners, Strata Plan BCS 4006 v. Jameson House Ventures Ltd., 2019 BCCA 144, the Court declined to overturn the longstanding Rule in Austerberry (that positive covenants run with the land), the Court accepted the arguments on behalf of Ken and Emily’s client that the Respondent Strata was bound by the agreement as a pre-incorporation contract. See Reasons for Judgment here.