How have courts considered the meaning of s. 35(4)(b)(b) of the BC Code of Civil Procedure in the context of a modification of restrictive covenants?
British Columbia, Canada
The following excerpt is from Rohaly v The Owners, Strata Plan, EPS 319, 2019 BCSC 667 (CanLII):
Hertzberg v. Claxton, 1999 CarswellBC 1314 (S.C.) involved consideration of s. 35(4)(b). This case concerned the modification of a number of restrictive covenants. Initially, the petitioners applied ex parte to a master who granted an order that restricted the necessity of providing notice to those individuals who had a legal benefit to the charge or interest to be modified or cancelled. Later, the parties argued the merits of the application and it was ordered that a number of individuals who may not have the legal benefit of the covenant, but who may be affected by a removal or modification of it, should be notified. The matter later proceeded after these persons – most of them neighbours – had been notified. Many of them elected to attend, speak and file written submissions on the matter.
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