Valyenegro v. Canada (Secretary of State), (1994) 88 F.T.R. 196 (TD)

• Court: Federal Court (Canada)
• Case Date: December 13, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 88 F.T.R. 196 (TD)

Valyenegro v. Can. (1994), 88 F.T.R. 196 (TD)

MLB headnote and full text

Joaquin Marcell Cabrera Valyenegro (applicant) v. The Secretary of State of Canada (respondent)

(IMM-4079-94)

Indexed As: Valyenegro v. Canada (Secretary of State)

Federal Court of Canada

Trial Division

Giles, A.S.P.

December 13, 1994.

Summary:

The applicant sought an extension of time under rule 324 to file his record.

The Associate Senior Prothonotary of the Federal Court of Canada, Trial Division, dismissed the application.

Courts - Topic 2526

Registrars and prothonotaries - Jurisdiction - To grant extension of time - The Associate Senior Prothonotary of the Federal Court of Canada, Trial Division, held that he had jurisdiction to vary a time limit imposed by the Immigration Rules and to exercise discretion not to do so if so advised - See paragraphs 2 to 6.

Practice - Topic 9054

Appeals - Record on appeal - Filing of - Extension of time for - An applicant sought an extension of time to file the record - The delay was said to be related to a refusal of legal aid communicated to the applicant some two days before the applicant's record should have been filed - The Associate Senior Prothonotary of the Federal Court of Canada, Trial Division, assumed prejudice to the respondent because of the delay - Noting a lack of evidence of an arguable case or of actual prejudice on either side, the court dismissed the application.

Practice - Topic 9910

Time - Variation of time limits - Burden of proof - The Associate Senior Prothonotary of the Federal Court of Canada, Trial Division, stated that the burden of justifying an extension of time was on the applicant - It was not incumbent on the respondent to show there was prejudice, but rather the onus was on the applicant to show that there was prejudice to the applicant and no prejudice to the respondent - See paragraph 13.

Cases Noticed:

Gauthier v. Pont Viau (Cité), [1978] 2 S.C.R. 516; 21 N.R. 192, refd to. [para. 7].

University of Saskatchewan v. Canadian Union of Public Employees, Local 1975, [1978] 2 S.C.R. 830, consd. [para. 9].

LeBlanc v. National Bank of Canada, [1994] 1 F.C. 81 (T.D.), refd to. [para. 10].

Myre v. Canada (Attorney General) (1992), 53 F.T.R. 152 (T.D.), refd to. [para. 10].

Feder Holdings Ltd. v. Minister of National Revenue (Customs and Excise) (1987), 81 N.R. 235 (F.C.A.), refd to. [para. 10].

Consumers' Association of Canada et al. v. Hydro Electric Power Commission of Ontario et al. (No. 3) (1974), 2 N.R. 462 (F.C.A.), refd to. [para. 10].

Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263; 63 N.R. 106 (F.C.A.), refd to. [para. 10].

Boateng v. Minister of Employment and Immigration (1990), 112 N.R. 318; 11 Imm. L.R.(2d) 9 (F.C.A.), refd to. [para. 11].

Lisovenko v. Minister of Employment and Immigration (1994), 77 F.T.R. 159 (T.D.), refd to. [para. 11].

Chin v. Minister of Employment and Immigration (1993), 69 F.T.R. 77 (T.D.), refd to. [para. 11].

Espinoza v. Minister of Employment and Immigration (1992), 142 N.R. 158 (F.C.A.), refd to. [para. 12].

Statutes Noticed:

Federal Court Rules, rule 324 [para. 1]; rule 336(1) [para. 3]; rule 336(1)(a) [para. 6].

Federal Court Immigration Rules - see Immigration Act Regulations (Can.), Federal Court Immigration Rul es.

Immigration Act Regulations (Can.), Federal Court Immigration Rules, 1993, rule 21(2) [paras. 2, 6].

Counsel:

Rocco Galati, for the applicant;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario for the respondent.

Solicitors of Record:

Rocco Galati, Toronto, Ontario, for the applicant;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Toronto, Ontario, before Giles, A.S.P, of the Federal Court of Canada, Trial Division, who delivered the following decision on December 13, 1994.