Bank of Montreal v. Superior Management Ltd. et al., 2010 MBQB 244

• Judge: Bryk, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 09, 2010
• Jurisdiction: Manitoba
• Citations: 2010 MBQB 244;(2010), 259 Man.R.(2d) 169 (QB)

Bk. of Mtrl. v. Superior Mgt. (2010), 259 Man.R.(2d) 169 (QB)

MLB headnote and full text

Temp. Cite: [2010] Man.R.(2d) TBEd. NO.032

Bank of Montreal (plaintiff) v. Superior Management Ltd. and Westwood Village Shopping Centre Ltd. (defendants)

(CI 10-01-66342; 2010 MBQB 244)

Indexed As: Bank of Montreal v. Superior Management Ltd. et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Bryk, J.

November 9, 2010.

Summary:

The plaintiff bank and defendant shopping centre were engaged in a dispute regarding parking spaces. The defendant erected fencing and signage indicating that bank customers were not to use certain areas of the defendant's property. The plaintiff asserted that it had an easement by prescription and applied for injunctive relief. The defendant subsequently removed the fencing and signage and undertook not to re-erect the fences, but refused to make a similar undertaking regarding the signage. At issue was the plaintiff's application for an interim and interlocutory mandatory injunction restraining the defendant from posting signage that would prevent the plaintiff's employees and customers from parking on the defendant's property or otherwise interfering with their ability to park during the plaintiff's business hours.

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

Injunctions - Topic 1606

Interlocutory or interim injunctions - General principles - Balance of convenience - The plaintiff bank and defendant shopping centre were engaged in a dispute regarding parking spaces - The defendant erected fencing and signage indicating that bank customers were not to use certain spaces - The plaintiff asserted that it had an easement by prescription and applied for injunctive relief - The defendant subsequently removed the fencing and signage and undertook not to re-erect the fences, but refused to make a similar undertaking regarding the signage - At issue was the plaintiff's application for an interim and interlocutory mandatory injunction restraining the defendant from posting signage that would prevent the plaintiff's employees and customers from parking on the defendant's property or otherwise interfering with their ability to park - The Manitoba Court of Queen's Bench dismissed the application - As the plaintiff really only required prohibitive relief, the court did not address the more substantial requirements for mandatory injunctive relief - Further, as the plaintiff only requested relief until the easement issue had been determined, there was no need to distinguish between "interim" or "interlocutory" relief - The threshold for establishing a serious question to be tried was low - As the action was neither vexatious nor frivolous, that requirement was met - However, the plaintiff failed to establish irreparable harm - There were 18 parking stalls on the plaintiff's property - There was no evidence as to how many of those were required at any given time - Further, neither party would suffer anything more than minor inconvenience whether or not the relief was granted - The balance of convenience favoured neither - The plaintiff had not met the test for injunctive relief - See paragraphs 27 to 62.

Injunctions - Topic 1610

Interim or interlocutory injunctions - General principles - Circumstances when injunction will not be granted - [See Injunctions - Topic 1606 ].

Injunctions - Topic 1616

Interlocutory or interim injunctions - General principles - Arguable issues of law involved or serious question to be tried - [See Injunctions - Topic 1606 ].

Injunctions - Topic 1802

Interlocutory or interim injunctions - Requirement of irreparable injury - What constitutes - [See Injunctions - Topic 1606 ].

Cases Noticed:

Bank of Montreal v. Superior Management Ltd. et al., [2010] Man.R.(2d) Uned. 31; 2010 MBCA 72, refd to. [para. 23].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 29].

Western Paint & Wallcovering Co. v. Benjamin Moore & Co. et al. (2009), 235 Man.R.(2d) 203; 2009 MBQB 1, refd to. [para. 30].

Stokes v. Composite Holdings Ltd. (2008), 235 Man.R.(2d) 185; 2008 MBQB 124, refd to. [para. 32].

Stall and Stall v. Yarosz and Yarosz (1964), 47 W.W.R.(N.S.) 113 (Man. C.A.), refd to. [para. 33].

Temma Realty Co. v. Ress Enterprises Ltd. et al., [1968] 2 O.R. 293 (C.A.), refd to. [para. 39].

Dunn v. Travlou, 1993 CarswellOnt 2231 (C.J.), refd to. [para. 39].

Cogan v. G.W.L. Realty Advisors Inc., [2000] O.T.C. 55; 30 R.P.R.(3d) 49 (Sup. Ct.), refd to. [para. 40].

Cubex Ltd. v. Hannah et al. (2006), 206 Man.R.(2d) 71; 2006 MBQB 141, refd to. [para. 45].

Imperial Sheet Metal Ltd. et al. v. Landry et al. (2007), 315 N.B.R.(2d) 328; 815 A.P.R. 328; 2007 NBCA 51, refd to. [para. 47].

MTS Allstream Inc. v. Bell Mobility Inc. et al., [2008] 9 W.W.R. 721; 227 Man.R.(2d) 95; 2008 MBQB 103, refd to. [para. 47].

Toronto.Com v. Sinclair et al., [2000] F.T.R. Uned. 676; 6 C.P.R.(4th) 487; 2000 CarswellNat 1104 (T.D.), refd to. [para. 48].

4067712 Manitoba Ltd. et al. v. Lakeland Golf Properties Inc. et al. (2004), 186 Man.R.(2d) 235; 2004 MBQB 157, refd to. [para. 60].

Counsel:

T. Bock and G. Mackwood, for the plaintiff;

D. Hill and D. Olson, for the defendants.

This application was heard by Bryk, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on November 9, 2010.