Western Paint & Wallcovering Co. v. Benjamin Moore & Co. et al.,

• Jurisdiction: Manitoba
• Judge: Monnin
• Neutral Citation: 2009 MBQB 1
• Citation: 2009 MBQB 1,(2009), 235 Man.R.(2d) 203 (QB),235 Man R (2d) 203,235 ManR(2d) 203,(2009), 235 ManR(2d) 203 (QB),235 Man.R.(2d) 203
• Date: 06 January 2009
• Court: Court of Queen's Bench of Manitoba (Canada)

Western Paint v. Benjamin Moore (2009), 235 Man.R.(2d) 203 (QB)

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. JA.030

The Western Paint & Wallcovering Co. Ltd. (plaintiff) v. Benjamin Moore & Co. Limited and Mark J. Hodge (defendants)

(CI 08-01-59025; 2009 MBQB 1)

Indexed As: Western Paint & Wallcovering Co. v. Benjamin Moore & Co. et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Monnin, C.J.Q.B.

January 6, 2009.

Summary:

The plaintiff was a retailer of paint and paint products that had carried the defendant's products since approximately 1941. In May 2008, the defendant gave the plaintiff notice that it was terminating its agreement to supply the plaintiff with paint products, effective November 30, 2008. The plaintiff brought an action, asserting that its lengthy relationship with the defendant entitled it to receive reasonable notice of termination, and applied for an interlocutory injunction preventing the defendant from terminating the agreement until the trial.

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

Injunctions - Topic 1605

Interlocutory or interim injunctions - General principles - Avoidance of disposition of main issue - [See Injunctions - Topic 1607 ].

Injunctions - Topic 1606

Interlocutory or interim injunctions - General principles - Balance of convenience - The plaintiff was a retailer of paint and paint products that had carried the defendant's products since approximately 1941 - In May 2008, the defendant gave the plaintiff notice that it was terminating its agreement to supply the plaintiff with paint products, effective November 30, 2008 - The plaintiff brought an action, asserting that its lengthy relationship with the defendant entitled it to receive reasonable notice of termination, and applied for an interlocutory injunction preventing the defendant from terminating the agreement until the trial - The Manitoba Court of Queen's Bench allowed the application - The plaintiff had established a "strong prima facie case" that it was entitled to reasonable notice and that the length of notice could be in excess of the six months provided - While it was reasonable to infer that the loss of the defendant's products would have a negative impact on the plaintiff's business, the plaintiff's evidence as to irreparable harm was not the strongest - However, where the balance of convenience strongly favoured an injunction, conclusive proof of irreparable harm might not be required - As there was no serious evidence of any harm to the defendant if it was obligated to continue to supply paint products to the plaintiff and to continue to receive the benefit of the plaintiff's sales of its products, the balance of convenience clearly favoured the plaintiff - The plaintiff was entitled to an interlocutory injunction - See paragraphs 25 to 40.

Injunctions - Topic 1607

Interlocutory or interim injunctions - General principles - Requirement of strong prima facie case or appearance of right - The plaintiff was a retailer of paint and paint products that had carried the defendant's products since approximately 1941 - In May 2008, the defendant gave the plaintiff notice that it was terminating its agreement to supply the plaintiff with paint products, effective November 30, 2008 - The plaintiff brought an action, asserting that its lengthy relationship with the defendant entitled it to receive reasonable notice of termination, and applied for an interlocutory injunction preventing the defendant from terminating the agreement until the trial - The Manitoba Court of Queen's Bench allowed the application - What was being sought was in fact a mandatory injunction to compel the defendant to continue to provide products contrary to its business decision not to do so - This meant that the plaintiff had to establish a "strong prima facie case" as opposed to merely suggesting that there was a serious issue to be tried - Further, because what the plaintiff sought was a lengthier period of notice, granting the injunction was, in effect, a determination of the primary issue, i.e., granting a period of notice longer than that provided by the defendant - This meant that a more in-depth scrutiny of the plaintiff's case should be undertaken - See paragraphs 18 to 24.

Injunctions - Topic 1609

Interlocutory or interim injunctions - General principles - Circumstances when injunction will issue - [See Injunctions - Topic 1606 ].

Injunctions - Topic 1802

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

Injunctions - Topic 2309

Mandatory injunctions - Interim or interlocutory mandatory injunctions - [See Injunctions - Topic 1607 ].

Cases Noticed:

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. 15].

Lambair Ltd. v. Aero Trades (Western) Ltd. (1978), 87 D.L.R.(3d) 500 (Man. C.A.), leave to appeal refused (1978), 24 N.R. 179 (S.C.C.), refd to. [para. 16].

Apotex Fermentation Inc. et al. v. Novopharm Ltd. et al., [1994] 7 W.W.R. 420; 95 Man.R.(2d) 241; 70 W.A.C. 241 (C.A.), refd to. [para. 16].

2261324 Manitoba Ltd. v. Domo Gasoline Corp., [1996] 3 W.W.R. 708; 106 Man.R.(2d) 91 (Q.B.), affd. (1996), 110 Man.R.(2d) 158; 118 W.A.C. 158 (C.A.), refd to. [para. 16].

674834 Ontario Ltd. v. Culligan of Canada Ltd. et al., [2007] O.T.C. Uned. 306 (Sup. Ct.), refd to. [para. 20].

Waterhen First Nation Indian Band v. Catcheway et al., [1996] 7 W.W.R. 714; 111 Man.R.(2d) 22 (Q.B.), refd to. [para. 22].

Cranberry Portage Midget Winterhawks Hockey Team v. Manitoba Amateur Hockey Association Inc., [1990] M.J. No. 148 (Q.B.), refd to. [para. 22].

Hillis Oil and Sales Ltd. v. Wynn's Canada Ltd., [1986] 1 S.C.R. 57; 65 N.R. 23; 71 N.S.R.(2d) 353; 171 A.P.R. 353, refd to. [para. 25].

Marbry et al. v. Avrecan International Inc. (1999), 119 B.C.A.C. 266; 194 W.A.C. 266; 171 D.L.R.(4th) 436 (C.A.), refd to. [para. 25].

Atec Marketing Ltd. v. Heart and Stroke Foundation of Canada et al., [2005] O.T.C. 1021; 12 B.L.R.(4th) 263 (Sup. Ct.), affd. [2007] O.A.C. Uned. 4; 2007 CarswellOnt 1 (C.A.), refd to. [para. 27].

Western Equipment Ltd. v. Chesterton (A.W.) Co. (1983), 46 B.C.L.R. 64 (S.C.), refd to. [para. 29].

Barton-Reid Canada Ltd. v. Alfresh Beverages Canada Corp., [2002] O.T.C. 799 (Sup. Ct.), refd to. [para. 33].

Manos Foods International Inc. v. Coca-Cola Ltd. et al. (1997), 26 O.T.C. 41; 74 C.P.R.(3d) 2 (Ont. Gen. Div.), refd to. [para. 33].

Natrel Inc. v. Four Star Dairy Ltd. (1996), 62 A.C.W.S.(3d) 361 (Ont. Gen. Div.), refd to. [para. 33].

Zipper Transportation Services Ltd. v. Korstrom et al. (1998), 126 Man.R.(2d) 126; 167 W.A.C. 126 (C.A.), refd to. [para. 34].

Grey v. Edmonton (City) (2005), 377 A.R. 350; 46 Alta. L.R.(4th) 134; 2005 ABQB 231, refd to. [para. 38].

Alberta (Treasury Branches) et al. v. Pocklington Financial Corp. et al. (1998), 228 A.R. 115; 188 W.A.C. 115; 1998 ABCA 254, refd to. [para. 38].

Authors and Works Noticed:

Sharpe, Robert J., Injunctions and Specific Performance (2nd Ed. 1992) (Looseleaf Update), generally [para. 21]; paras. 2.630 [para. 17]; 2:640 [para. 22].

Counsel:

Joseph A. Pollock, for the plaintiff;

Brent C. Ross, for the defendants.

This application was heard by Monnin, C.J.Q.B., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on January 6, 2009.