The Appellants appealed an Order (the “Set Aside Order”) setting aside a previous Order discharging a Restrictive Covenant on their property (the “Discharge Order”).

The appeal period to appeal the Discharge Order elapsed before the Respondents applied for the Set Aside Order (the “Set Aside Application”). As such, the Discharge Order could only be set aside if the Respondents established that they had a right of notice of the Set Aside pursuant to Rule 9.15(1). To have standing to make an Application under Rule 9.15(1)(a), a person must be an “affected person” meaning a person who is legally affected by the Judgment or Order rather than a person who may have a personal or moral stake in the proceedings.

The Court noted that whether the Appellants were affected by the Set Aside Order and, therefore, had standing in the Set Aside Application turned on the validity of the Restrictive Covenant. The Court found that the Restrictive Covenant was ambiguous as the specific lands subject to the Restrictive Covenant, and it therefore was unenforceable.

The Court allowed the Appeal and awarded Schedule C costs to the Appellant.