Injunction Against Removing Homeless Encampments Foretells Likely Outcome of Charter Challenge

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photos shows a group of tents alongside a roadway

Joey Coleman/The Public Record

A homeless encampment on Ferguson Avenue North in July 2020

A coalition of parties secured an ex-parte interlocutory injunction prohibiting the City of Hamilton from enforcing by-laws to remove two homeless encampments. The injunction is for ten days.

The coalition is challenging the City’s by-law prohibiting camping within urban areas of Hamilton. Similar blanket prohibitions on overnight camping have been struck down in British Columbia as violating the Charter of Rights and Freedoms.

Counsel for the parties, Wade Poziomka, of Ross & McBride, announced the legal win just after midday on Thursday.

The Hamilton Community Legal Clinic, one of the parties in the coalition challenging the by-law (the ‘Applicants’ in legal terminology), characterized the injunction as a “big win for encampment residents”.

This short-term injunction is straight-forward. From the perspective of natural justice, with a pending Charter challenge to the by-law, it is in the interest of justice that no party takes an action which is irreversible. A comparable familiar to many of us is the freezing of eviction orders issued by the Landlord Tenant Board when a party subject to eviction appeals the LTB decision to the Divisional Court.

The legal mechanism for an interlocutory injunction is slightly more complicated than just stating natural justice.

Without the benefit of seeing the injunction motion, and not yet having the judge’s written decision available I will  discuss the common grounds and test for an injunction. (On urgent motions such as this, the reviewing judge issues an oral decision and written reasons follow)

Thus, I write with an assumption no novel arguments are being advanced in this case.

The common test applied in deciding on an injunction motion is articulated in the 1994 Supreme Court of Canada decision RGR -MacDonald Inc. v. Canada (Attorney General).

The test consists of three conjunctive parts.

They are: 1) there is a serious question of law to be tried; 2) the applicant will suffer irreparable harm if the injunction is not granted; and 3) the balance of convenience favours the interlocutory injunction.

If the injunction motion fails any of the tests, it is not granted.

First Test:

The threshold for this test is easiest of the three. The constitutionality of by-laws prohibiting the use of tents and prohibiting sleeping in public places is a serious question of Charter law which has not been conclusively decided in Ontario.

Second Test:

Will the applicants (in this case the persons living in the encampments who are named parties within the coalition) suffer irreparable harm? The answer in this case is yes, if their encampment is removed, it is likely they will not be able to resume their encampment in the event the Court rules in their favour.

Third Test:

In this circumstance, the third test is slightly more complex as the case involves a Charter challenge.

In Charter cases, the judge deciding on the motion must consider the broader public interest involved. This makes the third part of the test more complex in this case. Without the benefit of the filings and decision in this case, I’m loath to make assumptions about how the Court decided this third test.

I’ll provide you with an instructive section of the Supreme Court of Canada decision RGR -MacDonald Inc. v. Canada (Attorney General).

“Consideration of the public interest may also be influenced by other factors. In Metropolitan Stores, it was observed that public interest considerations will weigh more heavily in a “suspension” case than in an “exemption” case. The reason for this is that the public interest is much less likely to be detrimentally affected when a discrete and limited number of applicants are exempted from the application of certain provisions of a law than when the application of the law is suspended entirely.”

The injunction sought a suspension of enforcement in the case of existing encampments.

On the balance of convenience, it is fairly straight forward that people living in the encampments would be more inconvenienced by immediate removal than the City of Hamilton will be by a delay in removing the encampments.

Encampment Decisions by British Columbia’s superior court

This matter is being actively litigated in British Columbia, with decisions which are instructive to the situation in Hamilton.

Before continuing, it is important to note the Supreme Court of British Columbia is the superior (lower) trial court in that province, and not “supreme” in the sense of being an appellant or final court. Thus, the Ontario Superior Court of Justice will consider BC decisions in deliberations, but these rulings do not create the precedential value of higher court decisions.

The current state of law in BC is that municipalities cannot impose blanket bans upon overnight camping.

In Abbotsford (City) v. Shantz, 2015 BCSC 1909, Chief Justice of the Supreme Court of British Columbia Christopher E. Hinkson ruled municipal bylaws which “prohibit sleeping or being in a City park overnight or erecting a temporary shelter without permits violate s. 7 of the Charter, and are of no force or effect, and are not saved by s. 1 of the Charter. The declaration is limited to overnight stays between 7:00 p.m. and 9:00 a.m. the following day.”

Since Shantz, the BCSC has dealt with the question of municipalities removing tents (encampments) and granted injunctions approving daytime removals.

Saanich (District) v Brett, 2018 BCSC 1648, is informative regarding the post-Shantz framework for overnight camping as the courts are determining it.

There are now at least two post-COVID BCSC orders granting injunctions allowing municipalities to dismantle encampments: a ruling by BCSC Chief Justice Hinkson issued June 10th, and a ruling (written decision pending) made earlier this week in Victoria.

What’s Next

The decision to grant an injunction which expires in ten days allows for all parties to prepare and submit fuller arguments to the court. In the meanwhile, the City and Applicants could meet to reach an out-of-court settlement regarding next steps.

The City will now have a few days to submit arguments against the extension of the injunction once the ten days expire. The City will be able to argue the Applicants have not met the requirements of the second and third test by submitting evidence of harms resulting from the encampments. For example, this could include affidavits from nearby residents of the impacts they are experiencing, reports from Police of crime associated with the encampments, statements from public health regarding sanitary conditions.

We should expect the Ontario Superior Court to make a similar ruling as that of BCSC Chief Justice Hinkson in Shantz. Other groups have launched similar Charter challenges against by-laws in other Ontario municipalities. With the decision of Hamilton City Hall to move to dismantle encampments, the Hamilton case is likely to be granted greater urgency by the Superior Court. Thus, the Hamilton case may be the determinant one for Ontario’s municipalities.

Likely, Hamilton City Council will need to pass a new by-law allowing overnight camping, and to decide what supports need to be put in place to uphold the Charter Rights of Hamilton’s homeless population.

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First published: July 31, 2020
Last edited: July 31, 2020
Author: Joey Coleman

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