A B.C. Supreme Court Justice has issued something of a split decision on a dispute between the owners of Shooters Sports Bar and a Domino's Pizza franchise over use of a common parking lot.
In reasons for judgment issued last week, Justice Ron Tindale ruled that in addition to three spaces in front of its building on the site, located on Ospika Boulevard across from CN Centre, Domino's will be allowed continued access to a common area to the south.
However, Tindale also ruled that Shooters will not be forced to sell additional spaces to Domino's at fair market value.
The seeds of the conflict date back to when Brian Payne previously owned the pub, then known as J.J.'s. At that time, Domino's had use of the three spaces and in 2005 the parties entered an agreement that would allow Domino's to purchase additional spaces prior to any sale of the property.
However, the agreement was never registered against the title for the strata lot in question and Domino's was not notified of the sale until after it was completed in September 2007. Conversely, Shooters was not told of the agreement until the dispute went to court.
In 2008, Shooters and Domino's had entered an interim agreement that gave Domino's access to six stalls - four of them in the common area along the south wall designated for delivery drivers, while the sides worked out a longer-term deal.
But Shooters became dissatisfied with the agreement and took the issue to court, asking the court to restrict Domino's to the three spaces in front, noting, in part, that municipal bylaws require Shooters to have 60 of the 63 designated parking stalls.
In turn, Domino's argued it should be allowed to buy additional spaces at fair market value and to vary the property's strata plan to create additional parking spaces to the south.
Tindale rejected both aspects of Domino's application.
On whether to force Shooters to sell spaces, Tindale said Shooters was never party to the agreement between Domino's and the pub's previous owner. Moreover, he found Domino's failed to discuss the agreement with Shooters when the business first found out about the sale.
On varying the strata plan, Tindale found that would effectively be the same as upholding the interim agreement between Shooters and Domino's, which was meant only to be short-term and non-binding. Most importantly, Tindale said Shooters received no consideration as a result of the agreement.
But Tindale also partially denied Shooters' application.
In an affidavit, Shooters' owner George "Jordy" Hoover alleged that use of the common property to the south by Domino's employees and customers has impeded the flow of traffic, but "provides no explanation as to how this is so," Tindale said.
Hoover also asserted that, on average, there have been 15 to 20 Domino's delivery vehicles on the parking lot and as many as 25 have been parked there at one time. But Domino's management denied the allegation, saying that on the busiest days it may have 10 drivers working but rarely more than six parked at the location at any one time.
Tindale accepted Domino's testimony over Hoover's, saying the former were more precise in their calculations and found there was no evidence that Domino's use of the common property has caused problems.
He issued an order designating 60 of the lot's 63 designated spaces for Shooters' exclusive use and refraining Domino's employees and customers from using those spaces.