A-841-91
Gayle Kathleen Horii (Appellant) (Plaintiff)
v.
Her Majesty the Queen, the Attorney General of
Canada, the Solicitor General of Canada, the
Commissioner of Corrections, the Deputy
Commissioner of Corrections (Pacific), the
Institutional Head of Matsqui Institution, the
Institutional Head of Ferndale Institution
(Respondents) (Defendants)
INDEXED AS: HOR71 V. CANADA (CA.)
Court of Appeal, Heald, Hugessen and Desjardins
JJ.A.—Ottawa, August 29 and September 5, 1991.
Penitentiaries — Appeal from dismissal of application for
interlocutory injunction preventing convict's involuntary trans
fer from Matsqui Institution to provincial women's prison at
Burnaby, B.C. — Appellant serving life sentence of imprison
ment — Only female inmate at Matsqui — Halfway through
university degree program within institution — Program
unavailable at Burnaby — Commencing action in Trial Divi
sion for declaratory and other relief alleging discrimination
based on sex — Applying for interlocutory injunction when
transfer date imminent — Trial Judge, in denying application,
not applying tripartite test in Manitoba (Attorney General) v.
Metropolitan Stores Ltd. — Allegation involuntary transfer
solely because woman raising serious issue to be tried —
Inability to continue studies irreparable harm not compensable
in damages — Balance of convenience favouring maintenance
of status quo as administrative problems of having female con
vict at Matsqui largely overcome.
Judicial review — Equitable remedies — Injunctions — Pen
itentiaries — Transfer to provincial institution, because sole
female inmate at Matsqui Institution precluding continuation
of university studies — Action for declaratory and other relief
alleging discrimination based on sex — Trial Judge denying
interlocutory injunction as (l) Court should not interfere with
daily operation of institutions; (2) matters in state of flux (orig-
inal concern transfer to maximum security proved unfounded);
(3) harm speculative as in future; and (4) constitutional ques
tions should not be decided on interlocutory application —
Appeal allowed — (1) Whether unfavourable treatment based
on sex part of daily operation of institution irrelevant to
injunction application — (2) That one of appellant's concerns
unfounded not reason to dismiss others as groundless —
Uncontradicted evidence university courses unavailable at
provincial institution — (3) Harm not speculative because in
future — Need not wait for damage to occur before seeking
injunction, purpose of which to prevent harm — Likelihood of
harm important — (4) Application not attacking constitutional
ity of legislation but respondent's proposed actions — Trial
Judge failing to apply test in Manitoba (Attorney General) v.
Metropolitan Stores Ltd.
Practice — Judgments and orders — Trial Judge orally dis
missing interlocutory injunction application without endorsing
record or filing document to that effect — Creating problem for
parties as no judgment to appeal from — Duty of presiding
judge to pronounce judgment by separate document (R.
337(2)(a)) or by endorsing it on record (R. 337(7)).
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Criminal Code, R.S.C., 1985, c. C-46, s. 747.
Federal Court Rules, C.R.C., c. 663, R. 337(2),(7).
CASES JUDICIALLY CONSIDERED
APPLIED:
Manitoba (Attorney General) v. Metropolitan Stores Ltd.,
[1987] 1 S.C.R. 110; (1987), 38 D.L.R. (4th) 321; [1987]
3 W.W.R. 1; 46 Man. R. (2d) 241; 25 Admin. L.R. 20; 87
CLLC 14,015; 18 C.P.C. (2d) 273; 73 N.R. 341.
REFERRED TO:
Yri-York Ltd. v. Canada (Attorney General), [1988] 3 F.C.
186; (1988), 30 Admin. L.R. 1; 16 F.T.R. 319; 83 N.R.
195 (C.A.); Turbo Resources Ltd. v. Petro Canada Inc.,
[1989] 2 F.C. 451; (1989), 22 C.I.P.R. 172; 24 C.P.R. (3d)
1; 91 N.R. 341 (C.A.).
COUNSEL:
John W. Conroy for appellant (plaintiff).
Mary A. Humphries for respondents (defend-
ants).
SOLICITORS:
Conroy & Company, Abbotsford, B.C., for
appellant (plaintiff).
Deputy Attorney General of Canada for respon
dents (defendants).
The following are the reasons for judgment ren
dered in English by
HUGESSEN J.A.: This is an appeal from a decision of
the Associate Chief Justice [T-1435-91] announced
from the bench on July 24, 1991, but only formally
pronounced and entered on August 13, 1991. By the
order under appeal the Associate Chief Justice dis
missed the appellant's application for an interlocu
tory injunction.
The appellant is serving a life term for second
degree murder. Under the terms of her sentence she
will not be eligible for parole until February 27,
1996. By the operation of section 747 of the Criminal
Code [R.S.C., 1985, c. C-46] she cannot be paroled
before that date and cannot be granted an absence
without escort or day parole prior to February 27,
1993. Even absences under escort prior to that date
require the approval of the National Parole Board.
For a little more than two and a half years, since
February, 1989, the appellant has been serving her
sentence at Matsqui Institution in British Columbia.
Matsqui is normally a men's prison but it is not
unheard of for women from the British Columbia
area to serve some part of their time there. The appel
lant's situation is thus exceptional but not unique.
She is housed in the hospital area of the prison and,
apart from a curtain covering the outside window of
her cell door, no special physical disposition has been
required to accommodate her. There is evidence,
however, that the presence of a woman inmate in a
male institution has caused some difficulties to the
authorities from the point of view of supervision and
security. While she is presently the only woman pris
oner in Matsqui, she is, by no means, the only
woman on the site since the institution's staff is made
up of members of both sexes.
While at Matsqui, the appellant has benefited fully
and with outstanding success from the university pro
gram offered within the institution by Simon Fraser
University. This program involves classes given in
the institution with personal interaction between
professors and students. The appellant has been the
highest achiever in that program and has won four
awards for highest grades. She has presently acquired
sixty-seven credits towards the one hundred and
thirty-two required for an honours degree in sociol
ogy.
On April 30, 1991, the appellant was notified that
she was to be the subject of an involuntary transfer to
the Burnaby Correctional Centre for Women, a pro
vincial prison. She objected to the proposed transfer
claiming among other things that the programs avail
able to her at Matsqui, especially the university pro
gram, would not be available to her in the provincial
facility. She grieved the proposed transfer on the
basis that her privileges and access to programs
would be impaired strictly because of her sex. The
proposal to transfer her was maintained by the cor
rectional authorities.
On May 31, 1991, the appellant launched an action
in the Trial Division in which she sought declaratory
relief, mandamus and injunction. On June 7, 1991,
her transfer date being imminent, she applied for an
interlocutory injunction to prevent her transfer into
the provincial system until the action had come to
trial. The Associate Chief Justice heard that applica
tion on July 24, 1991, and it is his judgment dis
missing it which is the subject of the present appeal.
It is not apparent from a reading of the reasons of
the Associate Chief Justice that he had applied his
mind to the now classic tripartite test for the granting
of interlocutory injunctions. That test was authorita
tively enunciated by the Supreme Court of Canada in
Manitoba (Attorney General) v. Metropolitan Stores
Ltd. I. It has subsequently been commented on and
applied on a number of occasions in this Court of
which Yri-York Ltd. v. Canada (Attorney Gen
eral) 2 and Turbo Resources Ltd. v. Petro Canada
Inc. 3 are but examples. Briefly stated the three
branches of the test are:
1) Has the applicant demonstrated that there is a seri
ous issue to be tried?
2) Will the applicant suffer irreparable harm if an
injunction is not granted?
3) Will the harm to the respondent or to the public
interest in the event that an injunction is granted out
weigh the harm to the applicant (the "balance of con
venience")?
As I read the Associate Chief Justice's reasons, he
found four grounds for refusing the injunction.
In the first place, he indicated that the Court should
not be involved in "running these institutions on a
day to day basis" (reasons, page 2). That sentiment,
while no doubt quite proper in its place, seems to me
to be quite irrelevant to the question as to whether or
not an injunction should be granted. The Judge had
before him an application alleging that the applicant
was receiving differential and unfavourable treatment
because of her sex. Whether this happened as a part
of the day-to-day running of the institution or was
some exceptional event has really no bearing on the
matter.
Secondly, the Judge indicated that it would be
improper for the Court "to enter into these matters
when they are still in- a state of flux" (reasons, page
3). In this, he was referring to the fact that the mate
rial before him showed that some of the concerns
originally expressed by the appellant in grieving the
proposed transfer had been resolved. In particular, the
appellant had been given to understand, at first, that
she was to be transferred into maximum security at
the Burnaby Correctional Centre for Women. That
would indeed have been a major blow since Matsqui
is a medium security institution and the appellant her
1 [1987] 1 S.C.R. 110.
2 [1988] 3 F.C. 186 (C.A.).
3 [1989] 2 F.C. 451 (C.A.).
self is recognized by the federal authorities to be a
very low security risk, qualifying for admission to a
minimum security facility. In fact, the appellant's
concerns in this regard, although entirely justified by
what she had been told by the authorities, turned out
to be unfounded. The transfer, if it takes place, will
be to the minimum security section at Burnaby.
The fact, however, that one of the appellant's
major concerns turned out to be unfounded gives no
reason for saying that the others are or are likely to
be equally groundless. Indeed, the material before the
Judge was clear and uncontradicted that the Simon
Fraser University courses which were being given in
classes conducted by professors coming to Matsqui
Institution were not available at Burnaby and that the
most she could hope for there was correspondence
courses, probably from other institutions of learning.
The third ground invoked by the Judge was stated
by him as follows:
The basis of the application is the fear that when the transfer
is completed, the Applicant's rights will be prejudiced. That is
a future event and it is a speculative fear. R is as counsel calls
it, a gamble. Why should she be asked to gamble on her charter
of rights? But if it remains that the simple answer in terms of
law or this kind of application is that if she is in fact gambling,
if it is speculation, if it is a future event, then it is premature to
grant the relief sought.
(reasons, page 5)
This is manifestly wrong. The fact that the harm
sought to be avoided is in the future does not make it
speculative. An applicant for an injunction does not
have to wait for the damage to occur before seeking
relief. In fact, the principal purpose of an interlocu
tory injunction is to prevent threatened harm before it
happens. It is the likelihood of harm, not its futurity,
which is the touchstone.
Finally, the Judge said:
The basis of the relief sought is that the charter rights of this
Applicant will be offended by the transfer. Clearly charter
rights, charter cases, constitutional law and emergency reme-
dies don't go hand in hand very comfortably. Constitutional
questions should be settled in the comprehensive atmosphere
of a trial where both facts and the law are argued very fully.
Constitutional questions should not be decided unless abso
lutely necessary in the more urgent and foreshortened proceed
ing of an interlocutory application which is what this is.
(reasons, pages 6 and 7)
While it is, of course, the case that constitutional
questions, like any other disputed issue of law or fact,
should not be finally decided on interlocutory appli
cations, the whole burden of the discussion of the
Supreme Court in the Metropolitan Stores case supra
was as to the proper approach to be taken by the
Court where an interlocutory injunction is sought on
the basis of an attack on the constitutionality of legis
lation. The present application, however, is not such a
case: it is the appellant's contention that the respon
dents' proposed actions, rather than any legislation,
are going to cause her damage. The fact that the
alleged Charter breach is by public authorities acting
in what they conceive to be the public interest is cer
tainly a factor to be considered in weighing the bal
ance of convenience, but that is a very different thing
from suggesting, as the Judge seems to in the passage
quoted, that Charter rights are not eligible to be pro
tected by interlocutory injunction.
As I have indicated earlier, it does not appear that
the Associate Chief Justice had to mind the classic
tripartite test. In my view, if he had applied that test
to the undisputed facts as revealed in the material
before him, he would necessarily have concluded as
follows:
1) If the appellant was not a woman she would not, as
a matter of longstanding correctional service policy,
be transferred into a provincial institution without her
consent. She is now threatened with such a transfer
against her will solely because she is a woman. That
raises a serious issue to be tried.
2) At Matsqui the appellant has been following, with
outstanding success, university courses organized
and given by Simon Fraser University in classrooms
in the institution. She is presently more than halfway
to an honours degree. If transferred to Burnaby, she
would only be able to follow university courses by
correspondence. The loss to her is immeasurable and
will not be compensable by damages . 4 That is irrepa
rable harm.
3) The appellant has presently been at Matsqui for
more than two and a half years. While her presence
has no doubt caused the authorities some administra
tive inconvenience they have, to their credit, over
come it. In those circumstances, the balance of con
venience clearly favours the maintenance of the
status quo by leaving her where she is. History has
demonstrated that whatever damage may be caused to
the public interest by leaving her in an institution pri
marily designed for men is relatively insignificant
and has been adequately coped with to date.
That, as it seems to me, is the end of the matter.
One other point calls for comment. I draw atten
tion to it because it seems, regrettably, not to be an
isolated instance. As I have indicated, the reasons for
judgment herein were given orally July 24, 1991.
Towards the end of those reasons the Judge said:
"Accordingly, for reasons given orally from the
Bench, this application is dismissed." He did not,
however, as he should have, endorse the record or
otherwise file a document to that effect. This was the
source of considerable difficulty for the parties. The
appellant wished to file a notice of appeal but was
unable to do so since there was no judgment to
appeal from. The respondents, for their part, knew
that they had won in first instance but could not tell
whether or when the matter was to be carried further.
Appellant's counsel was put to unseemly and unnec
essary difficulty in having the registry track down the
4 The Judge himself seems to have recognized this. In a pas
sage towards the conclusion of his reasons he said:
This Applicant has been encouraged to commence and is
in the middle of pursuing a degree at Simon Fraser Univer
sity. It would be loathsome in the extreme, in my opinion, if
anything were to happen to prejudice that opportunity.
(reasons, page 8)
Judge during the summer vacation so that he could
sign the necessary order.
The relevant provisions are Rules 337(2) and (7)
(Federal Court Rules, C.R.C., c. 663]:
Rule 337... .
(2) When the Court has reached a conclusion as to the judg
ment to be pronounced, it shall, in addition to giving reasons
for judgment, if any,
(a) by a separate document signed by the presiding judge,
pronounce the judgment (Form 14); or
(b) at the end of the reasons therefor, if any, and otherwise
by a special declaration of its conclusion, which may be
given orally from the bench or by a document deposited in
the Registry, indicate that one of the parties (usually the suc
cessful party) may prepare a draft of an appropriate judg
ment to implement the Court's conclusion and move for
judgment accordingly (which motion will usually be made
under Rule 324.)
(7) This Rule applies, with necessary changes, to the pro
nouncement of interlocutory judgments or orders by the Court,
a judge or a prothonotary except that, in any such case, a judg
ment or order under paragraph (2)(a) need not be made by a
separate document but may be endorsed by the presiding judge
or the prothonotary, as the case may be, on the notice of
motion or some other convenient document on the Court file.
This was not a case to which the provisions of par
agraph 337(2)(b) apply; the procedure under that par
agraph is, in any event, reserved for "special" cases,
usually where the formal judgment requires some
detailed recitals or calculations. Since the application
was of an interlocutory nature, the relevant provi
sions are paragraph 337(2)(a) and Rule 337(7). The
"shall" of Rule 337(2) is mandatory.
It would have been simplicity itself for the Judge
to have written out and signed the appropriate order
either by a "separate document" (Rule 337(2)(a)), or
by endorsing it on the record (337(7)). It was his duty
to do one or the other.
I would allow the appeal, set aside the order
appealed from and substitute therefor an order
enjoining the respondents, or any of them, from
transferring the appellant to the Burnaby Correctional
Centre for Women without her consent pending final
judgment herein. The appellant is entitled to her costs
of the appeal, including any reasonable disburse
ments occasioned by the attendance of counsel at the
hearing of this appeal at a special session in Ottawa.
HEALD J.A.: I concur.
DESJARDINS J.A.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.