Executive Summary: Key Legal and Evidentiary Issues

• The central dispute concerns whether West Panet Properties Ltd.'s plan to erect a permanent fence along the east boundary of the "common area" constitutes a breach of its 2022 written lease with Boyko & Sons Ltd.
   
• At the motion level, the motion judge erred in law by considering and dismissing a motion for an interlocutory injunction when only an interim injunction had been argued by both parties.
   
• Urgency was improperly assessed: the Court of Appeal found the motion judge made a palpable and overriding error in concluding the plaintiffs did not act with due dispatch, given West Panet's ongoing notice of their objections and the parties' attempts to negotiate a resolution.
   
• Serious questions exist as to the interpretation of the common areas provisions of the lease, including whether the haulage business operated by DRB 2023 Ltd. falls within the "licensees and invitees" entitled to use those areas.
   
• Irreparable harm was established on the evidence, as erecting the permanent fence would shut down the haulage business entirely and reduce Boyko's revenue to a level insufficient to meet its financial obligations.
   
• On the balance of convenience, the harm to the plaintiffs greatly exceeded the harm to West Panet, whose development plans required only temporary access to the common area and whose new building would not be located on that portion of the property.

Facts of the case

Boyko & Sons Ltd. (Boyko) has owned and operated a large vehicle repair shop at 450 Panet Road in Manitoba since 1975. The building on the Boyko property includes a vehicle repair shop, a warehouse, and two loading docks located at the rear of the building, facing west. A related freight haulage business, operated since 1986 and now incorporated as DRB 2023 Ltd. (DRB 2023), operates from the same location, hauling primarily perishable food items. Both businesses are family-owned and co-managed by Larry Boyko (Mr. Boyko) and his brother, Gary Boyko. The Boyko property is not deep enough to permit large trucks and trailers — a minimum of seventy feet long — to enter from Panet Road and access the loading docks without driving onto the adjacent property. From at least 1986, the Boyko family made arrangements with the then-owner of the neighbouring land to park trailers and access the loading docks by crossing that land. These arrangements were originally verbal, then partially formalized in 1988 through a written agreement with a registered caveat, and continued with subsequent owners of that property.

West Panet Properties Ltd. (West Panet) purchased the adjacent properties at 474 and 494 Panet Road in 2021. In the summer of 2021, West Panet's representative, David Carefoot (Mr. Carefoot), approached Mr. Boyko to discuss Boyko's use of the neighbouring land, as West Panet intended to construct a commercial building. After negotiations, Boyko and West Panet entered into a written lease effective January 1, 2022, for a term of five years with an option to renew for two additional periods of five years each. The lease identified two separate areas for parking trailers (the leased premises) and a separate area adjacent to the west boundary of the Boyko property used to access the loading docks (the common area). West Panet proceeded with its construction plans, and the new building was scheduled to open in May 2026. Those plans designated the common area as additional parking and included a permanent fence along the boundary between the common area and the west side of the Boyko property — a fence that would cut off direct truck access to the loading docks.

After unsuccessful discussions to resolve the issue, the plaintiffs filed a statement of claim on June 6, 2025, seeking declarations that the permanent fence and related construction constituted a breach of the lease and an unlawful interference with their economic interests. On the same date, the plaintiffs filed a motion for interim and interlocutory injunctions to prohibit West Panet from interfering with their access to the common area pending trial. The motion was set for the uncontested motions list on June 9, 2025, adjourned to June 13, 2025, and heard on the afternoon of June 13, 2025. The motion judge dismissed both the interim and interlocutory injunction motions. The plaintiffs appealed.

Policy terms and contractual provisions at issue

The lease's key provisions were central to the appeal. Section 2.1 provides that West Panet leases the leased premises to Boyko and, additionally, grants Boyko a non-exclusive licence throughout the term to use the Common Areas which provide access to the leased premises or which are generally made available to all tenants of the premises, in common with other tenants and those entitled thereto. Section 1.3 defines "Common Areas" as the areas of the premises designated by West Panet as common areas set aside for the common use of Boyko, its licensees and invitees, in common with others entitled to use such areas in the manner and for the purposes permitted by the lease. The Court of Appeal noted that the motion judge had misread the issues: the claim was not merely about the leased premises (the trailer parking areas) but about the separately defined common area and the rights attaching to it, including who was entitled to exercise those rights.

Reasoning and analysis

The Court of Appeal, per Beard JA for the Court, identified three grounds of error by the motion judge. First, the motion judge erred in law by considering and dismissing the motion for an interlocutory injunction. Both parties, at the appeal hearing, acknowledged that only an interim injunction had been argued before the motion judge. By deciding the broader interlocutory motion — which had not been argued and which required a full hearing following cross-examinations on the affidavits — the motion judge breached the plaintiffs' right to procedural fairness. This constituted an error of law, and the Court set aside the dismissal of the interlocutory injunction and remitted that motion to the Court of King's Bench for a new hearing before a different motion judge.

Second, on urgency, the Court found a palpable and overriding error. The motion judge concluded the plaintiffs had elected to take no further steps for over a year after learning of the plans in 2024, inferring tactical delay. The Court of Appeal rejected this on the evidence: West Panet had purchased the property with full knowledge of the plaintiffs' claims, the lease itself arose from those very negotiations, Mr. Boyko immediately and consistently objected to the permanent fence, and the delay in commencing proceedings was explained by active settlement discussions, Mr. Boyko's personal circumstances (including his wife's death in April 2025), and West Panet's own confirmation that the fence was non-negotiable only in June 2025. The Court also found the motion judge erred in relying on settlement negotiation correspondence to draw negative inferences about the plaintiffs' delay, without first addressing an admissibility objection raised by the plaintiffs.

Third, the Court addressed the RJR–MacDonald test in full. On the serious issue to be tried, the motion judge had focused narrowly on the leased premises (the trailer parking areas) and found the lease had nothing to do with the loading docks; he also found DRB 2023 was not a party to the lease and therefore had no access rights. The Court of Appeal found these conclusions constituted palpable and overriding errors: the claim was about the common area, not the leased premises; DRB 2023 may fall within the "licensees and invitees" entitled to use the common areas; and there are additional serious issues about what rights DRB 2023 may have acquired, including through the lease provision for change of ownership within the family. On irreparable harm, the Court found the evidence of Mr. Boyko and Larry Boyko Jr. was not speculative: without access to the common area, the haulage business would be shut down entirely and Boyko's revenue would fall below the level needed to meet its ongoing financial obligations, producing a meaningful risk of irreparable financial and reputational harm. On the balance of convenience, the harm to the plaintiffs greatly exceeded any harm to West Panet. The common area consisted of a very small portion of the West Panet property earmarked for approximately 40 parking stalls, no part of the new building would be located there, and the contractor only required temporary access to install a sewer line and complete asphalt work. The development's main parking area comprised a separate part of the West Panet property with 466 parking stalls.

Ruling and overall outcome

The Court of Appeal allowed the appeal. It set aside the order dismissing the motion for an interlocutory injunction and ordered that motion returned to the Court of King's Bench for a new hearing before a different motion judge. The Court also set aside the dismissal of the motion for an interim injunction and, after applying the RJR test to the evidence before it, ordered an interim injunction requiring West Panet to relocate the fence to restore the plaintiffs' access to the common area and loading docks in the same manner as before the fence was erected, pending further court order. Costs on both the motion and the appeal were granted to the plaintiffs, Boyko & Sons Ltd. and DRB 2023 Ltd., under the tariffs and in any event of the cause, though the quantum was not specified.