British Columbia Chief Justice Hinkson has rejected the provincial government’s application for an injunction to shut down the homeless tent city on the lawn of the Victoria court house. He made several rulings that will be important in future trespassing injunction cases. The decision is posted here. It represents a triumph of empathy for people who live in poverty and are given no reasonable alternatives but to be chased from place to place.

Perhaps most important in its legal impact, he rejected the province’s argument that the normal hurdles an injunction application has to clear don’t apply where interference with rights to land are involved. Employers often raise this argument in applications for injunctions to prohibit picketing on their property by employees. Mr. Justice Hinkson ruled that the normal legal rules apply where Charter rights are in issue, even if the applicant is a landowner seeking to remove alleged trespassers.

Those three hurdles were set out more than two decades ago in a landmark decision by the Supreme Court of Canada known as RJR MacDonald. The claimant must show that there is a serious issue to be tried, that it will suffer irreparable harm (i.e., harm that cannot be addressed with an award of damages) if the injunction is not granted, and that the balance of convenience favours granting the injunction rather than refusing it.

On the question of irreparable harm, the province argued that cleaning up after the homeless people move on would come to $300,000 to $350,000. Since they are impoverished, the government’s lawyers argued, there is no way the government could recover damages to pay for that loss. Justice Hinkson ruled that the poverty of the defendants is not a basis to conclude that refusing an injunction would cause irreparable harm. He quoted from the Supreme Court of Canada: “one party’s impecuniosity does not automatically decide the application in the opposing party’s favour.”

On the balance of convenience, he concluded that the negative impact of granting the injunction on the safety and well-being of the homeless defendants, including their retention of a sense of community, significantly outweighed concerns about public convenience. He wrote: “Ultimately, in determining whether or not to grant an interim injunction at this time, I find that the balance of convenience is overwhelmingly in favour of the defendants, who simply have nowhere to move to, if the injunction were to issue, other than shelters that are incapable of meeting the needs of some of them, or will result in their constant disruption and a perpetuation of a relentless series of daily moves to the streets, doorways, and parks of the City of Victoria.”