Westfair Foods Ltd. v. Avon Shopping Centre Inc., (1989) 79 Sask.R. 106 (QB)

• Judge: Barclay, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 09, 1989
• Jurisdiction: Saskatchewan
• Citations: (1989), 79 Sask.R. 106 (QB)

Westfair Foods v. Avon Shopping Ctr. (1989), 79 Sask.R. 106 (QB)

MLB headnote and full text

Westfair Foods Ltd. (plaintiff) v. Avon Shopping Centre Inc. (defendant)

(No. 2879 A.D. 1989)

Indexed As: Westfair Foods Ltd. v. Avon Shopping Centre Inc.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Barclay, J.

August 9, 1989.

Summary:

A shopping centre tenant applied for an injunction to restrain the mall owner from entering upon the tenant's leasehold premises, interfering with the tenant's business or trespassing upon the premises. The owner sought access to the premises in order to complete renovations and repairs.

The Saskatchewan Court of Queen's Bench dismissed the tenant's application.

Injunctions - Topic 6901

Trespass to land - General - The Saskatchewan Court of Queen's Bench stated that mere proof of trespass, in itself, is not enough to warrant automatic injunctive relief as opposed to relief in the form of damages - Rather, irreparable harm and the balance of convenience must still be considered by the court, even if the court has found a prima facie trespass - See paragraph 16.

Injunctions - Topic 6925

Trespass to land - Trespass by construction activity - The owner of shopping mall premises had renovated all mall stores except Westfair's, which resisted - The owner attempted to minimize any inconvenience or disruption to Westfair's business - The renovations were needed to be completed soon if the owner was to successfully relet Westfair's premises, whose lease would expire in several months - Additionally, the owner would lose revenue if renovations could not be completed during the summer - The Saskatchewan Court of Queen's Bench refused to restrain the owner from entering or trespassing upon Westfair's premises - Westfair failed to establish a prima facie case; the loss to the owner if the interim injunction was granted would be greater than the loss to Westfair; any harm to Westfair could be compensated in damages.

Landlord and Tenant - Topic 1220

The premises - Repairs - By landlord - General principles - A lease obligated a landlord to maintain the general appearance and keep in good repair at all material times the exterior of the leased premises - The Saskatchewan Court of Queen's Bench held that this clause implied a licence by the tenant to the landlord to enter upon the premises for a reasonable time for the purpose of executing the necessary repairs.

Cases Noticed:

Deloitte, Haskins & Sells v. Brooker, Robinson, Ogrady and Ernst & Whinney (1983), 23 Sask.R. 58, refd to. [para. 13].

Manchester, Sheffield and Lincolnshire Railway Company v. Anderson, [1898] 2 Ch. 394, refd to. [para. 14].

Saner v. Bilton, [1878] 7 Ch. D. 815, refd to. [para. 14].

Winbaum v. Zolumoff and Zolumoff, [1956] O.W.N. 27, refd to. [para. 14].

Inter-Can Development Ltd. and Singhal v. Mahogany Holdings Ltd. and Capital Investments Ltd. (1982), 37 N.B.R.(2d) 443; 97 A.P.R. 443 (Q.B.), refd to. [para. 16].

Cash & Carry Cleaners Ltd. v. Delmas et al. (1974), 7 N.B.R.(2d) 101; 44 D.L.R.(3d) 315 (C.A.), refd to. [para. 16].

MacDonald v. Lawrence and Lawrence (1980), 38 N.S.R.(2d) 319; 69 A.P.R. 319 (T.D.), refd to. [para. 16].

Evans Marshall & Co. Ltd. v. Bertola S.A. and Another; Evans Marshall & Co. Ltd. v. Bertola S.A., [1973] 1 W.L.R. 349, refd to. [para. 20].

Westfair Foods Ltd. v. Avon Shopping Centre Inc. et al. (1988), 72 Sask.R. 71, refd to. [para. 22].

Authors and Works Noticed:

Sharpe, Injunctions and Specific Performance (1983), para. 165 [para. 18].

Kerr on Injunctions (6th Ed.), p. 18 [para. 19].

Counsel:

Peter Foley, Q.C., for the plaintiff;

F.C. Zinkhan, for the defendant.

This application was heard before Barclay, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, whose decision was delivered on August 9, 1989.