Parks, the Public Interest and Pandemics

Parks, the Public Interest and Pandemics

February 8, 2021

By Brian Babcock

When did your municipality last review how its parks by-law serves the public interest?

Covid-related concerns were not enough reason to disregard a municipal by-law regulating parks. In doing so, the decision highlights important factors applicable to public interest injunctions generally, in particular the use of expert evidence and how courts balance conflicting interests. Although the City prevailed, municipalities should be aware of the burden that they must meet to justify the enforceability of their by-laws.

The applicants in the case of Black v. City of Toronto were 14 homeless people. They sought an 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.

They argued that the enforcement of the by-law, specifically in the context of the pandemic, violated their rights under the Charter of Rights and Freedoms and also Ontario’s Human Rights Code. They did not argue that the by-law should be struck down.

Although the judge accepted that concerns about safety in shelters and housing were legitimate and “engaged” Charter concerns, he noted that the City had made efforts to accommodate the homeless persons safely during the pandemic. This, he felt, was reason not to grant the order sought by the Applicants.

On a preliminary issue, the City objected to two expert witnesses who provided evidence for the applicants on the basis that their involvement with the applicants created a bias which made them more advocates than impartial experts. The Supreme Court of Canada has in recent years emphasized the necessity of experts being “fair, objective and non-partisan”. However, as the judge hearing this case pointed out, the Supreme Court has also recognized that in many situations, the best experts have connections to the parties because that is how they developed their knowledge. In those situations, the evidence may still be considered, though the judge needs to be on the look out for any bias. In this case, the benefits of the context provided by the experts weighed in favour of the evidence being considered.

The judge then considered the typical three factors for granting an injunction:

  1. Is there a serious issue to be tried?
  2. Will the applicant suffer irreparable harm if the injunction is not granted?
  3. Which party will suffer the greater harm if the injunction is granted or refused (a balance of convenience test)?

The threshold for a “serious issue to be tried” is low. It looks at mainly the Applicants’ position and does not significantly consider the strength of the City’s defence. The Applicants met this test.

Irreparable harm refers to harm which cannot be adequately remedied through an award of damages. This test also is applicant oriented, flexible and relative. Prior cases had considered fear of assault and psychological harm to be irreparable harm, without even getting into the Charter concerns.  Although the City disputed the evidence of risk of physical or psychological harm, municipal law prevents an award of damages for these risk in the absence of intentional wrongdoing. This test was also met.

As the judge noted, the balance of convenience test is “where the hard work takes place”. It is at this stage that the judge considers the City’s position more fully. As both sides raised public interest concerns, the judge had to balance those as well as the Applicants’ personal interests. In assessing the balance of convenience, the motions judge must proceed on the assumption that the law is directed to the public good and serves a valid public purpose. In order to overcome this assumed benefit to the public interest, the Applicants must demonstrate that the suspension of the legislation would itself provide a public benefit.

This involved a detailed examination of the City’s shelter system, its response to the pandemic, and the growth of encampments in parks after the declaration of the pandemic. In a few earlier cases in British Columbia prior to the pandemic, injunctions were granted where cities did not address the sort of concerns raised by the Applicants. If anything, in the Toronto case, the presence of the pandemic made the Applicants’ concerns more real. So this was not an open and shut win for the City.

The judge concluded that the public interest favoured denying the injunction. He referenced a 2011 decision involving “Occupy Toronto” in which the objective of the parks by-law was recognized as “clear and sensible” – to balance the different ways in which people wish to use the parks, sharing the public resource, with minimal negative impact on the surrounding neighbourhoods.

He stated that “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.”

The judge however did not ignore the Applicants’ concerns. He considered whether some form of order might be appropriate, but ultimately, in large part because there was no clear end to the pandemic, which made it difficult to assess the impact an injunction might have, he declined to grant the order.

The combination of the British Columbia decisions together with the careful balancing by the judge in this decision highlights that municipalities cannot take it for granted that by-laws will always survive a request for an injunction. They must not only be enacted in good faith (which is presumed), but they must also serve a public interest which outweighs the interest argued by the opponents. Though this may also be presumed initially, we expect that there will be future cases involving similar sorts of expert evidence. Municipalities must be prepared to respond by showing well thought out plans and systems.