Kosub v. Cultus Lake Park Board

2006 BCCA 451err1 Kobus v. Cultus Lake Park Board COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Kosub v. Cultus Lake Park Board, 2006 BCCA 451 Date: 20061012 Docket: CA034456 Between: Alexander Elias Kosub and Geoffrey Kosub Appellants (Plaintiffs) And Cultus Lake Park Board Respondent (Defendant) Before: The Honourable Mr. Justice Smith (In Chambers) H.W. Veenstra Counsel for the Appellants J.H. Goulden and H. Wang Counsel for the Respondent Place and Date of Hearing: Vancouver, British Columbia 27 September 2006 Place and Date of Judgment: Vancouver, British Columbia 12 October 2006 Reasons for Judgment of the Honourable Mr. Justice Smith: [1] This is an application for leave to appeal the dismissal by Mr. Justice Romilly on September 18, 2006 of the appellants' application for an interlocutory injunction to prevent the respondent from taking possession of a building located on Main Beach in Cultus Lake Park pending the trial of the appellants' claim to specific performance of an alleged agreement to lease the said building. [2] Since 2002, the appellants, a father and son, have operated a business known as Main Beach Boat Rentals under a lease from the respondent. Cultus Lake Park is a well-known recreational area located near Chilliwack. It is governed by the respondent, a statutory corporation formed pursuant to the Cultus Lake Park Act, S.B.C. 1932, c. 63. [3] The appellants allege that their agreement with the respondent in 2002 was for the lease of the existing building on Main Beach. They contend that it was a term of the lease that they would construct a new building further away from the water to replace the existing building in consideration for which the respondent would lease the new building to them. According to the appellants, the new facilities were to be used to continue their operation of a boat rental and food concession business and would include a residential suite in which one or other of the appellants could reside. The appellants allege that they began construction of the new building in early 2004 and that, in response to a demand by the respondent, they demolished the existing building in September 2004. They say that the new building is approximately 85% completed. They allege further that the respondent repudiated their agreement in or about June of 2006 and has refused to enter into a lease of the new building as they had agreed to do. They claim specific performance of the agreement to lease, damages in lieu thereof, or a constructive trust over the new building in support of a claim for unjust enrichment. [4] The chambers judge concluded that the appellants had shown a serious question to be tried in respect of their claim for specific performance and in respect of their alternative claims. That finding is not in dispute on this application. [5] Rather, the dispute revolves around the finding by the chambers judge that the appellants would suffer no irreparable harm if an interlocutory injunction should be refused, and in his finding that the balance of convenience did not favour granting the injunction, since the latter finding was influenced by his conclusion that the appellants had not shown irreparable harm. [6] The appellants propose to argue that the chambers judge misapprehended the nature of their claim for specific performance of an agreement to lease when he concluded that damages would be an adequate remedy. They submit that he overlooked or misapprehended the evidence that the property in question is a unique and special property and that he mistakenly viewed the alleged irreparable harm as a claim for emotional and psychological stress. They contend that these errors improperly influenced his conclusion that the balance of convenience favoured the refusal of an injunction. [7] The relevant factors bearing on whether leave to appeal should be granted have been set out in many decisions, including Goldman, Sachs & Co. v. Sessions, 2000 BCCA 326 at ¶ 10. I must consider whether the point on appeal is significant to the practice, whether it is significant to the action itself, whether the appeal is prima facie meritorious, and whether the appeal will unduly hinder the progress of the underlying action. [8] Having regard to these factors, the appellants have satisfied me that they should be given leave to appeal. Accordingly, leave is granted. [9] There remains the question what should be done pending the hearing of the appeal. Counsel advise that the respondent has taken possession of the building and changed the locks. The building contains the appellants' business equipment and property. The appellants' business ceased operating after the Labour Day Weekend, as it customarily does, and would not normally resume until the Victoria Day Weekend next spring. Counsel for the appellants advises that they would be content with an order maintaining the status quo until the hearing of the appeal or further order. I do not understand counsel for the respondent to disagree. Accordingly, an order will go to that effect. I will leave it to counsel to stipulate the precise terms of the order, which may be addressed in written submissions if they should be unable to agree. "The Honourable Mr. Justice Smith" Correction - 12 October 2006 Paragraph 1 should read as follows: [1] This is an application for leave to appeal the dismissal by Mr. Justice Romilly on September 18, 2006 of the appellants' application for an interlocutory injunction to prevent the respondent from taking possession of a building located on Main Beach in Cultus Lake Park pending the trial of the appellants' claim to specific performance of an alleged agreement to lease the said building.