What is the test for repudiation of a contract for encumbrances or defects on title?

With respect to minor or material defects on title, the test to be applied was stated by Singh J. in Ferreira v. Chen, [1994] B.C.J. No. 614 (S.C.) as follows: ...whether the vendor can convey substantially what is required by the contract. This test would not permit repudiation of the contract for encumbrances which are merely minor and insubstan­tial. I agree that this test is the appropriate one to be applied, but restricted to cases where the impediment is minor and would not interfere with the purchasers' use of the property. (para 8) Singh J. went on to assess the restrictive covenant in question which, on its terms, restricted the size and location of buildings on the servient tenement: The presence of the restrictive covenant was a defect in title which on its terms was neither minor nor insubstantial. Rather, it contained onerous building restrictions or limitations which may significantly have affected the use, enjoyment and value of the property. The vendors were unable, therefore, to convey substantially what was required by the con­tract. (para 9)

The plaintiff in this case submits that the restrictive covenant is minor and it does not interfere with the owner's use and enjoyment of the property. Whether an encumbrance interferes with the owner's use and enjoyment of the property has been stated as being the basis for the determination of whether the encumbrance is trifling or more major: Bernard v. Weiss (1983), 31 R.P.R. 185 (B.C.S.C.).