Date: 20000302
Docket: A-172-98
CORAM: DÉCARY, J.A.
SEXTON, J.A.
EVANS, J.A.
BETWEEN:
VICTOR WALCOTT
Appellant
- and -
EMPLOYMENT AND IMMIGRATION CANADA
TREASURY BOARD
Respondent
Heard at Toronto, Ontario on Thursday, March 2, 2000
Judgment delivered at Toronto, Ontario on Thursday, March 2, 2000
REASONS FOR JUDGMENT BY: SEXTON J.A.
Date: 20000302
Docket: A-172-98
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
VICTOR WALCOTT
Appellant
- and -
EMPLOYMENT AND IMMIGRATION CANADA
TREASURY BOARD
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
on Thursday, March 2, 2000)
SEXTON J.A.
| _. The Appellant was dismissed by Employment and Immigration Canada. The dismissal was upheld by a Public Service Staff Relations Board Adjudicator. The Appellant, having failed to launch an application for judicial review within the required time, applied to the Federal Court Trial Division for an extension of time to file his application. |
| _. The respondent had intended to oppose the extension of time but failed to file its material in opposition until after the Appellant had obtained an order extending the time from Mr. Justice Hugessen. |
| _. Mr. Justice Rothstein relying on the former Rule 330 granted the respondent"s application to receive its material in opposition because he determined that there was a mistake made by the Registry of the Court in not indicating to the Motions Judge that the Respondent had written a letter signifying its intention to file written submissions in opposition to the extension application. The Appellant had been sent a copy of this letter by counsel for the Respondent. |
| _. Mr. Justice Rothstein then proceeded to dismiss the application to extend the time for filing the application for judicial review on the ground that the Appellant did not have a reasonable chance of success in an arguable case. |
| _. The Appellant on his proposed judicial review application wishes to argue that the adjudicator erred in admitting certain evidence and in his findings of credibility. Before Rothstein J. he also argued that the lawyer who appeared on his behalf before the Adjudicator was incompetent. |
| _. We are not persuaded that the learned Motions Judge erred. On the issue of setting aside the order of Mr. Justice Hugessen, we are satisfied that the former Rule 330 was designed to cover just such a situation as occurred in the present case. |
| _. On the issue of the finding of the Motions Judge that the Appellant did not have a reasonable chance of success in an arguable case, we can find no palpable error. The determination as to credibility of witnesses and the weighing of evidence, as well the procedure for receiving evidence are matters with which an appeal Court will not normally interfere. In addition, the doctrine of judicial deference applies to decisions of Public Service Staff Board Adjudicator when made within the scope of their jurisdiction. |
| _. We will therefore dismiss the appeal with costs. |
"J. E. Sexton"
J.F.C.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| DOCKET: A-172-98 |
| STYLE OF CAUSE: VICTOR WALCOTT |
| - and - |
| EMPLOYMENT AND IMMIGRATION TREASURY BOARD |
DATE OF HEARING: THURSDAY, MARCH 2, 2000
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: SEXTON J.A. |
DELIVERED AT TORONTO, ONTARIO ON THURSDAY, MARCH 2, 2000.
APPEARANCES: Mr. Melvin I. Rotman
| For the Appellant |
Ms. Kathryn Hucal
| For the Respondent |
| SOLICITORS OF RECORD: Arnold, Falzone & Fyshe |
| Barristers & Solicitors |
| 439 University Avenue |
| Suite 2210 |
| Toronto, Ontario |
| M5G 1Y8 |
| For the Appellant |
| Morris Rosenberg |
Deputy Attorney General of Canada
| For the Respondent |
FEDERAL COURT OF APPEAL
Date: 20000302
Docket: A-172-98
BETWEEN:
| VICTOR WALCOTT |
Appellant
- and -
| EMPLOYMENT IMMIGRATION TREASURY BOARD |
Respondent
REASONS FOR JUDGMENT