Irreparable harm in the spotlight as injunction denied in commercial-lease dispute
September 5, 2025
BY Kevin Zakreski
In Naghmeh v 1530378 B.C. Ltd., 2025 BCSC 1673, the BC Supreme Court declined to grant commercial tenants the injunction they sought against their landlord in a dispute over parking at a “a multi-unit commercial centre”. The case allowed the court to consider the legal framework for granting injunctions set out in RJR‑MacDonald Inc. v Canada (Attorney General), 1994 CanLII 117, [1994] 1 SCR 311 (SCC), focusing in particular on the need for an applicant to show it would suffer irreparable harm if the application were denied.
The plaintiffs in Naghmeh operated an educational childcare centre called Marina Bay under three leases they had entered into with the defendant. They wished to expand their childcare centre but had been denied permission from the local government, explaining that “West Vancouver has advised that it will not grant their applications while the Property is non-complaint with zoning bylaws requiring off-street parking at the Property”.
The plaintiffs ultimately “filed a notice of civil claim against the defendant alleging breach of contract”, “assert[ing] that it is an implied term of the Third Lease that the Property will have parking that complies with applicable bylaws, and that the defendant is in breach of that implied term”.
The plaintiffs also sought an injunction, the terms of which were ultimately set out as follows: “An order enjoining the Defendant and anyone acting on its behalf from interfering with Marina Bay’s efforts to meet meeting the licensing requirements of the District of West Vancouver by painting lines [for parking stalls] on the parking lot” [bracketed text in original].
“There was a dispute”, the court noted, “between the parties regarding the applicable framework for interim injunctive relief”:
[38] The plaintiffs say Tracy v. Instaloans Financial Solutions Centres (B.C.) Ltd., 2007 BCCA 481 at paras. 30–33 represents the state of the law, and that “irreparable harm” does not need to be established in order to get an interim injunction.
[39] The defendant cites para. 37 of Vancouver Aquarium Marine Science Centre v. Charbonneau, 2017 BCCA 395, where the Court of Appeal sets out the three-factor test from RJR‑MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at 334, 1994 CanLII 117 (SCC). The defendant says irreparable harm is a requirement, in keeping with the three-factor test set out in RJR.
The court dealt with this argument by making the following comments about the legal framework for pre-trial injunctions:
[41] In my view, the parties have not identified any actual conflict in the law. The cases they have cited are complementary. The real difference between their positions reflects the parties each, in their own favour, stating the law in more absolute terms than they properly should.
[42] The RJR three-factor framework does apply in British Columbia. However, it sets out factors, not “requirements”. The RJR framework is not to be rigidly or formulaically applied, as the framework itself is nothing more than a judicial expression of the authority conferred under s. 39(1) of the Law and Equity Act. (This is the point made at para. 33 of Instaloans, and it remains an accurate statement of the law.)
[43] The three RJR factors are not watertight compartments. The factors are interrelated, and strength in one may compensate for weakness in another: British Columbia (Attorney General) v. Wale, 1986 CanLII 171 (BC CA), 9 B.C.L.R. (2d) 333 at 346–47, aff’d 1991 CanLII 109 (SCC), [1991] 1 S.C.R. 62; Cambie Surgeries Corporation v. British Columbia (Attorney General), 2019 BCCA 29 at para. 19.
[44] Nor [do] the factors constitute mandatory requirements. There is no absolute requirement to establish a risk of irreparable harm. If that were an absolute requirement, then the second factor would constitute an “independent hurdle” to obtaining relief. As was recently re-stated in Air Passenger Rights v. WestJet Airlines Ltd., 2025 BCSC 155, at para. 41, it is not. [emphasis in original]
After reviewing the plaintiff’s and defendant’s cases on the three factors, the court concluded:
[73] The three RJR factors are to be considered together in assessing what is just and equitable in all of the circumstances. The factors do not constitute independent hurdles, but rather should be considered altogether in assessing what is just and convenient in the circumstances.
[74] The plaintiffs have established that they have a serious question to be tried with respect to at least the implied term contractual claim. There is no evidence that the plaintiffs are at risk of any irreparable harm. If Marina Bay suffers a business loss, it will be calculable and compensable in damages. While the order sought would not cause the defendant irreparable nor even significant harm, the defendant would be impaired in terms of its ostensible current discretion to deal with the Property.
[75] On the evidence, and considering all three RJR factors, it would not be just or convenient to grant the injunctive relief sought.
In the result, the application was dismissed.
