A Chinese restaurant won't get a chance to have its opening day in the Metrotown area of Burnaby.
That's because the B.C. Court of Appeal has dismissed Peninsula (Kingsway) Seafood Restaurant's attempt to obtain an injunction to forestall a court-approved eviction notice at 4555 Kingsway.
The landlord, Central Park Developments Ltd., terminated the restaurant's lease because it failed to pay its rent on time.
According to the B.C. Court of Appeal ruling, the landlord spent $500,000 to prepare the space and another $260,000 to obtain a zoning variance.
Then after the lease was signed in June 2017, Peninsula spent about $1.5 million on "design, construction, equipment, and decor". In addition, Peninsula paid $750,000 in rent.
"The premises have never operated as a restaurant because, just as they were about to open at the end of February 2020, the COVID‑19 pandemic struck and Peninsula decided to delay the opening," wrote B.C. Supreme Court Justice Lauri Ann Fenlon in her ruling.
She noted that Peninsula was late paying its rent in seven of the first 10 months of 2020.
That led the landlord to serve a notice of default on October 6, alleging that the tenant was $45,843 in arrears.
On November 2, Central Park Holdings leased the site to Fraser Health Authority for an urgent care centre. This lease was approved by the health authority's board on December 16.
In January, Peninsula lost its bid in B.C. Supreme Court to have the eviction notice overturned.
That prompted the company to seek an injunction from the B.C. Court of Appeal pending its appeal of that ruling.
Peninsula argued that it would suffer irreparable harm in the absence of an injunction. In addition, it maintained that the balance of convenience, which is another legal test, favoured the restaurant because Fraser Health's term won't start until July 1.
Fenlon, however, rejected those arguments, declaring in her ruling that "there is potential irreparable harm on the other side of the ledger as well" because the landlord has already begun preparing the space for the new tenant.
"Central Park has arranged a complex schedule of trades in a challenging construction environment to ensure that the premises will be ready for Fraser Health in accordance with the terms of the new lease," Fenlon wrote. "Work was scheduled to begin starting February 17, 2021, and Central Park says it will lose its contractors if it is not in a position to proceed, resulting in increased costs.
"Delay will thus be costly to Central Park and could expose it to a lawsuit by Fraser Health and losses of hundreds of thousands of dollars if an injunction is granted."
And even though Peninsula has offered to make an undertaking to pay any damages, Fenlon concluded that this "promise is of little import because Peninsula does not have assets within the jurisdiction and has not offered to back up its undertaking by posting security for damages".
A different Peninsula Seafood Restaurants outlet closed at Oakridge after the pandemic was declared last March.