Real Estate – Is a Tent City Allowed?
Tent Cities have been popping up in British Columbia, some in large urban areas such as Victoria and Vancouver and others in smaller communities such as Abbotsford and Nanaimo. Advocates of these tent cities state that tent cities act as a community for homeless people providing enhanced safety and a sense of belonging. How have the BC Courts treated these tent cities?
In British Columbia v Adamson, 2016 BCSC 584 the application for removal of the tent city by interim injunction failed. The Province applied unsuccessfully for the removal of the tent city which was located on Victoria Courthouse property. The Court determined that the Province failed to meet the test for granting an interim injunction which is laid out in RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. The test in which all elements have to be passed is as follows:
- Has the applicant demonstrated that there is a fair question to be tried;
- Will the applicant suffer irreparable harm if the injunction is not granted; and
- Does the balance of convenience favour granting the injunction?
The Court found that there was a fair question to be tried but the Province did not fully demonstrate they would suffer irreparable harm nor did the balance of convenience weigh in favour of the Province.
The court based its decision on a great deal of evidence which demonstrated this particular tent city to be a safe-haven for the homeless that were living there. The evidence proffered described the tent city as a community with rules and governance.
A second application was heard for an interim injunction on the Victoria Courthouse tent city. The Court’s decision on this second application is recorded as British Columbia v. Adamson, 2016 BCSC 1245. In this application the Province was successful. The Court based its decision on the changes occurring in and around the tent city. The tent city governance had fallen apart as well concerns began to crystalize relating to the health and safety of the surrounding community. The Court ordered that the tent city residents were to vacate the premises as soon as additional housing from the Province became available.
In another British Columbia Court decision Vancouver (City) v. Wallstam,
2017 BCSC 937 an application for an interim injunction to dismantle a tent city was heard. Again, the RJR MacDonald test was used. The Court determined that the applicant City was unable to prove that irreparable harm would be suffered. The evidence spoke similarly to Adamson in that this tent city was a safe-haven for the homeless. The tent city was vital in maintaining the homeless people’s security of the person.
The decisions mentioned above support the view that only once a tent city begins to negatively impact the surrounding community will an interim injunction be granted. As long as the tent city remains a civilized community, they are allowed to stay. The availability of alternative housing is another factor that the Courts have considered in allowing or disallowing the injunctions to dismantle a tent city.
From these decisions there is much left unclear about the public’s rights in relation to these tent cities. Perhaps future decisions will tender a new legal test to be applied in these tent-city circumstances.