Homeless advocates win court battle against City of Toronto over physical distancing in shelters

Housing advocates in Toronto have won their lawsuit alleging that the city misled them about physical distancing in its homeless shelter system amid the COVID-19 pandemic.

The coalition of groups argued that the city claimed on June 15 that it had ensured there was physical distancing in its homeless shelters, even though officials knew that the city was not in compliance with a settlement agreement it reached with the groups on May 15.

Those groups — including Sanctuary Ministries of Toronto, Aboriginal Legal Services, the Advocacy Centre for Tenants Ontario, the Black Legal Action Centre, the Canadian Civil Liberties Association, and the HIV & AIDS Legal Clinic Ontario — took the city to court in September, arguing that it was in breach of the agreement. 

Specifically, the groups argued that the city was continuing to permit the operation of shelter sites with bunk beds less than two metres apart. 

The city previously disputed the allegations, saying it had worked tirelessly to follow the rules and has found homes or temporary residences for thousands who use the shelter system.

But on Thursday, the court found that the city was in fact in breach of the settlement agreement reached in May. 

While the city argued it had used its "best efforts" to achieve the goals set out in the original agreement, Ontario Superior Court Justice Lorne Sossin disagreed. 

"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," Sossin wrote in his decision released Thursday evening. 

"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."

Jessica Orkin, legal counsel to applicants who works at Goldblatt Partners LLP said the court's decision confirms that the city has in fact not done enough to reduce the risks of COVID-19 transmission within the shelter system.

Orkin also called the city's assertion of compliance with physical distancing standards in shelters "premature."

"Justice Sossin's judgment will ensure that going forward, decisions about physical distancing with the shelter system are based upon evidence-based guidance from independent public health experts," Orkin said in a statement to CBC Toronto.

Brad Ross, the city's chief communications officer, told CBC Toronto that the city blames "errors in staff communications" for dozens of shelter beds not having been spaced apart accordingly.

"The City of Toronto acknowledges that 32 shelter beds — just 0.45 per cent of the shelter system — were not in compliance with physical distancing standards on June 15; this was due to errors in staff communications, which the city fully accepts and acknowledges," Ross said in an emailed statement.

He said this particular issue was rectified on Sept. 9. 

"Nevertheless, the city accepts the court's opinion that it had not met the specific terms of the interim settlement agreement to achieve physical distancing standards across the entire shelter system on June 15," Ross added.

Under the new agreement, the city must continue the obligations it agreed to under the original interim agreement, which the include goals related to safety and capacity.

"As the second wave of COVID-19 is well under way and first snow could fly any day, it is urgent and vital that the City of Toronto finally and fully provide appropriately physically distanced shelter space for its poorest residents," said street pastor Doug Johnson Hatlem, who works with applicant Sanctuary Ministries of Toronto.

"Hundreds of those residents remain outdoors in tents or otherwise sleeping rough due to legitimate fears of contracting a deadly and highly contagious disease," Johnson Hatlem said.