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This was an appeal from a decision of the Trial Division dismissing H's application for an interlocutory injunction. It was a female inmate who had been serving her sentence at Matsqui Institution. Matsqui is normally a men's prison, but as it is not unheard of for women from the B.C. area to serve some part of their time there, H was being housed in the hospital area. While at Matsqui, H was enrolled in and completed half of a university degree program offered within the prison. The CSC then notified H that she was to be the subject of an involuntary transfer to a provincial prison for women. H objected and grieved the proposed transfer on the basis that her privileges and access to programs would be impaired strictly because of her sex. The grievance was denied and H launched an action in the trail division in which she sought declaratory relief, mandamus and injunction. As the transfer date be came imminent, H applied for an interlocutory judgment to prevent her transfer into the provincial system until the action had come to trial. The Trial Division heard that application and dismissed it-it is that decision that was the subject of the appeal.
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The Federal Court of Appeal allowed the appeal and granted the injunction pending trial. Hugessen J.A. held that the classic tripartite test for the granting of interlocutory injunctions was authoritatively enunciated by the Supreme Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 (S.C.C.). The three branches of the test are stated as follows: 1) Has the applicant demonstrated that there is serious 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 outweigh the harm to the applicant (the "balance of convenience")? Applying the test to the undisputed facts, the court held: a) 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. b) At Matsqui, the appellant had been following, with outstanding success, university courses organized and given by the Simon Fraser University in classrooms in the institution. She was more than half way to an Honours Degree. If transferred to Burnaby, she would only have been able to follow university courses by correspondence. The loss to her is immeasurable and will not be compensable by damages. That is irreparable harm. c) The appellant had been at Matsqui for more than two and a half years. While her presence not doubt caused the authorities some administrative inconvenience, they, to their credit, overcame it. In those circumstances, the balance of convenience clearly favoured the maintenance of the status quo. Whatever damage may have been caused to the public interest by leaving her in an institution primarily designed for men was relatively insignificant.
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