CITATION: Black et al. v.

City of Toronto, 2020 ONSC 6398

COURT FILE NO.: CV-20-644217
DATE: 20201021

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DERRICK BLACK, MICHELLE PLOURD, MATINA KOUMOUDOUROS,

ASHLEY ELLIS, NANCY FISHER, MARK MEDAS, JOAN SMITH, PAUL
KAGER, RAYMOND MARTIN, MARK BARATTA, MARIE GRAVES,
KATELYN BOWMAN, JOHN CULLEN, DANIEL CUNNINGHAM,
TORONTO OVERDOSE PREVENTION SOCIETY and ONTARIO
COALITION AGAINST POVERTY, Applicants

AND:

CITY OF TORONTO, Respondent

BEFORE: Paul B. Schabas J.

COUNSEL: Selwyn Pieters and Brendan Jowett, for the Applicants

Michael J. Sims, Nicholas Rolfe, Jennifer Boyczuk and Molly Lowson, for the
Respondent

HEARD: October 1, 2020

REASONS ON MOTION FOR INJUNCTION

Introduction

[1] This case raises the challenges of addressing the needs of the homeless population during
the COVID-19 pandemic. The applicants are 14 people experiencing homelessness who
have been living in encampments in City of Toronto parks, and two organizations which
work with the homeless population. They have brought a motion for an interlocutory
injunction to prevent the City, during the COVID-19 pandemic, 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 restrained from taking further steps to
evict or remove the applicants and other homeless individuals from encampments in City
parks, “in particular but not limited to Moss Park, Dufferin Grove Park, Alexandra Park
and Allan A. Lamport Stadium Park.”

[2] It is argued that “in the context of the COVID-19 pandemic and Toronto’s homelessness
and housing crisis” enforcement of the City By-law violates the rights of the applicants and
other homeless individuals under ss. 7, 12 and 15 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, and is
inconsistent with ss. 1, 2, 11 and 47(2) of the Human Rights Code, R.S.O. 1990, c. H.9.
[3] For the reasons that follow, I dismiss the motion for an injunction.

[4] The applicants do not seek to strike down the By-law (City of Toronto Municipal Code, c.
608), but rather ask that enforcement of the law should be suspended during the pandemic.
This is due to concerns about the adequacy and safety of the City’s shelter and housing
facilities arising from the need to maintain physical distancing to avoid transmission of the
virus. While I accept that some of the applicants fear the shelters for this reason and have
other related concerns causing them to prefer to remain in camps rather than accept City
assistance, and that this engages their rights under ss. 7 and 15 of the Charter and under
the Human Rights Code, the evidence does not satisfy me that the broad relief sought by
the applicants is justified, even on an interlocutory basis.

[5] The City has taken many steps in its shelter system to respond to COVID-19. This includes
ensuring that shelter beds meet physical distancing requirements. The shelter system has
been expanded, including acquiring a large number of hotel rooms. There is no evidence
that the shelter system does not have capacity to accommodate, safely, those currently
living in the parks who wish to seek shelter. A large number of people experiencing
homelessness who were living in encampments have been moved indoors by the City
during the pandemic. Indeed, most of the applicants have been offered, and several have
accepted, offers of shelter by the City.

[6] Furthermore, parks are public resources, intended to be available and used by everyone.
This is particularly the case during the pandemic when outdoor spaces are needed for
people to meet and engage in recreational activities that cannot be done indoors. The
encampments impair the use of parks by others.

[7] People experiencing homelessness is an unfortunate reality, and many homeless people
live in City parks even when there is not a pandemic. But the City must have the 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 applicants acknowledge this by not
seeking to strike down the By-law, as they limit their application for a declaration to “the
context of the COVID-19 pandemic,” and only request a suspension of enforcement of the
By-law during the pandemic. 1 In my view the request reaches too far, as it asks the Court
to prevent, for an indeterminate time, any enforcement of the City’s By-law. Furthermore,
the relief sought is not supported having regard to the steps the City has taken to ensure
shelters are available, comply with physical distancing requirements, and meet many of the
other concerns raised by the applicants.

[8] To be clear, in dismissing the motion I am not directing the City to enforce its By-laws and
to remove encampments in City parks. That will be up to the City. It must be recognized,
as it was in argument, that the situation is evolving. My decision is based on evidence that
dates from the summer months when the incidence of COVID-19 was low, the weather
was warm, and the City had specific concerns about particular group encampments. By

1
This was confirmed in argument and is reflected in the applicants’ Notice of Application as well as their Factum at
paragraph 9 that “this application pertains specifically to the COVID-19 pandemic.”
 that time the City had also taken significant steps to respond to the COVID-19 threat in the
shelter system after the “first wave” in the spring. It is now October and the incidence of
COVID-19 has risen in what is described as a “second wave.” As is the case in non-
pandemic times, the City will have to consider how and when to enforce its By-law having
regard to the continued availability of safe shelter spaces and the impact of the
encampments on the parks and the public.

The Evidence

[9] The applicants filed evidence from three of the individual applicants who are living in
encampments in City parks, and from a co-founder of the applicant Toronto Overdose
Prevention Society (“TOPS”), Zoe Dodd, who is a support worker at South Riverdale
Community Health Centre.

[10] Of the 14 individual applicants, 13 have been offered housing or shelter spaces, including
11 in hotels. Eight have accepted the offer of space in hotels.

[11] The lead applicant, Derrick Black, aged 60, lived with his elderly mother until March 2020
when the pandemic was declared, but was asked to leave by her after he continued to go
into the community to visit his spouse, Michelle Plourd, who is also an applicant. Mr. Black
receives a shelter payment of $390 per month from Ontario Works which he pays to his
mother as rent. Ms. Plourd also has a home, a rent-geared-to-income apartment in the Fred
Victor Centre across the street from Moss Park. The City has offered Mr. Black and Ms.
Plourd spaces in hotels, including downtown, and has also them a centrally located one-
bedroom apartment, which they have rejected. City staff are still working with them to
process a housing application.

[12] Mr. Black says he and Ms. Plourd chose to move into the Moss Park encampment because
they fear contracting COVID-19 in shelters and at the Fred Victor Centre. While he
acknowledges speaking to City staff about moving into a hotel, Mr. Black says he has not
been given specific details about where the hotel would be located and what rules and
restrictions he would be subject to there. He suffers from diabetes and has mobility issues.

[13] John Cullen, aged 46, is now living in an encampment outside the downtown area. He has
been receiving the $2,000 Canada Emergency Relief Benefit every four weeks. Mr. Cullen
has a learning disability and suffers from depression. He usually works at carnivals during
the summer months, but they were cancelled due to the pandemic. At the beginning of the
outbreak Mr. Cullen stayed in a shelter and then paid for a hotel using his CERB benefit.
After that he tried to call the Central Intake number for a bed but says he was told the
shelters were either full or he could not get through.

[14] Mr. Cullen was apparently offered a hotel room in Markham by the City program Streets
to Homes when camping at Nathan Phillips Square in the spring. He accepted but says
Streets to Homes did not follow up and move him. Later, when he was told to move out
of Nathan Phillips Square, Mr. Cullen was approached again about housing by Streets to
Homes, but rejected their offer as, he said, he “had an established community at the
encampment and I knew that it would be better for my mental health than to be isolated
 somewhere far away like in Markham where they were going to send me before.” Mr.
Cullen also said he is worried about catching COVID-19 in a shelter and that he feels safer
outside. He then moved to an encampment at Dufferin Grove, when he was again offered
shelter services. In late July the City broke up the Dufferin Grove camp, and Mr. Cullen
then began camping in a remote location with a few other people where he is less likely to
be evicted, but which does not have easy access to water, food and other services. He would
prefer to be in a larger encampment which may have better access to those things.

[15] Katelynn Bowman is an intersex person and is part Ojibwe. She has been the victim of
discrimination, suffered trauma and has post-traumatic stress disorder, which causes her to
feel threatened and fearful. She also suffers from depression and other mental health
challenges. She moved to Toronto in January and has lived in shelters provided by the City.
Ms. Bowman said that while she was at a shelter when “the pandemic was in full force”
she was concerned that people in the shelter may have had COVID-19 and was concerned
that the shelter did not enforce better isolation. She had bronchitis as a child and fears that
this puts her at greater risk.

[16] Sometime in May, Ms. Bowman joined the encampment at Alexandra Park where she feels
safer than being in an indoor setting, and where she feels people look after each other. She
says that if she is forced out of the encampment she will probably stay on the streets, as
she would not feel safe in a shelter “because of the high number of COVID-19 cases and
the discrimination she has faced as an intersex person.” Either way, she says she will suffer
from stress and anxiety which may trigger depression and PTSD.

[17] Zoe Dodd works with people experiencing homelessness and who have drug addiction or
dependency issues. She described her clients’ concerns with the shelter system during the
pandemic, including access to shelters and the ability to practice safe physical distancing
in them. She also noted problems with isolation and drug use in shelters and hotels during
the pandemic, as she has assisted moving people from encampments to hotels and
continues to provide support to them there.

[18] In addition, the applicants filed expert opinion evidence from two physicians based in
Hamilton, Ontario, addressing 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. I will say more about this evidence later
in these Reasons.

[19] The City provided evidence from three employees who work in the parks and in shelter
services, as well as an affidavit attaching police occurrence reports relating to criminal
activity in the parks, including encampments. The City’s evidence covered the challenges
of the encampments for the City’s parks, including the wide range and seriousness of health
and safety risks, property damage, and interference with other park users caused by people
living in the parks. It also addressed the City’s shelter system and its response to COVID-
19, both in the parks and in the changes to shelters and the expansion of the housing
available, including in hotels. The evidence also described the City’s efforts to move
 people out of encampments and transition them to permanent housing. I address this
evidence in more detail below in discussing the balance of convenience.

[20] The City’s three deponents were cross-examined, as were all the deponents for the
applicant other than Ms. Dodd. In addition, in response to a summons from the applicant,
a police officer was examined by counsel for the City and cross-examined by counsel for
the applicants.

[21] All of the evidence before me dates from July and August, 2020. The Notice to remove
tents from Moss Park that precipitated this application was issued on July 18, 2020, and
this proceeding was commenced two days later. However, the COVID-19 pandemic has
changed over time and continues to change. During the first months of the pandemic,
declared in mid-March 2020, the number of cases was much higher than during the
summer. It took time for steps to be implemented to address the virus, by the City and the
healthcare system. As COVID-19 is an airborne virus, transmission is more likely indoors.
The summer months saw a reduction in cases as people spent more time outdoors. The
situation of several of the applicants also changed.

[22] When this motion was heard on October 1, 2020, it was acknowledged that a “second
wave” of the virus had begun in Toronto. The number of documented COVID-19 cases has
risen back to levels similar to those seen last spring.

[23] I was advised by counsel for the City that it has not taken steps to enforce its By-law by
dismantling the encampments in the parks named in the pleading since the commencement
of this application, but it has continued to make efforts to move homeless individuals living
in parks into shelters and other indoor housing. Colder weather is now approaching, which
will also have an impact on the encampments, and the shelter system.

[24] Further, as this is presented as a motion for interlocutory relief, the question of how long
the COVID-19 situation will last is relevant but, alas, is unknown. While vaccines are being
developed, none have yet been approved in Canada, and it is not known when a vaccine
will be available.

Motion to exclude the applicants’ expert evidence

[25] As a preliminary issue, the City objects to the admissibility of the expert evidence from Dr.
Tim O’Shea and Dr. Gillian Wiwcharuk. The City argues that that these two physicians
are advocates for the homeless population who lack the necessary independence to provide
impartial expert evidence.

[26] In support of its argument, the City notes that Dr Wiwcharuk is a named applicant, and
affiant, 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. Dr. O’Shea
is a co-founder and current Medical Director of another applicant in that proceeding, the
Hamilton Social Medicine Response Team (“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. Both physicians have published articles
in print and on social media opposing the break-up of encampments during the COVID-19
 pandemic, and both agreed in cross-examination that they support this application and hope
it will be successful.

[27] The City also argues that the evidence should be excluded due to its reliance on hearsay
and for making factual assertions not supported by evidence, and because the physicians
have no direct knowledge of the situation in Toronto.

[28] I do not agree with the City’s submissions. The expert evidence of Drs. O’Shea and
Wiwcharuk meets the test for admissibility set out in R. v. Mohan, [1994] 2 S.C.R. 9 at pp.
20-25. It is relevant and necessary evidence to assist the Court in understanding the risks
of COVID-19 and its impact on the homeless population, the particular risks and
vulnerabilities of homeless people generally, the role of encampments, the medical risks of
shelters, including the risk of contracting COVID-19 in shelters, and concerns about the
loss of shelter and the medical and social effects of breaking up encampments, particularly
during a pandemic. As aptly summarized by the applicants, “the evidence of Drs. O'Shea
and Wiwcharuk speaks to three general subjects:

1) The socio-medical profile of homeless people in Canadian cities and specifically

that of people living in homeless encampments;

2) The medical risks of clearing homeless people from their encampments; and

3) The risks posed by COVID-19, including its means of transmission and risks of
transmission within homeless shelters.”

[29] The two physicians clearly have expertise on these issues. Both work closely with homeless
patients and the homeless population. Dr. O’Shea is an internist and infectious diseases
specialist and has a Master’s degree in public health. Dr. O’Shea’s expertise regarding the
impact and control of COVID-19 as it relates to the homeless population is also recognized
by his participation on a subcommittee that advises Hamilton’s Emergency Operations
Committee on those issues. Dr. Wiwcharuk practices “inner city family medicine”
including 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, and as an emergency room physician she has treated patients with
COVID-19.

[30] Drs. O’Shea and Wiwcharuk were asked to provide expert evidence within their scope of
expertise. They have signed the required Acknowledgement of Expert's Duty recognizing
the nature of their 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.” They have
also acknowledged that this duty “prevails over any obligation which [they] may owe to
any party.”

[31] In public interest litigation of this kind, it would be surprising not to have experts who have
expressed points of view and advocated for particular outcomes. Often, because of their
commitment to their field and the conclusions they have reached, experts become involved
in advocacy. However, this does not disqualify experts; if it did it would risk denying
 courts important perspectives on many issues. Courts are not naïve and can, where
necessary, discount or ignore testimony of experts if and when it becomes advocacy as
opposed to evidence.

[32] In this case, the applicants have presented evidence from committed medical experts in the
field of treating the homeless population. The experts are not mere activists, as was the
case in Galganov v. Russell (Township), 2010 ONSC 4566 at paras. 27-38, but have
undisputed and extensive professional expertise. Their evidence provides the court with
helpful, indeed necessary, evidence of the factual context and circumstances in which the
applicants are asserting their rights. The evidence from them is largely objective, backed
up by reports from government bodies and other institutions such as the World Health
Organization (“WHO”) and the U.S.-based Centers for Disease Control and Prevention
(“CDC”), and cannot be described as simply an argument fed to the expert, as arose in
Alfano v. Piersanti, 2012 ONCA 297 at para. 100. This also addresses the hearsay concern
raised by the City which, in any event, is really a question of weight.

[33] There is no evidence that Drs. O’Shea and Wiwcharuk have a financial or personal interest
in the outcome of this case, or that they have been involved in the legal strategy or been
privy to confidential information which would raise concerns about their independence.
There is also no evidence, nor is it suggested, that they have tailored their evidence or
displayed any bias in their presentation of their evidence, much of which is not opinion
evidence at all but, as noted, provides the Court with important contextual evidence. The
actual opinion evidence from Drs. O’Shea and Wiwcharuk is limited and based on
objective sources as well as their own expertise and experience.

[34] The evidence the experts have provided in this case is, to use the words of the Supreme
Court in White Burgess Langille Inman v. Abbott and Haliburton Company, 2015 SCC 23,
[2015] 2 S.C.R. 182 at para. 2, “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).
The bar for exclusion is high:

I emphasize that exclusion at the threshold stage of the analysis should occur only
in very clear cases in which the proposed expert is unable or unwilling to provide
the court with fair, objective and non-partisan evidence. Anything less than clear
unwillingness or inability to do so should not lead to exclusion, but be taken into
account in the overall weighing of costs and benefits of receiving the evidence.
[White Burgess at para. 49]

[35] As Cromwell J. also noted at para. 49 of White Burgess, “... it is the nature and extent of
the interest or connection with the litigation or a party thereto which matters, not the mere
fact of the interest or connection.”

[36] In exercising its gatekeeper function, the court 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.” In my view,
the balance here clearly weighs in favour of admitting the evidence which provides critical
information and context to the matter before the court.

[37] I am aware of the perspectives of the experts, and that may have some impact on the
probative value and weight to be given to their evidence, but it does not make it
inadmissible: Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2
S.C.R. 3 at para. 106. These physicians are experts who have acknowledged their duty to
the court to provide independent and impartial evidence, and the City has not provided any
compelling basis on which the court could have a “realistic concern” that they will not, or
have not, complied with that obligation. Even if there was a concern, absent a showing that
the expert cannot comply with his or her duty the evidence is still admissible and the
concern about bias can go to what weight I choose to give it: R. v. Natsis, 2018 ONCA 425,
140 O.R. (3d) 721 at para. 11.

[38] Accordingly, I deny the City’s motion to exclude the evidence of Drs. Wiwcharuk and
O’Shea.

The test for an injunction

[39] The issue to be decided in this case is whether the Court should issue an interlocutory
injunction. Pursuant to s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the Court
may grant an interlocutory injunction where it appears to the Court to be “just or convenient
to do so.” A party seeking an interlocutory injunction must address the three-part test stated
by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General),
[1994] 1 S.C.R. 311 at p. 334:

(1) is there a serious issue to be tried?

(2) will the applicant suffer irreparable harm if the injunction is not granted? and

(3) which party will suffer the greater harm if the injunction is granted or refused –
a balance of inconvenience test?

[40] The three questions must be assessed as a whole. Strength on one branch may compensate
for weakness on another branch. As the motion is typically brought at an early stage of
litigation, “a prolonged examination of the merits is generally neither necessary nor
desirable.” However, the Supreme Court 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.” As the Court noted at p. 338:

This will be the case either when the right which the applicant seeks to protect can
only be exercised immediately or not at all, or when the result of the application
will impose such hardship on one party as to remove any potential benefit from
proceeding to trial. Indeed Lord Diplock modified the American
Cyanamid principle in such a situation in N.W.L. Ltd. v. Woods, [1979] 1 W.L.R.
1294, at p. 1307:
 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.

[41] In such 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 has 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. Sharpe notes
that the higher test has been applied in cases involving picketing, acts of civil disobedience,
threatened winding-up proceedings, corporate “strike suits”, time-sensitive corporate
disputes, industrial property cases, and passing off cases (para. 2.240). It was recently
applied by the Ontario Court of Appeal (in a panel that included Sharpe J.A.) in litigation
involving the downsizing of City Council where the granting of a stay effectively
determined the parties’ rights: Toronto (City) v. Ontario (Attorney General), 2018 ONCA
761, 142 O.R. (3d) 481, at para. 10.

[42] As I raised with counsel in argument, my decision may effectively determine the
application, as the COVID-19 pandemic may end before the full application can be heard
and determined. In this regard I observe that the applicants filed extensive evidence,
including expert evidence, and the City responded with similarly extensive evidence. Most
of the deponents were cross-examined, all of which took some time. While the notice of
application indicates that a number of other affidavits may be filed, there is an extensive
record before me on this motion.

[43] There is no way of knowing, at this time, when the pandemic will end, and so it may be
unfair to the applicants to apply the higher test. Furthermore, both parties have approached
the motion by applying the lower test. However, 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.

Serious issue and likelihood of success

[44] The threshold for satisfying the “serious issue to be tried” test for an injunction is low. As
the Supreme Court put in RJR 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 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.

[45] The applicants in this case have raised violations of their rights under ss. 7, 12 and 15 of
the Charter, and under ss. 1 and 2 of the Human Rights Code. In this case, the City agrees
that the applicants have met the threshold for their claim under s. 7 of the Charter. Section
7 protects “life, liberty and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice.” However, the City does
not agree that the enforcement of the City’s By-laws constitutes “cruel and unusual
treatment or punishment” under s. 12 of the Charter, or that its conduct constitutes
discrimination contrary to s. 15 or the Human Rights Code.

[46] Concerns regarding the right to “security of the person” clearly arise in this case. The
Notice issued by the City on July 18, 2020 requires that those staying in Moss Park remove
their tents and other items from the park. By requiring the applicants to leave encampments
where they live and feel safe with others and be faced with a choice of either going to a
shelter or moving along to another location rather than “sheltering in place,” the City’s
actions cause the applicants anxiety, physical and psychological distress, and puts their
health at risk.

[47] 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.

[48] In Victoria (City) v. Adams, 2009 BCCA 563, 313 D.L.R. (4th) 29, the British Columbia
Court of Appeal recognized that the s. 7 rights of homeless individuals 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. The Court
stated at paras. 75 and 110:

[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.

[49] I agree. As Professor Martha Jackman wrote in "The Protection of Welfare Rights Under
the Charter" (1988), 20 Ottawa Law Review 257 at 326:

...[A] person who lacks the basic means of subsistence has a tenuous hold on the
most basic of constitutionally guaranteed human rights, the right to life, to liberty,
and to personal security. Most, if not all, of the rights and freedoms set out in the
Charter presuppose a person who has moved beyond the basic struggle for
existence. The Charter accords rights which can only be fully enjoyed by people
 who are fed, are clothed, are sheltered, have access to necessary health care, to
education, and to a minimum level of income. As the United Church’s brief to the
Special Joint Committee declared: “other rights are hollow without these rights”.

[50] In Victoria (City) v. Adams, the trial judge stated, at 2008 BCSC 1363 para. 145, that “[t]he
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 held on the facts of that
case, at para. 129, 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.”

[51] Similarly, in Abbotsford (City) v. Shantz, 2015 BCSC 1909, 392 D.L.R. (4th) 106, 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.

[52] The application of s. 7 of the Charter is supported by the evidence in this case as well.

[53] The three applicants who have provided evidence on this motion have said they are
concerned about moving into shelters due to the fear of contracting COVID-19. Two of
them have mental health issues that may be worsened by being in a shelter. Two also have
physical health issues that may place them at higher risk if they contract the illness.

[54] The expert evidence, and Toronto’s experience with COVID-19 in the spring, supports the
conclusion that people experiencing homelessness are at greater risk from COVID-19, and
that staying at shelters may put people at increased risk of contracting the virus.

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

[56] The homeless population may have little, if any, access to basic sanitation services such as
washrooms, showers, handwashing and drinking water, all of which makes them more
vulnerable to diseases and viruses. Public urination and defecation creates broader public
health concerns. There is a high incidence of violent crime, including sexual offences, and
property crime involving the homeless population. The vulnerability of many to being
victimized and exploited is exacerbated by drug dependencies, mental illness and cognitive
disabilities, making some individuals easy targets for robbery, assaults, sexual assaults and
trafficking.
[57] Homeless shelters are congregate living centres with environments prone to the
transmission of infectious disease. Although physical distancing is the central public health
strategy for managing and limiting the spread of the virus, this is difficult indoors in what
may be crowded rooms or buildings. Preventative measures such as physical distancing,
wearing a mask, and maintaining good hygiene such as frequent hand-washing, is not easy
for people experiencing homelessness, whether in a shelter or an encampment. Even in
shelters, shared facilities such as showers, toilets and telephones make distancing and
proper hygiene difficult.

[58] Shelters, like long-term care homes, prisons, and migrant farm worker dormitories, have
seen outbreaks of COVID-19. According to one study summarized by Dr. O’Shea, the
number of diagnosed cases per 100,000 was 18 times higher in homeless shelters in the
Greater Toronto Area than that in the general population. According to statistics agreed to
by the parties, as of August 7, 2020, 632 users of the shelter system had tested positive for
COVID-19 out of a total population served of approximately 10,000 people, although about
half of those cases (310) related to outbreaks at 3 shelters that do not typically serve the
homeless population coming from encampments. For example, the Willowdale Welcome
Centre, a shelter for people who have recently arrived in Canada, had 153 cases.

[59] Most of the COVID-19 cases linked to the shelters occurred in April and May. Between
July 29 and August 14, 2020, there were no confirmed cases linked to the City’s shelters.
As of September 29, 2020, I was advised that the number of cases in shelters since August
7 had increased only slightly, to 649 cases. At the time this motion was argued on October
1, 2020, there were only 5 active cases in the shelter system, all at the Kennedy House
Youth Shelter. The City notes that a case “linked” to the shelter system does not
necessarily mean that the virus was contracted at a shelter. Nevertheless, Dr. O’Shea states
his opinion that “there is a substantially higher risk of transmission in congregate living
settings, including homeless shelters, than among the general population of self-contained
households, particularly in Toronto.”

[60] While not necessary for my decision, I also conclude that the applicants have raised a
serious issue to be tried relating to discrimination that may be a breach of s. 15 of the
Charter, and of the Human Rights Code. As Dr. Wiwcharuk points out, “the homeless
population generally is disproportionately comprised of members of groups marked by
social disadvantage, mental and physical illness, and drug dependencies.” Further, she
observes that the occupants of homeless encampments tend to represent an even more
vulnerable subset of that population.

[61] This population also includes a large number of Indigenous people “due to a deep mistrust
of colonial institutions, often the result of intergenerational trauma.” A 2018 Toronto study
reported that Indigenous people make up 16% of the documented homeless population but
constituted 38% of those living outdoors. That same report disclosed that people sleeping
outdoors were more likely to identify as non-heterosexual which, says Dr. Wiwcharuk,
reflects a concern that “shelters are not always queer and trans inclusive, and many have
faced discrimination in shelter settings.” One of the applicants has given evidence of
experiencing this kind of discrimination.
[62] The applicants have led evidence, therefore, raising concerns about the discriminatory
impact that may result from enforcement of the By-law on a number of the grounds set out
in the Charter and the Human Rights Code, as well as on analogous grounds, and of a
potential breach of the duty to accommodate in the shelter system, which satisfies the low
test of a serious issue to be tried: see Fraser v. Canada (Attorney General), 2020 SCC 28,
at paras. 48-82. In reaching this conclusion, I am aware of the finding by Lederer J. in
Tanudjaja v. Attorney General (Canada) (Application), 2013 ONSC 5410 at para. 136, that
“homelessness” is not an analogous ground under s. 15 of the Charter; however, that case
arose in a different context, and I would not apply that holding in this matter at this stage
of this litigation.

[63] Recognizing that the applicants raise serious issues, however, is not a finding that they will
succeed, or that they have a strong likelihood of success. As I address later, the British
Columbia cases arose in circumstances where municipalities were not providing enough
shelter spaces. Section 7 of the Charter also requires a finding of a breach of the principles
of fundamental justice, which may be based on procedural unfairness or arbitrariness.

[64] Furthermore, 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: see, e.g., R. v. Oakes, [1984] 1 S.C.R. 103. 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.

[65] I agree with Professor Roach that the issue of the strength of the case and consideration of
the public interest which arises in Charter cases 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”: Constitutional Remedies in Canada at paras. 7.175
-7.190. When addressing the balance of inconvenience, there are countervailing interests
that must be considered in this case, as there would be in applying s. 1 of the Charter,
which would support a finding that the application does not have a strong likelihood of
success. This is an illustration of why the 3-part RJR test is flexible and its application will
vary depending a range of factors.

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

[67] 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 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.

[68] 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).

[69] 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 v Wong, 2016 ONSC 8000, at para. 32. On the other hand, the evidence establishing
irreparable harm must be clear and not speculative.

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

[71] If forced from the group encampments, the applicants fear loss of their tents, sleeping bags,
coolers 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, such as access to clean water, sanitation
supplies, food, and access to medical care and other supports, 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, than in a shelter or living on their
own in a park or on the street.

[72] In the context of the COVID-19 pandemic, 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,” and that the “risk of contracting COVID-19 in
shelters, and the mental distress induced by the perceived risk of transmission, present a
serious risk of irreparable harm to the applicants and other homeless individuals.” In
contrast, they say that the risk of contracting COVID-19 in outdoor encampments is
comparatively low, noting that “[t]here is no evidence on the record indicating a confirmed
case of COVID-19 transmission within homeless encampments.”

[73] The applicants also point out, if necessary, that even if these harms could be compensable
by money, the City’s status as a municipality prevents an award of damages unless there is
underlying or intentional wrongdoing: Welbridge Holdings Lid. v. Greater Winnipeg
 (Municipality), [1971] SCR 957 at pp. 967 – 969; 563080 Alberta Lid. v. Calgary (City),
[1996] 89 A.R. 166, 41 Alta. L.R. (3d) 76 at para. 21.

[74] The City 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.

[75] While the City’s evidence does raise questions as to whether the enforcement of the By-
laws will cause irreparable harm, if it were ultimately determined that the applicants’ rights
were violated there is unlikely to be any effective remedy for that breach. Accordingly, I
find that the irreparable harm branch of the RJR test has been met here, and discuss the
City’s responses below in my discussion of the balance of inconvenience.

Balance of inconvenience

[76] This branch of the RJR test is usually where the hard work takes place, and on which many
injunction decisions turn. It requires consideration 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.” (RJR, p. 342.)

[77] As this case raises Charter issues “the public interest is a 'special factor' which must be
considered in assessing where the balance of convenience lies”: RJR 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.

[78] This brings me to the City’s evidence of its efforts to ensure a safe and accessible shelter
system during the pandemic, 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 motion,
and application.

Toronto’s shelter system

[79] Generally, homeless people have available to them shelters and respite sites operated and
funded by the City in order to have safe, indoor spaces to sleep. However, some choose to
live on the streets, or in parks, sometimes in tents or more roughly.

[80] Toronto has an extensive shelter system operated by the Shelter Support and Housing
Administration (“SSHA”). SSHA is the legislated Service Manager for the City of Toronto,
pursuant to the Housing Services Act, 2011, S.O. 2011, c. 6, Sched. 1. SSHA is enabled to
establish, administer and fund housing and homelessness programs and services and may
also provide housing directly. As described by Scott McKean, Manager of Community
Safety and Wellbeing Planning at the City, SSHA works “to ensure that vulnerable people
can access temporary accommodation when they need it, and that permanent housing
options are available, accessible and sustainable when possible. SSHA works with
community partners, service users and other stakeholders to transform housing and
 homelessness service networks into client-centered, outcome-focused systems that help
households find and keep stable housing and improve overall well-being.”

[81] Although it has the largest population experiencing homelessness in Canada, Toronto has
more shelter beds per capita than any other Canadian city. This includes emergency and
transitional shelter beds for families, youths, adults (single sex or all gender), 24-hour
respite centres, and drop-in programs that offer services such as showers, food, laundry,
health and medical services, information and support for housing and eviction prevention,
and social and recreational activities.

[82] Prior to the COVID-19 outbreak, the City operated 64 homeless shelters and seven respite
centres directly or in collaboration with community agencies, with over 7000 beds
available. SSHA ensures that shelters operate in compliance with detailed standards to meet
the needs of those who use them. Shelters may also adopt rules such as curfew times and
may make bed checks during the night to ensure safety and to ensure that facilities are used.
Shelters and respites, including hotels, have rules restricting or prohibiting guests, as this
impedes the ability of shelter providers to monitor the safety and security of users and staff.

[83] Shelters have programs to prevent drug use and provide supports for those who use
substances in order to ensure the safety of those individuals. Many shelters have naloxone
kits, and some provide safe injection and inhalation equipment. People are advised not to
use drugs alone, and referrals are made to treatment centres.

[84] The City operates the Streets to Homes program which assists people experiencing
homelessness to transition from living on the street to living in permanent housing. This
usually involves moving people from encampments to transitional spaces where the
specific needs of individuals can be assessed before moving them to more permanent
housing. Streets to Homes has transitioned 6000 people to housing over the past 10 years,
and more than 80% of those people remained housed after one year.

[85] The City considers the particular needs of individuals when offering shelter space,
including finding space for couples, women and those with pets. 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.

Toronto’s shelter response to COVID-19

[86] On January 30, 2020, the WHO declared the COVID-19 outbreak to be a Public Health
Emergency of International Concern and on March 11, 2020 it declared COVID-19 to be
a pandemic, which is an “epidemic occurring worldwide or over a wide area, crossing
international borders usually affecting large numbers of people.” Canada's first confirmed
case of COVID-19 was reported on January 25, 2020. The first confirmed death from
COVID-19 in Canada was on March 9, 2020. The number of Canadians infected with
COVID-19 and number of deaths increased dramatically into early May 2020. By July 28,
2020, the Public Health Agency of Canada reported 114,994 cases, including 8912 deaths.
[87] Ontario declared a state of emergency on March 17, 2020 on the basis that COVID-19
constitutes a danger of major proportions that could result in serious harm to persons. A
state of emergency in the City of Toronto was declared by the Mayor on March 23 and
extended by City Council on April 30, 2020. The provincial state of emergency was lifted
on July 24, 2020, when the incidence of COVID-19 infections and deaths had diminished
greatly during the summer months. However, as was acknowledged by everyone when this
motion was argued on October 1, 2020, Toronto and other places in Canada are
experiencing a “second wave” of COVID-19. The daily tally of new cases is similar to
that seen in the spring and many restrictions have been re-introduced to combat the virus.

[88] Toronto has taken many steps to address the situation of the homeless population during
the COVID-19 pandemic. The City opened 30 new shelter facilities and secured over 1200
additional hotel rooms at 19 hotels to ensure physical distancing could be in place in
shelters and respite centres. From mid-March to August 1, the City moved over 3800
people to new spaces, including placing 1,570 homeless individuals from shelters and
encampments into permanent housing.

[89] Shelter space has also been expanded by the ability to use housing units in apartments in
buildings slated for demolition, and by the lower demand on the shelter system previously
allocated to refugees as fewer people are entering Canada during the pandemic. Five
shelters previously kept closed during the day have been opened.

[90] Standards have been adopted and implemented to achieve physical distancing, including
that beds in shelters maintain a lateral separation of at least 2 metres. According to Gordon
Tanner, Director of Homeless Initiatives and Prevention Services at SSHA, by mid-June
2020 99.5% of the 7000 beds available in Toronto’s shelter system complied with the 2-
metre physical distancing requirement. The City has provided $6.1M towards adopting
new infection control measures developed in consultation with Toronto Public Health,
including personal protective equipment, cleaning supplies and other steps to improve
hygiene and prevent the spread of the virus.

[91] The City is also facing other litigation involving its response to the needs of the homeless
population resulting from COVID-19, and I have read the very recent decision of Sossin J.
in that matter dated October 15, 2020: Sanctuary et al. v. Toronto (City) et al., 2020 ONSC
6207.

[92] In Sanctuary, a number of advocacy and community organizations commenced litigation

against the City challenging the City’s shelter system standards which permitted the use of
bunk beds and failed to require a minimum of 2-metre lateral spacing between beds. In
May, the City entered into a settlement agreement in which it was to achieve “certain goals
relating to the safety and capacity of Toronto’s shelter system in the wake of the COVID-
19 pandemic.” The City asserted compliance on June 15, 2020.

[93] However, the applicants claimed that that the City had failed to comply with the settlement
agreement and brought a motion in July to enforce the agreement, which was argued on
October 1, 2020, the same day as this motion was heard.
[94] Although Justice Sossin concluded that the City was not in full compliance with the
settlement agreement as some 32 beds out of 7,152 beds in the shelter system were not
compliant with the physical distancing standards as of June 15, he noted that those beds,
constituting less than one-half of one percent of the beds in the entire shelter system, were
“decanted” from the system by September 9, 2020.

[95] Justice Sossin’s findings are consistent with the evidence the City has put before me as to
the efforts the City has made to ensure that the shelter system has safe shelter spaces, with
appropriate physical distancing, to accommodate those who wish to use them. As Sossin
J. notes, at para. 69: “There is no doubt that the City generally, and SSHA specifically,
undertook a massive and complex project in a very tight time frame in attempting to ensure
physical distancing across the entire shelter system as the COVID-19 emergency was
unfolding.” As the Sanctuary case demonstrates, advocacy and community organizations
are holding the City to its commitment to do its best to provide safe shelter to the homeless
population during the pandemic.

[96] More than 1900 homeless people, including people previously living in encampments, have
been moved into hotels across the City since the pandemic began. Half of the hotel sites
are in or near the downtown core. While hotels are suitable for many people, some who are
particularly vulnerable or at risk often need supports that hotel rooms cannot provide and
the City works to find appropriate shelter or respite space for those people. The City has
also adjusted its rules against permitting people to be in each other’s hotel rooms in order
to reduce the risk of overdose deaths resulting from people taking drugs alone. While there
continue to be suspected opioid deaths in shelters, there have also been suspected opioid
deaths in park encampments.

[97] SSHA has had shelters adopt screening programs and implemented a service to transport
people to a COVID-19 Assessment Centre if they have symptoms. Three hotel sites were
established to isolate those awaiting results of a COVID-19 test, which were used by over
545 people. Two recovery sites were established for those who tested positive, and have
accommodated over 640 people.

[98] Most of this activity occurred in the early months of the pandemic. Of the 649 cases in the
shelter system, almost half arose in April (311) and 218 cases were reported in May
followed by 96 in June. Only 6 new cases were reported in July. And as noted above, 310
of the cases were located in shelters that do not typically serve the homeless population
coming from encampments. Between March 11, 2020 and July 1, 2020, the City’s shelter
system provided services to approximately 10,000 individuals.

[99] By July 31, 2020, only a few people remained in one of the recovery sites completing a 14-
day isolation. On October 1, 2020, I was advised that there were only 5 cases in the system,
all located at one youth shelter.

Toronto’s encampments and the City’s response

[100] Although there is no data before me, it appears to be common ground that the number of
encampments in Toronto increased following the declaration of the pandemic in mid-
 March, 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.
As Dr. Wiwcharuk notes:

There is often a sense of community that develops among encampment residents,

and people come to rely on one another to watch their belongings when they leave
the encampment site (although thefts do take place), to supervise drug consumption
and respond to overdoses, and to share resources. There is also a sense of personal
safety that comes from being around other people who are known to residents,
rather than being isolated and alone.

[101] Dr. Wiwcharuk notes that encampments have arisen where services are in place or may be
available nearby, such as hygiene facilities, safe consumption sites and drug treatment
centres, community health services, meal programs, other social services and access to
water. As a doctor who does street outreach, she is able to find and meet many patients at
encampments and identify needs that might not otherwise be raised. Dr. Wiwcharuk
observes, however, that the COVID-19 pandemic “led to the closure of many fast food
restaurants and public washrooms” causing people to soil themselves or defecate in public
due to a lack of facilities.

[102] The City did not take steps to clear group encampments in the early weeks of its response
to the pandemic while the shelter system adapted and steps were taken to allow for physical
distancing in the existing locations. During that time, according to Scott McKean, City
staff attended encampment sites regularly. Streets to Homes, outreach agencies and
Toronto Paramedic Services conducted wellness checks, engaged in prevention and control
measures and assessed shelter and housing needs of people living in the encampments.
Parks, Forestry and Recreation, Solid Waste Management, Transportation Services and
Toronto Fire Services provided cleaning at sites to remove hazardous materials, waste and
debris.

[103] The City has provided additional services to the homeless population in camps, including
portable toilets and handwashing stations in several locations, and has provided expanded
access to public washrooms and shower facilities in parks and community centres. Some
of this may be seasonal, as swimming pool facilities were open during the summer months
when the evidence was obtained. The City has also provided drinking water in some
locations. It works with the residents of the encampments and community organizations
to provide services. This is consistent with recommendations from an inquest in 2018
following the death of a homeless man in an encampment fire, that the City “[r]evise its
existing policies to allow the provision of ‘survival’ equipment and/or supplies (e.g.
sleeping bags, fire retardant blankets, safe heat sources) and/or safety information to
individuals who stay outside rather than accessing shelter/low-barrier overnight services”:
OCC Inquest, Grant Faulkner, Ministry of the Solicitor General, 2018.

[104] The City has identified many concerns with the encampments. This includes limited or no
access to adequate sanitation facilities. There are frequent reports of public urination and
 defecation in parks. 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. Other
concerns include drug overdoses including fatalities, inadequate physical distancing and
lack of masks, sex trafficking, pervasive discarded needles and other drug paraphernalia,
garbage, used condoms, human waste and unsanitary washroom messes, including
interference with City staff cleaning and sanitizing washrooms, as well as the presence of
rats.

[105] There have been many fires in encampments, endangering residents and impairing public
safety, and damaging public property. Fires may result from the use of generators, propane
tanks, improvised electrical wiring, and smoking in the encampments. Fires occurred at
both Moss Park and Alexandra Park in July 2020. Between June 6 and July 21, the City
has received 212 calls to its “311” service (the “311 data”) that were complaints about fire
risks in parks with encampments, 104 of which were about encampment fires. As the colder
weather sets in and there is more need for heat, the frequency of fires may increase.

[106] The City has provided numerous reports from the Toronto Police Service of criminal
activity in the parks, many of which are associated with encampments. The applicants
rightly caution that many instances cited by the City did not involve crimes committed by
residents of the encampments or in the four parks named in the application; however, the
applicants acknowledge that many residents of encampments are victims of criminal
activity. The crimes reported by the City range from property crimes to violent crimes
involving weapons, sexual assault, drug and human trafficking, and 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.

[107] There is no evidence before me of COVID-19 outbreaks or transmission within the

encampments. However, Dr. O’Shea acknowledges that tracking COVID outbreaks in
encampments would be difficult compared to tracking in shelters, and he is of the view that
“[h]ousing homeless individuals in hotel rooms with private sleeping and bathroom spaces
likely reduces the risk of transmission to effectively the same as people who have their own
self-contained dwelling unit or home.”

[108] The City has received hundreds of complaints and reports by park users, neighbours and
City staff regarding violence, drug trafficking, noise at all hours, garbage, threats and
harassment at parks with encampments. Many people are afraid to enter certain parks, and
families are unable to bring children to playgrounds due to the presence of needles. Police
and the City have received many complaints about drug trafficking.

[109] The City’s 311 data between June 6 and July 21 showed 392 complaints about physical
distancing in the parks with encampments, 400 complaints about public drug use, and
almost 600 complaints about garbage in and near parks with encampments, including
complaints that encampments were attracting rats and other rodents. 332 complaints were
about violence, almost 400 complaints were about threatening behaviour and there were
113 complaints of theft. 233 noise complaints were received. There were 472 complaints
about human waste in the parks, including complaints of people defecating and urinating
 in the park and on properties neighbouring the parks. City staff working in the parks with
encampments have also been threatened.

[110] 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, and that
helping people move to warm spaces takes time and is best done well in advance of the
colder weather.

[111] While the City has provided staffing and some supports to encampments, it has “prioritized
creating access to safer spaces inside that include appropriate physical distancing,
enhanced infection, prevention and control measures, sanitation, meals and onsite supports,
rather than building infrastructure into encampments.” As the City puts it, “[b]uilding
infrastructure in encampments would require spending scarce resources in parks and risk
encouraging larger encampments.”

[112] Since April 29, 2020, the City has been actively working to move people living at
encampments inside. Between April 29 and August 4, the City moved over 700 people
from approximately 44 encampments to hotels, transitional housing, shelters and respites.

[113] When moving people out of camps, the City follows a number of steps. Outreach teams
from Streets to Homes work with community partners well in advance of removal to
identify needs and offer indoor spaces to camp residents. Parks ambassadors also work
with people in encampments to encourage them to meet with Streets to Homes. If people
accept spaces in shelters, respites or hotels, they are able to bring two bags of belongings
with them, which may include a tent. If these offers are rejected, then trespass notices are
issued requiring people in encampments to vacate within 72 hours following which the site
will be cleared. Once people are residing in shelters or other indoor spaces the City is
better able to work with them to find longer term housing solutions.

[114] An example of the involvement of community organizations in moving people from camps
to indoor spaces is found in the evidence of Zoe Dodd, who worked with the City to move
people out of the parks and into hotels and apartments in July. At that time, Ms. Dodd
raised with the City her concern for overdose risks in hotels and apartments due to rules
prohibiting residents from having outside guests or other residents in their rooms, which
would cause people to use drugs alone, placing them at a much higher risk. The City
responded immediately to change the rules to permit residents to enter each other’s rooms.
And while there were opioid overdose deaths in shelters in July, there were also opioid
overdose deaths in encampments during the same period.

[115] The numbers are unclear as to how many people are still living in encampments, or the size
of those camps. As of August 5, 2020, the City estimated approximately 1000 tents existed
in 140 city parks. The City has continued its efforts, through Streets to Homes, to move
more people into indoor living facilities.

[116] The applicants’ pleadings and evidence make reference to particular encampments in Moss
Park, Dufferin Grove Park, Alexandra Park and Allan A. Lamport Stadium Park, which I
address below.
Moss Park
[117] At its peak in mid-July, Moss Park in downtown Toronto had 64 encampments, or tents. It
is not clear how many people are now camped in Moss Park, but Derrick Black, who lives
there, describes it as “a few groups of tents in a few areas in the park” which “don’t take
up too much space.” The washroom and shower facilities in the Moss Park Community
Centre are open, but only from 8AM to 10PM. The City’s information is that it has provided
portable toilets and handwashing facilities, as well as wellness checks, housing
assessments, maintenance and clean-up services and fire safety checks at Moss Park since
the beginning of the pandemic.

[118] Through Streets to Homes the City has worked with community health centres and the
Moss Park Overdose Prevention Site to identify how best to transition people to indoor
spaces. In late June and early July, Streets to Homes moved people out of Moss Park.
According to Mr. McKean, as of July 26 at least 180 people had been moved from
encampments “at and around the Moss Park encampment to inside spaces.” Approximately
150 were moved in the week preceding the July 18 notice.

Alexandra Park
[119] Katelynn Bowman lives at Alexandra Park in what she describes as a “small cluster of tents
on a patch of grass near the library.” Ms. Bowman advises that she has access to a port-a-
potty and there are shower facilities at the pool which Ms. Bowman says were recently
“closed off.” The City’s material indicates that there is also hand washing available and it
donated bottled water to a local community centre to distribute to those residing in
Alexandra Park.

[120] As of July 28, 2020, while the City was engaging with the residents of Alexandra Park it
had not, at that time, offered space in shelters to those residents “due to other priorities.”
However, the City expressed concerns about health and safety and has increased garbage
pick-up, including litter and needle clean-up near the encampment.

[121] The City received complaints about the impact the encampment had on a summer day camp
in the park due to “issues such as violence and substance abuse in the vicinity of where the
camp would operate.” According to Mr. McKean, “[s]ome day camps that operate close to
encampments have had to modify programming by prohibiting access to the parks or
closing all together to ensure the safety of children and staff.”

Dufferin Grove Park

[122] John Cullen moved to Dufferin Grove Park in early July after receiving a trespass notice
at Nathan Phillips Square. On July 27, the Dufferin Grove encampment was taken down
and he has now moved with two others to a remote location in another city park. In Dufferin
Grove, Mr. Cullen says there was access to bathrooms in the park during the day.
Apparently people in the encampment had access to electricity and hooked up a water hose,
but the City required they be removed.

Lamport Stadium Park

[123] The City’s evidence about the Lamport Stadium Park encampment is that with the help of
community organizations it moved 66 people into indoor spaces in the last week of July,
and that efforts continue to move more people inside. The City has also provided increased
access to sanitation facilities and portable toilets with handwashing stations available
around the clock. Nevertheless, there has been a high volume of complaints from nearby
residents in Liberty Village and from local businesses about public urination and
defecation, drug dealing and drug use, violence, theft and vandalism related to the
encampment.

Concerns with removal of encampments

[124] Put against the City’s evidence are the concerns of some individual applicants and the
experts about why some people experiencing homelessness resist going to shelters and the
harm that may come to them when they are “moved along.”

[125] Dr. Wiwcharuk points out 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.” She notes that “[s]ome find the rules in shelters to be too
restrictive, and these rules often fail to take into account the particular needs of shelter
clients.” These concerns are not unique to the COVID-19 pandemic. Although she notes
that rules in shelters and hotels against having guests “poses particular risks to people with
drug addictions, who may rely on the supervision of others to ensure safe consumption of
substances,” the City has taken steps to address this concern.

[126] Dr. Wiwcharuk also notes other circumstances which deter individuals from using shelters.
These include people with pets, couples who wish to stay together, people with mental
health issues such as anxiety and paranoia that “make it difficult to be in close contact with
so many people,” exposure to drug use and users, fear of theft and “a sense of a lack of
personal security in a ‘dorm-style setting’.” Again, however, these are not circumstances
unique to the COVID-19 pandemic. Furthermore, the evidence is that the City has taken
steps in the past several months to not only provide more separation in dorm-style shelters,
but also to provide individual rooms in hotels and even apartment units for couples, as was
offered to the applicants Derrick Black and Michelle Plourd.

[127] Dr. Wiwcharuk also speaks to the fact that when encampments are broken up, residents’
lives are destabilized. If people cannot use, or are unwilling to use, shelter services, they
lose access to hygiene and medical services and food. Connections with their friends and
other supports and support workers are lost, including access to drug treatment programs.
In Dr. Wiwcharuk’s experience, this dislocation has a particularly negative impact on
mental and physical health of those displaced. Personal security and safety is put in
jeopardy, and those who are “moved along” are at an increased risk of being victims of
crime.

[128] I have no doubt that what Dr. Wiwcharuk says is correct; however, it is not unique to the
current COVID-19 situation, on which the applicants’ case depends. Both Drs. Wiwcharuk
and O’Shea would prefer to see people living indoors rather than in encampments. Dr.
Wiwcharuk makes clear that she is not advocating for encampments as a “solution to
 shortages of available housing or as a means to de-crowd shelters”; rather, “that efforts
must be made to secure safe and stable housing for people experiencing homelessness, that
alternate accommodations such as hotels and shelters must be responsive to the needs of
encampment residents including provision of adequate social supports, and that people
living in encampments should not be forcibly removed in the context of a global
pandemic.”

[129] The concern raised by the applicants and their experts with clearing the encampments
during the pandemic is that, according to Dr. Wiwcharuk, 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 COVID-19 if they are moved
into congregate living facilities such as shelters.” Further, she notes that 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 makes compliance with public health guidelines less likely.

[130] In support of this position, Dr. Wiwcharuk cites a recommendation from the CDC made in
July 2020 as follows:

Unless individual housing units are available, do not clear encampments during
community spread of COVID-19. Clearing encampments can cause people to
disperse throughout the community and break connections with service providers.
This increases the potential for infectious disease spread. [Emphasis added]

[131] I have emphasized the opening words of that recommendation as it highlights the weakness
in the applicants’ position on this motion, which is that there is no evidence that safe shelter
spaces, including individual housing units are not available to the homeless population.

[132] In a recent publication, Drs. Wiwcharuk and O'Shea identified four factors as “particularly
important” in reducing the spread of COVID within the Hamilton shelter system:

1. increased capacity of shelter space by opening surge shelters and hotel rooms, allowing
for more effective physical distancing in congregate shelters;

2. access to rapid assessment and testing on site when symptomatic residents or staff are
identified through active screening;

3. restructuring of physical spaces to accommodate isolation of residents with confirmed

COVID-19 and those awaiting test results; and

4. rapid turnaround of test results through collaboration with our regional laboratory
program allowing triage of individuals into isolation spaces without exceeding
available capacity.

[O'Shea, T., et al., "Pandemic Planning in Homeless Shelters: A pilot study of a

COVID-19 testing and support program to mitigate the risk of COVID-19 outbreaks in
congregate settings"]
[133] The City of Toronto has implemented the first three measures and advocated to the
province for the fourth. Furthermore, many steps have been taken by SSHA to adapt the
shelter system to respond to COVID-19. A large number of people have moved out of
encampments into shelters, with the support of community organizations and front-line
workers such as Ms. Dodd, and that process continues.

[134] It is not clear how many people are like the three applicants who either do not wish to go
to a shelter or have not been offered accommodation that is to their liking, but some of the
other named applicants have moved indoors through City and community efforts. As Dr.
Wiwcharuk recognizes, there will always be challenges in persuading some to go to
shelters, even absent concerns about COVID-19.

Application of legal principles

[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) 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.

[136] But the onus of proof will differ. As the Supreme Court said at p. 344 of RJR, “[w]hen a
private applicant alleges that the public interest is at risk that harm must be demonstrated.”
In contrast, as the Court noted at p. 346, “[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.”
Justices Sopinka and Cory continued:

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.

[137] Subsequently, in Harper v Canada (Attorney General), [2000] 2 S.C.R. 764, 2000 SCC
57, 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.

It follows that in assessing the balance of convenience, the motions judge must
proceed on the assumption that the law -- in this case the spending limits imposed
by s. 350 of the Act -- is directed to the public good and serves a valid public
purpose. This applies to violations of the s. 2(b) right of freedom of expression;
indeed, the violation at issue in RJR--MacDonald was of s. 2(b). The assumption
of 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.

[138] In this case, the public interest considerations favour the City.

[139] The By-law applicable in this case, City of Toronto Municipal Code, c. 608, prohibits the
following activities without permission:

• accessing or occupying a park for non-recreational uses (§ 608-9(A));

• using, entering or gathering in a park between 12:01 a.m. and 5:30 a.m. (§ 608-
9(B));

• dwelling, camping or lodging in a park (§ 608-13); and

• erecting a tent, structure or shelter at, in or to a park (§ 608-14).

[140] The By-law was the subject of consideration in Batty v. City of Toronto, 2011 ONSC 6862.
There, 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 consequently failed the “prescribed by
law” requirement in s. 1 of the Charter.

[141] Brown J. dismissed the application observing, 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. Or, parks would become
places where the stronger, by use of occupation and intimidation, could exclude the
weaker or those who are not prepared to resort to confrontation to carve out a piece
of the park for their own use. The evidence filed before me from the residents
indicates that that is precisely the effect of the Protesters' occupation of the Park --
the tents and other shelters hog the park land and non-Protesters who seek to use
the Park face a chilly and somewhat intimidating reception.

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.
[emphasis added]

[142] As Brown J. stated, 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. Indeed, the applicants do not challenge
this but ask for a suspension of its enforcement during the pandemic, or until the application
is heard, which may be many months from now.

[143] The COVID-19 pandemic affects everyone. As people are prevented from socializing
indoors, public outdoor spaces such as parks take on added importance as a resource.
Toronto is indeed a densely populated city and has limited parkland. In my view, the public
interest purpose of the By-law, to make 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. The City cannot have its hands tied and be prevented from managing its parks
so that they are safe and accessible to everyone.

[144] In argument, I invited counsel for the applicants to propose ways in which the broad relief
sought might be tailored more narrowly to reflect the public interest while still permitting
some encampments, but no alternatives were suggested other than the order apply only to
homeless persons, which was not helpful. The claim was made that the City could still
enforce other By-laws such as littering, and the police and fire departments could still
enforce criminal laws and fire code dangers without breaking up the camps. This is
unconvincing and not supported by evidence. Tickets issued for littering or other By-law
infringements will likely become more litter. Fire poses a danger to everyone, and the
significant increase in fires in parks and in encampments this year speaks to a danger that
must be prevented, not simply responded to each time it happens. They place an additional
burden on firefighters, who are not police and have limited jurisdiction to compel actions
 by individuals. Criminal activity in parks increases when there are encampments, putting
an additional burden on police.

[145] The availability of shelter spaces, and the steps taken by the City to address COVID-19
concerns makes this case quite different from the British Columbia cases, Victoria (City)
v. Adams and Abbotsford, cited above and relied on by the applicants. Those cases involved
situations in which the municipalities did not have sufficient shelter space available, nor
were there other options for obtaining shelter. As was emphasized by the British Columbia
Court of Appeal in Adams, 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.” 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]

[146] Accordingly, as the British Columbia Court of Appeal observed in upholding the order
declaring the Victoria By-law invalid (at para. 74):

[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.

[147] Similarly, in Abbotsford, 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 (para.
82). 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, see
also para. 188).
[148] Similar concerns regarding having nowhere to go has driven other decisions about
encampments in British Columbia, including Vancouver (City) v. Wallstam, 2017 BCSC
937, and British Columbia v. Adamson, 2016 BCSC 584. However, the evidence before
this Court, on this case, is quite different. Shelters and housing are available, and the City
has taken extraordinary steps to address the concerns arising from COVID-19 in its shelter
and housing system.

[149] The City has addressed concerns regarding the risk of COVID-19 in the shelter system. Is
it perfect? No, but everyone is affected by this pandemic and everyone faces risks of
exposure to the virus in different ways. While I appreciate that some people experiencing
homelessness continue to distrust, or fear, the shelters during the pandemic, the evidence
does not support those concerns. The applicants’ fears of shelters due to COVID-19 have
been addressed by the City such that there are adequate safe alternatives to sleeping in
encampments. One is left with a situation where a limited group of people, such as the three
applicants who gave evidence on this motion, may continue to resist using the shelter
system despite the City’s best efforts. This resistance is not unique to the pandemic, and
does not, in my view, give rise to a right to live in encampments in City parks, contrary to
a valid By-law, during the course of the COVID-pandemic.

[150] Accordingly, the applicants have not met the burden of establishing harm to the public
interest that would justify suspending the City’s ability to enforce its By-law preventing
camping in all of its parks during the COVID-19 pandemic. The sweeping 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. This causes me to find that the balance of inconvenience favours the City
and the public interest in ensuring that parks are a common resource available to everyone,
which is the purpose of the By-law.

Conclusion

[151] The applicants have failed to meet the test for injunctive relief and the motion is dismissed.
As agreed between the parties, there will be no order as to costs.

Paul B. Schabas J.

Date: October 21, 2020