Court battle over Hamilton tent encampments expected to drag on for days

It'll be days before there's any kind of legal resolution between the City of Hamilton and a team of advocates and five homeless residents fighting for the ability to sleep in tents on public land.

The Hamilton Community Legal Clinic wants a permanent injunction that would largely prevent the city from dismantling small encampments around the city. The city wants to keep enforcing its bylaw prohibiting tents in public places.

And it'll be at least Thursday before the case moves forward.

The two sides had their first day in Hamilton court Monday, when topics included the prevalence of COVID-19 in encampments and whether there's enough space to house everyone in shelters.

Stephanie Cox, lawyer with the legal clinic, said with the current bylaw, the city's homeless population suffers "irreparable harm" through "constant displacement."

"There is a clear and significant potential damage to a particular group ... the homeless population of Hamilton," she told the court. 

No exceptional harm at shelters, says city lawyer

Meanwhile, city lawyer Michael Bordin from Gowlings WLG worked through a list of the legal clinic's five applicants, pointing out the ways the city tried to find them shelter. He also said there's no evidence that people worried about COVID-19 in shelters are more exposed to it there than anywhere else.

"While there's some risk in the schools, for example, we've sent all the kids back to school," he said. "The point is there's not this exceptional risk of irreparable harm that is unique."

This court battle dates back to last year, when the city dismantled tents that were popping up with greater visibility around the city. A group of Hamilton doctors, lawyers and advocates got a temporary injunction to stop it. At one point, there were as many as 100 tents on Ferguson Avenue North.

The city agreed to allow encampments for up to 14 days provided they were temporary and no larger than five tents in a grouping. Then in August, it reverted to its old camping bylaw prohibiting tents, and began dismantling tents again. The legal clinic got a temporary injunction on that earlier this month, so the city must allow tents as long as they're in groups of six or fewer, and not too close to schools, daycare centres or other encampments. Now the clinic is trying for a permanent injunction.

The city says people sleeping in tents isn't a solution, and that it's focused on trying to find permanent housing for people. But Cox said between October 2020 and Aug. 31, 2021, an average of only four people living in encampments were housed each month.

Both sides to call witnesses

At that rate, she said, it would take 25 months to house the number of people who are reportedly living in encampments.

Cox also said the stabilization under the previous protocol helped people find housing.

"It's inconceivable that the current protocol and housing programs can maintain that rate of housing success ... if people are forced to move every few days," she said.

Cox and her team said the legal clinic has also filed a constitutional question with the Attorneys General for Ontario and Canada on the issue of encampment evictions on Oct. 4.

Both sides will start calling witnesses Thursday. Justice Andrew Goodman is presiding.