5168172 Manitoba Ltd. v. Twin Dragon Enterprises Inc., 2013 MBQB 12

• Judge: Cameron, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 15, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBQB 12;(2013), 287 Man.R.(2d) 78 (QB)

5168172 Man. v. Twin Dragon Ent. (2013), 287 Man.R.(2d) 78 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. FE.005

5168172 Manitoba Ltd. (applicant) v. Twin Dragon Enterprises Inc. (respondent)

(CI 12-01-78569; 2013 MBQB 12)

Indexed As: 5168172 Manitoba Ltd. v. Twin Dragon Enterprises Inc.

Manitoba Court of Queen's Bench

Winnipeg Centre

Cameron, J.

January 15, 2013.

Summary:

The respondent leased restaurant premises to the applicant. Disputes arose and the respondent locked the applicant out of the premises. The applicant applied for an interim injunction. The matter was adjourned and subsequently the parties entered into a consent order allowing the applicant to remove its property from the premises. The respondent brought a motion seeking to set aside, suspend or vary the consent order.

The Manitoba Court of Queen's Bench dismissed the motion.

Injunctions - Topic 1600

Interlocutory or interim injunctions - General principles - General principles respecting grant or interlocutory or interim injunction - The parties executed an agreement in 2007 wherein Dragon leased restaurant premises to the applicant - Disputes arose and Dragon locked the applicant out of the premises in June 2012 - The applicant applied for an interim injunction on an urgent basis requiring Dragon to deliver possession of the premises - The applicant claimed that there was a large quantity of perishable foods on the premises and that the lock-out was destroying its business - The matter was adjourned at Dragon's request and a hearing was set for July 2012 - At the hearing, the parties signed a consent order that allowed the applicant to remove its property from the premises - Dragon brought a motion in October 2012 to have the order set aside, suspended or varied - The Manitoba Court of Queen's Bench dismissed the motion - Where injunctive relief was requested on an urgent basis, it was essential for the court granting such relief to require that an action be commenced forthwith by way of a statement of claim (Queen's Bench Rule 14.05(3)) - The applicant argued that the proceedings could be commenced by an application because the relief requested was for the determination of a right that depended on the interpretation of an agreement - The court held that the urgent application had been dealt with by way of the consent order and the current proceedings no longer fell within that application - The current proceedings would require findings of credibility due to the conflicting positions - Because neither party had filed a statement of claim, it would be an error for the court to continue to make determinations - See paragraphs 23 to 27.

Injunctions - Topic 1604.4

Interlocutory or interim injunctions - General principles - Where no action commenced (free standing injunction application) - [See Injunctions - Topic 1600 ].

Practice - Topic 5540

Judgments and orders - Consent orders - Setting aside - Grounds - The parties executed an agreement in 2007 wherein Dragon leased restaurant premises to the applicant - Disputes arose and Dragon locked the applicant out of the premises in June 2012 - The applicant applied for an interim injunction on an urgent basis requiring Dragon to deliver possession of the premises - The matter was adjourned at Dragon's request and a hearing was set for July 2012 - At the hearing, the parties signed a consent order that allowed the applicant to remove its property from the premises - Dragon brought a motion in October 2012 to have the order set aside, suspended or varied on the grounds that the applicant had failed to comply with the lease agreement and the consent order - The Manitoba Court of Queen's Bench dismissed the motion - Based on the conflicting affidavit material provided, the court was not in a position to determine if the consent order had been complied with, who was responsible for the noncompliance, or whether the order was spent - The consent order did not require an amendment based on the fact that the parties could not agree on its implementation - The June 2012 application had been dealt with by way of the consent order, and the current proceedings no longer fell within that application - Neither party had filed a statement of claim and it would be an error for the court to continue making determinations.

Practice - Topic 7470.6

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Interlocutory proceedings - The parties executed an agreement wherein Dragon leased restaurant premises to the applicant - Disputes arose and Dragon locked the applicant out of the premises - The applicant applied for an interim injunction on an urgent basis requiring Dragon to deliver possession of the premises - The matter was adjourned and the parties subsequently signed a consent order that allowed the applicant to remove its property from the premises - Dragon then brought a motion to have the order set aside, suspended or varied on the grounds that the applicant had failed to comply with the lease agreement and the consent order - Dragon claimed that removal of the applicant's property would severely damage the premises - The applicant expressed frustration with Dragon's conduct and the way the proceedings had unfolded, and requested costs on a solicitor-client basis - The Manitoba Court of Queen's Bench dismissed the motion and denied the applicant's request for solicitor-client costs - The applicant's frustration was understandable in that Dragon appeared to consistently renege on agreements and thwart the judicial process, in part by repeatedly dismissing counsel - However, Queen's Bench Rule 40.03 provided for the moving party to give an undertaking as to damages on a motion for an interlocutory injunction - The applicant had refused to post security for damages in the event that the removal of the property from the premises caused significant damage, and it had not yet commenced an action - The applicant did not satisfy the high standard for solicitor-client costs to be ordered - See paragraphs 31 to 33.

Cases Noticed:

Chanh Dao Vietnamese Buddhist Association of Manitoba Inc. v. Manitoba Korean Presbyterian Church Inc., [2010] Man.R.(2d) Uned. 75; 2010 CarswellMan 766; 2010 MBQB 277, refd to. [para. 20].

Fritschij v. Bazan (2006), 203 Man.R.(2d) 291; 2006 CarswellMan 113; 2006 MBQB 82, refd to. [para. 20].

Neusitzer v. GFK Capital Base Corp. et al., [2005] Man.R.(2d) Uned. 105; 2005 CarswellMan 452; 2005 MBQB 265, refd to. [para. 20].

Fulham v. Manitoba Hydro, 1995 CarswellMan 368 (C.A.), refd to. [para. 24].

Counsel:

Jamie A. Kagan, for the applicant;

Gavin M. Wood, for the respondent.

This motion was heard by Cameron, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on January 15, 2013.