STAR PROCESSING LTD. APPLICANT - v. -, 2023 SKKB 66

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 66 Date: 2023 03 29 Docket: QBG-SA-00638-2019 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: STAR PROCESSING LTD. APPLICANT - and - CANADIAN NATIONAL RAILWAY COMPANY and INFRA PIPE SOLUTIONS LTD. RESPONDENTS Counsel: Faith H.C. Baron for Star Processing Ltd. Peter T. Bergbusch, K.C. for Infra Pipe Solutions Ltd. Kelly Hannan for the Canadian National Railway Company _______________________________________________________________________ JUDGMENT CLACKSON J.

March 29, 2023 ___________________________________________________________________________ I. Introduction [ 1 ] In December of 2015, Star Processing Ltd. [Star] discovered that an easement in favour of Canadian National Railway [CNR] over Star’s property in Saskatoon’s south industrial area had been removed from its title. The easement had been granted to CNR by a previous owner and had been discharged in 2004, but not at Star’s request.

[ 2 ] In September of 2018, Star advised CNR that the easement no longer appeared on Star’s title to the land and demanded to know the legal basis upon which CNR continued to use the railway spur line located within the bounds of the then defunct easement.

Two weeks after that, Star demanded that its neighbour, Infra Pipe Solutions Ltd. [Infra], cease its trespass upon Star’s property to access the rail cars located on the spur line within the bounds of the then defunct easement. [ 3 ] In March of 2019 CNR re-registered the easement interest on Star’s title, albeit subject to intervening interests. [ 4 ] Star now applies for an order declaring that neither CNR nor Infra hold a legal or equitable interest in Star’s property and a further order discharging CNR’s easement registration from Star’s title. [ 5 ] An order to that effect was granted by this Court on November 18, 2020 but set aside on appeal.

The Court of Appeal remitted the dispute back to this Court for determination. [ 6 ] Having reviewed the affidavits filed and hearing the submissions of the parties I conclude that the parties to the easement agreement intended that the easement be granted pursuant to the provisions of The Public Utilities Easements Act , RSS 1978, c P-45 [ Act ].

I further conclude that while the easement was discharged by CNR in error, the discharge resulted in CNR’s easement interest in Star’s property being extinguished and CNR’s re-registration of that interest must also be discharged. [ 7 ] As Infra does not claim any legal or equitable interest in Star’s property I decline to make any declaration with respect to that issue. [ 8 ] These are my reasons. II.

FACTS [ 9 ] Star is the registered owner of the following lands: Surface Title # 110006974 Surface Parcel # 135691803 Reference Land Description: Lot 9 Blk/Par 534 Plan No. 66S18566 Ext 10 As described on Certificate of Title 93S00369, description 10 Surface Title #110006985 Surface Parcel #135691814 Lot 10 Blk/Par 534 Plan No. 66S18566 Ext. 11 As described on Certificate of Title 93S00369, description 11 collectively [Star Lands] located in Saskatoon, Saskatchewan. [ 10 ] Many years before Star acquired the Star Lands they were part of a number of contiguous parcels of land owned by CNR. [ 11 ] In 1979 CNR sold the Star Lands to Normandale Holdings Ltd. [Normandale] as part of a larger parcel of land [Normandale Lands].

In furtherance of that sale transaction Normandale and CNR entered into an agreement concerning the placement of a railway siding on the Normandale Lands [Siding Agreement]. The purpose of the Siding Agreement was to provide rail service to the business Normandale intended to operate on the property. Under the terms of the Siding Agreement CNR agreed to establish a railway siding on the Normandale Lands and Normandale agreed “to provide the right of way for the siding”.

The right of way began approximately 85 feet from the south boundary of the Normandale Lands, was approximately 16 feet wide, and extended in an east/west direction across the entire width of the Normandale Lands [Right of Way]. [ 12 ] On October 23, 1979, Normandale and CNR entered into a written easement agreement with respect to the Right of Way [Easement Agreement]. The Easement Agreement granted CNR the right to enter upon the Normandale Lands to, among other things, operate “… railway spur tracks and private sidings on and over the said right-of-way…” and to enter the Right of Way to place train cars.

The Easement Agreement was expressed to be binding on the parties as well as their respective successors and assigns. [ 13 ] CNR registered an easement interest against the title of the Normandale Lands on October 24, 1979 [Easement]. [ 14 ] In January of 1980, the southern 85.5 feet of the Normandale Lands, from the east boundary to the west boundary, was subdivided from the Normandale Lands [Subdivided Lands]. The northern border of the Subdivided Lands included approximately 6 inches of the Right of Way.

The Normandale Lands remaining after the subdivision are the Star Lands, which includes along its southern boundary the remaining 15 feet and 6 inches of the Right of Way. [ 15 ] After subdivision, the Easement was registered against the title of both the Subdivided Lands and the Star

Lands. [ 16 ] In 1984 CNR constructed a railway spur line on the Right of Way. In 1985 CNR extended the spur line to the property immediately adjacent to the west boundary of the Subdivided Lands and the Star Lands [Infra Lands]. The Infra Lands were owned at that time by Pacific Plastics, a predecessor of Infra. The spur line terminates on the Infra Lands. [ 17 ] Star purchased the Star Lands from Normandale in 1993.

The Siding Agreement between Normandale and CNR was assigned to Star with CNR’s consent and Star received title to the Star Lands subject to the Easement. [ 18 ] Normandale continues to own the Subdivided Lands. [ 19 ] In March of 1998, Star wrote to CNR seeking to cancel the Siding Agreement “… as we are at this time not using rail service.” Star’s letter did not request that the trackage in the Right of Way be removed. CNR acknowledged receipt of this letter in November 1998 and by letter dated July 19, 2000 agreed to cancel the Siding Agreement effective May of 1998.

In its letter CNR stated, “All track materials in the siding are owned by CN and CN will remove our materials at our cost.” Neither Star nor CNR addressed continuation of the Easement in their communications. At the time of these communications CNR was using the spur line within the Right of Way to provide rail service to the Infra Lands. [ 20 ] On July 7, 2004, a now defunct company then known as Standard Land Company filed an Application for Interest Discharge with Information Services Corporation [ISC] seeking full discharge of a Building Restriction Caveat and the Easement.

The written authorization of CNR’s then manager of real estate and business development accompanied the application for discharge. The reason for the application for discharge is not in evidence. The effect of the application was to discharge both interests from the titles to the Star Lands and the Subdivided Lands effective July 16, 2004. [ 21 ] In his affidavit of June 6, 2019 Quentin Moore states that CNR has no record of having terminated the Easement.

Star does not claim to have requested a discharge of the Easement and was unaware of its discharge until December of 2015. [ 22 ] Within a month of the discharge of the Easement, Standard Land Company registered a Telecommunications Site Agreement encumbering only the Subdivided Lands with a lease interest in favour of Rogers Communications Inc. Mr.

Moore’s affidavit exhibits a Google Maps’ aerial photograph of a portion of the Subdivided Land depicting a telecommunications tower on or near the southern boundary of the Right of Way. [ 23 ] Before, during, and after discharge of the Easement, CNR continued to provide rail service to the Infra Lands utilizing the spur line located within the bounds of the Right of Way. [ 24 ] In December of 2015 Star became aware that its title to the Star Lands was free of the Easement. It did not raise the issue with CNR.

CNR continued to use the spur line within the boundaries of the Right of Way. [ 25 ] Star first raised concern over CNR’s continued use of the spur line in an email to CNR dated September 26, 2018. There is no record of Star having raised any complaint with CNR concerning the presence or use of the spur line on the Star Lands at any time before September 26, 2018. [ 26 ] CNR re-registered the Easement and the Building Restriction Caveat against the Star Lands effective March 25, 2019. In his affidavit of June 6, 2019 Mr.

Moore concedes that CNR is not entitled to maintain the Building Restriction Caveat given the cancellation of the Siding Agreement and CNR therefore subsequently discharged the Building Restriction Caveat from title to the Star Lands. [ 27 ] In 1997 Star Produce Ltd. purchased the parcel of land immediately to the east of the Star Lands but separated by a road allowance [East Land]. Title to the East Land has been subject to an easement agreement in favor of CNR since 1999. The spur line on the Star Lands and the Infra Lands cannot now be accessed except through the spur line on the East Land.

Title to the East Land continues to be subject to CNR’s easement. There is no evidence that discharge of that easement has ever been requested. III. ISSUES [ 28 ] Star seeks the same declaration against both CNR and Infra: that neither has a legal or equitable interest in the Star Lands. Infra does not assert any legal or equitable interest in the Star Lands. A declaration to that effect concerning Infra is therefore unnecessary. [ 29 ] This then leaves the question of whether CNR has an easement interest in the Star Lands.

Star argues that CNR secured the Easement pursuant to the provisions of the Act , and pursuant to s. 13.1(3) of the Act the Easement ceased when it was discharged, whether that discharge occurred intentionally or through inadvertence. CNR argues that it is entitled to maintain the Easement as it is a common law easement, which it mistakenly discharged. [ 30 ] The issues for determination are therefore: 1. Was the Easement granted pursuant to the Act ? 2. Was the Easement mistakenly discharged? 3. If the Easement was granted pursuant to the Act and mistakenly discharged, can it be re-registered? IV. ANALYSIS 1.

Was the Easement granted pursuant to Act ?

[ 31 ] There is no dispute that the Easement Agreement created an easement in favour of CNR with respect to the land in the Right of Way. The question to be resolved is what type of easement did the parties to the Easement Agreement intend to create? Star says the parties intended to create an easement pursuant to the Act . CNR argues that the parties intended to create a common law easement. [ 32 ] A common law easement has these essential characteristics: 1. There is both a dominant and a servient tenement; 2. The easement accommodates the dominant tenement; 3.

The dominant and servient owners must be different persons; and 4. The easement right must be capable of forming the subject matter of a grant. See Re Ellenborough Park [1956] Ch 131 (CA) [ 33 ] When the Easement Agreement was executed, s. 95(1) of The Land Titles Act , RSS 1978, c L-5 (since rep) [ LTA ], provided that an easement must be registered on the title of both the servient and dominant tenements. [ 34 ] The Act creates an easement interest in only the servient tenement and confers the rights and privileges associated with that easement upon, in this case, the railway company, thus: 2

(1) The registered owner of a parcel of land may grant to … a … railway company … whether incorporated under the laws of the province or otherwise: … (

b) the right to construct its spur tracks … across the land; (

c) the right of access to and egress from any of its … spur tracks …

(3) Rights created under the preceding subsections are in this Act termed easements.

(4) On registration in the Land Titles Registry of an interest based on an agreement containing the grant of an easement in accordance with

section 10, the rights and privileges thereby created and the covenants relating thereto shall inure to the benefit … of the company… its successors and assigns, owners of the… railway … for the purposes of which the easement is granted and shall run with the land and be binding upon the grantor, his heirs, executors, administrators and assigns, and, subject to the provisions hereinafter contained, upon all other persons interested in the land. … 10

(1) An interest based on an easement created pursuant to this Act may be registered in the Land Titles Registry. … [ 35 ] The Easement Agreement makes no mention of the Act nor does it identify a dominant tenement. The Easement was registered only against title to the Normandale Lands. There was no corresponding registration against any land owned by CNR.

What type of easement was intended by the parties? [ 36 ] The intention of the parties to a written contract is ascertained by reading “…the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of the formation of the contract.” See Sattva Capital Corp. v Creston Moly Corp. , 2014 SCC 53 at para 47 , [2014] 2 SCR 633 [ Sattva ]. [ 37 ] Rothstein J. addressed the role of the surrounding circumstances in contractual

interpretation at paras. 57 and 58 of the Sattva decision as follows: 57 While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement [citation omitted]. The goal of examining such evidence is to deepen a decision-maker's understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The

interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract [citation omitted]. While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement [citation omitted]. 58 The nature of the evidence that can be relied upon under the rubric of "surrounding circumstances" will necessarily vary from case to case. It does, however, have its limits.

It should consist only of objective evidence of the background facts at the time of the execution of the contract [citation omitted], that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. Subject to these requirements and the parol evidence rule discussed below, this includes, in the words of Lord Hoffmann, "absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man" [citation omitted].

Whether something was or reasonably ought to have been within the common knowledge of the parties at the time of execution of the contract is a question of fact. [ 38 ] The Easement Agreement clearly expresses the parties’ intention that CNR should have a registerable easement for the Right of Way and that the parties, their successors and assigns would be bound to observe that easement. This contractual intent

would be satisfied whether the easement is one created at common law or under the Act . There is nothing in the wording of the Easement Agreement itself suggesting that the parties favoured one type of easement over the other. [ 39 ] CNR argues that the following surrounding circumstances indicate that the parties to the Easement Agreement intended to create a common law easement: (

a) CN and Normandale were both sophisticated commercial parties. (

b) CN was a railway company with existing rail lines throughout Canada, including in the Province of Saskatchewan and the City of Saskatoon. (

c) Prior to the creation of the Easement, CN was the primary landowner in the relevant area, including the lands over which it operated its mainline and portions of it [ sic ] spur tracks leading to the Easement. (

d) On February 19, 1979 CN entered into a purchase and sale agreement with Normandale wherein CN sold the [Normandale] Lands to Normandale. (

e) As a condition of the sale, the lands were subject to a Building Restriction Caveat which required that they be developed only in a way that would require railway service. (

f) On April 1, 1979, CN and Normandale entered into the Siding Agreement setting out the terms under which CN would provide rail service to Normandale. (

g) It was a condition of the Siding Agreement that the siding and adjacent trackage (i.e. the track extending onto the Infra Pipe Lands) would be used in conjunction with each other “for as long as such service was required.” (

h) CN required a right of way through the [Normandale] Lands purchased by Normandale to access the neighbouring lot (now the Infra Pipe Lands) for railway purposes. (

i) Normandale granted the Easement to CN on October 23, 1979. (

j) CN paid $1.00 in consideration to Normandale in exchange for Normandale granting the Easement to CN. (

k) A predecessor version of the [ Act ] was first passed in 1940, with subsequent versions of the [ Act ] coming into force in 1953 and 1965 prior to the coming into force of the current version. (

l) The language of the [ Act ] is permissive – easement rights may be created under it. The result is that parties cannot be "deemed" to have created easement rights under the [ Act ], they must have intended to do so. (

m) Under the [ Act ] only the registered owner may grant easement rights over its lands. Normandale was not the registered owner of the [Normandale] Lands when it granted the Easement on October 23, 1979. (

n) The law in Saskatchewan permitted the creation of common law easements including for railway operations. [ 40 ] I am troubled by the assertion in paragraph (

m) above. CNR argues that Normandale was not the registered owner of the Normandale Lands at the time the Easement Agreement was signed (in fact, it became the registered owner a day later) and as the Act requires the easement be granted by the registered owner of the parcel, the easement granted to CNR could not have been granted pursuant to the Act . I dare say, if this argument is accepted then Normandale was incapable of granting an easement to CNR of either type.

But to answer the argument directly, the fact of the sale to Normandale, the terms of the Siding Agreement, and the terms of the Easement Agreement all combine to make it clear that the parties contemplated that Normandale was, for all intents and purposes, granting an easement to CNR as the owner of the Normandale Lands. [ 41 ] The balance of the circumstances upon which CNR relies demonstrate only that the parties intended to grant CNR an easement of the Right of Way. They do not provide any useful insight into which form of easement the parties intended to create.

In fact, these circumstances could as easily indicate an intention to grant an easement under the Act as a common law easement. [ 42 ] Militating against CNR’s position that the parties intended to create a common law easement is the fact that the Easement Agreement does not identify a dominant tenement nor is there any evidence that a dominant tenement was ever identified or discussed by the parties.

CNR argues that any of its spur lines or rail lines in the area of the Star Lands could serve as a dominant tenement but does not identify which of these lands were intended by the parties to be the dominant tenement. The fact that CNR cannot say which land was intended to receive the benefit of the easement speaks volumes about the intentions of the parties when the Easement Agreement was struck. [ 43 ] CNR argues that whether the parties intended a specific parcel to be the dominant tenement is irrelevant in any event because a valid common law easement may be created in the absence of a dominant tenement.

CNR cited no authority for this proposition other than an obiter observation of Ottenbreit J.A. in Canadian National Railway Company v Star Processing Ltd. , 2021 SKCA 167 . At paragraph 37 of that decision Ottenbreit J.A. stated, “I note parenthetically that there is a substantial body of law that indicates that the dominant tenement need not be expressed in a common law easement and that it can be inferred from the circumstances.” In my view, Justice Ottenbreit’s remark is not authority for the proposition advanced by CNR.

Rather he was acknowledging the large body of cases where, based on the surrounding circumstances, the parties were found to have intended a specific parcel of land to receive the benefit of the easement. The circumstances surrounding the creation of the Easement in this case do not demonstrate that the parties intended to benefit any particular parcel of land but rather to facilitate CNR’s operation as a railway. [ 44 ] I am not persuaded by CNR’s arguments on this point. The circumstances, CNR says, demonstrate the parties’

intent to create a common law easement do not do so. At best these circumstances demonstrate only that the parties intended to grant CNR an easement interest in the Right of Way. [ 45 ] There are other circumstances, however, that suggest the parties intended an easement pursuant to the Act rather than a common law easement. In that respect I note that the Easement Agreement establishes the parties’ intention to create an easement interest that would run with title to the Normandale lands and bind subsequent owners.

Only interests registered on title would run with the land and be binding on subsequent owners of the Normandale Lands. I agree with CNR that the parties were sophisticated in their knowledge of land transactions and must therefore have known the legal requirements to be met to create a registerable common law easement. One of those requirements is existence of a dominant tenement, but the Easement Agreement does not identify a dominant tenement nor is there any evidence that a dominant tenement was ever identified or discussed by the parties.

Pursuant to s. 95(1) of LTA an easement may not be registered against the title of only the servient tenement. It could not have been CNR’s intent to obtain an easement that could not be registered. It must therefore have been the parties’ intention to create an easement interest in favour of CNR under the provisions of the Act as a common law easement could not be registered. 2. Was the Easement mistakenly discharged? [ 46 ] The Easement was discharged in 2004 by Standard Land Company.

Given that the discharge request was accompanied by the signed authorization of CNR’s real estate manager, it can be inferred that CNR authorized the discharge. It may therefore be presumed that CNR intended to discharge the Easement. The controversy, however, is whether it was CNR’s intent to discharge the Easement from all titles or only the title to the Subdivided Lands.

There is no direct evidence on this point: no evidence from the now defunct Standard Land Company, no evidence from the CNR employees and managers involved in the discharge, and no evidence as to the reasons for discharge of the Easement from title to the Subdivided Lands.

In short, there is no direct evidence to assist the Court in ascertaining whether the request in the application to ISC for a “full discharge” of the Easement rather than a “partial discharge” was an administrative error. [ 47 ] Star argues that CNR’s discharge of the Easement was intentional and as evidence of that intent points to the final sentence of CNR’s letter of July 19, 2000. This letter was sent by CNR in response to Star’s request, made two years earlier, to terminate the Siding Agreement.

The final sentence of CNR’s letter states, “All track materials in the siding are owned by CN and CN will remove our materials at our cost.” According to Star, this communication, when coupled with CNR’s ability to transition its delivery operations to the Infra Lands to a more southerly spur line [South Spur Line], demonstrates that in 2004 CNR planned to transition its delivery operations to the South Spur Line and abandon the spur line on the Right of Way. [ 48 ] There is no evidence that suggests, much less demonstrates, CNR intended to abandon the spur line in the Right of Way in favour of the South Spur Line.

Such a transition would have had important implications for Infra, not the least of which would be modification or movement of its then existing receiving infrastructure. There is no evidence indicating that CNR was engaged in such discussions with Infra. Star’s argument that CNR intended to abandon the spur line in the Right of Way is pure speculation. In my view, the last sentence of CNR’s July 19 th letter is a simple admonition to Star that notwithstanding the cancellation of the Siding Agreement, the trackage within the Right of Way continues to be CNR property and should not be interfered with.

The letter contains no explicit or implied commitment to remove the trackage then or at any point in the future. [ 49 ] In assessing whether CNR intended to discharge the Easement from the title to the Star Lands there are additional circumstances to be considered. Firstly, the discharge occurred without any specific request from Star. In fact, Star was not even aware of the discharge until December of 2015. Secondly, Star’s letter to CNR seeking cancellation of the Siding Agreement did not request discharge of the Easement nor removal of the trackage from the Right of Way.

Thirdly, CNR continued to service the Infra Lands using the spur line in the Right of Way as it had before the discharge and expected to continue doing so into the future. Fourthly, discharge of the Easement was never communicated to Star by CNR. If the discharge had been intentional and at Star’s request one would expect some communication confirming compliance with the request.

Fifthly, notwithstanding what Star perceived as CNR’s commitment in 1998 to remove the spur line from the Right of Way, the spur line remained in place and was continuously used by CNR to service the Infra Lands for 14 years without any comment much less complaint from Star. The argument that CNR intended to abandon the spur line in the Right of Way cannot be reconciled with the reality that CNR continued to use the spur line for 14 years after the discharge of the Easement without eliciting any comment much less complaint from Star.

Sixthly, when Star finally did bring the fact of the discharge to CNR’s attention, some 3 years after Star had notice of the discharge, CNR took steps to re-register the Easement. [ 50 ] In my view, these circumstances establish on the balance of probabilities that CNR did not intend to discharge the Easement from title to the Star Lands and that the discharge occurred through error. 3. If the Easement was granted pursuant to the Act and mistakenly discharged, can it be re-registered? [ 51 ] CNR re-registered an easement interest in the Star Lands effective March 25, 2019.

It did so without Star’s approval or consent. [ 52 ] Star argues that pursuant to s. 13.1(3) of the Act , when CNR discharged the easement, even if inadvertently, its easement interest was extinguished, and its re-registration of that interest was therefore improper. [ 53 ] CNR contends that applying Star’s

interpretation of s. 13.1(3) in circumstances where the discharge was inadvertent is contrary to the purpose and intent of the Act . [ 54 ]

Section 13.1(3) of the Act provides as follows: 13.1 …

(3) On the registration of a discharge pursuant to this section, the rights and privileges arising under the easement cease. [ 55 ] The parties’ arguments focused on whether CNR’s re-registration of a mistakenly discharged interest is

permissible under The Land Titles Act, 2000 , SS 2000, c L-5.1 , and if so under what circumstances. I accept the proposition that interests which are unintentionally discharged may be restored to title in appropriate circumstances. But, and with respect, that issue arises only if CNR can be said to have an interest to re-register. The first issue to be resolved is whether s. 13.1(3) of the Act extinguishes an easement interest created under s. 2 of the Act when that interest is discharged, even inadvertently. On this question there was little to be gleaned from the parties’ arguments. [ 56 ] In interpreting the intent of s. 13.1 of the Act I apply the principles of

interpretation now codified in s. 2 - 10 of The Legislation Act , SS 2019, c L-10.2 , as follows: 2-10

(1) The words of

an Act and regulations authorized pursuant to an Act are to be read in their entire context, and in their grammatical and ordinary sense, harmoniously with the scheme of the Act , the object of the Act and the intention of the Legislature.

(2) Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that best ensures the attainment of its objects. … [ 57 ] In my view, the intent and purpose of the Act is to facilitate the creation of special easement interests, which interests would otherwise not be registerable under The Land Titles Act, 2000 , and to regulate the discharge of those interests and the effect of that discharge on the interests of the title holder and all those who obtain an interest in the title after discharge. Star’s

interpretation of s. 13.1 is not inconsistent with that intent and purpose. [ 58 ] In counterpoint CNR argues that the purpose of s. 13.1 is “… to protect bona fide third parties, not to reward or punish or provide certainty between the parties to the easement.” I accept that one of the purposes of the Act is to protect bona fide third parties taking an interest in lands encumbered with an easement granted under the Act .

However, the Act is also intended to protect registered owners with respect to the registration of easement interests, which are essentially personal licenses that legislatively run with the land, particularly in circumstances where the grantee of the easement has, at least ostensibly, authorized the discharge. [ 59 ] In the end, I cannot find a basis upon which to deviate from what appears to be the clear intent of s. 13.1: that discharge of an easement created under the Act extinguishes the easement interest regardless of the reasons for the discharge. V.

CONCLUSION [ 60 ] I conclude that the Easement was created pursuant to the provisions of the Act and while it was inadvertently discharged, CNR’s easement interest was nonetheless extinguished upon discharge pursuant to s. 13.1(3) of the Act .

I therefore declare that CNR has no easement interest in the Star Lands and pursuant to s. 109 of The Land Titles Act, 2000 direct the Registrar of Titles to discharge any of the following interests remaining on title to the Star Lands, namely interest register #123375449, #123375584, #123378633, and #123378813. [ 61 ] Star shall be entitled to the costs of this application. J. C.D. CLACKSON