Executive Summary: Key Legal and Evidentiary Issues

• The central dispute concerns whether a lease between the plaintiffs and the defendant entitles the plaintiffs to continued access to a loading area on the defendant's neighbouring property at 474 Panet Road, Winnipeg.
   
• At issue is the proper interpretation of the Lease's "Common Areas" clause — specifically, whether the defendant was obligated to maintain some portion of its property as a Common Area accessible to the plaintiffs, or whether it had an unfettered right to eliminate all such areas.
   
• Irreparable harm was a key evidentiary question, with the court weighing whether denial of loading dock access posed an existential threat to the plaintiffs' long-standing family businesses absent a court order.
   
• Applying the three-part test from RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), the court assessed whether a serious question existed, whether irreparable harm was at risk, and where the balance of convenience lay.
   
• West Panet's installation of a boundary fence in June 2025 effectively eliminated the Common Areas designated under the Lease, prompting the underlying claim for declaratory and injunctive relief.
   
• Both parties' competing harms were considered, with the court finding the plaintiffs' potential harm to be existential in nature, while the defendant's potential harm was inconvenient but compensable in damages.

Facts of the case

Boyko & Sons Ltd. is a family-owned company founded by Peter and Tena Boyko in the 1970s, operating a mechanical service repair shop focused on large transport trucks and related equipment from premises at 450 Panet Road in Winnipeg. In 1986, David Boyko expanded the business to include freight haulage under the trade name DRB Transport. When David died in 1996, Larry Sr. acquired the haulage business and continued operating it under Boyko & Sons. The haulage business was eventually transferred into a separate corporation, the predecessor to DRB 2023 Ltd., which was incorporated in 2023 as part of Larry Sr.'s estate and succession planning and is owned by Larry Sr.'s three children.

Both Boyko & Sons and DRB 2023 have always operated from a large warehouse building at 450 Panet Road, which has two loading docks situated on the west side of the building. To access those loading docks, truck drivers must first pull their vehicles into a portion of the neighbouring property immediately west of the docks before backing into position — an area the court referred to throughout as "the loading area." There have been three owners of the neighbouring property (474 Panet Road, referred to as the "West Panet property") over the last 50 years. The first, Albert Gross, owned it until 1996 and had an easement agreement permitting Boyko & Sons to access the loading area and park trucks and trailers on adjacent portions of his property. The second owner, Cambrian Equipment Sales Ltd., held it until 2021 and continued the prior arrangements under a verbal lease agreement. The third and current owner is the defendant, West Panet Properties Ltd., a real estate developer owned and operated by the Tallman family, which acquired the West Panet property in 2021 for development as a 105,000 square foot "flagship" retail store for Princess Auto Ltd., another Tallman-owned company.

In May 2021, David Carefoot, a representative of West Panet, informed Larry Boyko Sr. of the purchase. Negotiations followed, culminating in a written lease agreement executed on March 24, 2022, effective January 1, 2022 (the "Lease"). The Lease granted Boyko & Sons the right to use defined areas of the West Panet property to the north and west of Boyko & Sons' property (the "Leased Premises") for parking trailers. Section 2.1 of the Lease also granted Boyko & Sons a "non-exclusive license throughout the Term to the benefit or use (as may be appropriate) of those Common Areas which provide access to the Leased Premises…" The "Common Areas" were defined in s. 1.3 of the Lease as those "areas of the Premises [i.e., 474 Panet Road] that are designated by the Landlord (which designation may be changed by the Landlord from time to time, but not so as to include any part of the Leased Premises…)" As defined, the "Common Areas" included the loading area, and the initial term of the Lease was five years, with two additional five-year options that could extend the term to December 31, 2036.

As West Panet proceeded with its construction plans, the plaintiffs grew concerned that their access to the loading area would be cut off. By letter dated May 15, 2025, West Panet informed Boyko & Sons that fencing would be installed along the shared boundary between their respective properties. On June 6, 2025, Boyko & Sons and DRB 2023 commenced action against West Panet for, among other things, interim and interlocutory injunctive relief. The plaintiffs' motion was heard and dismissed by the motions court judge on June 13, 2025. West Panet then installed a temporary construction fence along the shared boundary on June 16, 2025, which was replaced in July 2025 with a permanent chain link fence with posts inserted in the ground. The plaintiffs appealed. The Court of Appeal heard and allowed the appeal on November 4, 2025 (Boyko & Sons Ltd. v. West Panet Properties Ltd., 2026 MBCA 1), ordering West Panet to relocate the fence to restore the plaintiffs' access to the loading area pending further court order. Boyko & Sons' access was restored on November 7, 2025. The motion for interlocutory injunctive relief was subsequently heard afresh by Bock J. on March 18, 2026.

Policy and legislative provisions at issue

The central contractual provisions in dispute are found within the Lease itself. Section 2.1 granted Boyko & Sons a "non-exclusive license throughout the Term to the benefit or use (as may be appropriate) of those Common Areas which provide access to the Leased Premises or which are generally made available to all Tenants of the Premises…" The "Leased Premises" referred to the areas to the west and north of Boyko & Sons' property used for parking trailers, while the "Premises" were defined as "the lands municipally known as 474 Panet Road."

Section 1.3 defined "Common Areas" as those "areas of the Premises [i.e., 474 Panet Road] that are designated by the Landlord (which designation may be changed by the Landlord from time to time, but not so as to include any part of the Leased Premises [the areas to the west and north used by the plaintiffs for parking trailers]…)" The plaintiffs argued that while the Lease gave West Panet discretion to designate which areas would constitute Common Areas, it did not give West Panet the right to eliminate all Common Areas entirely. The plaintiffs further argued that s. 1.3 of the Lease extended the benefit of the Common Areas to Boyko & Sons' "licensees and invitees," which would include DRB 2023, and that DRB 2023 gained rights under s. 2.3(b)(iii), which provides for transfer of voting control of Boyko & Sons within the Boyko family. West Panet countered that the Lease gave it the right, but not the obligation, to designate Common Areas; that DRB 2023 was not a party to the Lease and did not fall within the change of control provisions in s. 2.3(b)(iii); and that the Common Areas were intended only to provide access to the Leased Premises (i.e., the trailer parking areas), not to the loading docks on the plaintiffs' own property.

Reasoning and analysis

Bock J. applied the three-part test from RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), to determine whether interlocutory injunctive relief should be granted.

On the first branch — whether the plaintiffs had raised a serious question to be tried — the court found the threshold met. The plaintiffs' interpretation of the Lease was described as plausible and coherent, and the claim was found to be neither frivolous nor vexatious. While the court acknowledged West Panet had raised arguable defences, it declined to conduct a close examination of the merits at the interlocutory stage, consistent with RJR at page 348 and Ramanand v. De Paula, 2012 MBQB 335.

On the second branch — irreparable harm — the court found credible and compelling evidence of a meaningful risk. The plaintiffs presented evidence that the two businesses had been highly integrated since 1986, operating from the same premises and sharing use of the loading docks. Without access to the loading area, trucks and trailers measuring over 70 feet could not access the loading docks. This would prevent DRB 2023 from carrying on its haulage business, threatening the employment of its 22 employees, and would severely harm Boyko & Sons' repair business, which relied substantially on DRB 2023 as a source of revenue. West Panet argued the plaintiffs had produced no financial records to support these claims and that the plaintiffs' experience during the five-month disruption from June 16 to November 7, 2025, showed both businesses had continued to operate, earn revenue and profit, and retain all employees without material customer complaints. The court rejected this argument, finding that the plaintiffs' ability to withstand five months of disruption while an appeal was pending did not mean they could withstand an indefinite, potentially years-long disruption pending trial. The harm was characterized as existential rather than merely economic, and the absence of financial records was held not to undermine the plaintiffs' evidence.

On the third branch — balance of convenience — the court weighed three potential sources of harm identified by West Panet against the harm to the plaintiffs. First, West Panet argued it would be unable to fulfil its lease obligations to Princess Auto Ltd., as Schedule A-2 of that lease called for the installation of a boundary fence and reserved the loading area for 39 "Team Member Parking" stalls. The court found this surmountable, noting that only 21 of those 39 stalls needed to be removed to accommodate the plaintiffs' access, and that Andrew Hodgson, a senior executive within the Tallman group of companies, admitted on cross-examination that Princess Auto Ltd. would not take steps to enforce the lease against West Panet in such circumstances. Second, West Panet feared an injunction would prevent it from accessing a retention pond west of 450 Panet Road for snow piling; the court was not satisfied that this could not be accommodated, given that most neighbouring properties were also Tallman-owned. Third, West Panet raised concerns about losing 21 of 39 parking spaces designated for "Team Member Parking," potentially falling short of the City of Winnipeg's parking requirements for two planned 4,000-square-foot retail spaces on the northwest corner of 500 Panet Road. The court found the plaintiffs' evidence showed West Panet would still meet the City of Winnipeg's total parking requirements, albeit by a single stall. The court observed that the potential delay to West Panet's retail development plans might actually work in West Panet's favour pending the trial's resolution of the Lease's scope. The court ultimately found the balance of convenience tipped in the plaintiffs' favour, noting that the harm feared by West Panet was the sort of inconvenience compensable in damages, while West Panet and its affiliates were large and successful corporations with annual sales exceeding one billion dollars and with the Princess Auto Ltd. flagship store expected to generate annual revenue exceeding $30 million.

Ruling and overall outcome

The plaintiffs' motion for interlocutory injunctive relief was granted. West Panet was ordered to provide the plaintiffs with access to the loading area and the loading docks on Boyko & Sons' property in the same manner as existed before the erection of the fence in June 2025. As the successful parties, Boyko & Sons Ltd. and DRB 2023 Ltd. were awarded one set of costs in any event of the cause; no specific quantum of costs was stated in the decision.