Court File and Parties

COURT FILE NO.: 23-00708344-0000 DATE: 20231120

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: CHURCH OF SAINT STEPHEN-IN-THE-FIELDS, CHAD SCOTT, and PERSONS UNKNOWN AND TO BE ASCERTAINED Applicants

AND:

THE CITY OF TORONTO Respondent

BEFORE: Koehnen J.

COUNSEL: Samara Secter, Jocelyn Rempel for the applicants Michele Brady, Alison Barclay, Molly Lowson for the respondent

HEARD: November 17, 2023

Endorsement

[1] The applicants move for an interlocutory injunction to prohibit the respondent from clearing a homeless encampment in front of the applicant Church pending the hearing of an application to strike the bylaw pursuant to which the respondent seeks to clear the encampment. The applicants submit that the bylaw breaches s. 7 of the Canadian Charter of Rights and Freedoms.

[2] I decline to grant the interlocutory injunction. The applicants have demonstrated a serious issue to be tried. The applicants have also demonstrated what in my view is an immaterial degree of irreparable harm in that they may have no effective remedy if they succeed on the main application because of the potentially higher threshold required to sue governments for their conduct. The harm that residents of the encampment face is minimal however because they have been offered accommodation in hotel shelters for an indefinite period of time. The balance of convenience heavily favours the respondent. On the one hand, the applicants seek the right to reside at the encampment. The encampment has them living in tents in sub-zero temperatures. Three fires have already broken out in the encampment. One razed the encampment to the ground. The encampment represents a serious fire risk to its residents, passersby and to the Church building. On the other hand, the City’s alternative is to house residents in hotel shelters where each has a private room with lock and key. The alleged harm to which the residents are being put under the respondent’s option is preferable to the health and safety risks that remaining in the encampment entail.

The Applicants

[3] The applicant, Saint Stephen - In - The Fields, is a Church on the southeast corner of College Street and Belview Avenue in the City of Toronto. The encampment in question is in front of the Church. The Church is run by Reverend Maggie Helwig. The Church and Reverend Helwig have provided residents of the encampment and other homeless individuals with meals, support and help accessing social services. The Church advocates on behalf of encampment residents, including transient residents and future residents that the Church refers to as Persons Unknown and to be Ascertained.

[4] The applicant, Chad Scott is 35 years old. He describes himself as having been homeless since age 15. He has been in and out of shelters including shelter hotels. He describes himself as a resident of the Saint Stephen’s encampment although it appears that he is more of an occasional resident and appears to have an apartment of some sort. [1]

Background Facts

[5] The respondent City of Toronto (“the City”) administers a central intake line for its homeless shelters. The people who call that line are referred to homeless shelters. The City maintains approximately 9000 shelter beds but admits that its central intake line turns away approximately 275 people who need shelter every night.

[6] The encampment has existed on two plots of land in front of the Church since 2022. The two plots lie between the Church and the sidewalks. The north Plot is approximately 80 square metres (861 square feet). The south Plot is approximately 57 square metres (613 square feet). Each is the approximate size of a one-bedroom apartment. Both plots are City land. There are between 2 and 14 residents living on the site at any one time. At least some of the residents are hoarders. As a result, there is a considerable accumulation of material on the site.

[7] There have been three fires at the encampment this year. One in February, one in April and one earlier this month. Photographs of the aftermath of the April fire show charred remnants of residents’ property throughout.

[8] The encampment sits at the end of a busy residential street approximately 50 metres from a school and a day care centre.

[9] The City now wishes to clear the encampment. As part of doing so, it has designated the site as a priority encampment which means that it has offered residents accommodation in hotel shelters for an indeterminate period of time. That is essentially as long as the resident needs shelter.

Analysis

[10] The test for an interlocutory injunction is well known. The party seeking the injunction must demonstrate that:

(a) there is a serious issue to be tried;

(b) the moving party will suffer irreparable harm if the injunction is not granted; and

(c) the balance of convenience favours the granting of the injunction. [2]

[11] The three questions must be assessed as a whole. Strength on one branch may compensate for weakness on another. [3]

(a) Serious Issue to be Tried

[12] The City concedes that the applicant has raised a serious issue to be tried.

[13] The applicant submits, however, that where, as a practical matter, the rights of the parties are determined by the interlocutory injunction, the court may give significantly more weight to the strength of this issue when balancing the three-part test than to the other issues. [4] Doing so does not affect my analysis.

(b) Irreparable Harm

[14] The applicants submit that the residents will suffer irreparable harm if the encampment is cleared. Neither the Church nor the individual applicant, Mr. Scott, claim irreparable harm to themselves.

[15] The applicants point to medical evidence showing the serious detrimental effects of clearing encampments which include respiratory diseases, frostbite, trench foot and hypothermia due to prolonged exposure to cold, wet conditions and discontinuity of medical care. They submit that these harms are irreparable because it is not possible to quantify the psychological harm that arises from moving community, discontinuity of support and increased medical risk.

[16] I accept the applicants’ medical evidence about the detrimental outcomes of clearing encampments. That medical evidence is contained primarily in the affidavits of Dr. Jonathan Wong, sworn October 24, 2023 and of Dr. Stephen Hwang, sworn October 25, 2023. A closer read of those affidavits, however, discloses that the dangers of which they speak arise not so much from the clearing of encampments as from the lack of shelter provided after the clearing.

[17] Similar evidence is found in the affidavits of Greg Cook and Simon Beairsto. Both work with the unhoused and help them find shelter. Both testified to the harms when encampments are cleared forcing individuals to pack their things and find another safe place to stay for the night. I accept that evidence.

[18] The evidence of all four affiants, however, really focuses on the harms of homelessness. Those harms are exacerbated if homeless people are deprived of the minimal shelter they have, such as tents. Those are outcomes to be feared if an encampment is cleared without providing alternative shelter. Here, however, the City has offered hotel accommodation in single rooms to all residents of the Saint Stephen’s encampment.

[19] Those hotel shelters also provide food, laundry, daily housekeeping, access to medical care, mental health support, as well as harm reduction supplies and services. They are staffed 24 hours per day. In addition, transportation to and from the shelter hotels via taxi or through the provision of TTC tokens, is available for medical appointments, meetings with a housing or case worker, or for legal appointments.

[20] The offers of hotel shelter are made by staff of the City’s Streets to Homes department. It has 236 employees. Its primary goal is to move homeless people to permanent shelter. Streets to Homes staff have visited the Saint Stephen’s encampment 260 times in 2023. Eighty six individuals have been referred from the encampment to indoor shelters in 2023.

[21] Four residents have accepted the offer of hotel accommodation. Two others have expressed interest but were not recently on the site when Streets to Homes staff tried to make arrangements. Streets to Homes continues to follow up and will continue to offer indoor space if they return. Four residents have declined the offer of hotel accommodation. The City is holding hotel rooms for those who have not yet accepted.

[22] The City says it has offered hotel accommodation to all the residents at the Saint Stephen’s encampment. Reverend Helwig and Andrew Neelands, a volunteer at Saint Stephen’s, dispute this. They say that the City has a restricted definition of resident and requires a person to say that they live at the encampment and identify the tent in which they reside. Only those who can do so are offered shelter. The applicants submit that these are not “meaningful offers” of shelter because some residents will not engage with City workers and have a deep distrust of them. Others require more time to process information.

[23] Reverend Helwig also speaks of a visit with Streets to Homes workers on October 27, 2023 in which they advised that there were no shelter spaces available for residents of the encampment.

[24] As Ryan Holford, the person at Streets to Homes who oversees outreach at encampments explains in his affidavit sworn November 4, 2023, the individuals who were on site on October 27 were not the regular caseworkers for the encampment. The purpose of their visit was to determine if there were additional individuals at the encampment with whom Streets to Homes had not previously engaged. In addition, the staff that attended on October 27 were directed to gather information about indoor space needs using the list of residents that the applicants had provided Streets to Homes. Their purpose was not to offer or assign space to residents.

[25] In a similar vein, the applicants submit that City staff directed two unhoused people to the encampment October 26 and 27, 2023. It appears that either those people were directed to the encampment for meals that the Church provides or there was confusion by the individual staff members about whether the Church offered overnight shelter.

[26] Reverend Helwig also speaks of one individual who resided at the encampment without a tent who desperately wanted shelter but was not offered shelter by the City. I have no further details of that encounter.

[27] I appreciate that there may be some differences in the evidence. The City does, however, have extensive workers working with the unhoused. The Streets to Homes department of the City does direct outreach to unhoused people. Their goal is to help them move into shelter. Streets to Homes personnel work with a neighbourhood outreach group in the Saint Stephen’s neighbourhood that consists of peer outreach workers to assist in transitioning people from the streets into housing.

[28] Reverend Helwig candidly admits that her engagement with residents is more limited. Her Church activities take between 35 and 40 hours a week and she lives off site. On the record before me, the City can offer more in the way of resources to residents at the encampment that would lead to a longer term transition to permanent housing than can the Church. This is not to underestimate the valuable work the Church does. It is simply that the Church does not have the same resources that the City does.

[29] The City both in its materials and in oral argument has made it clear that it enforces encampment clearance only when residents of the encampments have been offered indeterminate stays in indoor shelters, including hotels.

[30] In Black et al. v. City of Toronto, 2020 ONSC 6398, [5] Schabas J. found irreparable harm because of the unlikelihood of there being any effective remedy for the clearing of a homeless encampment because of the higher standards required to maintain a lawsuit against a governmental authority. [6] I agree that this would be a form of irreparable harm. Here, however, the nature of that harm is minimal, if it even exists in fact. Neither the Church nor Mr. Scott have alleged any form of irreparable harm to themselves. The irreparable harm will therefore be suffered by other residents or those who are not yet residents. Current residents would have difficulty demonstrating irreparable harm given that they have all been offered accommodation in hotel shelters. The harm they would suffer as residents of a hotel shelter is significantly less than the harm they suffer as residents of the encampment, especially with the oncoming winter. As between living in a hotel shelter or living in a tent at in front of the Church, the hotel shelter would likely subject residents to significantly less medical and psychological harm than would living at the encampment. As a result, while I find that there may be irreparable harm as a technical matter, it carries little weight in the analysis.

(c) Balance of Convenience

[31] The dominant analysis here lies in the balance of convenience.

[32] The City intends to clear the encampment pursuant to two provisions of Toronto Municipal Code Bylaw Chapter 743 which provide:

743-9(A) No person shall obstruct, encumber, damage, foul, or cause or permit the obstructing, encumbering, damaging or fouling of any street, or interfere with the clearing of snow, or install or place any unauthorized encroachment, object, article or thing, on, over, along, across, under, or in a street except as permitted under this chapter or any other City by-law.

743-9(Q) No person shall, without the approval of the General Manager, camp, dwell or lodge on a street, subject to application of the City's Interdepartmental Protocol for Homeless People Camping in Public Spaces.

[33] The applicants have brought an application to strike those provisions of the bylaw as being contrary to section 7 of the Charter of Rights and Freedoms and seek an interlocutory injunction to restrain the City from clearing the encampment pending the final hearing of that application.

[34] Section 7 of the charter provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[35] The applicants submit that once they have established state interference with a person, including a person’s health and psychological well-being, section 7 of the Charter is engaged. [7]

[36] The applicants cast the balance of convenience analysis as a comparison between the objective of the bylaw and the harm done to the applicants. The applicants then submit that where the law does not expressly say so, the court must look to the text of the law to determine its purpose. The applicants say that a proper reading of the bylaw demonstrates that its purpose is to maintain open public thoroughfares. They argue that it is not necessary to clear the encampment to fulfil this purpose because the City has not used the land for 150 years and because the encampment does not interfere with use of the north-south or east-west sidewalks on two sides of the encampment. In this light, when the desirability of maintaining a public thoroughfare is compared to the harm done to encampment residents, the applicant submits that the balance of convenience clearly favours the residents.

[37] I do not read the bylaw as narrowly as the applicants do. One aspect of the bylaw is to prevent obstruction of the street. While maintaining a public thoroughfare may be one purpose of prohibiting obstructions, the purpose of prohibiting obstructions is not limited to maintaining public thoroughfares. The bylaw also prohibits the installation of any object article or thing on a street except as permitted and prohibits individuals from camping, dwelling or lodging on a street subject to the application of the City’s Protocol for Homeless People. The prohibitions on obstructions and on camping dwelling or lodging on a street are also consistent with the City’s power to maintain the appearance and character of residential neighbourhoods. Finally, the bylaw also prohibits the “fouling” of any street. Prohibiting obstructions, camping and fouling can also have safety concerns including presence of dangerous objects, sanitary concerns raised by the presence of garbage, aesthetic concerns and fire safety concerns. Addressing these concerns is a legitimate exercise of the City’s bylaw power. The applicants submit that these other concerns are captured by zoning or fire bylaws. While it may be the case that zoning and fire bylaws address fire safety and the appearance and character of residential neighbourhoods, those public policy concerns are not limited to zoning bylaws or fire safety bylaws. Other bylaws can properly legislate in a manner that is incidental to and complementary to zoning or fire safety bylaws.

[38] The concern the City expresses with respect to the encampment is not about open thoroughfares but one of the risk of fire. That risk is real. There have already been three fires on the site One as late as this month. As noted earlier, a fire in April 2023 razed the encampment to the ground.

[39] The City also took me to photographs of the encampment. The fire danger arises not only from the presence of tents, but it appears that at least some of the residents are also hoarders. There is a large amount of accumulated material that creates a fire risk.

[40] The City has delivered an affidavit from Roman Wojnarski, affirmed November 6, 2023. Mr. Wojnarski is a Fire Prevention Public Education Captain with Toronto Fire Services He has visited hundreds of encampments and has expressed particular concern about the one in front of Saint Stephen’s.

[41] The applicants submit that the risk of fire is overblown. They note that Captain Wojnarski was unable to provide numerical data that compares the fire risk associated with the Saint Stephen encampment to that of other encampments. I do not find that persuasive. Despite the absence of specific data, Captain Wojnarski concludes that the Saint Stephen’s encampment presents an elevated risk of fire. He supports this conclusion with the following evidence:

• The small footprint of the encampment relative to the number of temporary structures and residents. As noted earlier, there are typically between two and 14 residents on site.
• It has the densest accumulation of combustible material of all the encampments that he regularly visits.
• There is a limited ability to see and control for hazardous materials in the piles of materials at the site and inside residents’ tents.
• The site is adjacent to a Church with dated combustible construction.
• On occasion he has observed unpredictable/erratic behaviours by some of those at the site.
• The coming cold weather may contribute to unsafe behaviours, such as the use of candles; heating involving open flames; and/or storage and handling of instruments and fuels used for heating.
• The excessively congested encampment interior and exterior surroundings make quick egress very difficult.
• The congested/hoarded encampment interior and exterior surroundings may make fire rescue, suppression and overhaul more difficult.
• There is an exceptionally high combustible load within a small space.
• There have been two previous uncontrolled fires (now three) at the site.
• Among the objects on the site are explosive materials like propane tanks, aerosol cans and batteries.

[42] Given this level of detail, I do not agree that the Captain’s inability to provide numerical data during close examination suggests that the risk of fire is overblown.

[43] The risk of fire constitutes a danger not only to residents of the encampment but also to occupants of the Church and passersby.

[44] Thankfully, no one has been hurt in the past three fires at the encampment. That is simply good luck. From a risk assessment perspective, the circumstances that led Captain Wojnarski to conclude that the encampment has an elevated fire risk means that it is perhaps only a matter of time until something goes seriously wrong and results in injury or death.

[45] The street corner is a busy one. It is at the foot of a residential street. As noted earlier, there is a school and daycare centre within approximately 50 metres. The encampment is directly in front of the Church. Churches attract groups of people. Among other things, the Church serves approximately 500 meals per week. All that means there is a high congregation of people, most of them non-residents of the encampment, who pass by or through the encampment on a daily basis. A fire or explosion at the wrong time with the wrong wind conditions could lead to catastrophic consequences for residents, passersby and/or the Church.

[46] Danger to public safety is a necessary component of the balance of convenience. On the one hand, the harm to residents of being displaced involves movement to hotel accommodation. In addition to improving public safety, hotel accommodation would also remove encampment residents from the immediate risks of homelessness that the applicants’ affiants identify.

[47] The applicants submit that the risk of fire is also overblown because there is a fire station directly across the street from the encampment. I do not find this to be a satisfactory answer to the risk of fire. As Schabas J. noted in Black et al. v. City of Toronto, 2020 ONSC 6398, [8] when upholding the City’s right to clear a different encampment under a similar bylaw, fires are to be prevented, not merely responded to when they occur. [9]

[48] Finally, the balance of convenience requires the court to conduct its analysis based on the presumption that the impugned provisions of the law are directed toward the public good, serve a valid purpose, and that the public interest favours enforcing the law. Only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed. [10] As noted in Poff v. City of Hamilton, 2021 ONSC 7224:

[44] In Canada (Attorney General) v. Harper, 2000 SCC 57, at para. 9, the Supreme Court held that the assumption of public interest in enforcing the law weighs heavily in the balance of convenience test. Courts should not lightly order laws of Parliament duly enacted for the public good to be inoperable, in advance of complete constitutional review. Interlocutory injunctions against the enforcement of a law, on the grounds that it is unconstitutional, will only succeed in clear cases.

[49] By way of conclusion on the balance of convenience, when I balance the relatively minor inconvenience and potential real benefit to residents of being moved into hotel accommodation against the dangers they face living homeless during a Toronto winter and the dangers that they and passersby face from the risk of fire, I find that the balance of convenience strongly favours the respondents. I appreciate that the balancing of risks may differ from one person to another. Some may find my approach too risk averse. However, when dealing with the lives of others I would prefer to be overly risk-averse than overly risk tolerant. There are far too many instances of injury or loss of life from accidents when the risks that caused those accidents were well known but downplayed. Here, when three fires have already occurred in 10 months, to ignore the risk of fire would be gambling with people’s lives.

(d) Other Cases Addressing the Issue

[50] Two lines of cases have emerged that address encampments such as this one. The cases that enjoin municipalities from clearing encampments and the cases that allow municipalities to clear them seem to turn on the municipality’s effort to find shelter spaces for the specific residents of the encampments in question. Where those residents are offered shelter spaces, interlocutory injunctions have been denied. Where municipalities do not offer spaces to residents, injunctions have been granted. Here, the City has offered hotel spaces to the residents of the Saint Stephen’s encampment. The City has also made clear that it would not enforce the bylaw against anyone who set up camp in front of Saint Stephen’s at a later stage without offering them shelter spaces.

[51] In both Black et al. v. City of Toronto, 2020 ONSC 6398, [11] and Poff v. City of Hamilton, 2021 ONSC 7224, [12] Justices Schabas and A. J. Goodman upheld the right to clear encampments where the municipality had offered shelter spaces to most of the encampment residents.

[52] The applicants rely heavily on the recent case of Valente J. in The Regional Municipality of Waterloo v. Persons Unknown and to be Ascertained, 2023 ONSC 670, [13] where an injunction was granted against the Regional Municipality of Waterloo restraining it from clearing a homeless encampment in Kitchener.

[53] In Waterloo, Valente J. noted that the Region had assessed the risk associated with the encampment as medium to low. [14] The risk of danger at the Saint Stephen’s encampment is high as evidenced by three fires that have already occurred.

[54] In Waterloo, the evidence disclosed that the region had approximately 1100 homeless people but only 553 shelter spaces. Valente J. noted that this amounted to a 50% shortfall. [15] Similarly, in Victoria (City) v. Adams, 2009 BCCA 563, [16] where the British Columbia Court of Appeal upheld a lower court’s injunction against the clearing of a homeless encampment in Victoria, the Court of Appeal noted that Victoria had approximately 1000 homeless people with 141 regular shelter beds that could be expanded to 326 beds in extreme conditions. [17] In other words, Victoria had capacity to address 14.1% of shelter needs on a regular basis and 32.6% in exceptional circumstances.

[55] By way of contrast, the City of Toronto operates 9000 shelter beds and turns away approximately 275 people per night who are seeking shelter. That reflects a shortfall of 3.05%. I agree that a shortfall of 275 beds each day is a serious issue. It means that, each night, we as a society in Toronto refuse to shelter 275 people. That means 275 cases of panic, anguish, desperation, fear and exposure to the elements every day. I also concede that these numbers probably understate the level of homelessness in Toronto because it reflects the people who sought shelter and were turned away. It does not take into account the homeless who did not seek shelter. While turning away 275 people is unacceptable, it reflects a substantially better outcome than in Victoria or Waterloo.

[56] Moreover, in Victoria v. Adams, the Court of Appeal cited the following passage from the decision of the judge of first instance:

There are not enough shelter spaces available to accommodate all of the City’s homeless; some people will be sleeping outside. Those people need to be able to create some shelter. If there were sufficient spaces in shelters for the City’s homeless, and the homeless chose not to utilize them, the case would be different and more difficult. The court would then have to examine the reasons why homeless people chose not to use those shelters. If the shelters were truly unsafe, it might be that it would still be an infringement of s. 7 to require the homeless to attend at shelters or sleep outside without their own shelter. However, if the shelters were safe alternatives, it may not be a breach of s. 7 for the homeless to be required to make that choice. That, however, is not the case here, where there is a significant shortfall of shelter spaces. [Emphasis added by the Court of Appeal] [18]

[57] In Waterloo, at paragraph 94, the court rejected the Region’s submission that all it needed to do was satisfy the court that there was sufficient capacity in the shelter system to accommodate the encampment residents. The court rejected this proposition because it did not respond to the many other vulnerable homeless people in the region and because the Region intended to be guided by the court’s decision in its treatment of other encampments.

[58] The applicants ask me to take a similar approach and reject the City’s approach because it does not address the shortfall of 275 shelter beds each night. In some respects, allowing the encampment to be cleared simply means that the residents are taking priority over other homeless people who would otherwise have had access to the hotel shelters that the residents of Saint Stephens are now taking.

[59] There are three, albeit imperfect answers to this submission. First, the comments of Valente J. in this regard must be read in the context of the numbers in Waterloo. In that case, the Region had offered spaces in an emergency shelter to 7 of the 16 named respondents. There were 53 residents at the encampment. The region committed to reserving spaces at its emergency shelter for all 53 residents. Justice Valente found that the region’s average daily emergency shelter bed capacity was only 30 beds. In the case before me, the City has offered accommodation not in an emergency shelter but housing at a hotel.

[60] Second, I agree that my decision does not address the shortfall of beds in the Toronto shelter system. In my view, it would not be appropriate for me to address that issue here. A court can only deal with the issue in front of it. Courts should not be looking to expand the scope of cases in front of them. The only thing about which I have information are the residents at Saint Stephen’s. I have no information about the nature of the other 275 shelter shortfalls nor do I have information about the City’s resources and the competing demands on those resources. Questions of general policy about how to address homelessness are best left for policy debates within legislating bodies and elections. Should a scenario arise in which the evidence shows that the City cannot offer meaningful shelter accommodation to people living in encampments or that by doing so, they are evicting other needy individuals from shelter spaces, courts will deal with those facts if and when they arise.

[61] Third, I cannot lose sight of the pressing health and safety risk that the danger of fire at the Saint Stephen’s encampment creates for residents and passersby.

[62] As a final note, during the course of the hearing I worked out a timetable for the argument of the hearing on the merits. That hearing will occur on January 5, 2024. The timing of the hearing on the merits cuts both ways on the decision about whether to grant the interlocutory injunction. On the one hand, the hearing on the merits is approximately six weeks away. That means that the risk exposure to fire may only exist for six weeks if the result on the merits hearing is to shut down the encampment. On the other hand, it also means that residents may be free to return to the encampment should they wish to do so after January 5 thereby diminishing whatever harm they have suffered as a result of their displacement. In my view, the risk of fire and danger to residents and passersby outweighs any other consideration. While six weeks may be a limited period of time, it takes only seconds for a fire or explosion to cause injury or death.

Conclusion

[63] For the reasons set out above I, dismiss the applicants’ motion for an interlocutory injunction.

[64] In closing I would like to thank all counsel on both sides. Their factums and oral submissions were uniformly excellent. Both sets of counsel have served their clients extraordinarily well.

Date: November 20, 2023 Koehnen J.

Footnotes

[1] Mr. Scott says he has been denied access to his apartment because he has lost his keys and his identification. Mr. Scott says he cannot get a new set of keys without identification. The City’s department responsible for homeless people, Streets to Homes, has offered to help Mr. Scott in obtaining new identification and new keys to the extent that this is the barrier preventing him from access to the apartment. In any event, Mr. Scott does not appear to reside at the encampment at the present time.

[2] RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at p. 347-8.

[3] AC and JF v Alberta, 2021 ABCA 24 at para. 27.

[4] Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761 at para. 10.

[5] Black et al. v. City of Toronto, 2020 ONSC 6398

[6] Black et al. v. City of Toronto, 2020 ONSC 6398 at para. 73-75.

[7] Carter v. Canada (Attorney General), [2015] 1 SCC 5 at para. 64.

[8] Black et al. v. City of Toronto, 2020 ONSC 6398

[9] Black et al. v. City of Toronto, 2020 ONSC 6398 at para 144.

[10] Canada (Attorney General) v. Harper, 2000 SCC 57 at para 9.

[11] Black et al. v. City of Toronto, 2020 ONSC 6398

[12] Poff v. City of Hamilton, 2021 ONSC 7224

[13] The Regional Municipality of Waterloo v. Persons Unknown and to be Ascertained, 2023 ONSC 670

[14] The Regional Municipality of Waterloo v. Persons Unknown and to be Ascertained, 2023 ONSC 670 at para. 48.

[15] The Regional Municipality of Waterloo v. Persons Unknown and to be Ascertained, 2023 ONSC 670 at para. 92.

[16] Victoria (City) v. Adams, 2009 BCCA 563

[17] Victoria (City) v. Adams, 2009 BCCA 563 at para. 28.

[18] Victoria (City) v. Adams, 2009 BCCA 563 at para. 73 quoting from para. 191 of Victoria (City) v. Adams, 2008 BCSC 1363.