Date: 19981203
Docket: IMM-3811-98
BETWEEN:
XU JIAN HUA
MINH DA ZHEN
STEPHANIE ZHEN
Applicants
- and -
THE MINISTER
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] The applicant has presented a motion for extension of time to file and serve applicants record and for permission to file an affidavit from applicants" solicitor.
[2] The applicant also appealed the decision rendered by Mr. Richard Morneau, Prothonotary, on October 9, 1998.
[3] The motion for extension of time to file and serve applicants motion record and for permission to file an affidavit from applicants" solicitor is granted.
[4] Nevertheless, I have reviewed the file and the decision of the prothonotary.
[5] I refer to the decision in Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425 where Judge MacGuigan of the Federal Court of Appeal with Judges Mahoney and Décary concurring said on page 454:
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I am in agreement with counsel for the appellant that the proper standard of review of discretionary orders of prothonotaries in this Court should be the same as that which was laid down in Stoicevski for masters in Ontario. I am of the opinion that such orders ought to be disturbed on appeal only where it has been made to appear that |
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a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or |
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b) in making them, the prothonotary improperly exercised his discretion on a question vital to the final issue of the case. |
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In each of these classes of cases, the Motions Judge will not be bound by the opinion of the prothonotary; but will hear the matter de novo and exercise his or her own discretion. |
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[6] I conclude in this case that the prothonotary order is not clearly wrong and that the exercise of discretion by the prothonotary was not based upon the wrong principles or upon a misapprehension of the facts; and in making this decision, even though the question at stake could be seen as a question vital to the final issue of the case, the prothonotary has not improperly exercised his discretion.
[7] For these reasons, the appeal of the prothonotary"s decision is dismissed.
Judge
OTTAWA, ONTARIO
DECEMBER 3, 1998
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