Sentences with phrase «motion judge»

As a result, she did not address doctrines related to the jurisdiction of motion judges to permit actions to go ahead even if the limitations period has ended.

The SCJ motion judge dismissed, on account of delay, the parents» appeal of an OCJ Crown wardship no access order.

The Court of Appeal found that motion judge failed to assess the fairness of deciding this matter by way of summary judgment given the conflicting evidence and the fact that Rule 76.01 prohibited from cross-examining the plaintiffs on their affidavits.

The Court held that the first motion judge correctly construed the contract with respect to what the parties intended to accomplish.

The resulting decision (s)(known to most as «Combined Air») provided, arguably, clarity to motion judges going forward and set out which types of cases are and are not suitable for summary judgment.

Under this new approach spelled out by the Court, summary motion judges still have considerable discretion to determine where a motion should be heard in the interests of justice.

The Court of Appeal determined that, while Motions Judges are entitled to some latitude and discretion in formulating common issues, the relevant question is ``... whether that discretion was appropriately exercised in this case» (See para. 38).

The changes to the Rules accomplished this by expanding the powers of motion judges under Rule 20 (2.1) by allowing them to weigh evidence, evaluate credibility, and draw reasonable inferences from the evidence.

The Supreme Court of Canada recently clarified how motion judges should exercise their fact - finding and summary judgment powers under rule 20.04 (2.1) and (2.2) of the Rules of Civil Procedure.

The initial motions judge, bound by the Court of Appeal's ruling in McNaughton, found in favour of the plaintiffs.

At the same time, a Toronto motions judge has reserved the decision on an anti-SLAPP motion filed by an Ottawa blogger, Robert Day, against controversialist Ezra Levant, who sued Day for online postings criticizing Levant's fundraising for Fort McMurray fire victims.

While sarcasm is best avoided in judgment writing, the trial judge's [Motion Judge] comments clearly targeted the extravagant and unsupported public policy claim advanced by Mr. Gauthier in his affidavit.

In Québec, the authorization motion judge's role is, essentially, to screen out frivolous cases.

Certainly, motor vehicle accidents continue to happen, but foisting onto motion judges the responsibility to determine summary judgment motions on the basis of assessing credibility on affidavit evidence, rather than viva voce testimony, does little to instill confidence in the minds of litigants that they have had their «day in court».

Batner says the rulings essentially leave motion judges to their own devices — and without any true test — when determining whether a case should be granted summary judgment.

Motions Judge Thomas R. Ledere had found that teachers Domenica Michela, Sergio Gomes, and Catherine Carnovale were wrongfully dismissed and awarded pay in lieu of 12 months» notice he found they should have received.

At issue in this particular appeal was whether the summary judgment motion judge erred by retroactively reducing the Husband's spousal support obligation and terminating it entirely, effective November 1, 2016.

The Honorable Phyllis A. Kravitch, a senior US circuit judge, speaks to the amount of reading the job requires: «I don't think the average lawyer quite realizes the number of cases that we have, the number of motions judges have....

If it is just, as the Ontario Court of Appeal has found (Combined Air Mechanical Services Inc. v. Flesh, 2011 ONCA 764, para. 51), to only grant summary judgment in circumstances where it is clear that a trial is not required, how are motion judges going to decide on a summary basis whether a claim has substantial merit, whether the defendant lacks a valid defence and finally what the public interest is in any given dispute?

So, again, if the motion judge meant something more than necessary then... (see the para.

Although the motion judge refused to strike the claim, the Court of Appeal allowed the appeal and stated that the proper defendant in the case was the manufacturer.

What needs to be proven is whether «defendant's negligence was necessary to bring about the injury»: see Clements, para. 8, quoted by the motion judge in para. 16, above.

If you're wondering, the motion judge didn't define what he understood by the term «substantial connection», which might be a good thing for the plaintiff.

So, summing up, by going back to a para. 24, did the motion judge mean: «On the facts of this case, it would certainly be open to a trier of fact to infer that there was a necesssary, even if minor, connection between I / Land's negligent conduct in selecting and fitting a defective hose and the damage that occurred.»

The motion judge was correct in stating «substantial connection» was used in Resurfice, however, the context is important.

So, if the motion judge meant to assert that «substantial connection» means something more than necessary, the plaintiff would have had the right to complain, had the motion succeeded.

In overturning a motion judge's refusal to stay proceedings under... [more] Full article

The Appeal Court ruled in her favour, finding that the motion judge had made several procedural errors.

In addition, the Court refused to overturn the motion judge's award of substantial indemnity costs.

The key error, however, was the motion judge's assessment that the FLR governed certain procedural aspects inadequately, and that he should look to the civil procedure rules for guidance instead.

On appeal, Affinia argued that the motion judge erred by failing to consider the case of Sharma v. Affinia Canada ULC («Sharma»), an unreported case which the appellant alleged had nearly identical facts.

In assessing the notice period, the motions judge looked to Di Tomas v. Crown Metal Packaging Canada LP, [2010] O.J. No. 4679 («Di Tomas»).

Applying a contextual approach, writes Rose, «the court approved the motions judge's comments that «[t] here was no intent to contract out of the ESA in fact; to the contrary, the intent to apply the ESA is manifest» and held that «the motion judge's interpretation of the contract is entitled to deference.

While there appeared to be a consensus for years that strict language was required to displace the common law without infringing on the ESA, Rose says a 2016 Ontario Court of Appeal decision dismissed an appeal from a motion judge's ruling upholding a termination clause — providing «the minimum required by the ESA» — that was linguistically sparse compared to earlier rulings.

Because of the competing rights and interests at play when there are documents from a civil proceeding that may be used to impeach a party in another proceeding, the motions judge in SC v. NS came down heavily in favour of the need for an anticipatory motion for directions to be brought before the party seeking to use the documents actually uses them.

The motions judge also subsequently awarded costs against Affinia on a «substantial indemnity» basis, relying on a rule in Ontario's rules of civil procedure which applies where a party has acted unreasonably in responding to a motion for summary judgment.

The Divisional Court found the Motion Judge was correct in dealing with the matter by way of summary judgment because the facts were not in dispute.

The Motion Judge found that REL's offer was a «take it or leave it offer» and the terms of the offer were less favourable than Ms. Aylsworth had previously enjoyed.

«We disagree with the motion judge's legal conclusion that the agreement was invalid because the list of claims subject to binding arbitration was not included on the face of the one - page agreement,» the court stated.

Acknowledging the issues were novel, the motions judge in SC v. NS concluded that the defendant / accused had breached the deemed undertaking of confidentiality when he used for his criminal defence the plaintiff's documentary productions from the civil case without first seeking directions from the court as to whether and how he could do so.

The motions judge in SC v. NS concluded that the act of one lawyer for a client sharing the opposing party's compelled discovery evidence — in this case, documents — with another lawyer representing the same client in another related proceeding constitutes prohibited «use» of the evidence.

The motion judge had also applied an unjustly - high threshold for establishing the wife's unequal division claim, and had deprived her of notice that it might be struck out permanently.

(Although Ontario judges are permitted to do this where warranted, the motion judge in this case showed over-reliance on the civil rules, and misunderstood when they could be invoked.).

[4] In the reasons for judgment of the Court of Appeal, Justice Hourigan agreed with the motions judge that the «occurrence» causing property damage in this case was the scratching of the windows caused by the contractor's employees and not the presence of airborne cement debris.