To the uninitiated, it looks a bit like urban camping. Take a closer look though, and you’ll see their entire life belongings, and evidence that these camps are not recreational, but a matter of survival.
What we’re referring to of course are the numerous tent encampments that have proliferated across Canada during the pandemic. Other alternatives often resorted to in those without permanent housing, including couch surfing, staying with friends or family members temporarily, and even shelters and respite centres, may not be appropriate in the circumstances, including providing inadequate distancing from others.
These encampments give rise to a whole host of other problems though, including other public health issues, fire safety, sanitation, and interruption of other municipal services. As observed during the Occupy Toronto movement and related legal actions, municipalities have effectively evicted these types of tent cities, and injunctions to prevent the evictions have failed.
Should the pandemic provide a unique or different analysis of this situation, given that the eviction of encampments are likely to force many of these individuals into situations where social isolation is impossible? The Ontario Superior Court of Justice dismissed a motion for an injunction on exactly this issue recently, in Black et al. v. City of Toronto.
In July 2020, the CDC stated,
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.
The injunction did not seek to invalidate the bylaw in question, but rather seek for it to be suspended, given the relevant Charter and human rights engaged from an enforcement that would risk their health and safety.
Justice Schabas did not the City to enforce the bylaws or to remove the encampments, but simply refused to approve an injunction prohibiting the City from taking these actions, as the situation with the second wave is rapidly evolving,
 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.
 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.
 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. 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.
Expert evidence was introduced by two physicians, which the City sought to have excluded on the basis that one of them is an applicant in a similar application in Hamilton, Ontario. Justice Schabas did not accept this argument, finding their evidence meeting the test in Mohan,
 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.
The expert evidence illustrated that many of the residents of these encampments create a sense of community. They often look out for each other, share resources, and provide social supports and comforts that they are often unable to obtain from society at large.
This type of community and its complex system of supports is rarely understood by those outside of the community, including by many of those who would otherwise seek to help or intervene. An eviction, even when being relocated into a shelter or alternative housing, does not necessarily provide these same type of community and social supports.
The updated CDC recommendations qualify their position on encampments slightly, as follows,
If individual housing options are not available, allow people who are living unsheltered or in encampments to remain where they are.
Clearing encampments can cause people to disperse throughout the community and break connections with service providers. This increases the potential for infectious disease spread.
The experts insisted clearing of encampments would put a population that is most predisposed to the worst outcomes of COVID-19 to a higher and unnecessary risk, if moved into shared living facilities with others.
While meeting the low threshold for a serious issue, the applicants also met the test for irreparable harm,
 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.
 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.”
Where the application failed was on the balance of convenience. The extensive shelter system in Toronto has already been expanded during the pandemic, and although having the largest homeless population in Canada, the city’s response to COVID-19 was to open 30 new facilities, secure 1,200 hotel rooms at 19 hotels, move over 3,800 people to new spaces, and using housing units in apartments slated for demolition. These widespread efforts appeared to be largely successful to date,
 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.
 …the weakness in the applicants’ position on this motion, … is that there is no evidence that safe shelter spaces, including individual housing units are not available to the homeless population.
 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. 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.
As the cases in Ontario continue to skyrocket, the position of city on evictions may necessarily change, especially if there are outbreaks in shelters and respite centres. While public parks provide one of the few recreational spaces where social distancing can safely occur, this public benefit would clearly be outweighed by evidence that park evictions would necessarily place individuals in danger.
For all of the challenges we are all facing in this pandemic, it is always worth remembering that for some people, especially those who have no place to go but to live in a park, their challenges are markedly different. As we move forward, we will also necessarily move closer together in our goals and support for each other, even if we do so while physically separated.