Poff et al. v. City of Hamilton, 2021 ONSC 7224

COURT FILE NO.: CV-21-77187

DATE: 2021-11-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ASHLEY POFF, DARRIN MARCHAND, GORD SMYTH, MARIO MUSCATO AND SHAWN ARNOLD

Applicants

• and -

THE CITY OF HAMILTON

Respondent

S. Crowe and S. Cox, for the Applicants

M. Bordin, B. Shores and J. Diacur, for the Respondent

HEARD: October 11,18 and 21, 2021

A.J. Goodman J.:

RULING ON APPLICATION FOR AN INTERLOCUTORY INJUNCTION

[1] The applicants, Ashley Poff (“Poff”), Darrin Marchand (“Marchand”), Gord Smyth (“Smyth”), Mario Muscato (“Muscato”) and Shawn Arnold (“Arnold”) move for an interlocutory injunction prohibiting and restraining the respondent, City of Hamilton (“the City”), from enacting and enforcing By-Law No. 01-129 as amended by By-Law 05-099 “(the By-Law”).

[2] The named applicants are five individuals experiencing homelessness and were, at various times, residing at different encampments in Hamilton parks.They have brought this motion to prevent the City from enforcing its By-Law prohibiting camping and the erection of tents or other structures in City parks. Specifically, the applicants move for an order that the City be enjoined from taking further steps to evict or remove the applicants and other homeless individuals from encampments in City parks until such time as the full merits of the application can be decided.

[3] The applicants argue that in the context of the ongoing COVID-19 pandemic and Hamilton’s homelessness and housing crisis, enforcement of the City By-Law violates their rights and those of other homeless persons pursuant to s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. (the “Charter”), and is not justified under s. 1 of the Charter. [^1] Further, it is inconsistent with ss. 1, 2, 11 and 47(2) of the Human Rights Code, R.S.O. 1990, c. H.19.

[4] In this regard, the applicants filed extensive evidence and the City responded with similarly comprehensive evidence. Most of the principal deponents for both parties were cross-examined.

[5] In the recent case of Black v. City of Toronto, 2020 ONSC 6398, injunctive relief was brought by and on behalf of various homeless persons in Toronto during the height of the COVID-19 pandemic. However, unlike Black, the applicants here do not limit their prayer for relief for a declaration to “the context of the COVID-19 pandemic,” and a suspension of enforcement of the By-Law during the ongoing pandemic. In this case, the applicants entreat a full hearing on the merits and seek to strike down the impugned By-law as unconstitutional, having served notices on the Attorneys General of Canada and Ontario.

Background:

[6] This case raises the monumental challenges of addressing the needs of the homeless population. The plight of the homeless, and marginalized members of society continues to be a pressing social, health and resource issue in Hamilton and across this country. People experiencing homelessness is an unfortunate reality, and many homeless people lived and continue to reside on the streets and in city parks even before the advent of the COVID-19 pandemic.

[7] The relevant sections of Hamilton (City) By-Law No. 01-129 as amended by By-Law 05-099 (“the Parks By-Law”) read:

12. (a) Unless expressly authorized by permit, no person shall encroach upon or take possession of any park, or any part or area within a park, by any means whatsoever, including but not limited to the placing, construction, installation or maintenance of any fence, structure or other thing, the dumping or storage of any materials, or by planting any plant or otherwise cultivating, grooming or landscaping any part of the grounds thereof;

13. Unless authorized by permit, no person shall dwell, camp or lodge in any park.

[8] On March 17, 2020, the Province of Ontario issued a Declaration of Emergency under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, due to the outbreak of COVID-19.

[9] Since the beginning of the pandemic, there has been a significant increase in the visibility and number of people sleeping in homeless encampments due to the ongoing affordable housing crisis and the limited numbers of safe shelters or other accommodations. The evidence discloses that in addition, many individuals are choosing or are forced to “sleep rough” in encampments for a variety of reasons, including safety concerns, mental and physical health issues, drug abuse and shelter policies and restrictions.

[10] In the summer of 2020, a coalition of advocates and homeless individuals sought an injunction against the respondent in Hamilton Court File No. CV-20-73435 following the City’s ongoing dismantlement of homeless encampments. The matter was settled, in part, with the respondent’s adoption of an “Encampment Protocol”. This voluntary protocol required, inter alia, the City to assess individual acuity to determine appropriate housing supports and options. The protocol also established size limits for encampments with specific prohibited areas, among other conditions. [^2]

[11] On August 9, 2021, the City Council called a closed-door Emergency meeting and voted to repeal the Encampment Protocol and resume By-Law enforcement to remove homeless people from encampments. The City elected to return to enforcement, albeit delaying such action until August 30, 2021.

[12] The City’s Emergency and Community Service Committee met on September 9, 2021. On the same day, the City released an “Information Report”, which provided a six step process for responding to and enforcing By-Law infractions concerning encampments.

[13] The six step process begins with a complaint to Municipal Law Enforcement (“MLE”), and ends with enforcement by Hamilton Police Services (“HPS”) and cleanup of the site. The process is initiated by a complaint (Step 1). MLE attend the site to determine if there is a violation of a By-Law, provides education and seeks voluntary compliance (Step 2). If there is no voluntary compliance, Housing Focused Street Outreach attends the site and provides various types of support (Step 3). If a violation of the by-law continues, MLE re-attends and issues a trespass notice and notifies Hamilton Police (Step 4). The next step is for the police to response under the Trespass to Property Act, R.S.O. 1990, c.T.21 (Step 5). The final step is clean up of the site after the encampment is gone (Step 6).

[14] On September 15, 2021, a Notice of Motion was before the Planning Committee requiring the expedition of enforcement. The City, through its By-law officers and police services, commenced the process to dismantle homeless encampments.

[15] On September 17, 2021, HPS attended Durand Park to enforce step five and demanded dismantlement. On the same day, notice to comply was given to Wellington Park occupants. On September 20, MLE officers attended and issued a verbal notice of contravention to J.C. Beemer Park residents, with two sites complying and occupants returning the following day. No occupants have actually been physically removed from the encampments as set out in the protocol.

Positions of the Parties:

[16] The applicants submit that they have presented evidence to support their claim for injunctive relief. The applicants say that there is a serious issue to be tried as there are important public interest issues arising in this litigation.

[17] The applicants say that there are simply not enough shelter spaces to accommodate all of the homeless individuals in Hamilton. They will suffer irreparable harm if they are removed from their encampments without adequate measures in place to accommodate them, especially in light of the COVID-19 pandemic and the affordable housing crisis. Shelters are often full and periodically in outbreak. Public Health has declared outbreaks in Hamilton shelters at least 49 times between March 2020 and September 2021. Dismantling encampments and removing residents puts these individuals at risk to the worst health outcomes of COVID-19 if they are moved into congregate living facilities.

[18] Some of the applicants and other homeless individuals in the encampments also suffer from pre-existing addiction, mental, and physical disabilities that will be exacerbated if they are forced out of their encampments. Many will have no choice but to resort to, or continue “sleeping rough” elsewhere in the City, exposing them to further harm.

[19] The applicants say that there is no time allotment given to the housing engagement in step three of the protocol. Confirming the actual availability of shelter space is not a pre-requisite to enforcement at steps four and five. There is also no formal written policy that guides MLE to move to enforcement through steps four and five and does not involve the Housing Team’s input. MLE is only required to satisfy itself that one attendance has been made by the Housing Team and determine whether shelter was offered or declined in that interaction.

[20] Further, the City’s enforcement process takes place without consideration of whether the individual has the personal means to function in shelter based on their individual circumstances. Ongoing issues with lack of shelter capacity also means that an individual may be required to leave without shelter space even being available.

[21] The applicants argue that the respondent has acknowledged that many of the supports needed for individuals with disabilities, mental health issues, cognitive impairments and otherwise combination of complex needs who are deemed “high acuity” do not exist. Hamilton Mayor Fred Eisenberger has publicly acknowledged that the City does not have the space to house everyone in encampments, and in particular, high acuity individuals. Affordable housing providers have expressed an inability to meet the current and future demands. In addition to shelters being unable to provide appropriate supports to all homeless individuals, they are routinely at capacity and unable to accept new residents.

[22] At the time of the hearing, the women’s sector is at 108% capacity, the family/couple shelter is at 99% and men’s shelter is at 97% capacity and that these rates fluctuate on an hourly basis. The applicants submit that there are over 100 known unhoused encampment residents at this time. They say that it is particularly challenging to find shelter beds for women due to the shelter system being consistently over-capacity. This often results in women being turned away from shelters, hotel spaces and in some cases, the overflow shelters. Couples who are homeless, particularly those who are high acuity, face similar struggles. Some individuals cannot access shelters due to service restrictions or bans, often related to disabilities or other behaviours.

[23] The applicants submit that they have established the balance of convenience in their favour. If they and other homeless persons in the encampments are summarily removed, they face a risk of substantial harm in the form of destabilization; psychological trauma; exacerbated mental stress and addiction relapse; difficulty obtaining necessaries of life and a severing from service providers. Some individuals will have no choice but to resort to “sleeping rough”.

[24] The applicants assert that the respondent has misstated alleged housing options offered, accepted or refused by the applicants, or otherwise have mischaracterized the evidence.

[25] The applicants submit that they have met their burden and have satisfied all of the requirements for an interlocutory prohibitive injunction.

[26] The respondent submits that the applicants have not established the prerequisite Charter or Ontario Human Rights Code breaches or future breaches for a permanent injunction. In the alternative, there are numerous reasons why the court, in exercising its discretion, ought not to grant an injunction.

[27] The respondent contends that there is insufficient evidence that the By-Law, or the requirement that encampments be taken down in the manner in which the City has undertaking, leads to a risk of serious harm and interference with liberty. There is no cogent evidence that the applicants’ rights under the Charter are violated. Section 7 of the Charter does not confer a general freestanding right to adequate housing. Moreover, the applicants have not demonstrated violations under the Code on prohibited grounds. The City is not providing either accommodation or services under the Code. In the alternative, the respondent contends that the removal of encampments takes place in a manner that complies with the jurisprudence – no removal takes place such that individuals cannot shelter overnight.

[28] The respondent submits that the balance of convenience is in its favour. The City has taken many significant steps in its shelter system to respond to COVID-19 and homelessness. The shelter system has been expanded and a large number of people experiencing homelessness, who were living in encampments, have been moved indoors. There is no evidence that the shelter system does not have capacity to safely accommodate those currently living in the parks who wish to seek shelter. This includes ensuring that shelters meet COVID-19 protocols.

[29] Moreover, the respondent argues that it has furnished reliable evidence from various credible sources, including professionals, City staff, representatives from shelters and other social services, police, paramedic, fire, and numerous residents and businesses in support of its opposition. Parks are valuable public resources, intended to be available and used by everyone. The proliferation of encampments impairs the use of parks by its citizens. It is also not in the best interests of the homeless to remain in the parks for a variety of reasons, the least of which are related to health and welfare concerns. It is submitted that the test for an interlocutory injunction has not been established.

Legal Principles:

[30] Section 7 of the Charter provides for “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

[31] Pursuant to s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the Superior Court may grant an interlocutory injunction where it appears to the Court to be “just or convenient to do so.”

[32] An injunction is an extraordinary remedy that should only be issued to restrain a clear breach of legal obligations. A party seeking an interlocutory injunction must address the three-part test as set out by the Supreme Court of Canada in its seminal case of RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 at p. 347-8. The moving party must demonstrate:

a. that there is a serious issue to be tried;

b. that the moving party will suffer irreparable harm if the injunction is not granted; and

c. that the balance of convenience favours the granting of the injunction.

[33] The three questions must be assessed as a whole. Strength on one branch may compensate for weakness on another. As the motion is typically brought at an early stage of litigation, “a prolonged examination of the merits is generally neither necessary nor desirable”: Black, at para. 40.

[34] However, the Supreme Court of Canada has recognized exceptions to this rule in situations “when the result of the interlocutory motion will in effect amount to a final determination of the action: RJR-MacDonald, at p. 338.

[35] In N.W.L. Ltd. v. Woods, [1979] 1 W.L.R. 1294, at p. 1307, the court held:

Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other.

[36] In some situations, the “serious issue to be tried” test may be elevated to a “strong prima facie case” test or a “strong chance of success” test. As R.J. Sharpe observed in Injunctions and Specific Performance, loose-leaf (Toronto: Thomson Reuters Canada, updated November 2019) at para. 2.210, in these circumstances “it is essential, as a matter of justice, that the strength of the case be the predominant consideration.” See also Enbridge Pipelines Inc. v. Williams et al., 2017 ONSC 1642 at paras. 39-40; Leopold Edwin Siberg v. Bruyère Continuing Care Inc., 2018 ONSC 4235 at para. 18.

[37] The Supreme Court’s decision in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., 1987 79 (SCC), [1987] 1 SCR 110, 38 DLR (4th) 321, confirmed the tendency of earlier case law to consider interlocutory injunctive relief in constitutional cases is the exception, rather than the rule: See R.J. Sharpe, at para. 3.1230.

[38] However, applications for injunctive relief in constitutional cases involve special considerations. Again, in his text, R.J. Sharpe explained some of the difficulties with injunctive relief in constitutional cases: at para. 3.1230. An injunction restraining the enforcement of legislation, because it might be unconstitutional, could cause inconvenience to the public. It could deprive the public of the benefit of a statute, which after full consideration at trial, is found to be constitutional. On the other hand, constitutional rights are fundamental, and a plaintiff should not be deprived of his, her, or their rights until such full consideration. In some situations, interlocutory relief is granted when the circumstances are so urgent and transient that the constitutional claim will never be adjudicated on the merits, unless the matter is resolved at the interlocutory stage. Cases involving injunctive relief are distinguished between suspension cases and exemption cases. The latter involves impugned provisions which apply to a limited number of individuals and no significant public harm will be suffered: Metropolitan Stores, at p. 147.

[39] The RJR-MacDonald test for interim or interlocutory injunctions is modified in Charter challenges. When considering whether there is a serious question to be tried, once the judge has determined that the application is not frivolous or vexatious, he or she must move onto the next stages of RJR-MacDonald.

[40] The complex nature of constitutional or Charter rights means that a motions court is unlikely to have the time to engage with the extensive analysis of the merits of the constitutional claim. The judge must move onto the second and third stage, even if it is unlikely that the plaintiff will succeed at trial. A prolonged consideration of the merits is not necessary in a Charter challenge.

[41] At the second stage of the test, the court must consider irreparable harm. At p. 341 of RJR-Macdonald, the Supreme Court explains:

“Irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm that cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other… The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration. [citations omitted]

[42] The concept of irreparable harm is said to fit uneasily in the context of constitutional litigation. Some trial and appellate courts take an expansive view of irreparable harm where constitutional questions are raised or when individual Charter rights or freedoms are at stake. The jurisprudence suggests that “a risk of injury or death” is sufficient to show irreparable harm: York Condominium Corp. No. 163 v. Barrington-Rockwood Investment Corp., [1992] O.J. No. 1194 (Gen. Div.). Irreparable harm is also established where there is “increased risk of personal injury” or “psychological harm that is more than transient or trifling”: Toronto Standard Condominium Corp. No. 2395 v. Wong, 2016 ONSC 8000, at para. 32.

[43] At the third stage, the court applies the balance of convenience test. In Charter applications, this is often the determinative step. In a typical injunction application, the court may presume that the law sought to be enforced serves the public interest. However, in a Charter challenge, this presumption may be called into question. The applicant must prove that the suspension of the legislation would provide a public benefit instead of its enforcement.

[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.

[45] In Charter cases, the court needs to consider whether it is equitable and just to deprive the public from the protection of impugned legislation. Returning to Metropolitan Stores, Beetz J. held at p. 149 that:

. . . in a case where the authority of a law enforcement agency is constitutionally challenged, no interlocutory injunction or stay should issue to restrain that authority from performing its duties to the public unless, in the balance of convenience, the public interest is taken into consideration and given the weight it should carry.

The Undertaking as to Damages:

[46] In a claim for an interlocutory injunction, one important aspect includes an undertaking by the moving party as to damages in the event that the application fails. It is trite law that a moving party seeking injunctive relief must provide an undertaking. Indeed, exemptions related to this requirement are rare or exceptional.

[47] In this case, the applicants seek an exemption to provide an undertaking as to damages as they are clearly not in a viable pecuniary position.

[48] In Airport Limousine Drivers Association v. Greater Toronto Airports Authority, [2005] O.J. No. 3509, Quigley J. stated the following at para. 156:

The providing of the undertaking with respect to damages is not a mere trifle. In a case such as the present where a party seeks to restrain conduct of the other party by way of an injunction on an interlocutory basis prior to trial, effectively the restrained party is being prevented from undertaking some kind of conduct without having had the opportunity to have its case considered on a full trial of the matter. Thus, the requirement of the undertaking has been appropriately regarded as being “an essential condition of the granting of an injunction but for exception circumstances” (Fulham v. Manitoba Hydro (1995), 29 M.P.L.R. (2d) 243 at para 13 (Man. C.A.), per Scott J.A.M). It has been described as “the price” or “condition” of granting an interlocutory injunction, with a failure to give such an undertaking tilting the balance of convenience against the moving party who seeks the injunctive relief.

[49] Similarly, in Lac La Biche (Town) v. Alberta, 1993 ABCA 104, [1993] A.J. No. 263 at para. 26, the court held:

Nor is the undertaking as to damages a frill or a side issue. Nor is it merely an expression of the old equitable principle that one who seeks equity must do equity. It is an integral part of the balance of convenience…. Usually plaintiffs offer undertakings as to damages, and courts exact them, in order to minimize the risk to the defendant from wrongly granting an interlocutory injunction. By declining to give the undertaking as to damages, a plaintiff tilts the balance of convenience against himself.

[50] I adopt the comments of McEwen J. in the case of Cardinal v. Cleveland Indians Baseball Company Limited Partnership, 2016 ONSC 6929, at para. 28:

The parties generally agree that there is no meaningful undertaking that Mr. Cardinal could provide to compensate the respondents with respect to the damages they would sustain if the injunction was granted. While it is exceptional to grant an injunction without an undertaking, I agree with Mr. Cardinal’s submissions that greater flexibility ought to be granted in cases such as this one which have broader public interest significance and which concern human rights as opposed to commercial and pecuniary interests... This application is similar to that dealt with by Justice D. Brown (as he then was) in Batty v. City of Toronto, 2011 ONSC 6785, 342 D.L.R. (4th) 121. In Batty, he dispensed with the need to file an undertaking given the Charter-based nature of the relief sought by the applicants. This application invokes quasi-constitutional issues of similarly broad significance.

[51] For the reasons expressed in Cardinal, I am persuaded that the issues in this litigation have broader public interest significance. The applicants argue that this is also an access to justice issue and that upholding the undertakings requirement would act as a deterrent to anyone living in poverty from bringing such applications. Recognizing the financial wherewithal of the applicants with the broader interests of the homeless and marginalized persons in society, I dispense with the requirement for the applicants to provide an undertaking as to damages. However, as conceded by the parties, the failure to provide such an undertaking is a factor to be considered at the balance of convenience stage.

The Applicants’ Evidence:

[52] Given the plethora of materials filed, I can only reference some of it, although all of the relevant evidence has been reviewed and considered.

[53] Like much of the country, Hamilton is in the midst of an affordable housing crisis. Average rental rates of $1468 per month for a one bedroom far exceed the incomes of a single person on social assistance ($750 on Ontario Works and $1150 on the Ontario Disability Support Program (“ODSP”)), and lower income individuals, resulting in eviction into homelessness without alternative affordable rental options.

[54] The applicants filed affidavits from five of the named applicants who are or were living in encampments in City parks, four of whom were cross-examined. There is also evidence and information from various other individuals familiar with or otherwise engaged in this area. I reference some of this evidence.

[55] Poff states, inter alia, that: “I am a person living with disabilities and rely on ODSP for income. When I have shelter costs, I am entitled to $497.00 in shelter allowance from ODSP but since becoming homeless I am only entitled to $672.00 of the "basic needs" portion of ODSP entitlements.[^3] While staying at Carol Anne’s shelter for women I was repeatedly accused of doing drugs in the bathroom. I was kicked out 22 times for suspected drug use. All day I struggle when I am out on the street for the entire day, I am at risk of theft, assault, falling asleep and being ticketed or being woken up to move from a bench. I only return to the shelter between 7:30 and 10 pm when intake occurs. Given the stress of each day, its extra difficult to be patient when you feel disrespected and bullied with attitude at a shelter. For me, I feel like I do not have space and autonomy at a shelter. I am micromanaged and treated like a child. However, since the last incident in 2020 winter, I will no longer attempt to use a shelter. It seems extreme to be kicked out for some bad language or frustrations when it should be apparent that everyday living on the streets and staying in shelter is difficult, painful and you are constantly in survival mode. I have never been violent, never threatened anyone. I have been kicked out for standing up for myself and swearing. Because the streets are unsafe, I like to have a shelter plan well before 10pm. The unreliability of the women’s shelter system due to a lack of capacity or because I have (been) banned for bad behaviour, leads it to be the less desirable option.”

[56] Marchand states that: “I am a person that has been living in a tent in various green spaces in Hamilton since I left the Salvation Army men's shelter on December 17, 2020. I have been diagnosed with paranoid schizophrenia. For the past three years I have been homeless and during this time I have been in and out of shelters bouncing between sleeping in a shelter and sleeping on the streets without a roof over my head. After my release from the Barrett Centre I discovered that I was barred from all shelters in the City of Hamilton and I have not received an explanation as to why.[^4] As a result of being restricted from shelters and unable to afford rent, I was homeless again and without any options other than living on the streets. During the period of 2017 to present I have not been offered affordable housing, or appropriate shelter for a temporary stay. I am unable to stay in congregate style shelter spaces because of the associated Post Traumatic Stress. Routinely being evicted from encampments impacts me negatively both emotionally and physical because I always have to start over abruptly with little to know physical energy as I rarely have adequate sleep and food. I am not given any advance notice and so the turn-around time to move is very quick. I am left to walk around the City with my possessions in search of a new space to stay. I have lost belongings in the process of being displaced. Routinely moving also disconnects me from nearby services and supports that I rely on such as health care from the Shelter Health Network, supports offered by Wesley Urban Ministries and food programs with Churches.”

[57] Briefly, Smyth states that: “I am a person living in an encampment. I became homeless in June of 2021. Prior to this I had not been homeless for 30 years. I live with chronic depression and a personality disorder that is managed by medication. As a result of these conditions I have a very difficult time behaving appropriately in congregate settings because I have difficulty managing my anger and reactions when people trigger me. Even with medication and behaviour management, it is very triggering for me to be in groups and so I am worried about my reactions if I were to be in a congregate setting such as a shelter. Additionally, I am fiercely independent and self-sufficient. I did not need supportive housing. I first re-located from my rental unit in mid-June 2021, but after 7 days I was verbally told to move by a By-law officer. Prior to By-law enforcement I expected that I had 14 days there and that a housing plan would be in place for me including an assessment through the VISPDT tool to assess my “acuity” and housing needs. I then relocated per the By-law officer’s verbal notice to “camp” at Pier 4 in Hamilton and there I was again was told by by-law to vacate. This was done without an assessment and without offering a housing plan. Until I secure a rental unit I prefer to stay at my encampment at Central for several reasons. I am in a safe area, I am geographically close to medical care such as my family doctor, my cardiologist, my stomach doctor, the doctor that prescribes my anti-psychotic medication and the nurse practitioner I meet with at Urban Core and I am close to other bathrooms and services. Moving from one encampment to another was draining and demoralizing as I always had to start over. Staying at Central for several weeks has been the stability I need to meet my most basic needs and attempt to connect to alternative housing.”

[58] Muscato states inter alia, that: “I am a person living with disabilities and receive income from the ODSP. I was evicted from my rental housing because Ontario Works was not remitting my shelter portion to the landlord. The men’s shelter was a difficult experience for me as I am an independent capable person and suddenly I was treated like a child with many rules that micromanaged my every move. As well, the shelter is very dirty, if staff don’t like you they can give you a lot of attitude and be condescending. My possessions have been stolen, when they have been placed in a safe place by staff, it can be difficult to get staff to retrieve them because the are often busy and ask me to return at a later time. While living outside I sometimes have a tent, other times not. It is near impossible for me to erect and tent and take it down because of my disabilities. It also takes me longer to bag possessions, organize them and move in a timely way demanded by By-law and the police. I need to be close to other people to help me and constantly moving makes it difficult to remain connected to those that assist me. I see Dr. Jill Wiwcharuk for medical care at the Salvation Army and I go to Wesley and sometimes the Salvation Army for food. I have had various housing workers with the Homewood Bound program and they have yet to provide me with affordable housing or private market housing. The last time I saw a housing worker was five months ago roughly. I was on the access to housing waitlist for subsidized housing, but I do not know the status of this.”

[59] Succinctly, Arnold states: “I am a person living in an encampment. I became homeless in 2020 when I was evicted from my rental unit. I am a recovery addict and have been clean. I am currently on methadone and scored 16 on an acuity test called the VISPDT. Based on this assessment and the fact that I am staying away from drugs, a shelter is inappropriate and unhealthy for me. I will likely fall back into using if I go, and my acuity score speaks to difficulties in congregate settings like shelters where there is violence, other people with mental health issues and drug use. I have had both negative and positive experiences with by-law and the police – some exercising discretion to allow me to stay because they know I am not violent and that I cannot go to a shelter. By staying in one location I am routinely able to connect with meals on meals, receive methadone and meet my other needs as agencies supporting me know when I am...”

[60] Marcie McIlveen (“McIIveen”) is the co-coordinator of Hamilton Stands Together Keeping Six and the Hamilton Social Medicine Response Team (“HAMSMaRT”) Outreach Program. She has taken a lead role in the program's encampment support work, and represented the voice of lived experience at the City’s Encampment Response Team from October 2020 until February 2021.

[61] McIIveen claims that despite representations by the City that there is space in the shelter system, her experience says otherwise. Throughout 2020 and 2021, she routinely engaged with encampment residents at their tents and there have been instances where she had tried to assist them with accessing shelter and have been advised that there was no space. Since 2020, she witnessed MLE attend an encampment site and advise residents that they have two hours to dismantle their tent and move into shelter or elsewhere. She has also witnessed both Social Navigation with HPS and MLE advise residents that there is space at the "shelter," without first assessing or taking into account whether that person can actually access the shelter.

[62] McIIveen says that the reasons why shelter is offered to an encampment resident but not actually accessed by them is because the person is restricted or the shelter itself is unable to accept them because of an inability to meet their high acuity needs. The majority of shelters are simply used for just that: shelter. There is no privacy, safe injection spaces, nor private space for people living with trauma or triggered by others to stay. Consequently, shelters can often times be ill-equipped to respond to individuals with a history of trauma, abuse, or living with cognitive impairments and mental health disabilities. For some, the shelter is a rotating door, which she says is why some choose to rely on an outdoor space in a tent for shelter. In contrast to a shelter, a tent in one location can provides more predictability, continuity and a sense of safety compared to a congregate environment with triggering personalities.

[63] Olivia Mancini (“Mancini”) works at the Salvation Army Booth Centre as a case manager. In this role, she supports men experiencing homelessness with reaching their housing goals, as well as other related objects. She also worked at Carol Anne's Place as an addiction attendant, supporting women experiencing homelessness with getting into detox programs or shelters. She is also a volunteer with Keeping Six - a community-based organization, founded in 2018, to defend the rights, dignity and humanity of people who use drugs. She deposes that she wrote her affidavit on behalf of Keeping Six.

[64] Mancini asserts that the Salvation Army Booth Centre has a capacity for 82 men, and 10 emergency overflow spaces. She says that the City's assertions that there are shelter beds available for everyone is false. Shelter beds are consistently at capacity nightly and this will continue into the cold winter months. Further, she advocates that the city's narrative that there are no clients who are service restricted shelter wide is also false, as there are clients who are currently restricted from all three men's shelters. Clients experience safety concerns, verbal threats, and physical violence on a regular basis in the shelter. Shelter staff may impose service restrictions for using substances, possession of illicit drugs or harm reduction supplies, mental health, or violating shelter policies. Mancini states that CaroI Anne's Place is not a shelter. It is an overflow drop-in space, and has a capacity for 15 women, but typically see upwards of 25 women a night. Most women accessing Carol Anne's place are service restricted from the shelters due to complex mental health and substance use.

Expert Opinion Evidence:

[65] The applicants filed opinion evidence from Dr. Gillian Wiwcharuk and Dr. Tim O’Shea, both physicians based in Hamilton.[^5] Dr. Wiwcharuk addresses the social and medical profile of homeless people in Canadian cities and of people living in homeless encampments, the medical risks of clearing homeless people from their encampments, and the risks posed by COVID-19, including its risks of transmission within shelters.

[66] An issue arose during the course of the hearing wherein the respondent objected to the admissibility of the “expert opinion” evidence. The respondent argues that Dr. Wiwcharuk is an advocate for the homeless population who lack the necessary independence to provide impartial expert evidence. In support of its argument, counsel noted that Dr. Wiwcharuk deposed in what appears to be a nearly identical application brought against the City of Hamilton: Bailey, et al. v. City of Hamilton, Court File number CV-20-73435 as well as in the Toronto case of Black. She has published articles opposing the break-up of encampments during the pandemic and it is readily apparent that she supports this application.

[67] The respondent also contends that this evidence should be excluded due to its reliance on hearsay and for making factual assertions not supported by evidence. To that extent Dr. Wiwcharuk’s evidence may be considered that of a “participant expert” as defined in Westerhof v. Gee Estate, 2015 ONCA 206, at para. 60. The case instructs that the opinion given by a participant expert must be based on the witness's observation of or participation in the events at issue.

[68] In Imeson v. Maryvale (Maryvale Adolescent and Family Services) 2018 ONCA 888, at para. 74, the Court of Appeal agreed that an expert who testified about the “problems typical” of a group of people (in that case, survivors of childhood sexual abuse) went beyond the proper scope of any opinion the expert could provide as a participant.

[69] The respondent says that Dr. Wiwcharuk’s evidence, where it addresses medical issues, is focused on the “problems typical” of people experiencing homelessness. She does not talk about any of the applicants. Her opinion evidence, if that, is not based on objective observations of the events at issue.

[70] The applicants respond that Dr. Wiwcharuk’s evidence in this case meets the duty of experts as upheld by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Company, 2015 SCC 23, [2015] 2 S.C.R. 182 at para. 2, and is “fair, objective and non-partisan.” As the applicants correctly point out, the onus rests on the party opposing admission to show a “realistic concern” that the expert is “unable and/or unwilling to comply with that duty”: at para. 48.

[71] I am persuaded that Dr. Wiwcharuk’s evidence meets the test for admissibility set out in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 at pp. 20-25. It is relevant and necessary evidence to assist me in understanding the risks of COVID-19 and its impact on the homeless population, the particular risks and vulnerabilities of homeless people generally, the medical risks of shelters, and the effects of breaking up encampments. The evidence speaks to the impact of ongoing displacement on the homeless population given the predominance of certain health factors, the dynamics of providing medical care to the homeless including the increased health risks when individuals are displaced and the psychological impact that shelter environments can have on some homeless individuals.

[72] Dr. Wiwcharuk works closely with the homeless population in Hamilton. She practices family and emergency medicine, providing primary care to the homeless population at shelters and on the street. She also works as an addiction medicine consultant with in-patients in hospitals and at clinics in shelters. She has extensive experience in treating patients with COVID-19.

[73] It is true that Dr. Wiwcharuk has not signed the required Acknowledgement of Expert's Duty recognizing the nature of her duty to provide opinion evidence to the Court that “is fair, objective and non-partisan” and that is “related only to matters that are within [their] area[s] of expertise”, and “to provide such additional assistance as the court may reasonably require.”

[74] Nevertheless, in public interest litigation of this sort, and due to the very tight timeframe, I advised the parties that I would waive compliance with Rule 53.03 of the Rules of Civil Procedure. Schabas J. in Black opined that it would be surprising not to have experts who have expressed points of view and advocate for particular outcomes. While this may necessarily disqualify experts, a court can also discount or ignore testimony from experts if and when it becomes advocacy as opposed to proper opinion evidence.

[75] In exercising my gatekeeper role, I must engage in a cost-benefit analysis and weigh the probative value of the evidence against the risks associated with its admission. As the Supreme Court stated in White Burgess at para. 54: “At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence.”

[76] In this case, Dr. Wiwcharuk’s evidence provides some personal observations and experiences. I am not entirely convinced that Dr. Wiwcharuk displayed overt bias, although her independence may be the subject of some debate. Absent unveiling that the expert cannot comply with his or her duty, the evidence is still admissible and any concerns raised by the City can go to weight: R. v. Natsis, 2018 ONCA 425, [2018] O.J. No. 2383, at para. 11. Nonetheless, much of her evidence is not opinion, rather, it provides some context to the issues. The balancing exercise here weighs in favour of admitting the evidence.

[77] It is not lost on me that the respondent’s chief complaint is premised on advocacy and the outdated nature of Dr. Wiwcharuk’s evidence. That being said, when I turn to this witness’ expert opinion, per se, I accept the respondent’s submissions as to the reduced weight to be accorded to her evidence. For example, at para. 69 of her affidavit, Dr. Wiwcharuk states that: “Efforts must be made to secure safe and stable housing for people experiencing homelessness; Alternate accommodations such as shelters and shelter/hotels must be responsive to the needs of encampment residents in providing the necessary supports for their success” and “People living in encampments should not be forcibly removed in the context of a global pandemic and housing crisis”.

[78] Firstly, I agree with the respondent that these statements are clearly advocacy. Secondly, it is beyond the purview of an expert to suggest results to this Court. Thirdly, only one of these remedies is even before me on the motion. Indeed, the question of what Dr. Wiwcharuk believes ought to be done to address homelessness in Hamilton is not the proper subject matter of her opinion as a purported medical expert. The question of social engineering or solving the homelessness crisis is not before this Court.

[79] Other examples of issues with Dr. Wiwcharuk’s evidence are found at paras. 55 - 57 and 59 of her affidavit. She appears to have provided conclusory and largely unqualified statements about how people in encampments do or do not access services – particularly in light of her confirmation at para. 71 that “the majority of people sleeping in encampments access essential services at numerous public locations” and that fact that shelters are in static physical locations.

[80] While I will be referencing some of the evidence from Dr. Wiwcharuk, suffice it to state that for the aforementioned reasons, the weight of any opinion evidence offered by this medical practitioner is not compelling and is markedly diminished.

[81] As mentioned, another affidavit filed in support of the applicants is from Dr. O’Shea. Dr. O’Shea is an internist and infectious diseases specialist and has a Master’s degree in public health. He is on a subcommittee that advises Hamilton’s Emergency Operations Committee regarding the impact and control of COVID-19 as it relates to the homeless population. He is a co-founder and current Medical Director of HAMSMaRT, which provides health services to homeless people and advocates for various issues, including opposing decisions by the City of Hamilton to clear tent encampments.

[82] The applicants acknowledge that the evidence from Dr. O’Shea is fundamentally stale-dated, especially when addressing the current state of the pandemic and related events following October 2020. For example, the reference in his affidavit to the “potential second wave of COVID-19” has not been updated to reflect the current state of the fourth wave, or the introduction of vaccines and reduced transmission rates. Under the circumstances, the applicants concede that it is most appropriate for this Court to give little to no weight to the outdated portions of Dr. O’Shea’s affidavit. With respect, the evidence from Dr. O’Shea is principally unhelpful to my analysis.

The Respondent’s Evidence:

[83] As of September 24, 2021, the demographic of the 99 people in encampments is broken down as 38 people identifying as women, 61 people identifying as men, and 0 identifying as trans or other; 19 identify as Indigenous. The acuity level of people living in encampments varies based on the VI-SPDAT assessment: 21% have been identified as "very high"; 49% have been identified as “high” acuity. The rest have been identified as “mid”, “low” or no acuity. Of the people living in encampments, 18 have been housed by the City in the past or are working with Intensive Case Management to receive permanent supportive housing.

[84] As will be detailed later in these reasons, the respondent provided evidence from numerous City staff employees, from those who work in shelters or related health and welfare services, as well as other affidavits from police, paramedic and fire services, residents, business owners and other interested parties. The respondent’s evidence also addresses the issues of encampments in the City’s parks, including the wide range and seriousness of health and safety risks, property damage, and interference with other park users. It also speaks to the City’s shelter system, its response to COVID-19, with the expansion of the housing and hotel options. The evidence also described the City’s efforts to move people out of encampments and transition them to permanent housing.

Serious issue to be tried:

[85] I accept the applicants’ submissions that in this specific Charter case, the threshold for satisfying the “serious issue to be tried” test for an injunction is low. As the Supreme Court put in RJR-MacDonald at pp. 337-338:

There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of case... Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial.

[86] The applicants say that this litigation raises profoundly serious issues that are in no way frivolous or vexatious. The issue of the removal or eviction of homeless individuals from encampments in public municipal spaces engages paramount constitutional protections guaranteed to the applicants and other homeless individuals under s. 7 of the Charter and potential violations of their rights under ss. 1 and 2 of the Human Rights Code.

[87] The applicants contend that the current six step protocol used to enforce the by-law is an expedited displacement tactic that interferes with the encampment residents’ autonomy and quality of life due to the lack of viable shelter options. The guarantee of access to shelter or alternative forms of shelter or housing, is not a prerequisite to enforcement. This results in situations where encampment residents are simply unable to meet by-law compliance resulting in a cycle of ongoing displacement that is psychologically harming and increases risk of physical harm. Encampment residents are a population already experiencing exceptionally high rates of health problems that are worsened by a transient state, and the destabilization caused by forced relocation.

[88] The respondent asserts that the applicants have not even met the threshold for their claim under s. 7 of the Charter under this branch of the test. The provision of housing is not a Charter-protected right. The Supreme Court of Canada has confirmed that property rights are not protected by the Charter and there has been no recognition by courts in Canada that the Charter creates positive obligations in relation to social and economic interests. Some courts have held that the right to obtain the basic necessities of life was not a foundational principle underlying the guarantees of s. 7 of life, liberty and security of the person: Gosselin v. Quebec, (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429 at paras. 81-82, Abbotsford (City) v. Shantz, 2015 BCSC 1909, 392 D.L.R. (4th) 106, at paras. 176-181.

[89] I observe that in other cases, the s. 7 Charter rights of homeless individuals facing the prospect of being moved out of encampments have been recognized by the courts in British Columbia. In Victoria (City) v. Adams, 2009 BCCA 563, 313 D.L.R. (4th) 29, (“Adams BCCA”), the Court of Appeal recognized that the s. 7 rights of homeless persons were violated by municipal parks By-laws which prevented the erection of shelters and sleeping overnight in public parks when there were inadequate shelter facilities available to them: at para. 75:

[T]he homeless represent some of the most vulnerable and marginalized members of our society, and the allegation of the respondents in this case, namely that the Bylaws impair their ability to provide themselves with shelter that affords adequate protection from the elements, in circumstances where there is no practicable shelter alternative, invokes one of the most basic and fundamental human rights guaranteed by our Constitution - the right to life, liberty and security of the person.

[90] In the underlying case, Victoria (City) v. Adams, 2008 BCSC 1363, (“Adams BCSC”), at para. 145, the judge stated that “the ability to provide oneself with adequate shelter is a necessity of life that falls within the ambit of the s. 7 provision ‘life’.” Under s. 1, the Court of Appeal agreed that on the facts of that case that “[t]he serious health risks that homeless people face as a result of the absolute ban on shelter outweigh any benefit that may flow from the blanket prohibition”: at para. 129.

[91] Similarly, in Shantz, Hinkson C.J.S.C. invoked s. 7 to strike down municipal By-laws against camping in parks insofar as they were used to evict homeless persons from public encampments where there were insufficient shelter spaces provided by the municipality.

[92] The “encampment” cases have also been consistent in holding that infringement of s. 7 occurs in very limited circumstances where there are no shelter alternatives available. Again, returning to Adams BCCA, at para. 74, the Court of Appeal commented on the findings of the trial judge:

[T]he decision did not grant the homeless a freestanding constitutional right to erect shelter in public parks. The finding of unconstitutionality is expressly linked to the factual finding that the number of homeless people exceeds the number of available shelter beds. If there were sufficient shelter spaces to accommodate the homeless population in Victoria, a blanket prohibition on the erection of overhead protection in public parks might be constitutional. That question is yet to be determined.

[93] Given the nature of the three-part test, I make some observations on the strength of the applicants’ case and its likelihood of success. As suggested by Professor Kent Roach, where there is disagreement over the test, “[i]t may be advisable in doubtful cases for motion court judges to apply both the serious question and strong likelihood of success tests in the alternative:” Roach, Constitutional Remedies in Canada, loose-leaf, 2nd ed. (Thomson Reuters Canada, (online) updated October 2020) at 7.174.

[94] The applicants have provided evidence on this motion to sustain the concerns about moving into shelters due to a number of enumerated physical, psychological and health concerns. It may be that an increased risk is due to the generally poorer health of those experiencing homelessness, leaving them more vulnerable to more severe outcomes. Compared to the general population, homeless people have shorter life expectancy and significantly higher rates of chronic diseases as well as a high prevalence of mental illness, cognitive impairment and substance abuse. The homeless population may have little, if any, access to basic sanitation services. 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 crime.

[95] Concerns regarding the right to “security of the person” clearly arise in this case. The Notice issued by the City requires that those staying in city parks remove their tents and other items from the park. The City is requiring the applicants to leave encampments where the evidence speaks to their belief of living and feeling safe with others, yet, faced with a choice of either going to a shelter or moving along to another location. The evidence supports, without deciding, that these actions may cause anxiety, physical and psychological distress, and may put the applicants’ health at risk.

The Human Rights Code:

[96] The applicants also assert their rights under the Code. The right to equal treatment without discrimination with respect to the “occupancy of accommodation” is found at s. 2(1) of the Code. Accommodation is not defined. However, other provisions that address “accommodation”, such as s. 21, make clear that accommodation is in reference to a typical structure meant for accommodation. “Occupancy of accommodation”, in its ordinary and grammatical sense, does not include the use of the City’s public parks and streets as housing.

[97] The City provides partial funding for shelters. Other entities operate the shelters. On its face, this may be insufficient to hold the City responsible for any allegedly discriminatory actions of the shelters and hotels.

[98] As the Human Rights Tribunal expressed in Munga v. Toronto Police Services Board, 2019 HRTO 1160, at para. 8: “[t]he fact that a party is funded by another entity is not in and of itself an allegation that would bring the funder into a legal responsibility for the actions of the funded under the Code.”

[99] Accordingly, the City is not providing a service to the applicants who are attempting to use the parks to reside in. Providing a safe environment in the City’s parks is not a direct service. The Code does not apply where the applicants have unilaterally set up structures on city property. As the relationship between the applicants and the respondent with respect to the current circumstances is not covered by the Code, the City has no duty to accommodate. If I am in error on this point, and the Code does apply in these circumstances, have the applicants established prima facie discrimination?

[100] In order to establish prima facie discrimination, the applicants must demonstrate, on a balance of probabilities, that they have a characteristic protected by the Code; have experienced an adverse impact; and the protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61, at para. 33, R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 1436, at para. 204.

[101] The Human Rights Tribunal has consistently held that homelessness is not a “ground” enumerated in the Code: Kalkat v. Onyx Barbers, 2018 HRTO 1139, at para. 4: “The ground of receipt of public assistance is only an enumerated ground in the area of housing, which the respondent was clearly not providing.”

[102] The applicants have not established that it is their Code-protected characteristics that is a factor in having an adverse impact in the decision to remove them from their encampments. The enforcement of the By-law focusses on certain behaviours or locations, rather than targeting specific individuals on the basis of a protected or enumerated characteristics. The application and enforcement of the By-Law and terms of the Encampment Protocol is uniformly directed to all individuals residing in the various sites situated in city parks.

[103] For the strict purpose of this application, I am persuaded that the impugned By-Law does not result in discrimination. It reflects the City’s legitimate interest and concerns in regulating public land for public use. The duty to accommodate is not unlimited, and only extends to the point of undue hardship: Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591, at para. 23. As such, the City has no obligation to accommodate the applicants under the Code.

[104] Returning to the central theme of this application, there is some evidence in support of the respondent to demonstrate that it is providing sufficient and safe shelter facilities, such that any violation of life, liberty and security of the person, or equality rights, is likely to be justified under s. 1 of the Charter. There is also some evidence that homeless people are being reasonably accommodated in the shelter system. This assertion is 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.[^6]

[105] That being said, the applicants have provided convincing evidence to support their contention that their Charter-protected rights may have been violated.

[106] Recognizing that the applicants raise serious triable issues, however, is not a finding that they will succeed, or that they have a strong likelihood of success. It must be noted that s. 1 of the Charter provides that all rights are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” which involves considering the government’s objectives and balancing those objectives with the rights of the individual: R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103.

[107] While I am not called upon to decide the merits of the case, I find that the applicants have met their burden for the first step of the RJR-MacDonald test and have established that there is a serious issue to be tried.

Irreparable harm:

[108] Irreparable harm refers to harm which cannot be adequately remedied through an award of damages or by an eventual disposition of the case. As stated in RJR-MacDonald, at p. 341, “[i]t is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.” The Supreme Court also notes that “irreparable” refers to the nature of the harm, not its magnitude.

[109] J.R. Sharpe writes that “courts should avoid taking a narrow view of irreparable harm…[i]n the context of preliminary relief, the test is a relative and flexible one” (Injunctions and Specific Performance, paras. 2.411, 2.450).

[110] Courts have recognized that “a risk of personal injury or assault” is sufficient to show irreparable harm. Irreparable harm is also established where there is “psychological harm that is more than transient or trifling:” Toronto Standard Condominium Corporation No. 2395, at para. 32. On the other hand, the evidence establishing irreparable harm must be clear and not speculative.

[111] 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 psychological and physical harm through displacement, the loss of shelter and the ability to protect themselves and meet their basic needs with associated mental distress due to their inability to shelter in place. The recent enforcement of the By-Law in September 2021 verifies a boomerang effect of cleared encampment residents returning shortly after initial compliance. This displacement interferes with the fundamentally important personal decision of the applicants and other homeless individuals to shelter in circumstances where there is no practicable alternatives.

[112] The applicants also argue that the forced compliance with the By-Law at the expense of individuals’ health needs and overall well being, when there is limited to no alternate shelter options, would exacerbate their medical conditions, is the epitome of state interference that interferes with individual autonomy and dignity. The current enforcement protocol does not take into consideration these vulnerabilities. If forced from the group encampments, the applicants fear loss of their tents and other possessions that provide them with shelter and food. By being “moved along” and forced to leave group encampments, they may lose valuable community supports both within the camp and outside and be more vulnerable to being victims of crime. In this context, the applicants prefer living in encampments with others where they say they feel safer and more secure, rather than in a shelter or living on their own in a park or on the street.

[113] Recall that the applicants submit that the eviction of homeless people from encampments will remove their ability to protect themselves from infection as they argue that “[t]he City’s shelter system has not proven to be a safe alternative in terms of risk of exposure,” of contracting COVID-19. In contrast, they say that the risk of contracting COVID-19 in outdoor encampments is comparatively low, noting that “[t]here is no evidence of a confirmed case of COVID-19 transmission within homeless encampments.”

[114] According to Dr. Wiwcharuk, the removal or eviction of the applicants and homeless individuals from their public encampments will deprive them of shelter without alternative and place them at a heightened risk of injury, illness and death. It will also cause considerable harm to their dignity and, given that many are already suffering from mental illness, psychological harm that is more than transient or trifling. Although, it is true that not all persons experiencing homelessness are suffering from mental illness, have an acute medical condition, a physical disability or an addiction. However, she says that such difficulty may certainly be traumatizing and destabilizing and would likely lead to significant psychological stress and harm. If evicted or removed, the applicants and other homeless individuals will also lose connections with the service providers including health services, housing and harm reduction services, as well as food and medical supports. This includes individuals who cannot enter a shelter and resort to “sleeping rough”.

[115] Not surprisingly, the respondent disputes these assertions of irreparable harm. It challenges the scope of the risk of contracting COVID-19 in shelters having regard to the steps the City has taken to ensure its shelter system is accessible, safe, and responsive to the various and challenging needs of the homeless population. The City also contends that significant efforts have been made to address the issues adversely impacting the applicants’ and other homeless persons situated in the parks.

[116] The respondent points to the evidence that demonstrates all five applicants as having had assistance from the City or other support programs and have been offered housing and/or emergency shelter. Some have refused the offers of support, prefer to remain outside or are no longer in encampments.

[117] Rob Mastroianni, (“Mastroianni”) is the manager of the Residential Care Facilities Subsidy Program & Emergency Shelter Services within the Healthy & Safe Community Department of the City of Hamilton’s Housing Services Division. His role includes oversight of the City’s Emergency Shelter Services and Housing Focused Street Outreach Team.

[118] According to Mastroianni, Poff was in contact with the outreach team two times in 2021. Poff frequented a downtown health centre and accessed overnight drop-ins for women. She was accepted into a transitional housing program in early spring 2021 and accessed drop-in programs during the day. She had been “kicked out of shelters more than 22 times”. Currently, Poff is not staying in any encampments identified through the Encampment Process protocol.

[119] Outreach has had a few encounters with Marchand. He stayed at three different encampments and sometimes at a shelter. In July 2021, Marchand stayed in a park for two days and one day in August 2021. Marchand has a trespass order with one shelter, but is still able to access beds in other shelters. Marchand is currently incarcerated.

[120] According to city records, Smyth lost housing in June 2021 and Outreach offered him shelter but he declined, as it did not allow pets. The Outreach team also offered him fostering for his pet, but he declined that as well as he did not want to be separated from his dog. The Outreach team also offered Smyth a housing subsidy, but the cost was beyond what he could afford. He did not receive the housing subsidy. Smyth was also connected to a housing worker where he completed necessary forms, but said he could not take the unit because of hydro costs. The housing worker planned to arrange to have the hydro paid directly to the utility company. The landlord rescinded. Outreach and Housing staff offered pet friendly housing, as well as offering support while in housing, yet Smyth refused due to it being unaffordable. Out of frustration, he demanded that someone return with keys to an apartment or he would remain in the encampment, which is precisely what he did and where he remains. Smyth completed an application for a low barrier unit one month ago and the Social Navigator Program (“SNP”) has been following up with him.

[121] The Outreach team connected with the Muscato around July 2020 while he was staying at an encampment. When the Ferguson Avenue encampment was cleared, the Outreach team was informed that Muscato was moving into a Residential Care Facility. Between August 2020 and approximately April 2021, Muscato had been accessing Indigenous Housing Services. He was offered a space in a Residential Care Facility and he declined the residence as he felt it was not suited for him because it was not accessible due to his disability. As of June 2021, Muscato was discharged from Indigenous Housing Services because their Outreach program staff had been unable to contact him for three months. As of October 7, 2020, Muscato was staying in a shelter.

[122] Arnold has spent over a year and a half in encampments. He connected with services roughly six months ago. He missed four appointments with Emergency Shelter Services and Housing Focused Street Outreach team because of his transience. As of October 4, 2021, Arnold had secured a unit and the housing worker was waiting for him to pick up his key. On or about October 8, Arnold signed his lease and obtained his keys. He is eligible to continue receiving support with the housing worker for the next two years.

[123] Mr. Bordin submits that the applicants have fallen well short of the mark in demonstrating irreparable harm. I agree. All of the named applicants have either received shelter or have been otherwise offered supports, accommodated or declined such overtures. Four applicants are no longer in an encampment. Based on the record before me and the current status of the five named claimants, I am not persuaded that irreparable harm to these specific individuals arises to the appropriate legal standard and the applicants have not met their onus.

[124] The question then becomes whether, in this case, the named claimants need demonstrate irreparable harm on a balance of probabilities; or whether I am also able to consider the homeless population-at-large in Hamilton in this segment of the analysis.

[125] There is no doubt that the applicants’ arguments in this litigation advance significant public interest issues. The overall evidence establishes that the irreparable harm inflicted on homeless individuals generally in Hamilton may be more damaging than the various concerns raised by the respondent. Clearing homeless encampments per se, may affect a population that is predisposed to experiencing the most severe symptomology and worst health outcomes for a variety of reasons as elucidated by the applicants’ evidence.

[126] In support of her position, Ms. Crowe makes reference to Black, at paras. 70 – 75. She submits that the court in Black took a broader perspective on ambit of irreparable harm beyond the named individuals in a case involving similar Charter rights and the public interest. However, I note that in Black the judge was apparently referencing the applicant’s submissions rather than endorsing with approval the party’s stated position.

[127] Ms. Cox directs me to the case of AstraZeneca Canada Inc. v. Canada (Minister of Health), 2005 FCA 208 at para. 20 where Noel J.A. stated:

The irreparable harm claimed in the name of the Canadian public is more compelling. While I do not accept that patients and doctors would be "confused" by restricting the market to AstraZeneca's product pending appeal or that this would somehow "disrupt" the system, I am satisfied that irreparable harm would result if indeed the NOC Regulations are intended to facilitate generic entry and promote access to cheaper drugs.

[128] I am not sure how the AstraZeneca Canada Inc. case assists the applicants. Its context is quite narrow and the statement offered from the court appears to be conclusory in nature.

[129] My colleague, Broad J. had the occasion to discuss this issue in the case of The Fit Effect v. Brant County Board of Health, 2021 ONSC 3651. At paras. 70-71, Broad J. stated as follows:

The Applicants submit in their Factum that central to the question of irreparable harm is that the harm to the Applicants themselves cannot be divorced from the broader harm to those members of the Applicants’ fitness facility or the community at large, given the serious health ramifications associated with the effect of closure of the Applicants’ facility.

The Applicants have cited no authority for the proposition that the applicant on a motion for an interlocutory injunction may satisfy the requirement for irreparable harm based upon alleged harm to others who are not parties to the proceeding and who seek no relief from the court. RJR-Macdonald makes it clear that irreparable harm in this context refers exclusively to the harm to be suffered by the applicant itself if the injunction is not granted. The court specifically rejected, at p. 405, consideration of the harm that might be suffered by the respondent should the injunction be granted at the second part of the test, on the basis that it is more appropriately dealt with in the third part of the analysis along with any alleged harm to the public interest.

[130] Mr. Bordin argues that this part of the test, in law, is strictly limited to the five named applicants. In support of his position, he refers to Metropolitan Stores at pp. 128-129 and Cardinal. In Cardinal, at para. 71, McEwen J. opined:

Nor does the argument that this series would be broadcast to a broader audience than previous games explain the delay. Only irreparable harm to Mr. Cleveland personally is relevant at the second stage of the RJR-Macdonald test. Third party interests are considered at the balance of convenience stage.

[131] In my view, McEwen J. is entirely correct in law and aptly describes the appropriate ambit of considerations at this stage of the analysis. The jurisprudence suggests that it is the personal claimants who must be the focus of irreparable harm. As a generally rule, only harm suffered by the party seeking the injunction will qualify under this branch: Air Passengers Rights v. Canada (Transportation Agency) 2020 FCA 92 at para. 30.

[132] Whether the effect of the By-Law on the applicants may have collateral impact on the broader group of the homeless population and occupants of the parks is an important factor to be considered at the next stage of the analysis. “Both sides may raise public interest issues which may tip the scales of convenience it its favour by demonstrating to the court a compelling public interest in the granting or refusal of the relief sought.

[133] I observe that in Black, the claimants/applicants included various interest groups as parties to the application. In British Columbia v. Adamson, 2016 BCSC 584, the named defendants included “Jane Doe, John Doe and Other Unknown Persons”.

[134] In this litigation, the moving party has limited the putative claimants to the five named applicants. The Representative Claims Proceedings rule under the former Rule 12 of the Rules of Civil Procedure was repealed in favour of the 1992 enactment of the Class Proceedings Act, 1992, S.O. 1992 c.6.[^7] This statute provides for a complete code as to how representative actions are to be brought and heard in the courts in Ontario.

[135] As such, based on the pleadings, the prevailing legal principles would inhibit my discretion to consider the collateral effect on the wider group of homeless individuals in Hamilton when addressing the test for demonstrating irreparable harm.

[136] Before I leave this area, I am cognizant that appellate courts caution trial judges from taking a narrow view of irreparable harm in constitutional and Charter cases. While the applicants’ arguments have an initial attractiveness, the fact of the matter is that the jurisprudence dictates otherwise. The applicants attempt to broaden what constitutes irreparable harm to them, rather than a wider view as to whose interests ought to be considered.

[137] I am unable to read-in to the title of proceedings, “persons unknown” or add other non-specific homeless individuals as claimants. This litigation is not framed as a class proceedings action, nor has such a declaration been sought by the applicants.

[138] While acknowledging the difficulties facing the homeless population in Hamilton, even if the respondent would not be prejudiced, I would be falling into legal error if I were to adopt such an expansive approach to this part of the analysis.[^8]

[139] For the reasons outlined above, I find that the evidence does not warrant a conclusion that the five named applicants will suffer irreparable harm in the sense required by law if the injunction is not granted.

Balance of Convenience:

[140] While the applicants’ failure to satisfy irreparable harm may be fatal to the application, nonetheless, for the sake of completeness, I will address this important branch of the RJR-MacDonald test.

[141] As this case raises Charter rights issues “the public interest is a 'special factor' which must be considered in assessing where the balance of convenience lies”: RJR-MacDonald, at p. 343. This does not mean that the City has a “monopoly on the public interest” which overrides private rights. The applicants may also raise public interest concerns, all of which must be considered in the balancing exercise. Although I was not able to consider the homeless population at large in the previous section, I can consider their broader interests and they can factor into my analysis at this stage of the test.

[142] The balance of convenience involves “a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits”: Metropolitan Stores at p. 129, as cited in RJR-MacDonald, at p. 342.

[143] There is some interplay between the issue of the strength of the case and consideration of the public interest which arise in Charter cases. It may be “better assessed under the balance of convenience where the courts have made healthy allowance for the public interest and where it will be suggested they can also draw on considerations of proportionality that play a central role in our constitutional law”: Roach, at paras. 7.175-7.190.

[144] I agree with the comments of Schabas J. in Black, at para. 135:

As noted at the outset of my discussion of the balance of inconvenience, the public interest is an important factor in injunction motions that engage constitutional rights and the validity of legislation or the ability to enforce laws: RJR at p. 343, citing with approval Blair J. (as he then was) in Ainsley Financial Corp. v. Ontario Securities Commission (1993) 1993 5552 (ON SC), 14 O.R. (3d) 280, at pp. 303-4. Both sides may raise public interest issues which may “tip the scales of convenience in its favour by demonstrating to the court a compelling public interest in the granting or refusal of the relief sought. ‘Public interest’ includes both the concerns of society generally and the particular interests of identifiable groups”: RJR at p. 344.

[145] In this balancing exercise, the applicants contend that there is clear and significant potential damage to a particular group—homeless individuals in Hamilton, including the applicants—who will suffer violations of their constitutional and human rights and be placed at an increased risk of physical and mental injury, illness and death if the injunction is not granted in their favour. They argue the homeless population, including the applicants, already suffers disproportionately from mental illness and is at a higher risk of contracting COVID-19. Alternatives to encampments are further limited by the affordable housing crisis, lack of capacity in the shelter system, and their inability to appropriately serve high acuity individuals. If an injunction is not granted in their favour, they will not be merely inconvenienced—they will suffer profound and devastating adverse harms. The applicants urge that the inconvenience posed to the City and the public generally by the granting of the injunction is both less substantial and largely reflective of the affordable housing crisis. Those inconveniences are largely attributed to factors beyond the applicants’ control and the broader homeless population.

[146] I next turn to the evidence of the City’s efforts with regards to accessible shelters, the risks and burdens of encampments on both their occupants and other residents of the City, and the scope of what the applicants seek on this application.

The City of Hamilton’s shelter system:

[147] The City has an extensive shelter system and acts as “system service manager” for homelessness response on behalf the Governments of Ontario and Canada. The City receives federal and provincial funding and contributes its own funding to address homelessness. The City must adhere to the funding guidelines of each funder, however, it is able to determine allocations based on local need.

[148] As to the 2020-2021 budget resources allocated for homelessness and emergency shelters available to the City: The Federal Government Funding allotment for 2020-2021 is $5,718,428; an additional $1,000,000 was provided by the Federal Government for 2020-2021. The Provincial Government Funding allotment for 2020-2021 through “Community Homelessness Prevention Initiative” is $19,455,174. An additional $2,954,960 comes from the City of Hamilton levy for 2020. The City has also received over $350,000 COVID-19 related funding to address the needs of the homelessness during the pandemic.

[149] The City’s approach to homelessness includes various programs. These include Homelessness Prevention and Shelter Diversion, Mental Health Street Outreach, Housing Focused Street Outreach, Emergency Shelters, Transitional Housing, Rapid Rehousing, Intensive Case Management and Permanent Supportive Housing. These programs operate as part of a broader social safety net and work to ensure clients have efficient connection to the services and supports required. Homelessness Prevention and Shelter Diversion interventions provide assistance to individuals and families at risk of becoming homeless. Prevention programs couple financial support (rent and utility arrears, etc.) with case management to achieve housing stabilization.

[150] Housing Focused Street Outreach workers provide mobile support services to people who are experiencing homelessness and who may be disconnected from the homelessness-serving system. Outreach workers meet people in the community, helping to make connections to resources and supports and increase collaborations and co-ordination within homelessness support services. Assertive housing-focused street outreach provides connections to safe, sheltered options with a focus on permanent housing. Individuals supported by Outreach are offered a referral to an existing emergency shelter or hotel, based on client choice, and are offered a referral to Housing First Intensive Case Management programs as appropriate and available.

[151] Emergency shelters provide temporary accommodations and essential services for individuals experiencing homelessness so that they may be re-housed. Shelters can play a key role in reducing homelessness as these services focus efforts on engaging participants in the rehousing process.

[152] Case management for people experiencing homelessness is tailored to the level of support a person requires. The City uses Vulnerability Index - Service Prioritization Decision Assistance Tool (“VI-SPDAT”), a standard triage tool to assess the needs of unhoused people. VI-SPDAT has been largely adopted across the country as one of the most successful assessment tools.

[153] Intensive Case Management (“ICM”) delivers longer-term case management and housing support to higher acuity participants facing long-term homelessness (chronic homelessness), addictions, and mental health issues. ICM programs support clients through regular in-home visits, providing financial support to stabilize income and maintain housing, facilitate connection to health resources, and promote reconnection with broad community support networks. The intervention is designed to serve and achieves the best outcomes with individuals with acuity scores of 8-12. The length of the intervention is generally between 12 and 24 months.

[154] The City of Hamilton funds four community agencies to deliver ICM programs, serving self-identified CIS men/women, Trans Masculine/Feminine and non-binary adults. These include: Mission Services (men) – 2020-2021 target: 80 individuals placed in permanent housing per year; Wesley Urban Ministries (men) – 2020-2021 target: 65 individuals placed in permanent housing per year; The Good Shepherd (women, youth and families) – 2020-2021 target: 146 households placed in permanent housing per year (Families 35, Single Women 77, Youth 34); and Aboriginal Health Centre, Indigenous Housing Services – 2020-2021 target: 53 individuals placed in permanent housing per year.

[155] The emergency shelter system in the City of Hamilton is broadly divided into the Men’s, Women’s, the Family Sector and the Youth Shelter. The Men’s emergency shelter sector is composed of the Good Shepherd Men’s Centre, Mission Services Men’s Centre, Salvation Army Booth Centre, an emergency shelter located at the former Cathedral Boys School operated by the Good Shepherd and hotels operated by Mission Services. With respect to the women’s system, the City has provided the largest increase in funding to this system over the past few years to meet the growing demand. The City emergency shelter system is able to accommodate couples in the Family shelter, or hotel rooms in the absence of space in Family shelter.

[156] All shelters adopt rules such as curfew times and make bed checks during the night to ensure safety and to ensure that facilities are being used. Shelters have programs to prevent drug abuse and provide supports for those who use substances. People are advised not to use drugs and referrals are made to treatment centres or counsellors.

[157] City staff presented evidence that they continue to explore opportunities to ensure shelter availability meets the needs of those who wish to access it. In the men’s sector, Mastroianni confirmed there are currently 23 beds available and in addition, Cathedral can be increased from 60 to 75 or 80 beds if required. Mastroianni stated in his affidavit there is limited space in the hotel overflow for families, women and couples. He also explained that with respect to hotel spaces for families, the occupancy in hotels always appears to be at 100%, because the bookings are placed on an ad hoc basis.

[158] The City increased the number of beds by 289 including opening a new 15-bed shelter for single women on October 2, 2021. The City secured 21 additional hotel rooms to ensure physical distancing could take in place in shelters and respite centres. From January 2020 to September 2021, the City moved about 440 individuals and families to new spaces. Since March 2020, more than 70 people were housed directly from encampments.

[159] Mastroianni explained that bed availability is extremely fluid and changes rapidly, often on an hourly basis. If a person calls for a space at one point in a day and there are no spaces available, capacity may change later in the day. Individuals are first referred to permanent shelter locations and only referred to hotels when there is no space in the shelters, or where the particular individual is not able to be admitted to the shelters, for example, a service restriction. If the same-gender shelters are full, an assessment for space at the ‘couples, men, and women hotel overflow’ is completed. There have been occasions where no space was available at hotels or shelters.

[160] Turning to the named applicants, Poff, Marchand and Muscato have all stayed in shelters or overnight drop-ins since October 2020. Smyth has never stayed or attempted to stay in a shelter since becoming homeless in June 2021. Arnold appears to have never stayed in a shelter. Muscato stayed in a shelter on October 7, 2021. Marchand has been incarcerated since the end of September 2021. He has not attempted to stay in a shelter since December 2020.

[161] It is clear that for some there is an element of choice to staying outside rather than in shelters. As Dr. Wiwcharuk and others point out: “people chose or are forced to sleep in encampments for a variety of reasons; some chose pets over shelters; Some find shelter rules too restrictive.” Some do not go to shelters because they do not want to be exposed to drug use and yet shelters are criticized for not allowing drugs. Arnold’s evidence is that illicit substance use in shelters threatens his sobriety. Shelters are criticized for not allowing drug use albeit, there are available safe injection sites.

[162] I accept Mastrioianni’s evidence that the City considers the particular needs of individuals when offering shelter space. It tries to provide locations close to supports and services used by the individuals, and where this is not possible the City provides transit fare so that the individuals can access the necessary supports and services.

COVID-19- Generally and in Shelters and Encampments:

[163] The concerns raised by the applicants with clearing the encampments during the pandemic is that it puts a population which is the most predisposed to experiencing severe symptomology and worse health outcomes of COVID-19 at a higher and unnecessary risk of contracting the virus if they are moved into congregate living facilities.

[164] According to Dr. Wiwcharuk, these risks may be exacerbated by the fact that the homeless population tends to be transient and people may move from one shelter to another, and because the use of drugs and prevalence of mental health issues in the population may make compliance with public health guidelines more difficult. At para. 42 of her affidavit, Dr. Wiwcharuk states “the increased risk of contracting COVID-19 in congregate settings like shelters is “well documented” and is another reason some people will avoid staying in shelters.” Despite this claim, Dr. Wiwcharuk does not address the specifics of the risk of contracting COVID-19 in a shelter setting and whether it is any greater than in public spaces.

[165] According to Michelle Baird (“Baird”), Director, Epidemiology, Wellness and Communicable Disease Control within Public Health Services, Healthy and Safe Communities for the City of Hamilton, from March 10, 2021 through September 27, 2021 at 11:59 P.M. there was a total of 24,459 COVID-19 cases reported in the City of Hamilton. Beginning mid-July 2021, the City began experiencing its fourth wave of the disease. Activity was rising steeply throughout August and peaked near the end of the month. In recent weeks, activity has been decreasing; however, this trend has been fluctuating. Of its four waves, the third was the most impactful. It began in mid-February 2021, hit its peak in April, and steadily declined from then until mid-July. From March 10, 2020 to September 27, 2021, a total of 613 COVID-19 outbreaks were declared in Hamilton.

[166] Much has changed since the onset of the pandemic in March 2020. From March 10, 2020 to September 27, 2021, there were 49 (43 confirmed and 6 suspected) COVID-19 outbreaks in Hamilton shelters, and a total of 254 cases associated with these outbreaks. Seventy percent of cases were in shelter residents, and the remainder in staff. Shelter outbreaks have been common throughout all four waves of COVID-19 in Hamilton, but were most numerous in the second and third waves. The largest COVID-19 outbreak in a Hamilton shelter occurred in February to March 2021 at the Salvation Army Booth Centre, with 63 total cases.

Steps taken to address COVID 19 risks:

[167] Dr. Wiwcharuk identified four factors as “particularly important” in reducing the spread of COVID within the Hamilton shelter system. These include increased capacity of shelter space by opening surge shelters and hotel rooms, allowing for more effective physical distancing in congregate shelters; access to rapid assessment and testing on site when symptomatic residents or staff are identified through active screening; restructuring of physical spaces to accommodate isolation of residents with confirmed COVID-19 and rapid turnaround of test results through collaboration with the regional laboratory.

[168] The City has undertaken these and other positive steps to address the situation of the homeless population during the COVID-19 pandemic. In response to the impact of COVID-19 on shelters, the City has increased its shelter capacity. Pre-COVID-19, 326 beds were available. During COVID-19, an additional 615 beds were made available. The City has 323 beds available in the men’s sector, 96 in the women’s sector, 180 for family, and 13 in the youth sector.

[169] COVID-19 prompted the City to expand its services in order to address the needs of people experiencing homelessness during the pandemic. Additional measures include: providing transportation support for people experiencing homelessness; providing PPE to shelter staff and occupants; extending drop-in services and hours and length of season for men and women in four locations; an increase of staff in the Street Outreach Team; a focus by the Street Outreach Team on encampments; use of rent supplements/Canada Ontario Housing Benefit to fund access to housing units; providing funding to community organizations for additional peer outreach workers and program supplies; conducting daily, intensive engagement with a housing focus at encampments through outreach, the SNP and other community partners; conducting bi-weekly case conferences with Intensive Case Managers, Outreach and community partners to assess appropriate housing options and match opportunities with individuals; initiating contact with Home and Community Care to discuss higher-acuity cases that need more than ICM housing supports; providing flexibility with the Housing Stability Benefit; coordinating delivery of more than $550,000 from the provincial and federal government to 27 local agencies for expenses such as food, enhanced cleaning, PPE and contact with partner agencies to identify emerging issues and coordinate responses.

[170] The first vaccine clinics offered in shelters by Public Health staff through mobile vaccine teams were from February 27 – March 2, 2021. A total of 3,611 doses of the vaccine were administered within the shelter and homeless population between February 27, 2021 and September 27, 2021. This includes 421 doses administered to staff and healthcare workers within these settings.[^9] The mobile teams led by Public Health staff were supported by Primary Care physicians and offered onsite clinics in shelters.

[171] Baird states that it is difficult to know the extent of COVID cases in encampments as there is no active monitoring. While there is the potential for exposure to COVID-19 in shelters, the risk is similar to what is found in other congregate settings such as hospitals, long-term care homes and group homes. Those settings continue to function with mitigation measures in place.

[172] The Salvation Army’s downtown “Booth Centre” was renovated to offer individual rooms and isolation spaces, in addition to dormitory-style spaces. COVID-19 protocols have been instituted, including outdoor meals where possible, enhanced cleaning, provision of PPE, installation of physical distancing markers, voluntary COVID-19 testing, and a mandatory vaccine policy for staff (not for clients). While there have been cases of COVID-19 at the Booth Centre during the pandemic, there are no current active cases and over 1,500 tests have been administered in total.

[173] At the hotel sites operated by Mission Services, multiple COVID-19 screenings occur each day. If a screening is not passed, the result is self-isolation and testing. PPE and related training have been provided to all Mission Services staff working at the hotel sites. Masks are provided to clients, as well. Vaccinations are readily available to Mission Services shelter and hotel site clients who are interested in obtaining them. At hotel sites operated by Good Shepherd, multiple COVID-19 screenings are conducted each day. If a screening is not passed, the client is isolated and is not barred from accessing services.

[174] While there is no evidence of COVID-19 outbreaks or transmission within the encampments, in cross-examination, Dr. Wiwcharuk acknowledged that there has been COVID cases in encampments. The parties acknowledge that tracking COVID outbreaks in encampments would be difficult. The high incidence of addictions and mental health issues in this population may compromise some individuals’ ability to observe public health measures. Indeed, not all encampment residents consistently adhere to COVID precautions as some individuals will not use masks and will not follow social distancing protocols that would be enforced in shelters.

[175] I am not persuaded by Dr. Wiwcharuk’s views that there is a higher risk of contracting COVID-19 if the homeless are moved into congregate living facilities. As mentioned, the information provided by Drs. O’Shea and Wiwcharuk is outdated and not reliable for current COVID-19 issues.[^10]

[176] As mentioned, much has changed in the past nine months with the roll-out of the vaccines and reductions in the transmission rates.[^11] Based upon the information provided by the respondent from the posting on the Public Health Ontario website, the fourth wave appears to be declining in Hamilton.

[177] At the current stage of the pandemic, and given the current transmission rates, vaccines, and protocols, it is less likely that the risk and/or perceived risk of contracting COVID-19 in a shelter will have an increased negative health impact on the applicants or other individuals who are relocated from their outdoor encampments. The applicants’ assertions that they will be at a higher risk of contracting COVID-19 if the encampments are dismantled or because of their transience is simply not supported by the evidence.

Other Concerns with the Removal of Encampments:

[178] The applicants contend that “people choose to sleep in encampments for a variety of reasons, including difficulties they have experienced within the shelter system and a shortage of shelter beds.” Some evidence suggests that some occupants, including the applicants, find the rules in shelters to be too restrictive. It is argued that these rules often fail to take into account the particular needs of shelter clients. These include people with pets, couples who wish to stay together, people with mental health issues such as anxiety and paranoia, exposure to drug use and users, fear of theft and a sense of a lack of personal security. I will address this point later in my reasons.

[179] The applicants’ emphasize that when encampments are broken up, residents’ lives are destabilized. The applicants argue that if they are forced from their encampments, they will lose access to hygiene and medical services and food or connections with their community and other support workers are lost, including access to drug treatment programs. With respect, I am not persuaded by these assertions and there is evidence to the contrary from the evidence adduced in this hearing.

Encampments and the City’s response:

[180] It appears to be common ground that the number of encampments in Hamilton increased following the declaration of the pandemic in mid-March 2020, and larger encampments were established in a number of parks. Several reasons have been identified for this growth, including an unwillingness by some to access shelters due to concerns about COVID-19, and because the residents of the encampments value the sense of community and what they perceive as the relative safety of being in a larger group.

[181] It is important to note that the evidence does not reflect that the current numbers of persons in encampments at 150 people as referenced by applicants’ counsel during argument. According to Edward John, Director of Housing Services, on October 13, 2021 there are between 90 and 100 people in encampments, and over the past several months the figure is 80 to 100 individuals.

[182] David Buckle (“Buckle”), is the supervisor of the Housing Focused Street Outreach Team (“HFSOT”). The HFSOT is under the purview of the Residential Care Facilities Subsidy Program and Emergency Shelter Services within the Housing Services Division of the City’s Healthy and Safe Communities Department. The role of the HFSOT is to engage with the unhoused persons and to help them find housing or emergency shelter. The HFSOT also coordinates with the Mental Health and Street Outreach team and Canadian Mental Health Association. The HFSOT engages proactively with occupants and by referrals.

[183] One component of the Encampment Response Team referred to earlier in this ruling is the SNP. The SNP was developed in partnership between the HPS and the Hamilton Paramedic Service, the City of Hamilton's Neighbourhood Development Strategies, and the Urban Renewal Section of Economic Development. The aim of the SNP is to refer "at risk" individuals and those who have had repeat interactions with the HPS to appropriate health and social service providers. The SNP has acted as a vital part of the City’s response to encampments by providing outreach and engagement support, in collaboration with the City’s Housing Focused Street Outreach and Mental Health Street Outreach Programs. The evidence suggest that they have developed trusting relationships with individuals in encampments and have facilitated referrals to shelters and hotels.

[184] When an encampment is dismantled, the HFSOT is not involved with the dismantling. The HFSOT is available, however, to ensure encampment residents are aware of available shelters and that any potential emergency shelter space is accessed, or other options pursued. HFSOT members also request details of where the individuals may go for follow-up servicing.

[185] Around 506 unique individuals have been identified by the City as having stayed in an encampment since the start of the pandemic. While the number and location of encampments in the City fluctuates, Buckle estimates that at any given time there are on average around 25-30 encampments throughout the City. Buckle deposed that as of September 24, 2021 there were an estimated 99 people living in encampments in the City.

[186] Under the previous protocol, encampments in designated areas were allowed to remain for up to 14 days, but in practice, they often remained in place for longer. Under the current Encampment Process, the length of time encampments remain in place varies. MLE Officers have issued notices of contravention and have asked persons to leave resulting in some individuals leaving voluntarily. Sometimes the sites return. Encampments are not removed as night is approaching and MLE officers endeavour to leave encampments before sundown, unless they have been previously engaged with the occupants.

[187] According to Mastroianni, the City commits millions of dollars every month for shelters.[^12] The funds come from municipal taxes, the provincial and the federal governments. The City does not fund Permanent Supportive Housing and the Mental Health Street Outreach teams. Funding for supports for individuals with the highest level of acuity who require the assistance of physicians, mental health practitioners, and other resources fall outside of the City’s authority.

[188] Buckle states that notwithstanding finite resources, the City also provides, in addition to the shelter system, numerous other services and programs to assist people experiencing or facing homelessness. These include the HFSOT, Residential Care Facilities, Housing Stability Benefits, Eviction Prevention programs, Rapid Rehousing programs and ICM, as well as front line community supports. The City also advocates for partnerships with other sectors for supports through the homelessness/housing funding or system.

[189] The street outreach workers connect with people in the homeless community, seek to understand their needs, explore reasons why they do not attend shelter or other services, try to determine where the barriers to service are, and whether they are on a list for housing. Their goal is to try to connect homeless persons with housing and they work closely with the housing and homelessness City team. The Shelter Health Network operates a street outreach medical clinic from the Wesley Centre and also service the same population as the Harm Reduction Outreach teams. Hamilton Urban Core Community Health Centre also operates an Overdose Prevention Site out of 71 Rebecca Street. It is a safe and hygienic environment for people to inject pre-obtained drugs under the supervision of qualified staff.

[190] The respondent has identified many concerns associated with the encampments. This includes limited or no access to adequate sanitation facilities. The lack of ready access to clean running water means it is difficult to wash and stay clean – a primary defence against the spread of COVID-19.

[191] There are frequent reports of public urination and defecation in parks. Other concerns include drug overdoses including fatalities, inadequate physical distancing and lack of masks, sex trafficking, pervasive discarded needles and other drug paraphernalia, garbage, human waste and unsanitary washroom mess and related damage.

[192] According to Kara Bunn, (Manager of the Hamilton Parks and Cemeteries Section) and Steve Hasselman, (Superintendent of Parks), there have been numerous fires in encampments, endangering residents, impairing public safety, and significantly damaging public property. There is increased and observed property damage to areas where encampments are located, notably encampment residents cutting or breaking through fences to create pathways to and from the encampments across neighbouring properties.

[193] Bunn states that the growing presence of encampments over approximately the last two years has created a significant amount of additional work for the Parks and Cemeteries section, as well as posing safety concerns. This is not only related to the fact that the encampments are more numerous and larger than in previous years, but also the types of activities that are occurring in these encampments. There is also the need to remediate damage to public washroom facilities and water fountains. She observed a significant increase in graffiti in areas at or near encampments, including spray painted graffiti on trees. The additional work required due to encampments has caused budget overruns. In 2021, the budget for the entire year for waste cleanup is $400,000.00 for Parks North. However as of October 7, 2021, the expenditure is already $400,833.75.

[194] Another substantial challenge presented by encampment cleanup is discarded drug paraphernalia. As this is a hazardous material, extra care is required by the workers cleaning up encampments to ensure their safety when handling this material. It is also a priority to ensure that cleanup of drug paraphernalia is thorough, to mitigate the safety risk to the public. In 2020, Parks and Cemeteries section staff attended to clean up needles on 125 separate occasions. In 2021 to date, staff have attended to clean up needles on 130 separate occasions, of which 109 of these attendances are in Parks North.

[195] Hasselman adds that prior to 2020, while encampments have existed, they have temporary and fewer in number. He is now observing larger and more permanent structures being erected, sometimes incorporating trees present on site, to which wood pallets and A-frames are attached via screws and nails.

[196] With reports from Hamilton Fire, Hasselman is cognizant of at least two fires occurring in Kay Drage Park related to the encampments. The first on April 12, 2021 with the second larger fire on April 28, 2021 involving approximately 30 propane tanks and causing extensive damage. Another fire occurred at Central Park on May 19, 2021. Hasselman is aware of two separate fires at Beasley Park, one occurring on May 31, 2021 which caused significant damage to the fence along the east part of the part. The other fire occurred on June 22, 2021 and caused additional damage to areas near the encampments.

[197] Hasselman says that the City has had issues with encampment occupants removing the electrical wiring from the bandshell at Gage Park. As well, there have been two occasions on which copper pipe from the public washrooms in Gage Park was stolen. After these incidents, Parks and Cemeteries workers locked the washrooms to prevent further vandalism.

[198] The quantity of garbage and waste to be cleaned up in Park District North has increased significantly since 2020 as compared to previous years. Waste has often been strewn about, inside and near encampment sites. This includes buckets of feces, used condoms, and signs of defecation in bushes near encampments, all of which present biological hazards. The Public Health Department has provided assistance to the Parks and Cemeteries Section.

[199] In summer 2021, the Rotary Club sponsored a literacy camp for children at Woodlands Park. It appears that an encampment in Woodlands Park created issues.[^13] Children attending the camp reported feeling unsafe. Program staff walked the grass each morning looking for needles and other paraphernalia. On August 24, 2021, there was a drug overdose near the end of the program for the day, and staff reported having observed drug dealing taking place from an encampment tent all morning. The parents of the children attending the camp and the program staff expressed concern for the safety of the children.

[200] In June and July 2021, Hasselman affirms that there was an encampment located in Gage Park. The bandshell sustained extensive damage from a break-in on June 2, 2021. The main power distribution in the electrical system was completely destroyed. There was also extensive damage in the washrooms. The damage also prevented the splash pad and the lighting to the pathways from operating.

[201] Buckle goes on to furnish the additional costs that the City has incurred related to the encampments. These include additional security being required at various sites near encampments to protect them from theft and vandalism. Between October 1, 2020 and July 31, 2021, the City has incurred $231,424.00 in security costs. Between October 2020 and August 2021, the City incurred $111,632.38 in Waste Collection costs for removal of waste from encampments. Between October 2020 and August 2021, $56,749.29 was incurred by the City for City waste removal from encampments. Between June 2, 2021 and August 31, 2021, an additional $54,494.76 was incurred by the City for additional work performed by a contractor. The City is estimated to have incurred $60,718.86 in costs to remediate the trees and sites due to damage.

[202] The applicants caution that the evidence falls short in many instances cited by the City to link crime or other concerns in the parks to the encampments themselves or of the occupants. Indeed, I have rejected evidence where there is no nexus to encampments or where reasonable inferences cannot be sustained. I have also discounted anecdotal evidence as unreliable.

[203] However, I find that the respondent has provided credible and reliable evidence from City staff, the HPS and residents regarding criminal activity in the parks, directly linked or otherwise associated with encampments and its occupants. Much of this evidence is premised based on personal observation or knowledge or from trustworthy sources.

[204] I accept the evidence advanced by the City linking some of the criminal activity to the encampments. HPS collects data on all emergency dispatches in the City of Hamilton over the course of each year. The sources of HPS’s emergency dispatch data are twofold. First, HPS gathers its data from the Ambulance Dispatch Reporting System (“ADRS”), which is managed by the Ministry of Health. Second, HPS gathers data from electronic patient care records.

[205] The crimes reported by the City linked to the encampment sites range from property crimes to violent crimes involving weapons, sexual assault, theft and break and enter, mischief, along with illicit opiate use and drug trafficking. There is also some exploitation of residents of the encampments who face violent retribution if they do not comply with demands made by others, such as non-resident drug traffickers. The applicants also acknowledge that many residents of encampments are victims of criminal activity.

[206] From October 1, 2020 to August 31, 2021 there were a total of 87 dispatches to the Encampment Areas. These dispatches to the Encampment Areas reflect dispatches where HPS was requested to assist an encampment resident. The frequency of dispatches of HPS to Encampment Areas has varied, both as compared to those areas in previous years, and compared to the City overall within the same time frame. During this timeframe, the top three types of primary problems in all of the Encampment Areas, collectively, were: (i) opioid overdose suspected (18%); (ii) trauma/injury (16%); and (iii) drug/alcohol overdose (13%).

[207] Photographs of encampments entered into evidence clearly depict the extent and the nature of the encampments. While the applicants provide several recent photos of encampments that are neat and tidy, the photographs from the City paint an entirely different scenario. I make no determination of the relative tidiness of the sites. At most, a messy encampment would be a minor inconvenience to look at for a passer-by. I am more concerned with the observed impacts of the encampments, rather that their aesthetic effect.

[208] The City has expressed concern about the situation worsening as cold weather sets in, noting that it becomes harder to provide services to encampments in the winter. Surely, the proliferation of fires and its related concerns will be the case as the colder weather ensues.

[209] The City has documented innumerable complaints and reports by park users, residents, neighbours and City staff regarding violence, drug use, noise at all hours of the day and night, fires, garbage, public urination, along with threats and harassment at parks with encampments. There is reliable evidence for the respondent’s assertions that there has been an increase in petty crime linked to the arrival and fact of the encampments at various locations. There is some evidence of occupants of encampments going through residents’ backyard and taking things during the night including cushions from patio sets, workbooks, and children’s toys. Business owners have experienced trespass and break-ins resulting in damage and theft. Businesses are also forced to pay additional costs to maintain their operations. Some residents and business owners have, at their own expense, increased the amount of security around their property because of these encampments.

[210] As indicated by residents who provided direct evidence by affidavit, they appear to be impacted in a number of ways. This includes reporting difficulty sleeping and have noticed an increase in anxiety due to excessive noise, concerns that their property will be broken into or that their property will be stolen. Some residents claim that they no longer use the parks as they are concerned about stepping on needles, human feces, used condoms or glass. Hamilton residents are exposed to acts of indecency, including some observations of persons urinating and/or defecating on adjacent residents’ and business owner’s property. Residents have found drug needles on their property. The encampments result in increased damage and graffiti.

[211] Suffice it to state that I prefer the evidence from the citizens who provided affidavits in support of the position adopted by the City, which is inherently representative of its citizens and their numerous concerns. Overall, there is reliable evidence of criminal activity, nuisance, health and sanitation concerns, illicit drug use and violence at or associated with some of these encampments.

[212] The reasonable inferences to be drawn from the entirety of the record does not sustain the applicants’ stated position. I am satisfied that much of the evidence introduced by the respondent is not anecdotal. There is a strong nexus between the reported crimes and other issues to the fact of the encampments, including situations where the homeless occupants may be the unfortunate victims. It is also apparent that some residents are reluctant to use city parks out of fear or trepidation. Families are unable to bring children to playgrounds due to some of these issues. Overall, I am persuaded that these areas of the parks are not safe.

[213] It must be recalled that when moving people out of encampments, the City follows a number of steps including in the protocol with an effort to find longer term housing solutions. Examples of the involvement of community organizations and the efforts undertaken in moving people from encampments to indoor spaces is found in the aforementioned evidence of the City staff, along with the information from Shawn MacKeigan, (“MacKeigan”) Director of Men’s Services at Mission Services of Hamilton.

[214] MacKeigan states that there is no waitlist for the housing opportunities available in the City of Hamilton. The opportunities currently available include housing loss prevention and homelessness diversion assistance, emergency shelter beds for men and women, hotel options for men, women, couples & families, temporary emergency shelter spaces, and permanent housing placements in the private market. Mission Services' Housing First program has helped 162 housing placements from Housing Up between April 2020 and October 5, 2021. He says that by prolonging episodes of homelessness, the Housing Readiness philosophy makes encampments more likely to exist and for longer periods. He suggests that activist organizations such as HAMSMaRT and Keeping Six, who work with encampment occupants—without any oversight, standards or regulations—can thereby actually undermine the available housing options and the long-term health and wellbeing of encampment occupants.

[215] Breaches of expectations can lead to discharge from the hotels. This would result in a referral to another shelter site as they do not discharge clients to the street. Between April 2020 and October 6, 2021, MacKeigan says that they have had 469 non-voluntary hotel discharges. 110 of these discharges were due to domestic issues. A further 294 were for non-compliance with expectations, (i.e. verbal abuse of staff, damage to rooms, repeatedly bringing guests back to rooms, and other safety concerns, drug activity, sex work and various forms of mischief). Another 65 clients were involuntary discharges as they were referred to another shelter. Between April 2020 and October 6, 2021, they had 144 service restrictions. It is possible for people to be restricted and subsequently return at some point after the restriction period ended or the individual circumstances changed. There have been very few individuals who have been truly 'restricted from service'. Often times, a discharge is a sufficient natural consequence for unacceptable behaviours exhibited while accessing service. The organization is always open to exploring referrals for clients who have previously accessed our services and have been discharged. This review assumes that the reasons for discharge have been adequately explored and understood by the client and that staff, the referral team at the City of Hamilton and our referring partners are satisfied that behaviours or issues have been addressed and that a change in behaviour is a reasonable expectation. Between April 2020 and October 6, 2021, 59 individuals were housed.

[216] Tessa Mcfadzean, Director of Women’s Services Good Shepherd Centres states that until September 2, 2020, Good Shepherd worked together with a downtown Hamilton hotel to provide 24 hotel rooms for single homeless women; As of October 1, 2021, Good Shepherd now works together with a different downtown Hamilton hotel to provide 55 hotel rooms for single homeless women. The services and support provided in the hotel spaces are very similar to those provided in Good Shepherd’s own shelter environments. They do not simply provide a hotel room, but rather engage consistently with their clients. Program priorities remain safety planning, harm reduction, case management and securing a stable housing situation. Referrals to other shelter locations and transportation is provided. They participate in a weekly prioritization call with other shelter agencies and the City to identify the best place for clients.

[217] The expectations that are in place mirror those at Good Shepherd’s homeless women’s shelter. This includes room checks, observations of each person coming in and out of the hotel area to assess any risks or threats, (including intoxication) as well as ensuring no violence, threats, property damage, or substance trafficking occurs. These expectations are communicated to every client when they first arrive, and are consistently the subject of discussion and reminders. Overlaid on these expectations is a recognition that certain statutory rules must be observed by hotels with respect to all guests, such as no smoking and COVID-19 requirements. Service restrictions and/or discharges from hotel spaces may be imposed for breaches of the expectations. They are not intended to be penalties, but rather the expected result of conduct that is unsafe.

Balance of Convenience Analysis:

[218] The jurisprudence does not grant the homeless a freestanding constitutional right to erect homeless encampments or to reside in public parks. City parks are not intended for this type of activity.

[219] The evidence discloses that some homeless individuals’ personal preference is to remain outside in parks and for a variety of reasons have chosen to sleep outside of the structure and rules established in the shelter system.

[220] There is little dispute that the City has implemented a substantial number of additional measures since the onset of COVID-19, as I have referenced earlier in these reasons.

[221] A number of people have moved out of encampments into shelters, with the support of community organizations. It is not clear how many homeless persons either do not wish to go to a shelter or have not been offered accommodation that is to their liking. As the applicants’ concede, there will always be challenges in persuading some homeless persons to go to shelters.

[222] Both parties may raise public interest issues which may “tip the scales of convenience in its favour by demonstrating to the court a compelling public interest in the granting or refusal of the relief sought. ‘Public interest’ includes both the concerns of society generally and the particular interests of identifiable groups”: RJR-MacDonald, at p. 344.

[223] Under balance of convenience, I can also consider the harm to the respondent should the injunction be granted. The Supreme Court stated at p. 346 at RJR-MacDonald: “[i]n the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant.”

[224] As Schabas J. held in Black, at para. 136 citing RJR-MacDonald at p. 346:

This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.

[225] In Harper, the Supreme Court confirmed this presumption that the law will “produce a public good,” stating at para. 9:

Another principle set out in the cases is that in considering the grant of an interlocutory injunction suspending the operation of a validly enacted but challenged law, it is wrong to insist on proof that the law will produce a public good. Rather, at this stage of the proceeding, this is presumed. As Sopinka and Cory JJ. stated in RJR--MacDonald Inc. v. Canada (Attorney General), [citation omitted] at pp. 348-49:

When the nature and declared purpose of legislation is to promote the public interest, a motions court should not be concerned whether the legislation actually has such an effect. It must be assumed to do so. In order to overcome the assumed benefit to the public interest arising from the continued application of the legislation, the applicant who relies on the public interest must demonstrate that the suspension of the legislation would itself provide a public benefit.

[226] When assessing the balance of convenience, a motions judge must proceed on the assumption that the public interest in enforcing the law weighs heavily in the balance. Courts will not lightly order that laws that Parliament or a legislature has duly enacted for the public good are inoperable in advance of complete constitutional review, which is always a complex and difficult matter. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed.

[227] I observe that in the case of Batty, D.M. Brown J. (as he then was) considered the constitutionality of a trespass notice issued under the By-law in the context of an encampment set up as part of a protest movement called “Occupy Toronto.” It was argued that enforcement of the By-law would infringe freedom of expression protected by s. 2(b) of the Charter, and that the By-law was impermissibly overbroad and vague in allowing expression to be muzzled by the prohibitions on camping and erecting tents, and thus, failed the “prescribed by law” requirement in s. 1 of the Charter.

[228] Brown J. dismissed the application stating at paras. 91 and 95:

Toronto is a densely populated city. Competing demands for the use of its limited parklands are numerous. Without some balancing of what people can and cannot do in parks, chaos would reign; parks would become battlegrounds of competing uses, rather than oases of tranquility in the concrete jungle…

When read as a whole, the objective of the Parks By-law is quite clear and sensible- it is an attempt to balance, in a fair way, the different uses we wish to make of our public parks so, at the end of the day, we all get to enjoy them. The Parks By-law certainly contains restrictions, but ones with the evident purposes of enabling all to share a common resource and ensuring that the uses of the parks will have a minimal adverse impact on the quiet enjoyment of surrounding residential lands.

[229] Brown J. held that the purpose of the By-law is to balance, in the public interest, the different uses everyone wishes to make of parks. The prohibition on camping in parks fosters this purpose and is in the public interest.

[230] In reaching my conclusion, I have considered the recent caselaw from British Columbia. Obviously that jurisprudence is not binding on this Court. In my respectful view, the British Columbia cases are also distinguishable. For example, in those cases it was principally the municipality, as plaintiff, seeking the injunctive relief, meaning that the city in those cases would have the onus to meet the RJR-MacDonald test. Here, the City is responding to the application.

[231] Nonetheless, those cases involved situations in which the municipalities did neither have nearly enough or sufficient shelter space available, nor were there other options for obtaining shelter. As was emphasized by the British Columbia Court of Appeal in Adams BCCA, at para. 73, the trial judge’s decision was “premised on her finding of fact that there were not enough shelter spaces to accommodate all of the City’s homeless, from which she drew the obvious inferences that some people will be sleeping outside, and that those people require some shelter.”

[232] As the trial judge stated at para. 191 of her reasons, quoted at para. 73 of the Court of Appeal decision:

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]

[233] The finding of unconstitutionality is expressly linked to the factual finding that the number of homeless people exceeds the number of available shelter beds. However, it must be that noted that the court expressed its view of a “significant shortfall” of shelter spaces (emphasis added).

[234] In Adams, there were more than 1000 homeless people living in the city of Victoria, with only 141 shelter beds (expanding to 326 in extreme conditions) leaving hundreds without the option to seek shelter space: Adams BCSC, at paras. 4 and 69. This is not nearly the same situation in Hamilton. Further, it appears that in that case, the issue was simply whether homeless people could erect overnight shelter at all, rather than remain in one place for prolonged period of time as in this case.

[235] In Shantz, Hinkson C.J.S.C. concluded that there was insufficient shelter space in the city to house all the city’s homeless people. What shelters existed were often practically inaccessible because of stringent entry requirements like sobriety or rent. When considering whether the parks By-law violated the applicants’ s. 7 rights, Hinkson C.J.S.C. held that “[w]hile I accept that the choice to erect an outdoor shelter without permit, when there are other accessible options, is not a fundamental personal choice engaging dignity concerns, I have found that there are, at present, insufficient viable and accessible options for all of the City’s homeless”: at para. 222 (emphasis added).

[236] This is not the situation in Hamilton. In effect, due to my findings regarding available shelter space in Hamilton and the evidence from the applicants, the decision to live in an encampment appears to be a personal choice or preference in most circumstances, based on the evidence adduced before me. While I can accept that there are important, even fundamental considerations that contribute to such a decision, it is simply not the same as a situation where there is physically not enough shelter space, or the space that is available is not viable.

[237] The case of Adamson is also distinguishable. The evidence before Hinkson C.J.S.C. was quite different than what is before me. Indeed, I arrive at fundamentally different conclusions with respect to the public harm (or not) caused by the encampments. As examples, unlike the case at bar, in Adamson there was but one encampment site, (at the Victoria Law Courts) and there was evidence that “it was practically easier and less expensive to check up on people in the Encampment, as compared to when they were spread out throughout the city”: at para. 143. While I have evidence before me that is sufficient to establish that there is a real fire hazard concern in the Hamilton encampments, Hinkson C.J.S.C. found the evidence before him to be lacking: at para. 108.

[238] Similar concerns regarding having nowhere to go has driven other decisions about encampments in British Columbia, including Vancouver (City) v. Wallstam, 2017 BCSC 937. However, the cost to the public on the balance of convenience was quite different. The tent city in that case was not located in a public park, but rather a vacant lot owned by the city. The lot had been vacant for about 20 years. The tent city also had a Tent City Council made up of women who led the tent city and kept it safe. They also had strict guidelines with respect to fire safety and a code of conduct: at paras. 24-25.

[239] Likewise, in the very recent case of Prince George (City) v. Stewart, 2021 BCSC 2089, one of the encampments in question was also located on a vacant lot owned by the city and only one other was situated in a green space. In Stewart, the city was seeking a declaration that the encampment residents were trespassing and in violation of a zoning Bylaw. The judge appeared to accept the respondents’ argument that other city bylaws effectively meant that the people in the encampments had no where else to go, and also had no lawful way to comply with the injunction: at paras. 104 and 115. Hinkson C.J.S.C. also made the finding that “very few of the emergency shelter beds were low barrier”, making many individuals ineligible to access or stay in the shelters: at para. 74.

[240] I find that the availability of shelter spaces, and more significantly, the focused steps and programs taken by the City to address and the overall homelessness issues in Hamilton make this case quite different from any of the British Columbia cases. This case is much closer in fact to that of Black, where I place some reliance.

[241] The COVID-19 pandemic affected and continues to impact everyone, albeit it appears to be waning to a degree. Hamilton is not immune from its ubiquitous impact. In any event, there are rules and established health protocols in effect that impact all members of society. I agree with Schabas J. as he penned in Black, at para. 143: “The COVID-19 pandemic affects everyone … The City cannot have its hands tied and be prevented from managing its parks so that they are safe and accessible to everyone.” Even at this stage of the pandemic, the public interest purpose of the By-Law, to make public parks available to everyone, outweighs the interests of the applicants who seek a sweeping order preventing enforcement of the By-Law in all City parks.

[242] In addressing this crucial branch of the RJR-MacDonald test, I accept the City’s arguments and evidence. Indeed, most of the named applicants have been offered, and several have accepted offers of shelter by the City. Moreover, these individuals have either not used shelters for their own reasons, have been offered housing, have received housing, or are not currently in need of housing. They have not established that they have been denied shelter at any time from all of the available shelter options.

[243] I appreciate that some people experiencing homelessness continue to distrust or fear the shelters. I do not pretend to fully understand the plight of the homeless. It is difficult to place oneself in the position of a homeless person or those who suffer from mental health issues or otherwise are marginalized.

[244] However, it bears repeating that the applicants neither advocate nor suggest that encampments are a permanent solution to the plight and challenges facing the homeless and marginalized members of society. Clearly, encampments are not places where the homeless should be residing. People sleeping outdoors experience a higher prevalence of medical conditions when compared to those staying in city-funded shelters and the unsheltered experience higher mortality. “Homelessness, not shelters, leads to negative outcomes.”

[245] While the applicants assert there is some risk to staying in a shelter, encampment occupants are also exposed to many risks, especially as winter approaches. The record demonstrates ample evidence of such risks and dangers in encampments, as referenced in this ruling.

[246] On the applicants’ own evidence, it is evident that some homeless persons, for their own reasons, have a personal preference and do not want to be subjected to being in a shelter and what they perceive are paternalistic rules. However, this does not, in my view, give rise to a right to live in encampments in City parks, contrary to a valid By-law. The applicants’ fears or concerns related to shelters due to COVID-19 or for other stated reasons have been reasonably addressed by the City such that there are some adequate safe alternatives to sleeping in encampments. One is left with a situation where a limited – or even a larger group of people - such as these five applicants, may continue to resist using the shelter system despite the City’s best efforts to accommodate them.

[247] I am persuaded that accommodations such as shelters and hotels have been made available and are responsive to the needs of encampment residents with the provision of necessary social supports. It is not perfect, but most homeless occupants can be reasonably accommodated by the City. Accordingly, in considering the litigants and the homeless-at-large in Hamilton, the applicants have not met the burden of establishing harm to the public interest that would rationalize suspending the City’s ability to enforce its By-Law preventing camping and related activity in all of its parks. The relief sought would unjustifiably tie the City’s hands in dealing with encampments that raise serious health and safety concerns for an indefinite duration, and would unduly prevent the use of parks by others.

[248] I am not in a position to direct policy or enforcement. I agree with the respondent that the terms sought by the applicants in their motion record is broader in much scope than what currently exists in the Encampment Protocol. In my opinion, the applicants’ proposal would, in effect, create a two-tier system with negligible or non-existent protocols or parameters. The sweeping relief sought by the applicants would detract from the current sustained efforts and regulated programs for safe shelter accommodations with the necessary support systems. This would entail the lack of any oversight, standards or regulations, thereby actually undermining the available housing options and the long-term health and well-being of encampment occupants.

Conclusion:

[249] No reasonable person in Canada would disagree with the proposition that homelessness, wherever and however it occurs, is a tragedy in Canada. However, the narrow issue before me is whether the City’s enforcement of the By-Law should be restrained by court order. It is not a wide-sweeping review of the underlying issue of whether more should be done to help the homeless.

[250] This case involves important, complex, and challenging social, economic and policy questions affecting homeless and marginalized members of the community. There are no easy solutions. These issues ought to be left to elected officials, health care and other professionals, social agencies and experts who are best equipped to address the welfare and needs of the homeless.

[251] Applying legal principles to my consideration of the RJR-MacDonald test for an interlocutory injunction, the applicants have established that there is a serious issue to be tried. The applicants have not met their onus to establish irreparable harm as they have not demonstrated that the named claimants will suffer and will continue to suffer greater harm if an injunction is not granted.

[252] In addressing the balance of convenience test, the respondent has the obligation and necessary tools to address situations where public health and safety is jeopardized, and where it limits or prevents the use of parks by the public at large. The By-Law is a valid exercise of the City’s powers under statute.

[253] On balance, the injunctive relief sought by the applicants is not supported having regard to the evidence demonstrating the harm on Hamilton residents, businesses and the parks. The evidence presented in this hearing buttresses the respondent’s position and demonstrates that the City has taken and continues to undertake reasonable steps in order to make available safe shelter space and accommodation. This is accompanied by the necessary community supports and other measures to address the evolving and cautiously improving state of the pandemic and the overall homeless issue in Hamilton.

[254] Further, the applicants’ request for injunctive relief overreaches as it asks this Court to prevent, for an indeterminate time, - at least until the hearing of the matter in its entirety - any implementation of the City’s valid authority, and in fact, seeks to expand on the parameters of the current Encampment Protocol.

[255] In sum, the balance of convenience favours the respondent and the public interest. The applicants cannot meet their onus to obtain the extraordinary remedy of an interlocutory injunction to restrain the City from enforcing its By-Law regarding encampments in city parks.

[256] For all of the aforementioned reasons, the applicant’s motion for an interlocutory prohibitive injunction is denied and the Application is dismissed.

Costs:

[257] If the parties cannot agree on the issue of costs, I will consider brief written submissions. The materials shall not exceed five pages in length, (not including any Bill of Costs). The respondent shall file its costs submissions within 15 days of today’s date. The applicants shall file their costs submissions within 15 days of the receipt of the respondent’s materials. The respondent may file a brief reply within five days thereafter. If submissions are not received by December 10, 2021, the file will be closed and the issue of costs considered settled.

A.J. Goodman J.

Date: November 2, 2021

COURT FILE NO.: CV-21-77187

DATE: 2021-11-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ASHLEY POFF, DARRIN MARCHAND, GORD SMYTH, MARIO MUSCATO AND SHAWN ARNOLD

Applicants

• and -

CITY OF HAMILTON

Respondent

RULING ON APPLICATION FOR AN INTERLOCUTORY INJUNCTION

A. J. GOODMAN, J.

Released: November 2, 2021

[^1]: In their initial written materials, the applicants allege other violations of their Charter rights. During the course of the hearing, the applicants abandoned their claim for alleged breaches of ss. 8, 12 and 15 of the Charter.

[^2]: The Enforcement Protocol provides that: Prohibited Areas: all individuals experiencing homelessness in encampments – even when deemed high acuity or engaged with outreach in the 14-day grace period outlined above – are subject to the following restrictions and may be removed or moved if not in compliance with them:

• No more than 5 in an encampment;

• No encampments on sidewalks, roadways or boulevards;

• Encampments must not encumber an entrance or exit or deemed fire route;

• Encampments must be 50 metres from a playground, school or childcare centre;

• No encampments within any property with an environmental or heritage designation; and

• Situations where health and safety concerns exist for those living within or adjacent to an encampment will be addressed in a reasonable fashion, in good faith, on a case by case basis by the City in its sole discretion that balances the needs of both the person experiencing homelessness/encamped individuals and community members. In these situations, the City will consult with the Encampment Task Force and the City’s Mental Health and Street Outreach team to determine how to best balance the needs of persons experiencing homelessness/encamped individuals and other community members.

[^3]: These same ODSP entitlements are referenced by the other named applicants in their respective affidavits.

[^4]: It was established in evidence before me that Marchand had been provided with an explanation(s).

[^5]: The respondent is limiting its threshold challenge to the expert opinions rendered by Dr. Wiwcharuk.

[^6]: This will be discussed in greater detail later in these reasons at the balance of convenience stage.

[^7]: See Rule 12.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[^8]: These comments apply only to this segment of the RJR-MacDonald test for irreparable harm.

[^9]: I am advised that four out of five applicants attended for cross-examinations and all who were present are fully vaccinated.

[^10]: All references in the affidavits pre-date August 2020, albeit Dr. Wiwcharuk was cross-examined in October 2021 and provided some recent information. Neither affidavit mentions the availability of vaccines, current transmission rates, or the Delta variant.

[^11]: The respondent provided current, updated data from the Public Health Ontario, Daily Ministry of Health Epidemiological Summary.

[^12]: The City’s budget commitment to the shelter system for the period of April 2020 to December 2021 was furnished. The dollar amounts range from $976,821 in November 2020 to $3,671,153 in October 2021.

[^13]: I fully recognize the hearsay nature of this information.