ALERINA RING PETITIONER - v. -, 2023 SKKB 154

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 154 Date: 2023 07 19 Docket: DIV-RG-00455-2019 Judicial Centre : Regina, Family Law Division BETWEEN: ALERINA RING PETITIONER - and - RONALD RING RESPONDENT Counsel: Deidre Brandt for the petitioner Christopher N.H. Butz for the respondent JUDGMENT BROWN J. JULY 19, 2023 Background [ 1 ] Alerina Ring [Alerina] seeks a determination that an unwritten agreement she alleges was made at a pretrial conference held in August 2020 in relation to sand, gravel and other similar soils [aggregate] underlying the land be enforced.

This is within the context of a formal agreement forged at the pretrial conference which was simultaneously reduced to writing with the intention that it would settle all outstanding issues between the parties but did not contain the clause now sought to be recognized. [ 2 ] Subsequent to the settlement at pretrial, a judgment for divorce issued in late 2020 taking into consideration the final nature of the settlement regarding family property. [ 3 ] The issue herein arises out of an application brought in February 2022 by Alerina for an order that Ronald Ring [Ronald] be required to execute an aggregate yardage agreement she arranged with W.F.

Botkin Construction Ltd. [Botkin] which would permit the excavation, stockpiling and sale of gravel and other aggregates with one half the net proceeds being payable to Alerina. [ 4 ] The application was returned by the chambers judge to the pretrial judge for consideration, assessment and determination as to whether there was a binding agreement of the nature alleged by Alerina. The pretrial judge, having reconvened the pretrial with the parties and their counsel, was unable to conclude the obligation Alerina submitted Ronald was under constituted a binding agreement.

He therefore directed a trial of the issue of whether Alerina was correct regarding her belief that Ronald was obliged

to enter into the agreement with Botkin or alternately Ronald was correct that no such obligation existed. [ 5 ] The matter proceeded to a trial of the issue with evidence in chief and cross examination. For the reasons that follow, after the trial of the issue, I dismiss the application brought by Alerina but order Ronald to report any sale of aggregate from the land in issue which he may participate in to Alerina.

While I do not find that there was a binding but unwritten agreement which requires Ronald to enter into the agreement Alerina arranged with Botkin regarding removal and sale of aggregate in Ronald’s farmland, I do conclude that he shall not sell the land in issue until August 2033 without the express written consent of Alerina. EVIDENCE Alerina Ring [ 6 ] Alerina testified that after the initial pretrial was concluded she believed that the Minutes of Settlement agreement contained the rights she now seeks to have recognized and enforced.

She did not have any specific evidence in relation to just what was said, by whom or what the various replies or counterproposals were. Her belief in the agreement aside from the written terms of settlement was quite general in nature.

She acknowledged that each page of the written Minutes of Settlement was initialled by herself and that the last page was fully executed by her at the conclusion of the pre-trial settlement conference. [ 7 ] In this regard, Alerina’s recollection of any of the details of just how, when and in what terms or context the purported agreement became something both parties committed to is absent.

In fairness, she quite rightly points out that the pretrial occurred almost three years ago (August 2020), and she acknowledged that her present recollections are not particularly clear. [ 8 ] When pressed in cross examination Alerina testified that she was not overly active during the pretrial but that her counsel, Mr. Filyk, did most of the talking and negotiating on her behalf. It is noteworthy that the agreement ultimately signed by the parties and their counsel at the conclusion of the pretrial is initialled on each page.

It is of significance that handwritten changes were made to several of the typed provisions of the Minutes of Settlement including one handwritten change to the most relevant provision: para. 4(c). It ultimately stated: Ronald shall pay Alerina 50% of any net proceeds he receives from the future sale of any gravel derived from the land until August 28th 2033 (the net proceeds shall be calculated as after any costs incurred to extract the gravel from the land.) [ 9 ] The change was that the date had been extended through negotiation and altered by handwritten insertion which was also subsequently initialled.

Thus, it is clear that a 50% sharing of gravel revenues was contemplated by the parties and agreed to. It was also clear from the document itself that when that provision was reduced to writing and put to Alerina and her counsel, they insisted on lengthening the term pursuant to which Alerina would be entitled to share in any gravel revenue from the land. [ 10 ] Much evidence was led in relation to whether one side or the other was obliged to obtain an appraisal in relation to the gravel and aggregate in the land.

Ronald paid for land appraisals for the date of marriage, the date of petition and the date of pretrial, as well as an appraisal by McDougall Auctioneers Ltd. [McDougall] for the remaining property. [ 11 ] Alerina testified that while her lawyer inquired into an appraisal of the gravel once an estimate was provided, it was simply too expensive for her to pay for, thus it never happened. There was some evidence in relation to whether Alerina, through counsel or otherwise, attempted to get an appraisal or alternately undertook to do so. Correspondence between counsel suggested that Mr. Shah was waiting for Mr.

Filyk to obtain same. The completion of commissioning the appraisal never materialised. [ 12 ] Alerina said she would not have concluded the agreement if she believed that the term she now sought was not a part of it. [ 13 ] I found Alerina to have an honest belief in the existence of a right to seek out a contract for the extraction of aggregate and oblige Ronald to participate in it. However, she had no capacity to prove that it was intended by all parties to be part of the settlement arrived at during the pretrial.

Such evidence must be clear and convincing such that the existence of a term which does not make it into the final written and executed contract is very obviously something agreed to. While she does believe in the existence of the term she advocates for, I find her evidence to be unconvincing in establishing Ronald shared her belief at the time of the pretrial. I was not persuaded that it was a term that had been agreed upon at the pretrial. Drew Filyk [ 14 ] Mr. Filyk attended and provided evidence regarding his recollection of the surrounding circumstances and discussion leading up to and during the pretrial.

He testified that in advance of the pretrial there was a reasonable amount of toing and froing in relation to the appraisal with respect to sand and gravel itself. While there was an appraisal regarding the land and minerals reflected therein, he said that there was separate pursuit of an aggregate appraisal. The result was that the JD Mollard and Associates

(2010) Limited corporation [Mollard] was mentioned as a possibility. [ 15 ] Mr. Filyk testified that the intention was for Mollard to sort out what might be sand and gravel under the land including what volume it had and what value that might hold. Mr. Filyk's recollection was that it would be in the neighbourhood of $8,000 to $10,000 to obtain the aggregate appraisal from Mollard. He testified that as a result it was not in his view feasible for Alerina to pay for it. Mr.

Filyk also hearkened back to his belief that Ronald was not paying his support on time as the basis that Alerina could not afford to commission the appraisal. [ 16 ] Ultimately Mr. Filyk testified to his belief that there was an agreement that Alerina would be authorized to seek agencies to extract and sell the gravel. He also readily acknowledged the executed Minutes of Settlement did not contain that term. [ 17 ] Mr. Filyk testified to having a conversation with Ronald following the pretrial subsequent to Alerina obtaining the Botkin agreement. During this phone call, which was at the initiation of Mr.

Filyk, Ronald was asked to discuss the Botkin

agreement that Alerina had obtained. Mr. Filyk said he inquired whether Ronald was represented by Mr. Shah. Mr. Filyk’s evidence was that Ronald replied he was not. Mr. Filyk says he then asked Ronald if he had a chance to look at the Botkin contract. Mr. Filyk’s recollection of the response was that Ronald indicated that he would prefer to go with a different organization whom he named. Mr. Filyk indicated that he thought that would be fine as long as the price and terms were as favorable as the Botkin terms and price were. [ 18 ] Mr.

Filyk was questioned in relation to a term of the settlement having such significance, but not being clearly set out within the executed Minutes of Settlement and whether this was a normal practice that he as counsel followed. Mr. Filyk indicated that there are times when he would prepare a five-page minutes of settlement document and sometimes it would be as long as nine pages, as this one was. He responded that it did happen on occasion that a term was not included, but not regularly.

He repeated that it is not uncommon that there will be terms that are agreed to but that the mechanism of carrying out the term is not specified. An example provided was how to divide an extensive coin collection which was to be equally split. He testified that this type of mechanism may well be left out and still be implied into the settlement nonetheless. He was of the view the missing aspects of this term of an agreement which Alerina advocated for was a mechanism related to the exploitation of the aggregate which was a term of the Minutes of Settlement.

Ronald Ring [ 19 ] Ronald indicated that he did not consider the clause in the Minutes of Settlement to include an agreement or an intention that Alerina would be able to find a contractor to excavate and sell the aggregate from the land and whom he would be bound to enter into a contract with. Ronald did not come across as a person who remembered finer details from years ago with precision either. It was apparent that managing documents is not something that comes naturally to him.

He did not recall much about the relationship between giving instructions, receiving information and making decisions thereafter. [ 20 ] Ronald had very little recollection about the details of commissioning an appraisal to ascertain what the aggregate might be valued at within the land. When shown that this was an ongoing issue between his counsel and Alerina’s counsel, he acknowledged that was what it appeared to be unfolding at that time. Nonetheless, he was not able to accurately convey whether Mr.

Shah was acting on his own in that regard or had consulted Ronald about the aggregate appraisal. [ 21 ] Ronald did agree that he had commissioned all three of the point-in-time appraisals ultimately commissioned but was unable to say why they picked a 2017 date as one of those points in time. He also agreed that the pattern which arose in the litigation process was for him to pay for the appraisals hoping to recover 50% of his cost once the settlement was made.

When asked about why he did not commission an additional appraisal for the aggregate separately he indicated because he too was broke and lacked the money with which to do that. [ 22 ] Ronald pointed out that the highest and best use of the land from the appraisals was considered to be agricultural. He testified that he had already paid $4,500 for the appraisal and then a further $735 to get the mineral rights appraised.

He testified that he had paid some money to Robin Johnson as well, who did not continue on to obtain an appraisal as he was not allowed to do his job when Alerina refused him access when he came out to the farm to conduct the appraisal. [ 23 ] Ronald testified that “everything” was appraised on the property. However, it was clear there were a number of vehicles and other items which were likely scrap iron that were not appraised by McDougall.

When confronted with that information, Ronald indicated that he tried but had been “run off” by Alerina before it could be completed. [ 24 ] In relation to when the aggregate that had been sold was excavated, Ronald’s evidence was that in 2012 he wanted a dugout made in an area that simply would not grow crops. While it had been planted and fertilized year after year, because it was sandy, it never yielded a decent crop. He called it a “sand bar” and decided that he would excavate it for a dugout. His friend Howard Boyd excavated it for him and observed that there was some value to what was excavated.

He indicated he would pay Ronald $1.50 a yard for the pile of sand to use as he needed it. [ 25 ] The result was that Mr. Boyd would regularly take some of the aggregate from the land and pay Ronald. Ronald thought it was in the neighbourhood of just under $50,000 that he had received in the seven years from 2012 to 2019 when the aggregate was taken from what was removed from the land while creating the dugout. [ 26 ] It was clear in his evidence that Ronald uses “sand” and “gravel” interchangeably. The reason was explained as being that until gravel is screened it is both sand and gravel comingled.

As a result, using sand for gravel or gravel for sand before it is screened is not an inaccuracy in his lexicon. Ronald took no issue with the notion that the term in the Minutes of Settlement referencing sand included all aggregate. [ 27 ] In relation to what para. 4(

c) of the Minutes of Settlement meant, Ronald indicated that he believed it meant that the remaining sand and gravel from the pile dug by Mr. Boyd could be sold and he would share half of that with Alerina.

He testified that he did not believe that there was an agreement at the pretrial that Alerina was authorized to unilaterally obtain a contract for aggregate extraction which she could then bring to Ronald and that upon presentation of it he would be obliged to execute it and allow Botkin to excavate his farmland and set up a commercial pit on it. [ 28 ] Ronald testified that he was quite against a commercial gravel pit existing on his land as he felt that it would seriously detract from the land value and the farm aspect of the property.

He was concerned with the amount of time that it would take to extract the gravel as well as the amount of time to clean it up and the type of scenario that would be left once it was extracted. He believed it would never successfully revert to attractive agricultural land should a large scale commercial operation take place on it. [ 29 ] Ronald denied in strong terms any oral agreement with obligations additional to what was specifically included in the Minutes of Settlement. He had never seen the Mollard estimate before it being presented to him on the witness stand.

He believed he had reviewed the briefs prior to the pretrial. [ 30 ] In relation to concerns about having the commercial gravel pit on his land, he was not sure if he had noted those

to his lawyer prior to the pretrial or during the pretrial. Susan Stevenson [ 31 ] Ms. Stevenson is a planner with the Rural Municipality of Edenwold [R.M.], having worked there since 2019. Prior to that she was with the Rural Municipality of Sherwood in the same capacity from 2013 to 2019. [ 32 ] Ms. Stevenson indicated that there are a number of restrictions that must be observed with respect to commercial gravel extraction and mining operations. In particular the activity must be set back a minimum of 805 meters (a half mile in imperial terms) from any residential home. In this particular case there were at least three homes within that distance to the quarter

section in question. [ 33 ] In relation to what needed to happen in order for there to be such an operation on Ronald’s land, there would need to be R.M. council approval to allow the setback to be reduced from what was indicated in their zoning approval and bylaws at 805 meters. [ 34 ] In the history of Ms. Stevenson’s time with the two municipalities, she had only seen one instance where the municipality did in fact allow for the 805 meter set back restriction to be adjusted and the distance shortened.

That situation was one where it was a significant commercial mining organization that sought the relaxation and shortening of setback distance. The corporation advocating for the lessened restrictions agreed to put in place multiple levels of mitigation regarding their operation including a large berm around the entire outside of the gravel extraction development and landscape the berm all at their own cost. [ 35 ] Ms. Stevenson testified that there are a number of costs which would need to be incurred by the developer and not the R.M. for such an extraction operation as proposed by Alerina to gain approval.

All-season roads would need to be built, a geologist would have to be hired to monitor wells and a well-monitoring agreement executed, a comprehensive site restoration plan would need to be created and approved and the light and noise pollution issues created by the operation would need to be addressed. There would also need to be public consultation with all landowners resident within a distance of 800 meters from the proposed extraction zone. [ 36 ] In

summary, her evidence was that it was highly unlikely a commercial aggregate extraction operation could proceed on Ronald’s land. Howard Boyd [ 37 ] Mr. Boyd is a neighbour of Ronald’s. Mr. Boyd lives on NE 9-18-18. He described how in 2012 there was a mutuality of interest between himself and Ronald such that he could use some of the “fill sand” (which is how the aggregate was described by Mr. Boyd) on Ronald's land and Ronald could get a dugout through the removal. Therefore, from 2012 to 2019, anytime Mr. Boyd needed some fill material he would extract it from the area where the dugout was.

This would be done by excavating it with a track hoe or simply loading it up from one of the piles that had been created previously by the track hoe. Mr. Boyd indicated that the piles were created periodically because they did not want to excavate each time given that bringing in the track hoe was a rather extensive operation. He thought it may have been twice a year that the track hoe was brought to Ronald’s land for the excavating and piling up of aggregate. [ 38 ] Mr. Boyd paid Ronald $1.50 per yard for the fill sand.

The overall amount he believed he would have paid Ronald would have been $56,000 over the seven-year period. Renee Ring [ 39 ] Ms. Ring is Ronald’s sister and lives immediately to the west of Ronald. Both the parcel she resides on and the one Ronald resides on were once their father's property. She indicated she is not interested in having any aggregate mining or extraction operation either on her land or on any neighbouring land. This, once connected with the testimony of Ms.

Stevenson in relation to the factors the R.M. would take into account in relation to whether they would allow the minimum set back of one-half mile from neighbouring homes to be shortened, further confirmed the operation Alerina sought to impose on Ronald was highly unlikely to ever proceed even if Ronald agreed. Lorne McDougall [ 40 ] Mr. McDougall lives immediately to the north of Ronald. While being Ronald’s neighbour, he does not know Ronald very well. The extent of his knowledge was that the Rings lived south of him. [ 41 ] Mr.

McDougall testified that he would not favour a commercial aggregate extraction site near his land. He purchased 22 acres as a homesite in 2017 and subsequently acquired the remaining 138 acres to make the full quarter in 2021. His concerns included that there would be a lot of traffic, noise and activity while the aggregate was being extracted. His follow up concern was that afterwards the reclamation would leave the land non-arable and potentially only useful for dirt bikes and other such noisy recreational activity.

He would not give his approval to such an operation as he had concerns that once the aggregate site was begun as a commercial enterprise, his peace and quiet would likely never return. ISSUE [ 42 ] The issue was framed by the pretrial judge in the following way: “Who is empowered to oversee and contract for the extraction and marketing of gravel and other aggregate from the land”. [ 43 ] The legal issue includes whether there is a binding, enforceable agreement between the parties for the term that Alerina submits exists here.

In essence it would encompass finding there is a duty upon Ronald to execute any agreement Alerina secures

for the extraction of aggregate from the farmland. [44] In this regard, contract law must be examined. The submissions from counsel were directed at whether an oralagreement was created at the pretrial and whether the parol evidence rule prevents it from being enforceable. DISCUSSION Oral Agreement [45] With respect to oral agreements and their enforceability, Justice Robertson noted in Wenkoff v Wenkoff Estate, 2019 SKQB 325, 9 RPR (6th) 177: [96] The first element requires proof of an oral agreement that was completed. Proof of a mere promise will be insufficient.

Anagreement in principle or agreement to agree will be insufficient. The agreement must be final and complete so as to be specificallyenforceable. As with any contract, the essential terms must be proved by evidence. . . (See also Jans v Jans Estate, 2016 SKQB 275 at paras 183 – 185, 21 ETR (4th) 35). [46] In this situation, it is complicated by the fact a complete written agreement exists and the oral agreementproposed is additional to it.

Interpretation of the contract must therefore be an integral part of the determination of whether an oralagreement which deviates from the written contract also exists. [47] The current or modern approach to interpreting a contract has been stated in Sattva Capital Corp. v CrestonMoly Corp., 2014 SCC 53, [2014] 2 SCR 633 [Sattva], summarized more recently in Resolute FP Canada Inc. v Ontario (AttorneyGeneral), 2019 SCC 60, [2019] 4 SCR 394: 74 This Court has described the object of contractual

interpretation as being to ascertain the objective intentions of the parties (Sattva ,at para. 55). It has also described the object of contractual

interpretation as discerning the parties' "reasonable expectations with respectto the meaning of a contractual provision" (Ledcor [2016 SCC 37, [2016] 2 SCR 23], at para. 65). In meeting these objects, the Court hassignalled a shift away from an approach to contractual

interpretation that is "dominated by technical rules of construction" to one that isinstead rooted in "practical[ities and] common-sense" (Sattva , at para. 47).

This requires courts to read a contract "as a whole, giving thewords used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time offormation of the contract" (ibid.). [48] Our Court of Appeal has recently had occasion to examine this within the context of a contract formed throughthe creation of minutes of settlement in Boutin v Boutin, 2023 SKCA 41 [Boutin]: [31] …The Minutes are a contract.

For that reason, the ordinary law of contract generally applies, including that relating to contractinterpretation: Ruskin v Chutskoff Estate, 2004 SKCA 107 at para 22, 243 DLR (4th) 432; … [32] As this Court affirmed in its per curiam decision in Mosten Investments LP v The Manufacturers Life Insurance Company(Manulife Financial), 2021 SKCA 36 at para 66, [2021] 9 WWR 1 [Mosten], "[t]he goal of all contract

interpretation is toascertain consensus ad idem...[which]...arises when all parties understand and accept the contractual commitments each party has madeto the others". As the Court also said, "the issue is not what the parties subjectively understood or intended, or later came to think theagreement was" (at para 69). Rather, the correct approach is that described in the following statement in Geoff R. Hall, CanadianContractual

Interpretation Law, 3d ed (Toronto: LexisNexis, 2016) at 50-51, which was adopted in Mosten, at para 69: It is a fundamental precept of the law of contractual

interpretation that the exercise is objective rather than subjective. "The goal ininterpreting an agreement is to discover, objectively, the parties' intention at the time the contract was made." [Emphasis added.] Theobjective approach applies to both the words of the contract and their context. Therefore, the exercise is not to determine what the partiessubjectively intended but what a reasonable person would objectively have understood from the words of the document read as a wholeand from the factual matrix.

"Bearing in mind the relevant background, the purpose of the document, and considering the entirety of thedocument, what would the parties to the document reasonably have understood the contested words to mean?" [Emphasis added.] Putanother way, "[i]n interpreting a contract, what is relevant is the parties' outward manifestations...". [Italics emphasis in original] [33] Further, "[t]he first principle of contract

interpretation is that the parties to a contract are presumed to have intended what the textof the contract actually says...This is the cardinal presumption of contract

interpretation and it places the written agreement of the partiesat the core of the interpretive process" (Mosten at para 73). While it is proper to take the surrounding circumstances in which the contractwas formed into account, they cannot be permitted to overwhelm the language chosen by the parties. In Sattva Capital Corp. v CrestonMoly Corp., 2014 SCC 53, [2014] 2 SCR 633 [Sattva], Rothstein J. summarized these fundamental precepts as follows: [57] ... The

interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract(Hall [Geoff R. Hall, Canadian Contractual

Interpretation Law, 3d ed (Toronto: LexisNexis, 2016)], at pp. 15 and 30-32). While thesurrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the courteffectively creates a new agreement (Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular Inc. (1997), (BC CA),101 B.C.A.C. 62). [49] Alerina submits that a stand-alone oral agreement came into being during the pretrial.

She posits that suchagreement exists apart from the documented Minutes of Settlement which were altered in handwriting through additional negotiation,then initialled, then executed. [50] Ronald submits that the agreement contained in the Minutes of Settlement was intended to be complete in every

way. Thus, a separate oral agreement is contrary to that joint intention. Counsel for Alerina, Mr. Filyk, agreed that the Minutes ofSettlement were intended to be a complete and final version of the terms of settlement. His view was that the provisions relating to thegarnering of an organization by Alerina to remove and sell the aggregate were mere “mechanisms” which enabled the core of theagreement to be fulfilled more so than a separate oral agreement. However, when pressed, Mr.

Filyk also said he believes a separate oralagreement did come into existence relating to Alerina garnering a company to extract and sell the aggregate. [51] Oral agreements are of course enforceable if they meet the requirements of being a contract at law. Proof of theterms of oral agreements is often the challenge in getting such matters past the post of enforceability. [52] As a starting point, it is important to examine what was agreed to in writing and what is alleged to be an oralagreement with respect to the Minutes of Settlement. In relation to the real property, para. 4(

a) states that Ronald “shall pay Alerina thesum of $256,000 in order to equalize any and all family property and to settle all remaining property claims between the parties”. Theparties acted on the terms, including this one, and sought an order of the court on that basis. The order of divorce was granted in late2020. [53] Paragraph 4(

c) is also an operative provision: Ronald shall pay Alerina 50% of any net proceeds he receives from the future sale of any gravel derived from the land until August 28th2023 (the net proceeds shall be calculated as after any costs incurred to extract the gravel from the land.) [54] Alerina submits that the oral agreement which adds to this specific provision outlining the settlement termsrelated to aggregate is, in essence, that any agreement Alerina finds which provides for aggregate extraction from the farmland, isbinding upon Ronald.

She seeks an order that the extraction arrangement she has found with Botkin be imposed on Ronald according tothe terms of the settlement of August 28, 2020. [55] As already noted, the exercise in ascertaining what the parties have agreed to is an objective evaluation, not asubjective one. Thus, Alerina’s belief that this term includes her authority to solicit a contractor to excavate, stockpile, use or sell allaggregate in the farmland must be objectively found to exist. [56] The term Alerina advocates for is quite clearly not a natural extension of para. 4(

c) of the Minutes ofSettlement. It is quite different than what is stated in plain terms. When drafting the Minutes of Settlement it would have been arelatively straightforward proposition to add the term which is to the effect of what Alerina seeks to have found and enforced here. [57] Indeed, it is not unusual in settlement agreements for a provision to state that a particular action or activity is tooccur and, if it is contingent on one of the parties cooperating, that such cooperation “shall not be unreasonably withheld”.

The listingand selling of property such as realty or equipment registered to a party who is not undertaking the solicitation of purchasers comes tomind. Something along the lines of “either party may solicit offers for the extraction, purchase and sale of aggregate and, if such offer isobtained by Alerina, Ronald will not reasonably withhold consent to same” comes to mind. However, nothing of this sort appears in theMinutes of Settlement. [58] Rather, an argument is advanced that the alleged missing term to the agreement was left out of the documentedagreement due to it merely being operational in nature.

Given the extent of what would be required to have Botkin set up a commercialoperation, I find that it is not part of the term but merely “operational” in nature. Given the extensive process to proceeding as Alerinawishes, what she advances is quite a different set of obligations than what was reduced to writing by the parties and signed on legaladvice provided by experienced counsel. [59] I do not accept that the form of agreement advanced by Alerina was agreed to by Ronald as a part of thesettlement at the pretrial.

I find that there likely was discussion by some participants at the pretrial with respect to the process ofobtaining revenue from aggregate, should there be same, within the farmland.

I am not persuaded that it reached the level of beingagreed to by Ronald as a term of the settlement and that he bound himself to enter into a further contract with a third party should Alerinapresent one. [60] I find it highly implausible that something of this nature and significance would simply be left out in its entiretyfrom extensive Minutes of Settlement where many changes were inserted after initial agreement was concluded but prior to signing thefinal document. The agreement was read carefully by both parties and by counsel for both parties.

The very significant obligation Alerinabelieved was agreed to was absent. I find that it was due to it not being part of the terms of settlement as opposed to it being an oversight. [61] Even if I were to accept as proven that there was an indication from Ronald that he would not object to Alerinaseeking out potential extractors/buyers for the aggregate (which finding I have specifically rejected), I would not thereafter find that heagreed to be bound by any such agreement as Alerina might present to him. This flies in the face of his evidence and the entirety of thewritten settlement.

I accept his evidence regarding his lack of agreement to that extensive an obligation. [62] As noted by Justice Barrington-Foote in Boutin: [33] … While it is proper to take the surrounding circumstances in which the contract was formed into account, they cannot bepermitted to overwhelm the language chosen by the parties. In Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR633 [Sattva], Rothstein J. summarized these fundamental precepts as follows: [57] ... The

interpretation of a written contractual provision must always be grounded in the text and read in light of the entirecontract (Hall, at pp. 15 and 30-32). While the surrounding circumstances are relied upon in the interpretive process, courts cannot usethem to deviate from the text such that the court effectively creates a new agreement (Glaswegian Enterprises Inc. v. B.C. Tel MobilityCellular Inc. (1997), (BC CA), 101 B.C.A.C. 62).

[63] Adding what Alerina says the paragraph includes is the equivalent of creating a new agreement for the partieswhich is substantially different than the written contract they signed. It would overwhelm the provisions actually written and agreed togiven the scale of the changes required. [64] With respect to the surrounding circumstances, as set out in Sattva, reiterated in Boutin, anything which wouldhave affected the way in which the language of the document would have been understood by a reasonable person is of assistance.

Inaddition, whether something was or reasonably ought to have been within the common knowledge of the parties at the time of executionof the contract is a question of fact. [65] Much of the evidence of the extensive requirements to obtain approval for a commercial operation is directedmore towards what would stand in the way of such an arrangement. Ronald had some knowledge of what a commercial aggregateoperation entailed but not all of the detail ultimately proven to be required. But knowledge of that at the time of the settlement is notcritical to my conclusions in this matter.

I find that Ronald merely agreed to share the net proceeds of any aggregate (i.e. sand or gravel)which was sold from the land under conditions where he was in agreement with such extraction and sale. [66] The template for Ronald’s belief and understanding was the informal arrangement with Mr. Boyd, not acommercial contract with a large operator. Through the lens of the reasonable observer, I find that Ronald agreed to be the person whoultimately had control over the terms and conditions of the sale of aggregate, just as he had up to that point in time.

This is found withinthe text of the settlement agreement and the surrounding circumstances a reasonable person would observe and factor into a conclusionregarding the parties’ stated and agreed upon intentions. [67] Even if there was a term to the agreement, implied or otherwise, that Ronald would need to agree and notunreasonably withhold his consent, I would find the contract provided by Alerina to be outside of that description. Stated differently, Iwould find Ronald’s withholding of consent reasonable in these circumstances. A commercial scale gravel operation is no small feat.

Asshown at trial, municipality approval is key, and it would require significant and far-reaching mitigation work. It would very likelyrender the agricultural land quite different after extraction than before. I find that it would change the character of the land permanently. [68] I do not find that the term Alerina seeks to have imposed on Ronald and added to the settlement agreement wassomething proven to have been agreed to by Ronald, nor something that, if discussed, ought to be inserted into the settlement.

That termdoes not meet the requisite test of being something a reasonable observer would find the parties agreed to. [69] I do, however, find that an implied term of the settlement agreement is 1) that Ronald will provide clear andtimely notice to Alerina of any proposed or actual sale of aggregate from the land; and, 2) Ronald will not dispose of the land which waspart of the settlement until after August 28, 2033.

The right to receive 50% of the net proceeds of aggregate from the land would berendered nugatory if Ronald were at the same time permitted to sell the land prior to the time period agreed to had passed. Alerina hasthe right to receive half the net proceeds of any aggregate extracted from the land prior to August 28, 2033.

To effectively give life tothis right, the land must either be owned by Ronald or by Alerina. [70] Ronald agreed that this was an implied term of the settlement agreement during the trial and I therefore orderthat the land is not to be disposed of without Alerina’s written consent prior to August 28, 2033. Ronald is to provide Alerina with noticeof any sale or potential sale of aggregate from the land until August 28, 2033. Alerina is free to provide Ronald with any arrangementsshe has knowledge of regarding aggregate extraction, but Ronald will ultimately decide if he wishes to pursue that or not.

Rectification [71] In relation to the possibility that this term was agreed to but neglected regarding inclusion in the Minutes ofSettlement, rectification is a further legal possibility. [72] Canada (Attorney General) v Fairmont Hotels Inc., 2016 SCC 56, [2016] 2 SCR 720 [Fairmont], is a startingpoint regarding the law of rectification. It was recently applied by the Court of Appeal in MFI Ag Services Ltd. v Farm Credit Canada,2023 SKCA 30 [MFI]. MFI notes at para. 18: [18] Lastly, the Chambers judge addressed rectification.

She began by setting out the issue and describing the relevant documents.She then referred to Canada (Attorney General) v Fairmont Hotels Inc., 2016 SCC 56, [2016] 2 SCR 720 [Fairmont Hotels], forassistance in assessing whether the matter involved common mistake or unilateral mistake. After reviewing the oral evidence of JosephMelnick, a proper officer of MFI Ag Services Ltd., she determined that the mortgage should be rectified based on the followingreasoning: [118] In Fairmont Hotels, the Supreme Court set out the prerequisites to rectification when faced with a common mistake: [14] ...

In such a case, an order for rectification is predicated upon the applicant showing that the parties had reached a prioragreement whose terms are definite and ascertainable; that the agreement was still effective when the instrument was executed; that theinstrument fails to record accurately that prior agreement; and that, if rectified as proposed, the instrument would carry out theagreement: Ship M.F. Whalen v.

Pointe Anne Quarries Ltd. (1921), (SCC), 63 S.C.R. 109, at p. 126; McInnes, [TheCanadian Law of Unjust Enrichment and Restitution (Markham, Ont.: LexisNexis, 2014)] at p. 820; Snell's Equity [2015] [JohnMcGhee, 33rd ed (London: Sweet & Maxwell: 2015)], at p. 424; Hanbury and Martin Modern Equity (20th ed. 2015), by J. Glister and

J. Lee, at pp. 848-49; Hart v. Boutilier (1916), (SCC), 56 D.L.R. 620 (S.C.C.), at p. 622. [119] The defendants argue FCC has failed to discharge its burden of proof. They emphasize the Supreme Court's characterizationof rectification as a "potent remedy", which should be exercised with caution.

They also refer me to the Supreme Court's commentsrespecting the quality of evidence required: [36] In my view, the applicable standard of proof to be applied to evidence adduced in support of a grant of rectification is thatwhich McDougall [2008 SCC 53, [2008] 3 S.C.R. 41] identifies as the standard generally applicable to all civil cases: the balance ofprobabilities. But this merely addresses the standard, and not the quality of evidence by which that standard is to be discharged. As theCourt also said in McDougall (at para. 46), "evidence must always be sufficiently clear, convincing and cogent".

A party seekingrectification faces a difficult task in meeting this standard, because the evidence must satisfy a court that the true substance of itsunilateral intention or agreement with another party was not accurately recorded in the instrument to which it nonetheless subscribed.

Acourt will typically require evidence exhibiting a high degree of clarity, persuasiveness and cogency before substituting the terms of awritten instrument with those said to form the party's true, if only orally expressed, intended course of action. … [19] In the result, the Chambers judge struck the statement of defence, gave permission for FCC to proceed with an order nisi for sale,and rectified the August 12, 2004, mortgage to secure the principal sum of $270,000.

She also ordered costs, fixed in the amount of$2,200. [73] The courts later accepted that Fairmont both lays out the foundational principles of rectification and the limits ofsuch a remedy in MFI: [76] When a common mistake is asserted, the limits and prerequisites for the remedy of rectification are those set out by Brown J.in Canada (Attorney General) v Fairmont Hotels, 2016 SCC 56, [2016] 2 SCR 720: [13] Because rectification allows courts to rewrite what the parties had originally intended to be the final expression of theiragreement, it is "a potent remedy" (Snell's Equity (33rd ed. 2015), by J.

McGhee, at pp. 417-18). It must, as this Court has repeatedlystated ... be used "with great caution", since a "relaxed approach to rectification as a substitute for due diligence at the time a document issigned would undermine the confidence of the commercial world in written contracts": Performance Industries, at para. 31. It bearsreiterating that rectification is limited solely to cases where a written instrument has incorrectly recorded the parties' antecedentagreement ... .

It is not concerned with mistakes merely in the making of that antecedent agreement ... ("Courts of Equity do not rectifycontracts; they may and do rectify instruments"). In short, rectification is unavailable where the basis for seeking it is that one or both ofthe parties wish to amend not the instrument recording their agreement, but the agreement itself.

More to the point of this appeal, and asthis Court said in Performance Industries [2002 SCC 19, [2002] 1 S.C.R. 678] (at para. 31), "[t]he court's task in a rectification case is ...to restore the parties to their original bargain, not to rectify a belatedly recognized error of judgment by one party or the other". [14] Beyond these general guides, the nature of the mistake must be accounted for: Swan and Adamski, [Canadian Contract Law]at §8.233. Two types of error may support a grant of rectification.

The first arises when both parties subscribe to an instrument undera common mistake that it accurately records the terms of their antecedent agreement.

In such a case, an order for rectification ispredicated upon the applicant showing that the parties had reached a prior agreement whose terms are definite and ascertainable; that theagreement was still effective when the instrument was executed; that the instrument fails to record accurately that prior agreement; andthat, if rectified as proposed, the instrument would carry out the agreement: [references omitted]. … [78] The appellants concede that the Chambers judge identified the correct legal principles in relation to rectification.

However, theyallege that she erred in the application of those principles by failing to recognize that the test for rectification, and the invocation of sucha potent remedy, was not met in relation to the Mortgage… [74] In upholding the chambers judge, the Court of Appeal noted at para. 82: [82] ... the Chambers judge did not err in ordering that the Mortgage be rectified. Her recitation of the evidence and her analysisdemonstrates that she was aware of all of the evidence that the appellants say she ignored. The Chambers judge applied the correct lawand found as fact that (

a) the parties had reached a prior agreement, in the form of the Approval, whose terms were definite andascertainable, (

b) the Approval was still effective when the Mortgage was executed, (

c) the Mortgage failed to accurately record theterms of the Approval, and (

d) the proposed rectification would carry out the parties' agreement. Given the standards of review that applyin the context of the alleged errors, there is no room for this Court to interfere with her findings regarding the true nature of the parties'agreement and the need to rectify the Mortgage to accurately reflect the terms of the Approval. No palpable error is revealed in herassessment that the unambiguous wording of the Approval - as corroborated by the contemporaneous instructions to the solicitor - metthe standard required to justify the granting of rectification as a remedy.

This ground of appeal has no merit. [75] Prairie Ag Petroleum Ltd. v ABO Transport Ltd., 2018 SKQB 193, also affirms Fairmont in the followingterms: [39] The Supreme Court of Canada dealt with the issue of rectification and generally the requirements of a valid and enforceableagreement in the case of Canada (Attorney General) v Fairmont Hotels Inc., 2016 SCC 56, [2016] 2 SCR 720 [Fairmont Hotels].

Iaccept the basic principles stated by the court at para. 12: 12 If by mistake a legal instrument does not accord with the true agreement it was intended to record - because a term has been omitted,an unwanted term included, or a term incorrectly expresses the parties' agreement - a court may exercise its equitable jurisdiction to

rectify the instrument so as to make it accord with the parties' true agreement. Alternatively put, rectification allows a court to achievecorrespondence between the parties' agreement and the substance of a legal instrument intended to record that agreement, when there is adiscrepancy between the two. Its purpose is to give effect to the parties' true intentions, rather than to an erroneous transcription of thosetrue intentions (Swan and Adamski, at s.8.229 [Swan, Angela, and Jakub Adamski. Canadian Contract Law, 3rd ed.

Markham, Ont.:LexisNexis, 2012.]). [76] The court adopted the requirements from Fairmont in the conclusion of their decision: [43] For these reasons, not only have the legal requirements for rectification set out in the Fairmont Hotel case not been met, I cannotconclude that any agreement was reached and properly reflected in the Guarantee as completed and signed. [77] Looking at the surrounding circumstances here, I do not come to the conclusion sought by Alerina such that thewritten agreement must now include the term she advances.

The matter was approached as if it were a simple thing to have Ronald agreeto the commercial aggregate agreement provided by Botkin. It is far from that. It is one thing to have an informal arrangement in relationto a small-scale aggregate sale such as existed from 2012 to 2019 on this land with Mr. Boyd. While permits ought to have been obtained,that did not occur. It is not likely a major problem due to the very small scale regarding the terms between Mr.

Boyd and Ronald. [78] I find that Alerina’s state of mind at the time of the execution of the Minutes of Settlement included what hercounsel expressed at trial; this was a fairly simple matter and not complicated. The reason for this was her point of reference. She was onthe property during the small-scale operation that Mr. Boyd provided. No permit or approval from the R.M. was sought or obtained.

Shemay have thought the arrangement with Botkin would be slightly more active than that, but to say she believed that large parts of thefarmland would, if she found someone to do it, be turned into a commercial aggregate excavation is untrue. She did not. [79] This is affirmed through an understanding of just what would be involved in putting a commercial aggregateoperation in place. Obtaining a waiver of the setback requirements from the R.M. council would need to occur. I accept the evidence ofMs. Ring and Mr. McDougall that they would not approve of same.

While that also may not be the end of the matter, the housingdevelopment located to the south west would no doubt do everything in their power to prevent the same. [80] The roads would need to be constructed to a year-round standard. I accept that if there were a significant amountof aggregate extracted, the land would by definition have to change dramatically.

While there could be efforts at reclamation, it simplycould not resemble the land as it is now with so much of the substrate removed. [81] I find that Alerina fundamentally misunderstood what likely would be required and what is likely possible in herversion of the term in the Minutes of Settlement. I disagree with Mr. Filyk’s description of what Alerina now advances as an oralagreement as “not complicated”.

It is in fact very complicated and in fact highly unlikely to ever come to pass. [82] The reasonable bystander would not conclude that there was any agreement to the effect that Alerina advances.They would conclude that it is not possible to have intended what Alerina now submits was an oral agreement. For similar reasons asdescribed in the previous section, there is no term that both parties agreed upon and which was inadvertently left out of the Minutes ofSettlement. Parol Evidence Rule [83] The parol evidence rule has been raised by Ronald.

In Cherkas v Richardson Pioneer Limited, 2020 SKQB 7, 2 BLR (6th) 42, it was stated thus: The Law Re: The Parol Evidence Rule [27] The parol evidence rule is to the effect that where the wording of a contract is clear and unambiguous, extrinsic evidence cannotbe admitted to affect the

interpretation of the agreement. (see: Angela Swan & Jakub Adamski, Canadian Contract Law, 3d ed(Markham: LexisNexis, 2012) at 597, citing G.H.L.

Friedman, The Law of Contract in Canada, 6th ed (Toronto: Carswell, 2011) at 440.) [28] The purpose of the rule is to achieve finality in contractual obligations and prevent parties from putting forward unreliable oreven fabricated evidence in order to challenge the validity of a clearly written agreement (See: Sattva Capital Corp. v Creston MolyCorp., 2014 SCC 53 at para 59, [2014] 2 SCR 633 [Sattva]). [29] Even with this purpose being identified, a number of exceptions have cropped up which impact on this straightforwardapplication of the rule. (See: Gallen v Allstate Grain Co.

Ltd. (1984), (BC CA), 9 DLR (4th) 496 (WL) (BC CA) atparas 34-36). [30] In the Canadian context, Geoff Hall points out that even with the exceptions to the rule there are obvious circumstances wherethe parol evidence rule clearly applies. One is; “where the evidence would contradict the express terms of the written agreement”: See:Geoff Hall, Canadian Contractual

Interpretation Law, 3d ed (Toronto: LexisNexis, 2016) at 74; See also Hamelin v Seven Mile HighGroup Inc., (BC CA), [1994] 6 WWR 251 (WL) (BC CA) at para 63. [84] Justice Barrington-Foote (as he then was) in Park Derochie Coatings (Saskatchewan) Inc. v 607911Saskatchewan Ltd., 2013 SKQB 422, 434 Sask R 104, offers a

summary of the law in the area, thus: [14] The parol evidence rule is a rule of substantive law. In Prairie Pulse Inc. v. Lacasse, 2005 SKCA 80, [2005] S.J. No. 395 (QL)Cameron J.A. summarized the rule as follows:

3 Generally speaking the rule is that parol evidence is not admissible to vary or modify the express terms of a written contract. If theparties have reduced the terms of their contract to writing in clear and unambiguous manner, the express terms define the mutualobligations of the parties. Oral evidence in contradiction of the terms is inadmissible: Hawrish v. Bank of Montreal, (SCC), [1969] S.C.R. 515. [15] That statement of the rule, while accurate, is misleadingly simple.

The rule is subject to many “exceptions”, which reflect the factthat the rule is internally limited to situations where the written agreement is clear and unambiguous, and is a complete statement of theterms of the contract. Angela Swan and Jakub Adamski, Canadian Contract Law, 3d ed. (Markham, LexisNexis, 2012) suggests, and Iagree, that the following formulation of the rule in the Uniform Commercial Code is more complete and accurate (at p. 667): § 2-202. Final Written Expression: Parol or Extrinsic Evidence.

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended bythe parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidenceof any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented (

a) by a course of dealing or usage of trade...or by course of performance...; and (

b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusivestatement of the terms of the agreement. [16] Accordingly, and as noted by Lambert J.A. in his oft-cited opinion in Gallen v. Allstate Grain Co. (1984), (BCCA), 9 D.L.R. (4th) 496, 53 B.C.L.R. 38 (B.C. C.A.): 11 So the rule does not extend to cases where the document may not embody all the terms of the agreement. And even in cases wherethe document seems to embody all the terms of the agreement, there is a myriad of exceptions to the rule.

I will set out some of them.Evidence of an oral statement is relevant and may be admitted, even where its effect may be to add to, subtract from, vary or contradictthe document: . . . (

e) to establish a collateral agreement; (

f) in support of an allegation that the document itself was not intended by the parties to constitute the whole agreement; . . . [17] And at para. 32: 32 ... the law in Canada is no different from that stated by K.W. Wedderburn in his

article “Collateral Contracts” [1959] Camb. L.J. 58 at62, where he says: What the parol evidence rule has bequeathed to the modern law is a presumption - namely that a document which looks like a contract isto be treated as the whole contract. This presumption is “very strong” but “it is a presumption only, and it is open to either of the partiesto allege that there was, in addition to what appears in the written agreement, an antecedent express stipulation not intended by the partiesto be excluded, but intended to continue in force with the express written agreement.” The presumption is always strong.

But it is strongest when the oral representation is alleged to be contrary to the document, andsomewhat less strong when the oral representation only adds to the document. [85] The Alberta Court of Appeal sets out general principles in the area in Bhasin v Hrynew, 2013 ABCA 98, 362 DLR (4th) 18, in the following way: G. Applicable Legal Rules [27] A number of fundamental propositions of law are relevant, and much authority can be cited for each. To control the length of thisjudgment, we simply summarize a number of applicable settled legal rules. . . . 7.

Parol evidence is not to be used directly to interpret a contract (

a) if its words are unambiguous, (

b) or to look at the actual subjective intent of one or both parties On (a), see Forest Hill Real Estate Inc. v. Harvey Kalles Real Estate Ltd., 2010 ONCA 884 (para 10); Eli Lilly & Co. v. Novopharm Ltd., (SCC), [1998] 2 S.C.R. 129, 227 N.R. 201, 161 D.L.R. (4th) 1, (paras 54-56). On (b), see Eli Lilly & Co. v. NovopharmLtd., supra (paras 54-56); Gainers Inc. v. Pocklington Holdings Inc., 2000 ABCA 151, 255 A.R. 373(paras 20, 23-24); Dow ChemicalCanada Inc. v. Shell Chemicals Canada Ltd., 2010 ABCA 126, 477 A.R. 112(paras 16-20); Ko v. Hillview, supra (paras 26-27) [Ko vHillview Homes, 2012 ABCA 245, 536 AR 93, 69 Alta LR (5th) 312, leave den (SCC January 17, 2013)].

8. A contract can validly exclude or nullify parol evidence, previous negotiations, representations, terms, promises or conditions, notfound in the written document (absent actual fraud). See Ko v. Hillview Homes Ltd., supra (para 131); Gainers Inc. v.

PocklingtonHoldings Inc., supra (paras 15, 18). … [86] As set out in Geophysical Services Inc. v Sable Mary Seismic Inc., 2009 NSSC 404, 287 NSR (2d) 50: [84] While an oral agreement can, in certain circumstances, modify an earlier agreement, where an oral agreement is reduced towriting, parol evidence of the parties’ understanding of the oral agreement cannot be used to contradict the wording in the subsequentwritten document.

Said differently, evidence of an oral agreement after October 16, 1998, may be admissible to modify or amendAgreement #2, but evidence of an oral agreement before October 16, 1998, is not properly admitted to contradict the subsequent writtenagreement. See G.H.L. Fridman [G.H.L.

Fridman, The Law of Contract in Canada, 5th Edition (Toronto: Carswell, 2006)] at page 444.Even Swan’s [Angela Swan & Jakub Adamski, Canadian Contract Law, 3d ed (Markham, LexisNexis, 2012)] analysis, beginning atpage 509, in which he adopts, as the outline for his discussion of parol evidence, Lambert, J.A.’s non-exhaustive list of permissible basesfor admission of extrinsic evidence in Gallen v.

Allstate Grain Co. [1984 CarswellBC 104 (BCCA)], and as support for the propositionthat it is misleading to state that an ambiguity is a precondition to admission of extrinsic evidence, does not extend the interpretativeprinciples to admission of oral evidence for the purpose of contradicting the clear words of the written agreement. [87] In Lipczynska-Kochany v Gillham (2001), (ON SC), 14 CCEL (3d) 304 (Ont Sup Ct), it isdescribed in this way: 53. Accepting for the moment that Dr.

Gillham did make such representations to the Plaintiff, the Plaintiff would either have to provethat this constituted a collateral contract or that the representations altered the terms of the written contract. 54. Primarily, the Plaintiff’s claims concerning Dr. Gillham’s representations cannot be admitted under the parol evidence rule.According to Waddams, Law of Contracts, 4th ed., (Toronto: Canada Law Book, 1999) at para. 320, this rule essentially states that: when a contract has been reduced to writing, extrinsic evidence is inadmissible to modify the writing.

As Professor Waddams points out, however, it is important to note that this rule does not apply unless a contract has been reduced towriting. Evidence can be introduced to determine whether or not the parties’ intention was to record the contract exclusively in writing. 55. In this case, it is clear that the Plaintiff’s employment contract was reduced to written form. It is undisputed that the terms of thecontract were clear and explicit. Therefore, the parol evidence rule would apply to exclude any other evidence from being admitted tochallenge the contract’s validity. 56.

Furthermore, even if the Court were to accept that the parties intended the contract to be expressed in both oral and written forms,there are still problems with the Plaintiff’s allegations. As the wording of the written contract is clear and unambiguous, the Plaintiff isessentially arguing that she had a separate, collateral contract that guaranteed a minimum of five years employment. [88] I find that the words of this contract in issue here are not ambiguous.

I find that the agreement isstraightforward and understandable and the surrounding circumstances which are relevant and admissible support Ronald’s view that heis obliged to share any revenue from aggregate which he voluntarily obtains in the next 10 years. While Alerina can advise him of thoseparties who may be willing to extract such aggregate, the decision on whether to subject his farmland to that is still his. [89] The parol evidence rule supports the conclusions herein.

I find that under any analysis, the sought forinterpretation, amendment, addition, conclusion or contractual provision is not one that exists and not one that Ronald is bound by. Conclusion [90] Alerina’s application is dismissed but for the order that; 1) Ronald is to give timely and complete notice of anysale or potential of sale of aggregate from the land in issue, and; 2) Ronald is prohibited from selling the land in issue until August 28 of2033 without the express written consent of Alerina. Costs [91] Ronald is entitled to his costs based on column 1 of the tariff. J. D.J. BROWN