Emphasis added.  It is evident that at the time payment was made to LCaribbean GOSL was fully seized of the assignment of the receivables payable from the Project and such these receivables could only have been categorized as a payable to KCL.  In First Vancouver Finance v. M.N.R the question for the court was whether a factor was entitled to recover monies paid to the Minister of National Revenue from receivables which were purchased prior to the Minister issuing a request for statutory garnishment, in connection with these receivables. The court ruled that monies owing on accounts factored prior to the date of the request for garnishment were not subject to the garnishment, however accounts factored after that date were effectively intercepted by it. In other words once the receivables were factored before the Minister issued a request to garnish, the National Revenue was prevented from asserting an interest in these invoices. Consequently, a declaration was made confirming the factor’s entitlement to the funds already paid to the Minister.  On this point I conclude that the funds paid to LCaribbean were indeed the property of KCL, which ought not to have been utilized as if it were the property of AMSL. Therefore GOSL is liable to pay to KCL the remaining sums under the Notices.
Emphasis added. The Court has found that the Brusers violated the CCD by not paying the Trustee Fee as determined by the state court. Under the CCD, therefore, BOH, as Lessor, is entitled to attorneys’ fees and costs.10 BOH may also be entitled to prejudgment and postjudgment interest. “The general rule is that ‘[i]n diversity actions, state law determines the rate of prejudgment interest, and postjudgment interest is governed by 10 Given the 7/21/15 Order and the Stipulation, the instant decision addresses a claim brought only by BOH. To the extent that any other parties to this action believe that they are entitled to attorneys’ fees and costs, each must file a motion pursuant to Federal Rule of Civil Procedure 54(d) and Rule 54.3 of the Local Rules of Practice of the United States District Court for the District of Hawai`i (“Local Rules”). federal law.’” Xxx x. Adalian, Civil No. 09-00226 JMS-BMK, 2015 WL 477268, at *7 n.7 (D. Hawai`i Feb. 5, 2015) (alteration in Jou) (quoting Am. Tel. & Tel. Co. v. United Computer Sys., Inc., 98 F.3d 1206, 1209 (9th Cir. 1996)). The Court, however, need not address these issues, or the specific amount of attorneys’ fees, until BOH files the appropriate motion, pursuant to Federal Rule of Civil Procedure 54(d) and Local Rule 54.3. Likewise, the Court need not address any taxable costs unless and until BOH files the appropriate motion pursuant to Federal Rule of Civil Procedure 54(d)(1) and Local Rule 54.2.
Emphasis added books make a more explicitly anti-economic and civic-minded argument. In Not For Profit: Why Democracy Needs the Humanities, Xxxxxx Xxxxxxxx challenges the notion that higher learning can best be understood in terms of technical job training and the growth of national economies. Xxxxxxxx sees higher learning as a form of “human development,” a creative pursuit that must be protected on its own terms. “From early on,” Xxxxxxxx writes, “leading U.S. educators connected the liberal arts to the preparation of informed, independent, and sympathetic democratic citizens. The liberal arts model is still relatively strong, but it is under severe stress now in this time of economic hardship.”46 In Not For Profit Xxxxxxxx highlights “another aspect of the U.S. educational tradition that stubbornly refuses assimilation into the [economic] growth-directed model.” The tradition of “active learning,” which implies “participation of the child in inquiry and questioning,” according to Xxxxxxxx, refuses to conceive education solely in terms of markets and money. Active learning is part of “a long Western philosophical tradition of education theory, ranging from Xxxx-Xxxxxxx Xxxxxxxx in the eighteenth century to Xxxx Xxxxx in the twentieth.” The tradition of active learning “includes such eminent educators as Xxxxxxxxx Xxxxxxx in Germany, Xxxxxx Xxxxxxxxxx in Switzerland, Xxxxxxx Xxxxxx in the United States, and Xxxxx Xxxxxxxxxx in Italy.” The Concord writers approach to education comes out of the same philosophical context. Xxxxxxxx does not mention Xxxxxxx and Xxxxxxx, but she does discuss Xxxxxx’x innovations at the Temple School, and Xxxxxxxxxx — though Xxxxxxxx does not make the connection — deeply influenced the thinking of both Xxxxxxx and Xxxxxxxxx Xxxxxx Xxxxxxx. Active learning
Emphasis added. Xx. Xxxx’x final report dated December 31, 1999 On December 31, 1999, Xx. Xxxx issued his final report:15 This report supplements my Interim Report dated October 31, 1999 (Appendix B). In the Interim Report, I stated my opinion that the relationship between Crown Counsel and the provincial government would not be improved by [a]n independent mediator reporting out, ad hoc, on the substantive employment issues in dispute. Rather, I made tentative
Emphasis added. 95 Ibid., 15. An additional philosophical conundrum arises from Xxxxxxxx’x distinction between truth and effectiveness. Even as Xxxxxxxx himself is considered one of the twelve “most effective” preachers in the English-speaking world, he insists that he has no concern for listener response. He writes, “Next Sunday, if once again my congregation appears to be unmoved and unimpressed by my homiletical efforts, I intend to ascribe their lack of response to God! Our job as preachers is to stand up and speak the truth as God gives it to us; congregational response is God’s business.”96 Such a statement, even if hyperbolic, proceeds upon the a priori decision to separate truth from effectiveness. Might not an ineffective sermon point just as clearly to truth as falsehood? Compare Xxxxxxxx Xxxxxx preaching during the 1st Great Awakening with the “Word of Faith” prosperity preaching; both are effective by their own standards. Rather than drawing proclamation closer to theology (the Word of God preached is the Word of God), binary commitments unintentionally enforce the very same anthropology that Xxxxxxxx wishes to overcome. He writes, “We preachers are to worry more about what is being said and how well we can replicate that word than we are to worry about whether or not what is being said in the Gospel is being heard in the world.”97 Whatever the cause of our worry, is not such an effort a human effort? Would it not be more theological to bear witness to God’s Word in the biblical text and in the world, to preach God’s Word and trust God to communicate the truth to be found therein as well as any human response? Neither truth nor effectiveness ought to guide preaching because neither is within the confines of human agency.
Emphasis added. (See, also, at para. 100 in Xxxxxx, and the Court of Appeal's re-affirmation of this proposition in X. x. Xxxxxxxxx (2006), 213 C.C.C. (3d) 80, at para. 15.) 39 Applying this appellate guidance, I have no difficulty concluding that a conditional sentence is a fit disposition for the first of the offender's four offences. More difficult to operationalize is my parallel conclusion that, upon a balanced application of the controlling principles and in what I find to be the exceptional circumstances that prevail in this case, a sentence served under community supervision is the appropriate and just global disposition with respect to all four offences. The legal challenge, then, is to craft a sentence that secures this global result without torturing or evading the statutory or common law directives that govern the disposition of a case involving the repeated sale of what the Court of Appeal has characterized as "the most addictive, the most destructive and the most dangerous" drug. 40 In other circumstances - that is, those in which the offender could avail himself of a conditional sentence respecting all four offences - an appropriate disposition could be fashioned through orthodox resort to the principle of totality. "Totality" may be properly seen as an application of the more general principle of proportionality so as to ensure that the cumulative sentence imposed on persons convicted of multiple offences is "not unduly long or harsh" (as put in s. 718.2(c) of the Code) or disproportionate to the moral blameworthiness of the offender. (See, for example, R. v. C.A.M.,  1 S.C.R. 500, at para. 42.) In practice, I would first decide the offender's appropriate global sentence and then determine the fit allocation for each of the four constituent offences, whether they should then run concurrently with or consecutive to an anchor disposition, and then tailor them to ensure that they aggregated to the sanctioned total penalty. This approach follows the Court of Appeal's instructions in X. x. Xxxxxx (1995), 100 C.C.C. (3d) 270, at 279. (Subsequent cases offer some refinements: X. x. Xxxxxxxxx (1998), 41 O.R. (3d) 103 (C.A.); X. x. Xxxxxxxxxxx (2002), 60 O.R. (3d) 465 (C.A.), at paras. 8, 32-33); X. x. Xxxxx, 2011 ONCA 748; and R. v. R.B. (2013), 114 O.R. (3d) 465 (C.A.), at para. 30.) 41 In the case at hand, however, a custodial sentence imposed for any of the last three offences, whether structured concurrently or consecutively, would necessarily entail a c...
Emphasis added. The contract documents affirmatively indicate that shore protection structures consisting of rubble and riprap would be present near the Oxy-Chemical Dock. By employing the very dredging practice that the Specifications advised against—“[e]xcessive[ly] cutting outside the side slope lines and grades,” JX 2 (Specs) at 118, ¶ 3.5.2—plaintiff did not act as a reasonably prudent contractor. Further, when preparing the bid estimate for the Upper Bayou Project, Xx. Xxxxxx anticipated that the Millennium would encounter “rock, . . . ri[p]ra[p] from shore protection projects,” and other “common types” of obstructions. JX 98A (Xxxxxx Dep.), at 222:22–24. Thus, the conditions encountered by the dredge at the Oxy-Chemical Dock, were not reasonably unforeseeable. Accordingly, plaintiff has failed to establish that the conditions at the Oxy-Chemical Dock constitute a differing site condition.
Emphasis added. 24 No contrary authority has expressly displaced the general rule respecting the tariff for heroin trafficking in Ontario in the twenty years since Xxxxxx and Farizeh were decided. Nonetheless, penological and judicial thinking about the predicament of addiction-driven criminals has evolved. This, in turn, impacts on the question of whether the umbrella of "exceptional circumstances" is sufficiently elastic to shelter addicts both motivated and equipped to overcome their dependencies. 25 Addicts are neurologically rewired by their dependence. As said in X. x. Xxxxxxx, infra, "heroin addicts must invariably support [their] addiction with some form of criminal activity". Their crimes - typically burglaries, soliciting, drug store robberies and, most frequently, street-level trafficking - are driven by the need to finance their pharmacologically induced cravings. They do not have the same degree of moral liberty as those who deal drugs for purely commercial motives and, as courts have long recognized, their moral blameworthiness is accordingly attenuated. Section 10(1) of the Controlled Drugs and Substances Act (the CDSA), which came into force after Xxxxxx and Xxxxxxx were decided, signals Parliament's recognition of addicts' distressing circumstances and the role of rehabilitation and, where warranted, treatment in the crafting of a fit sentence and, ultimately (if traction is secured), the protection of society. The provision reads: Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for [a drug] offence ... is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [Emphasis added.] 26 The rationale for an "exceptional" approach to the sentencing of addict offenders was xxxxxxxxx advanced in X. x. Xxxxxxx (1990), 79 C.R. (3d) 61. Xxxx X.X., on behalf of a five-member panel of the British Columbia Court of Appeal, wrote: Without making any real effort to draw a distinction between cases of possession on the one hand, and those of trafficking or possession for the purpose of trafficking on the other, this Court and other Courts of Appeal across the country have repeatedly stressed the need to impose deterrent sentences in drug cases.
Emphasis added. Therefore, under the plain language of the statute, the effect of rejection is defined by reference to the breach status. As explained in Xxxxxxxxx, A Functional Analysis of Executory Contracts, 74 Minn. L. Rev. 227, 244 (1989), [T]he trustee inherits from the pre-bankruptcy debtor a contract created by nonbankruptcy law. The statutory option to "assume or reject" means exactly what the Code says it means: the option to perform or breach the contract, the same option every contract party has under nonbankruptcy law. It follows that the trustee is prima facie in the same position as any nonbankruptcy contract party, except when specific bankruptcy principles and rules require a different result. Thus, a breach of contract does not automatically result in the contract's termination.6 Instead, the contract remains 6 The trustee contends that under Sea Harvest v. Riviera Land Co., 868 F.2d 1o77, 1o8o (9th Cir. 1989), the effect of re¡ection is always termination. In Sea Harvest, the Ninth Circuit Court of Appeals held that the re¡ection of a lease of nonresidential real property under § 365 was the same as termination of the lease. In support of its ruling, the Sea Harvest court noted that § 365(d)(4) required that upon re¡ection, the trustee immediately surrender the leased premises. The court stated that "surrender of property ... has the effect of terminating the enterprise that operates there." There is no analogous surrender provision in § 365 regarding contracts, and Sea Harvest is distinguishable on that basis. I believe Sea Harvest should be narrowly construed. A broad reading would be inconsistent with the express language of the Code defining the effect of re¡ection as a breach, as well as state law defining the consequences of a breach. The trustee argues that the final clause of § 365(d) is not intended to treat leases differently from contracts, but merely makes explicit that termination of a lease requires surrender of the premises. He reasons that three subsections of § 365 [(h), (i) and (n)] give the non-debtor party certain options which are inconsistent with termination, and therefore concludes that in all other cases the effect of re¡ection is termination. I disagree regarding the inference that should be drawn from the inclusion of those subsections. I believe that the subsections referred to by the trustee are intended as exceptions to the rule that state law defines the effect of a breach. The exceptions are intended to assure that the no...