Sentences with phrase «motion judge failed»

The motion judge failed to do so here.

The motion judge failed to consider the presumptive start date of effective notice and failed to consider any factor that might suggest a different start date for child or spousal support.

The motion judge failed in not applying the two - part test set out by the Court of Appeal in Pacquette v. TeraGo Networks Inc., 2016 ONCA 618.

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.

In this case, the motion judge failed to apply the correct legal test.

Likewise, the Court of Appeal rejected Raymond's argument that the motion judge failed to consider relevant evidence.

However, the motion judge failed to apply the analysis set out in D.B.S. and Gray and erred by ordering variation retroactive to a date prior to the date of the material change.

Interestingly, the Koskie Group also raised the fact that the motion judge failed to take into account the disciplinary issues surrounding the Merchant Law Group («MLG»), one of the members of the Rochon Group.

Not exact matches

«Without further evidence of discriminatory intent, plaintiffs» claims would likely fail to survive a motion for summary judgment,» Senior U.S. District Judge Frederick Scullin wrote.

The hearing Tuesday was an appeal to a judge denying National Review and CEI's motion to dismiss the lawsuit under D.C.'s Anti-SLAPP Act, which is designed to prevent costly defamation lawsuits that are destined to fail.

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.

I failed to make the point that a pro se creating on his / her own, a clear written motion will be much better prepared to argue that motion before a judge than attempting to «wing it» thereby often proving to a judge that indeed the defendant or a petitioner in civil court has the ability to proceed as a pro se.

The Court of Appeal allowed this appeal, even though the estate trustees failed to make that argument before the motion judge.

The estate trustees appealed and argued that the motion judge erred in failing to order that their costs be paid out of the estate.

Even though shifting the burden of cost from one party to another is accepted practice, U.S. District Judge Robert S. Lasnik of Washington state denied a motion to do so in Mikron Industries Inc. v. Hurd Windows & Doors Inc., because the requesting party had failed to meet and confer in good faith.

Briefly, the motion judge made a reversible error by taking a literal approach to the offer and acceptance and failing to consider the factual matrix when interpreting the concluded agreement.

The wife posited that the motions judge erred in failing to consider that the parties commenced cohabiting in February 1983, which would have meant that their relationship lasted for 21 — not 18 — years.

They submitted that both the motion judge and the Divisional Court «fundamentally misapprehended the relevant evidence and failed to apply the legal principles governing the common issue assessment required by s. 5 (1)(c) of the CPA.»

Because our existing case law holds that a property owner does not violate the duty of reasonable care by failing to remove natural accumulations of snow and ice, see Sullivan v. Brookline, 416 Mass. 825, 827 (1994), the judge concluded that, as a matter of law, the plaintiff could not prevail on his claims of negligence; therefore, the judge allowed the defendants» motions for summary judgment.

Allowing family court judges to grant relief pursuant to motion that fails to state the relief sought or the grounds therefore by deciding the other party was not «prejudiced» by a skeleton motion is to reward the sloppy attorney and hinder a thoughtful attorney from fully preparing to defend a motion.

The court of appeals also concluded the trial judge did not abuse his discretion by failing to rule on the motion because Father's failed to retain an expert to interpret the records he sought to obtain.

Second, the appellant argues that the trial judge failed to provide legally adequate Reasons for Judgment in dismissing the appellant's Charter motion and in convicting the appellant on the «over 80» charge, by failing to reconcile the conflicting testimony of the two police officers who testified as to the appellant's indicia of impairment.

The Court of Appeal declined to interfere with the motion judge's cost award as the litigation reflected a profound lack of judgment on Raymond's part; Raymond failed to submit a bill of costs and the motion judge's decision was entitled to considerable deference.

(2) the motion judge erred in failing to terminate the father's child support obligation for the daughter as of the date that the daughter moved to live with the father full - time;

2) Did the motion judge err by failing to follow the C.A. decision in Newman and Newman v Terdik, 1952 CanLii 97 (ONCA)?

It found that when it came time to make the support award, the motion judge had failed to consider: 1) the father's status as an undischarged bankrupt; 2) the effect of a lump sum spousal support award on the father's ongoing bankruptcy, and 3) the implications of the father's eventual discharge from bankruptcy on the parties» financial circumstances and assets.

The Court of Appeal agreed with the motions judge that Wilk had failed to prove that Arbour, as Zeus's owner, could have reasonably foreseen the danger that could result in Wilk's damages.

The motion to change judge ruled that there had been no material change in circumstances and ordered the parties to agree on a parenting coordinator within 10 days (failing which, Dr. Butkowsky would choose one).

On appeal, the appellant wife argued that the motion judge's reasons were insufficient and that the motion judge had failed to properly apply the legal principles governing spousal support variations.

On appeal, the wife argued that the motion to change judge erred in failing to order an amount of support within the SSAGs and in any event, had ordered an amount that was clearly wrong.

[17] In his written material contained in the Defendants» motion record, Mr. Fancy argues that I ought to recuse myself from continuing to be the case management judge because of bias and he cites three main reasons: that my decision on the applications was wrong; that I failed to deal with the fact that MS has launched both applications and claims for the same relief; and that when I was a lawyer more than ten years ago, I was connected with a crime, specifically, a break and enter involving Mr. Fancy's client.

The appellants contended that the motion judge erred in failing to find that a genuine issue requiring a trial existed as to whether 111 had made a valid equitable assignment to Nadeau of an October 19, 2011 promissory note executed by Caparelli and another in favour of 111 (the «Note») and guaranteed by 229.

Gallop complained that the trial court was wrong to rule that the civil death statue automatically meant dismissal, that federal rights trump the state statutes, and that the lower court judge erred in failing to address a motion to file an amended complaint.

The Court also found that the insurer violated chapter 93A by failing to pay counsel $ 225 per hour after the motion judge's ruling, and by then failing to respond to the second c. 93A demand letter.

According to Tjaden and Karabus, during Hryniak's first year, judges who dismissed summary judgment motions at the Ontario Superior Court chose not to remain seized, or failed to address the issue of being seized, in 60 per cent of cases.

While Ontario judges may be more amenable to granting such motions, they appear less interested in taking up the Supreme Court's call for judges to remain seized of cases when motions for summary judgment fail.

(1) Did the motion judge err by failing to consider that the limitation period applies only to pleadings for unrelated statute - barred claims?

The motion judge provided detailed reasons for concluding that the appellants failed to discharge the onus of establishing that there is a better and more appropriate forum than Ontario.

The motion judge erred in law by failing to conduct such an analysis.

(3) Did the motion judge err in failing to consider, by analogy to the Rule 49 test, whether any settlement agreement that may have been reached should be enforced?

The motion judge erred in failing to consider the scope of the proximate relationship or scope of any such duty arising from it.

(2) Did the motion judge err in her finding relating to the value of the property, and determining the appellant failed to prove any damages?

The motion judge held that the appellant had failed to trace its stolen monies to the respondent.

The appellants have failed to establish that the motion judge made any palpable and overriding error in the conclusions that she reached.

The appellant argues that the motion judge was obliged to appoint counsel for the children and failed to pay heed to the United Nations Convention on the Rights of the Child, Can.

The motion judge erred in failing to apply Aecon's remedy of staying the claim of the party that did not immediately disclose a litigation agreement.

At issue was whether the judge failed to consider the affidavit of Karen Pritchard (the appellant's assistant), filed by the appellant in response to the motion made in writing.

The respondent failed to identify any error of law or palpable and overriding error of fact by the motion judge.

The motion judge made several key findings of fact: (i) there was no evidence the appellant's fall was caused by any defect in or lack of repair affecting the premises or any hazardous conditions associated with the premises themselves; (ii) there was no dispute the appellant was performing the renovation work for valuable consideration; (iii) there was no basis for a contractual claim that the respondents had failed to furnish the appellant with safety equipment; (iv) there was no evidence the appellant was inexperienced in performing roofing work or working at heights; and (v) the evidence did not support a finding that the respondents were aware the appellant lacked the necessary experience to carry out the project.