The Applicants (collectively “Genstar”)brought an Originating Application to have a utility right of way removed from title to land. Plains Midstream Canada ULC applied to have the Action converted into a Statement of Claim. Rule 3.2 requires Actions to be brought by Statement of Claim unless one of the enumerated grounds listed in the Rule is met. Genstar argued that two exceptions were met:

1. An enactment provided for a remedy – that enactment being the Land Titles Act, RSA 2000, c L-4, specifically section 141 (application to discharge caveat) and section 146 (order re caveat). The Court held that these sections were inapplicable as they dealt with caveats and not rights of way.

2. There was no substantial factual dispute. The Court held that there may not be facts in dispute, but there may be unknown facts which might affect the legal answer.

The Application to convert the Action to a Statement of Claim was granted. The Court held that even if it was permissible to commence the Action by Originating Notice, the Action should proceed by Statement of Claim because of the unsettled and complex legal issues.