W. Kaufmann

The plaintiff tenant sought a quia timet interlocutory injunction to prevent the defendant landlord from terminating a commercial lease and re-entering the premises.

The restaurant premises had suffered extensive flood damage, and the landlord issued a notice of default citing the tenant's failure to repair with due diligence.

The court applied the RJR-MacDonald test, finding the tenant established a strong prima facie case, would suffer irreparable harm by losing its business, and the balance of convenience favoured preserving the status quo.

The court granted the injunction and alternatively granted relief from forfeiture.

The plaintiffs moved for summary judgment to enforce a royalty agreement and recover unpaid royalties, asserting a valid equitable assignment of the agreement's benefits.

The defendants argued the plaintiffs failed to establish a proper chain of title and raised a defence that an alleged breach of a restrictive covenant disentitled the plaintiffs from claiming royalties.

Applying the summary judgment framework under Rule 20 and Hryniak, the court found significant credibility and reliability concerns in the plaintiffs' affidavit evidence and concluded the intention underlying the alleged assignment could not be fairly determined on the motion record.

The court also held that the restrictive covenant argument constituted a genuine and viable defence.

The motion was dismissed and the matter required a trial.