Black et al. v. City of Toronto

A motion for an interlocutory injunction was brought to prevent the City of Toronto from enforcing its By-law that prohibited camping and erecting tents, structures, and shelters in City parks, City of Toronto Municipal Code, c. 608. The applicants did not challenge the validity of the By-law but sought an order to have it suspended during the COVID-19 pandemic to prevent the city from removing homeless individuals from park encampments. 

The applicants include fourteen individuals experiencing homelessness and evidence was filed from three individual applicants who were living in park encampments. All three applicants expressed concern about contracting COVID-19 in shelters, and also identified other physical and mental health concerns relevant to their choice to stay in encampments.

Derrick Black, who has diabetes and mobility issues, was concerned about the location and restrictions associated with moving into a hotel room operated by the City. John Cullen, who has a learning disability and depression, considered the encampment community to be better for his mental health. Katelynn Bowman is an intersex person and part Ojibwe; she also suffers various mental health challenges including trauma and PTSD as a victim of discrimination. She stated that she would not feel safe in a shelter due to the risk of facing discrimination and contracting COVID-19, and that she would experience stress and anxiety whether she stayed on the streets or in a shelter if she was removed from an encampment.

The City provided evidence of the concerns arising from the park encampments as well as their COVID-19 responses in their shelter system and housing efforts. According to the City’s counsel, the City had not acted to enforce the By-law at the time of the trial but had made efforts to move a large number of homeless individuals into shelters and hotels, including many of the individual applicants.

The applicants argued that enforcing the By-law would unjustifiably violate their rights under ss. 7, 12 and 15 of the Canadian Charter of Rights and Freedoms and would also be inconsistent with ss. 1, 2, 11 and 47(2) of Ontario’s Human Rights Code.

The Court applied the three-part test outlined in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at p. 334 when considering an interlocutory injunction:

1. Is there a serious issue to be tried?
2. Will the applicant suffer irreparable harm if the injunction is not granted?
3. Which party will suffer the greater harm if the injunction is granted or refused (a balance of inconvenience test)?

A serious issue to be tried

The Court held that the evidence supported serious issues to be tried based on protections under the Charter. First, the Court found a potential infringement of the applicants’ right to security of the person under s. 7 of the Charter, acknowledging that requiring people to leave encampments to either move to another location or into a shelter can cause physical and psychological distress as well as impose risks on their health. The Court also recognized that people experiencing homelessness have a higher risk of severe COVID-19 outcomes and that homeless shelters are particularly susceptible to infectious disease due to their congregate nature and shared facilities, which makes preventative measures such as physical distancing and maintaining proper hygiene difficult to maintain.

The Court also found that a serious issue to be tried concerning equality rights under s. 15 of the Charter and the Human Rights Code. Expert evidence showed that the homeless population had disproportionate levels of mental and physical health concerns and drug dependencies, as well as an overrepresentation of Indigenous peoples experiencing intergenerational trauma and non-heterosexual individuals who may have faced discrimination in shelters. The Court found that the applicants’ evidence regarding the discriminatory impact on several enumerated (and analogous) grounds set out in Charter and Human Rights Code if the bylaw were enforced, as well as a potential breach of the duty to accommodate, met the test for a serious issue to be tried.

However, the Court held that the City’s evidence regarding steps the it has taken to provide sufficiently safe shelters and reasonably accommodate its homeless population in the shelter system made it likely that any ss. 7 and 15 violations would be justified under s. 1 of the Charter.

Irreparable harm

The Court held that the irreparable harm test was met. Irreparable harm refers to the nature of the harm such that it can not be quantified for monetary damages, nor remedied by them. The Court cited prior jurisprudence recognizing that risk of personal injury, assault, and serious psychological harm would qualify as irreparable harm.

The applicants argued that forced removal from encampments would lead to irreparable harm in the form of  psychological and physical harm associated with displacement and the risk of losing possessions, shelter, community supports, and access to basic resources such as clean water, sanitation supplies, food, and medical care. Irreparable harm was also argued to arise from the substantial risk of contracting COVID-19 and the mental distress associated with this risk, as the applicants contended that the City’s shelter system was not shown to be a safer alternative to outdoor encampments.

Although the City gave evidence of its efforts to ensure the safety of the shelter system, the Court noted that the City’s status as a municipality would prevent awarding damages unless there was underlying or intentional wrongdoing. Considering that a remedy was unlikely even if it was subsequently determined that the applicants’ rights were infringed, the Court held that the irreparable harm test was met.

Balance of inconvenience

The Court held that the applicants did not establish a balance of inconvenience in favour of suspending the City’s enforcement of the impugned By-law.

The Court found that the City’s response to the COVID-19 pandemic across Toronto’s homeless shelters, aimed at mitigating transmission of the virus, was robust and complex, and expeditious. Among other measures, the City opened 30 new shelter facilities, secured 1,200 rooms at hotels, and implemented standards for physical distancing and infection control measures including providing personal protective equipment, cleaning supplies, and 2-metre lateral spacing between beds in shelters. The Shelter Support and Housing Administration (“SSHA”), which operates Toronto’s shelter system, implemented extensive measures across  shelters, including screening programs and a transport service to move symptomatic individuals to a COVID-19 Assessment Centre, with separate sites established for those awaiting results and those who tested positive.

The Court found that the destabilizing effects of relocating encampment residents, while real, were not unique to the COVID-19 pandemic. The Court also found that the City accommodated relevant COVID-19 concerns by making efforts to provide more individual rooms, apartment units, and separation in dorm-style shelters, as well as modifying visitor rules in shelters and hotels to reduce the risk of overdose if drugs were consumed alone. The Court also found that there was no evidence that the shelter system lacked the capacity to safely accommodate the homeless population currently living in encampments.

The Court also noted the various COVID-19-related concerns with encampments outlined by the City, including limited or nonexistent sanitation facilities, inadequate physical distancing, lack of access to clean running water and masks, and the presence of rats. Although no evidence about COVID-19 transmission was presented, expert evidence acknowledged that tracking outbreaks in encampments would be difficult compared to tracking in shelters. Additionally, the City provided data showing hundreds of complaints related to parks with encampments regarding physical distancing, fires, public drug use, garbage, violence, theft, noise, and human waste. These reflect concerns for the encampment inhabitants as well as other park users, neighbours, and City staff. Consequently, while the City provided support to encampments, it and SSHA prioritized allocating resources to adapting Toronto's shelter system and moving homeless people from encampments to indoor spaces through outreach efforts in collaboration with community organizations.

Citing RJR-MacDonald, the Court stated that public interest is an important factor in motions for injunctions concerning constitutional rights. In the present case, the Court held that the public interest favoured the City. The Court considered public outdoor spaces including City parks to have heightened importance in the context of the pandemic. The public interest purpose of the By-law was to make City parks available to everyone, which the Court found to outweigh the applicants’ goal of preventing its enforcement. The Court found that the City adequately addressed the applicants’ concerns about the shelter system related to COVID-19 and provided safe alternatives to encampments, and the remaining concerns were not specific to the pandemic and thus did not justify suspending enforcement of the By-law during the pandemic, which would be for an indefinite duration. As a result, the Court held that the balance of inconvenience was in favour of the City and the public interest of allowing the parks to be available as a common resource through enforcing the By-law.

Conclusion

The Court held that the applicants did not meet the test for injunctive relief and dismissed the motion.

"The increased risk from COVID-19 is due to the generally poorer health of those experiencing homelessness, leaving them more vulnerable to more severe outcomes when infected. Compared to the general population, homeless people have shorter life expectancy and significantly higher rates of chronic diseases including cardiovascular and respiratory diseases, diabetes, Hepatitis C, HIV/AIDS, as well as a high prevalence of mental illness, cognitive impairment and substance abuse. Primary risk factors for severe outcomes from COVID-19 are age and pre-existing health conditions such as chronic lung disease, cardiac conditions, diabetes and immune deficiency; the latter of which may be the result of any one of a variety of causes, but which includes underlying HIV and/or Hepatitis C infection.” (Paragraph 55).

“The homeless population may have little, if any, access to basic sanitation services such as washrooms, showers, handwashing and drinking water, all of which makes them more vulnerable to diseases and viruses. Public urination and defecation creates broader public health concerns. There is a high incidence of violent crime, including sexual offences, and property crime involving the homeless population. The vulnerability of many to being victimized and exploited is exacerbated by drug dependencies, mental illness and cognitive disabilities, making some individuals easy targets for robbery, assaults, sexual assaults and trafficking.” (Paragraph 56).

"I observe, in this context, that the applicants do not challenge the validity of the By-law itself, but only argue that its application is unconstitutional during the pandemic. Thus, the case turns very much on the facts before the Court of the specific circumstances that arise due to the COVID-19 pandemic, and what has been done by the City to address it. The evidence from the City, which I review below, supports its position that the it is providing sufficient and safe shelter facilities during the pandemic such that any violation of life, liberty and security of the person, or equality rights, is limited and likely to be justified under s. 1 of the Charter, as homeless people are being reasonably accommodated in the shelter system, a conclusion also supported by the many people who have left encampments and been provided with shelter and housing by the City in the past several months.” (Paragraph 66).

“In this case the applicants submit that irreparable harm will be suffered by people in encampments if the City By-laws are enforced and they are forcibly removed from encampments. This harm includes: (1) psychological and physical harm through displacement, the loss of shelter and the ability to protect themselves and meet their basic needs; and (2) a real and substantial risk of contracting COVID-19 within the City's shelter system, and associated mental distress, due to their inability to shelter in place.” (Paragraph 70)

“While I appreciate that some people experiencing homelessness continue to distrust, or fear, the shelters during the pandemic, the evidence does not support those concerns. The applicants’ fears of shelters due to COVID-19 have been addressed by the City such that there are adequate safe alternatives to sleeping in encampments. One is left with a situation where a limited group of people, such as the three applicants who gave evidence on this motion, may continue to resist using the shelter system despite the City’s best efforts. This resistance is not unique to the pandemic, and does not, in my view, give rise to a right to live in encampments in City parks, contrary to a valid By-law, during the course of the COVID-pandemic.” (Paragraph 149)