The Latest Chapter in the Development of “Occupation” Law

In two recent decisions, Saanich (District) v Brett, 2018 BCSC 1648 (“Saanich”) and Nanaimo (City) v Courtoreille, 2018 BCSC 1629 (“Nanaimo”), the BC Supreme Court considered local government applications to the Court for pre-trial injunctions to terminate unauthorized homeless encampments.  Generally, these cases represent examples of the Court undertaking a balancing of the homeless population’s need for shelter and against the nature of these encampments within the context of the duties and authority of public authorities to reasonably manage lands falling within their jurisdiction. 

In Saanich, the Court granted an application for an interlocutory injunction to close the encampment and on certain conditions, which included bringing a full trial or final hearing on the District’s case within six months. The approximately 107 occupants of the encampment were ordered to evacuate the park until it was restored to a safe state and, once the premises were restored, to only occupy it in accordance with Saanich’s zoning bylaws.

Similarly, in Nanaimo, the Court ordered an interlocutory injunction to vacate an encampment located on city-owned and privately-leased property.  Similar to Saanich, the Nanaimo encampment was composed of approximately 115 tents and occupation of the premises was throughout the day and night.

Appropriate test for interlocutory injunctions

In both Saanich and Nanaimo, the encampment occupants brought a constitutional challenge in relation to the zoning bylaws that the municipalities sought to enforce. Specifically, the occupants argued that prohibiting them from camping throughout the day violated their section 7 Charter right to “security of the person”. The Court in both cases held that, because these issues are complex, a statutory injunction, as was sought by Nanaimo, was not available, and the appropriate test for an application for injunction was the three-part test set out in RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, as sought by Saanich.  The RJR-Macdonald test consists of three inquiries, as follows:

  1. Is there a serious issue to be tried?
  2. Will the applicant suffer irreparable harm if an application is not granted? And
  3. Does the balance of convenience favour the granting of the remedy?

The first two prongs of the RJR Macdonald test were easily made out in both cases. The Court in both Saanich and Nanaimo found that the breach of zoning bylaws, statutory fire orders, trespass and interference with the municipality’s ability to comply with their duties as “occupiers” under the Occupiers Liability Act, were factors that established a serious issue to be tried.

In Saanich, the threshold for “irreparable harm” was met by the prevention of the ability of the public to use the park and interference with green belt views of neighbouring residential properties. Irreparable harm was also found in Nanaimo because of the effect that the encampment had on the rights of the third-party lessees of the subject property.

In both Nanaimo and Saanich the decisions turned on the “balance of convenience” test which involves balancing factors that weigh in favour and against the granting of an injunction to dismantle an encampment. Factors weighing against the granting of the injunction generally involve the possibility of a violation of occupants’ Charter rights, whereas the factors that weigh in favour of the injunction involve the effect of the encampment on the public interest.

In both cases, the courts were guided by leading cases concerning homeless encampments and section 7 Charter rights such as Victoria (City) v. Adams, 2009 BCCA 563 and Abbotsford (City) v. Shantz, 2015 BCSC 1909. The Court in Shantz concluded that the rights of the homeless population and other residents of the City are justifiably balanced when the homeless are allowed to set up shelters overnight, between 7:00 pm and 9:00 am, but are required to take them down during the day.

Notably, in Saanich, the defendant occupants challenged Saanich’s zoning bylaw on the basis that it did not allow for occupation of parks throughout the daytime.  In response to this challenge, Mr. Justice Branch specifically observed that a such a challenge constituted an “uphill battle” for the occupants.

Factors that weigh against an injunction

The factors canvassed by the Court in both Saanich and Nanaimo that supported the continuance of the encampments included:

  • The numbers of encampment occupants who are truly homeless and require shelter;
  • The privacy and greater security obtained through an encampment setting;
  •  The case of access for third-party agencies and service providers to connect with the occupants; and
  • The recognized value to be gained by having a sense of community.

Factors that weigh in favour of an injunction

Conversely, the following factors were considered to have weighed in favour of the granting of an interlocutory injunction in both cases:

  • The adoption of a zoning bylaw that meets the constitutional limits expressed by the court in Shantz (i.e. zoning bylaws that allow overnight shelter in enumerated parks from 7:00 pm – 9:00 am);
  • The question of whether the public use of the lands has been impeded by the encampment;
  • The existence of supportive/social housing in the community and/or efforts to advance that issue;
  • The condition and circumstance pertaining to the encampment, including:
  • Fire and life-safety risks;
  • Other health risks (i.e. depositing of biohazardous materials such as needles and syringes in the surrounding neighbourhood);
  • Direct evidence of criminality and impacts on the surrounding community; and
  • The absence of effective positive leadership in the encampment.

Procedural considerations

While Saanich was commenced by Notice of Civil Claim, Nanaimo was commenced by Petition. In Nanaimo, the court made it clear that a proceeding and application for injunctions in relation to homeless encampments should be brought by way of Notice of Civil Claim and not by Petition.

Additionally, the court in Nanaimo found that the issues at stake were too complex for a summary proceeding. Therefore, an interlocutory injunction was granted and the matter was required to proceed to trial. Similarly, as noted above, the Saanich matter was also set for consideration at trial.

The Court in both Saanich and Nanaimo granted enforcement clauses in their orders. The judges in both cases noted evidence of non-compliance and resistance to the lawful authority of fire and police services by the encampment occupants.

Finally, on October 30, 2018 the District of Saanich brought on an application for final judgment in its case.  This application was not opposed by the defendants and was granted by the Court. It is reported at Saanich (District) v Brett, 2018 BCSC 2068.


Following the decisions of the Court in British Columbia v. Adamson, 2016 BCSC 584 and 2016 BCSC 1245, it appears to have been widely believed by the supporters and advocates for homeless individuals that the Court’s response to the establishment of a homeless occupation on public property would be to Order the termination of such an encampment only when sufficient housing has been created or made available for the occupants. This conclusion appears to have informed a strategy by which such encampments were initiated as a means of attempting to force the construction of social housing. The decisions of the Court, first in Saanich and followed by Nanaimo, have made it clear, however, that this is not the law. These cases will be adjudicated on their merits, and primarily on an evaluation of the “balance of convenience”. Issues such as fire safety and criminality within encampments, as well as the local government response to homelessness within individual communities will be significant factors in the Court’s consideration of these cases.