D. Outerbridge

The applicant, a Near Band, challenged the jurisdiction of an arbitrator to hear a dispute arising from a limited partnership agreement concerning the distribution of gaming revenues.

The applicant argued it was not bound by the agreement because the individual who signed it on its behalf lacked authority.

The Superior Court of Justice, treating the application as a hearing de novo, found that the individual had apparent authority, no other person held themselves out as Chief at the time, and the applicant had accepted benefits under the agreement for six years.

The application was dismissed, and the arbitrator was found to have jurisdiction.

Following the dismissal of the appellant's motion to stay, the respondent sought partial indemnity costs of $30,643.80.

The appellant argued costs should be fixed at $3,500.

The court found the respondent's claim excessive, noting that fees for two lawyers and a senior clerk were unreasonable for the motion, and the lead counsel's hourly rate was high for the Northwest Region.

Taking a global approach and considering the reasonable expectations of the unsuccessful party, the court fixed costs at $8,500 plus HST.

The moving party, Hornepayne First Nation, sought to stay an arbitrator's award pending its appeal.

The arbitrator had found the moving party in breach of its financial reporting obligations under a limited partnership agreement and ordered it to submit audited financial statements within 60 days to avoid forfeiture of $2.8 million in gaming revenues.

The court applied the RJR-MacDonald test and dismissed the motion, finding no irreparable harm because the respondent undertook not to distribute the funds pending the appeal, and concluding the balance of convenience favoured the respondent.

The plaintiff, a general contractor, sought an injunction to prevent Tarion Warranty Corporation from drawing on two performance bonds after Tarion terminated the plaintiff from a repair project for a leaking condominium parking garage.

The plaintiff argued the bonds were conditional payment obligations subject to a repair agreement.

The court found the bonds were autonomous demand bonds, meaning Tarion's right to call on them was independent of the underlying contract.

Applying the Supreme Court's decision in Angelica-Whitewear, the court held that an injunction against a demand bond requires a strong prima facie case of fraud.

As the plaintiff did not allege fraud, the motion was dismissed.

The court also noted the plaintiff would fail the traditional RJR-MacDonald test for injunctive relief.