Court File and Parties

Citation: Dodd v. Isabel McNeill House, 2008 ONCA 539

Date: 20080704

Docket: M36418 (C48694, M36369)

Court of Appeal for Ontario

Feldman, MacPherson and Cronk JJ.A.

Between:

Lorie Dodd, Bonnie McAuley, Lisa Olsen and Ludmila Ilina

Appellants/Applicants

and

The Warden of Isabel McNeill House

Respondent/Responding Party

Counsel:

Allan Manson, agent for the applicants

Nancy Noble and Natalie Henein for the respondent

Heard and released orally: July 2, 2008

On motion to set aside the order of Justice Epstein dated May 23, 2008, denying a stay from the order of Justice Robert F. Scott of the Superior Court of Justice dated April 24, 2008.

Endorsement

[1] This is a motion to set aside the decision of Epstein J.A. dated May 23, 2008 whereby she declined to grant a stay of the order of Scott J. dated April 24, 2008, permitting the respondent to proceed with the closing of the Isabel McNeill House minimum security federal institution and to move the four current residents of that facility to Grand Valley Institution, a mixed maximum/ medium/ minimum security facility.

[2] In our view, the order should be set aside and a stay granted pending appeal. The motion judge concluded that she had concerns whether there was a serious issue to be tried on the basis, as found by Scott J. below, that the appellants’ real concern here was that they wanted to remain in Kingston. In our view, the section 7 and section 15 Charter issues raised in the application and the appeal are serious legal issues to be tried on the appeal and meet the first branch of the test in R.J.R.-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311.

[3] Turning to the next branch of the test, irreparable harm, in our view, although the extent of the irreparable harm that the four women would suffer by being moved for eleven weeks is not clear, we are satisfied that given their attachments to the Kingston area and their conditions within the Isabel McNeill House facility, they may well suffer some irreparable harm by being moved.

[4] Moreover, in our view, the balance of convenience clearly favours the appellants in this case. As the Supreme Court of Canada said at para. 66 of the R.J.R.-MacDonald case, those seeking Charter rights are promoting the public interest so that the positions of both sides favour an aspect of the public interest. However, in this case, because the respondent was prepared to give the court an undertaking not to close or sell the facility pending the appeal, and since the appellants have been at the facility for several years, the balance of convenience clearly favours them staying there pending the appeal.

[5] Accordingly, the motion to set aside the order of Epstein J.A. is granted, and a stay of the order of Scott J. is ordered pending the hearing of the appeal.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”