Can a municipality interpret its by-laws in a way which creates a constructive or deemed discontinuance of the line?
Canada (Federal), Canada
The following excerpt is from Bengough (Town) v. Canadian Pacific Railway Company, 2010 FCA 80 (CanLII):
Notwithstanding the fact that there is in this case, under the Act, no discontinuance of the line, the appellant asks us to interpret the municipal by-laws in a way which creates a constructive or deemed discontinuance of the line although in reality there is none. To accede to the appellants submission, we would have to judicially create a legal fiction, that is to say, as Beetz J. wrote in The Queen v. Verrette, 1978 CanLII 208 (SCC), [1978] 2 S.C.R. 838, at page 845, create a rule which implicitly admits that a thing is not what it is deemed to be but decrees that for some particular purpose it shall be taken as if it were that thing although it is not or there is doubt as to whether it is.
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