However, it was noticed that the original deed contained the following clause: Though Wolf was Jewish, Noble still wanted to sell him the land, and so they applied to the court to have the covenant nullified, facing opposition from the "Pines" community.

Noble and Wolf cited a 1945 decision in Re Drummond Wren,[1] where the Ontario Court struck down a discriminatory covenant.

As Rand J explained in his judgment, such covenants would need to comply with the rule expressed in Tulk v Moxhay,[2] in that they "should touch or concern the land as contradistinguished from a collateral effect".

[5] While the case went through the courts, the Legislature of Ontario passed an act that declared such restrictive covenants to be "void and of no effect," but it only applied to ones created on or after March 24, 1950, its date of Royal assent.

[6] While the covenants in the deeds constituting the community at Beach O' Pines were held to be ineffective, others created before the amendment (as long as they complied with Tulk v Moxhay) were still considered to be valid, as the Ontario Court of Appeal stated that they did not offend public policy.