Public Interest Litigation Keeping the Homeless Safe

Early in the pandemic, António Guterres the 9th Secretary-General of the United Nations, stated,

Early signs are that the COVID-19 virus poses a greater direct health risk to men, and particularly older men. But the pandemic is exposing and exploiting inequalities of all kinds, including gender inequality. In the long term, its impact on women’s health, rights and freedoms could harm us all.

More recently, Canada’s deputy chief public health officer, Dr. Howard Njoo, highlighted the need for better data to address the inequalities that the pandemic has exposed.

We already know that despite 246,000 jobs added in August, more than a million people lost their jobs since the pandemic was declared. An estimated 1.8 million Canadians who are unemployed or underemployed, with most of these jobs in lower income positions.

For some of these people, losing their job also means losing their home. Ontario’s Bill 184 enacted changes that allow for ex parte evictions, a process that is currently being challenged. Many of these evictions also lead to homelessness, and its in these shelters that we some of the greatest vulnerabilities to the pandemic.

Homeless shelters rarely have the types of facilities that would be ideal for a pandemic. Social distance is a rarity, and communal facilities in the rule, not the exception. This is a necessity for most of these facilities, given the limited funding and resources available to them.

In 1997, Ontario undertook a number of reforms in relation to the provincial-municipal relationships, allocating funding and delivery for several services for designated Consolidated Municipal Service Managers. In City of Toronto, shelter services were administered by Shelter, Support and Housing Administration (SSHA).

In November 2018, SSHA introduced 24-Hour Respite Site Standards for respite sites, intended to provide immediate access to resting spaces, meals, and additional support programs. They do not have the full facilities or services that Emergency Shelters do, but typically provide assistance to more vulnerable populations than other facilities. There are approximately 7 respite sites in Toronto operated by the City.

In 1992, Toronto introduced the Toronto Shelter Standards, which provide municipally-funded shelters a clear set of expectations, guidelines, and minimum requirements. These standards have been updated periodically over the years, with a 2009 report recognizing the role of shelters to meet the public’s needs, in a ten-year program to create safe, affordable and well-maintained housing for at-risk populations. There are approximately 11 homeless shelters directly operated by the City, with an additional 53 shelters governed by these standards.

Unfortunately neither of these standards contemplated the pandemic. A number of clinics and parties brought a Charter application challenging these standards in the context of the pandemic, as the spacing requirements allowed within them would be unsafe to their clients.

A settlement was reached on May 15, 2020 to create at least two metres between beds, with SSHA informing the City on June 15 that this goal had been achieved. An estimated 2,000 beds would need to be removed from the existing shelter system to achieve these goals. The agreement stated that the City would make best efforts to achieve the following:

1(d) “Physical Distancing Standards” means: (a) lateral separation of at least 2 metres between beds or alternative sleeping arrangements; and (b) no use of the upper bunks of bunk beds; …

Clients of the respite centres and shelters provided information that suggested that these goals had not been reached. The parties brought a motion seeking an injunction on July 3, 2020, in Sanctuary et al v. Toronto (City) et al., with the court recently concluding that the city had indeed breached the agreement.

Although 2,300 beds were moved to 33 new sites, the parties disagreed whether the best efforts referred to physical distancing, or to the 2 metre standard. The City believed the former to be the appropriate measure, as informed by public health officials, while the parties seeking the injunction believed an objective measure was needed.

The City conceded at the motion that 32 beds of the 7,152 available in 7 sites did not meet the physical distancing standards, but indicated this was a negligible number. However, the other parties indicated there were much more significant deficiencies, across many different sites.

Justice Sossin treated the agreement as a standard contract, and applied the Sattva test to reach the contract as a whole. The City suggested that best efforts in this context meant taking all good faith and reasonable steps to achieve the objectives of the agreement, with the other parties, but Justice Sossin disagreed with this analysis,

[58] On any account, it is evident that a number of shelter sites were not in compliance with the physical distancing standard set out in the Interim Settlement Agreement as of June 15, 2020.

[59] The City has not asserted that all reasonable steps had been taken at the seven sites which it found were not in compliance by June 15, 2020. Rather, the City submits that these instances were the result of “isolated human errors,” and not reported as a result of gaps in communication between staff.

[60] The City has provided no explanation for why these errors and gaps in communication could not or should not have been corrected prior to an assertion of compliance under the Interim Settlement Agreement. The City was under no deadline to assert compliance, nor did the City have any competing public interest in asserting compliance with physical distancing standards in the midst of a pandemic when these standards had not in fact been met.
[61] Taken as a whole, the record leads me conclude that the City had not used its “best efforts” to achieve physical distancing standards in the shelter system by June 15, 2020.

The City attempted to rely on a common law de minimus principle, but the inclusion of the term in the contract in a different context, relating to a transitionary period, weighed against this interpretation,

[64] In my view, had the parties wished to address de minimis noncompliance as a condition of meeting the “best efforts” commitment in the Interim Settlement Agreement, it is reasonable to infer that they would have done so. The presence of the term in the explanation of the “termination date,” but not in the explanation of the date by which compliance is asserted, suggests the parties did not agree de minimis noncompliance was appropriate at the stage of determining compliance.

Justice Sossin relied on the Court’s decision in Sail Labrador Ltd. v. Challenge One (The) to explore the relationship between de minimus compliance and a breach, concluding that the principle does not allow for a conclusion that no breach occurred.

The context of the pandemic was specifically examined as a basis for non-compliance, but Justice Sossin did not accept this submission,

[71] 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.

[72] The pandemic context, however, cuts both ways.

[73] Just as the pandemic context may explain some of the logistical challenges that the City encountered in seeking to verify compliance by June 15, 2020, it also is the basis for the vigilance of the applicants in ensuring the City is held accountable for deficiencies in compliance.

[74] It is not disputed that any failure by the City to take all reasonable steps to meet physical distancing standard in congregate shelter settings heightens an already significant risk of the spread of COVID-19 to some of the most vulnerable members of our society.

The decision also illustrates some significant deficiencies in communication and the flow of information between municipal staff. This is perhaps not a surprise, given there were approximately 800 staff involved for the shelter system.

The pandemic is not over, and the City will have even greater challenges with respite centres and shelters as we move into the winter. While most counsel and parties are encouraged to explore options for resolution outside of court, this particular action has had some meaningful effect as a result of the motion sought.

Because of the forgoing non-compliance, Justice Sossin provided direction that the City provide the other parties crucial information about quality assurance and verification procedures employed. In other words, the interested parties are the only thing ensuring that the City complies properly with these measures.

When dealing with the most vulnerable members of society, who are often overlooked by all of us for a multitude of reasons, it is essential to have important safety nets in place. This is especially true during a pandemic. Public interest litigation in this case is the only check that appears to be effective, and should be recognized as such.