Natalie Henein

The applicants brought a motion to set aside an order denying a stay of a lower court decision that permitted the closure of a minimum-security federal institution and the transfer of its residents.

The Court of Appeal applied the R.J.R.-MacDonald test and found that the Charter issues raised constituted a serious issue to be tried.

The court also found that the applicants might suffer irreparable harm if moved, and that the balance of convenience favoured granting the stay, particularly given the respondent's undertaking not to close or sell the facility pending the appeal.

The motion was granted and a stay was ordered.

The appellants, female inmates at a minimum-security penitentiary scheduled for closure, were ordered transferred to a multi-level institution.

They applied for a writ of habeas corpus to prevent the transfer.

The application judge adjourned the matter but stated there would be no deprivation of liberty, effectively refusing the writ.

The Court of Appeal held this constituted a refusal, granting a right of appeal.

The Court found the appellants met the threshold of probable and reasonable grounds that the transfer would constitute unlawful detention, allowed the appeal, and ordered the writ to issue while keeping the appellants at their current institution pending the return of the writ.