CLE Working Paper No. 3/2022--What is the Test for Interlocutory Injunctions Affecting Homeless Encampments? A critique of Vancouver Fraser Port Authority v Brett and associated case law

Research output: Working paper

Abstract

Vancouver Fraser Port Authority v Brett (VFPA v Brett), decided in 2020, marked a new low in judicial responses to the intersecting crises of housing, homelessness, poverty, toxic drugs, mental health, racism and colonialism. By dropping to the ground the already low bar for granting interlocutory injunctions to evict homeless encampments from publicly owned land i n BC, this decision invites a critical assessment of BC courts’ approach to homeless encampment injunctions. In this paper I present the first comprehensive survey of 21st century BC homeless encampment interlocutory injunction applications, which shows that they have an extremely high success rate. I then argue that such applications must satisfy all three prongs of the usual RJR-MacDonald test rather than a more relaxed test based on trespass or statutory violation; that the standard for the first prong should be a strong prima facie case due to the mandatory and effectively final character of most homeless encampment injunctions; and that courts should not decide complex, contested constitutional and evidential issues at the interlocutory stage on the basis of affidavits alone. They should instead reassert the extraordinary character of interlocutory injunctions and repudiate the tendency to treat them as the norm in homeless encampment cases. In short, VFPA v Brett highlighted the urgency of raising the bar for such injunctions to a height that can do justice to the fundamental rights and interests at stake in homeless encampment cases.

Original languageUndefined/Unknown
Publication statusPublished - Oct 1 2022

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