Homeless rights advocates have won a lawsuit against the city after the authorities failed to enforce sufficient physical distancing in homeless shelters.
“Within the homeless shelters, we saw that the city wasn’t taking enough measures that it needed to create physical distancing,” said Noa Mendelsohn Aviv, a representative of the Canadian Civil Liberties Association, one of the groups that filed a lawsuit.
On Oct. 15, the Ontario Superior Court ruled the City of Toronto did not abide by the settlement agreement and failed to meet its requirements, even though the city authorities claimed on June 15 they had reached the necessary distancing in homeless shelters. They were also accused of the lack of transparency in the actions to implement these measures.
“Our argument was that the city wasn’t transparent and accountable in what it was doing,” said Jessica Orkin, a lawyer from Goldblatt Partners LLP representing the applicants.
The advocates — Canadian Civil Liberties Association, Sanctuary Ministries of Toronto, Aboriginal Legal Services, Advocacy Centre for Tenants Ontario, Black Legal Action Centre, and HIV & AIDS Legal Clinic Ontario — formed a coalition to file a lawsuit against the city, claiming the officials breached the interim agreement they signed on May 15.
According to the agreement, the city had to ensure adequate space between shelter beds and cease the use of bunk beds to stop the spread of COVID-19.
Orkin also said the city’s records indicated there were too many people residing in shelters, which proves non-compliance with the agreement.
“When we investigated and got [the city’s] documentation, it was clear that they were aware of a number of sites that had not yet reached compliance.”
The city earlier denied these allegations, stating in the official letter they “take these issues very seriously” and make “every effort to mitigate the impact of COVID-19.”
The city also emphasized the challenges of achieving physical distancing, which considerably reduces shelters’ capacity. That means some residents have to relocate to another site with available space.
“Immediately imposing a mandatory standard requiring two metres of physical distancing between beds in all shelters was not workable given the space restrictions and number of residents that are served in Toronto shelters,” says in the letter.
Lower capacity enforces officials to relocate some individuals to hotel rooms or other locations, which, as the city explained, “an essential but complex task.”
Before relocating people, the city needs to assess each individual and decide if they are ready to move to another site.
After the assessment, new locations should be carefully checked for safety and the availability of necessary amenities for residents.
The city also has to secure contracts for cleaning, security, laundry services and food provisioning.
Orkin said the court and the coalition are aware of the challenges of relocating shelter residents to new sites. However, the city needs to be straightforward about its actions and standards applied to achieve this goal, Orkin said.
“We accept that there are challenges in creating new locations to house individuals experiencing homelessness,” Orkin said. “At the same time, the city needs to be transparent in the standards that it’s applying and how quickly it can move people and what it anticipates doing.”
“That’s the challenge we’ve had at every turn in this case: the city indicates what it intends to do, but it’s unclear about their standards and when it intends to or expects to meet compliance,” she said.
Shelter, Support and Housing Administration (SSHA) declined to comment on the lawsuit.
The controversy around physical distancing
There were disputes around physical distancing as the distances between shelter beds set by the city did not meet the agreement’s standards.
Based on the factum of the moving parties provided by CCLA, the target distance between shelter beds defined by SSHA would be two metres of “lateral” spacing and one metre of “longitudinal” spacing.
But if the demand for shelter beds increases in the upcoming months, SSHA will consider two metres of “lateral” spacing and 0.75 metres of “longitudinal” spacing.
Greg Cook, an outreach worker at Sanctuary Ministries, called such standards “odd interpretation” as they were made “without consulting with public health guidance.”
It meant the city could put more beds in a shelter space, he said.
Orkin said the coalition did not support this pattern, emphasizing the need to comply with two-metre distance.
“The city took the position that it was only between the side edges of the bed that it had to be two metres, and between the foot and the head of the bed could be [less],” she said. “We disagreed with that.”
Orkin also said the court disagreed with both parties’ positions and advised that the public health should carry out expertise on what distance is required.
“We hope it will lead to more people being moved out of the shelters because that is the general advice that all of us receive from public health: be with as few people as possible, to isolate and to reduce social circle through physical distancing,” she said.
“And that’s not possible in shelters — you don’t have control over your environment. But to the extent that we can reduce the density in shelters, we will reduce the risk of COVID-19 transmission, and reduce the risk of the burden of that disease across our city,” Orkin said.
Lack of distancing violates the homeless rights
In the Notice of Application to the Superior Court, the coalition highlighted that non-compliance with physical distancing infringes the rights of homeless individuals who seek accommodation in municipal shelters.
Moreover, the advocates called the City’s Shelter and Respite Standards “unconstitutional,” putting the lives of the vulnerable population at risk.
“In the context of COVID-19, the City’s scheme to provide shelter is endangering the life and safety of Toronto residents who access that shelter, in breach of s. 7 of the Charter, and constitutes discrimination on the grounds of age, race, national origin, citizenship and disability, in breach of s. 15 of the Charter,” the application says.
The coalition also compared the city’s efforts to ensure physical distancing in public places for the general population, which contradicts the measures it took in the homeless shelters.
Aviv said that many homeless individuals preferred to live in encampment sites due to fears over COVID-19.
“They were concerned about their own health, so they chose to camp out. That’s when we saw a growing number of encampments across the city without proper access to food and bathroom facilities,” she said.
She also referred to an ongoing housing crisis in Toronto that prevents people from getting “adequate and permanent” accommodation.
“At a time when you’re saying to people ‘if you want to be safe – stay at home,’ make it possible for people to do that,” Mendelsohn Aviv said.
Domenico Saxida, a resident of an encampment site at Alexandra Park, said one of the reasons why he prefers to live on the street is he can self-isolate in his encampment better than in a shelter.
In his nearly 25-foot site, he houses around seven tents that could fit up to six people. But because of social distancing, each tent accommodates only one person.
“We do more social distancing here than in shelters,” Saxida said. “I don’t want to go back to shelters because of COVID, and many people here don’t wanna go there.”
He also said that he and other encampment residents recently had gone through a COVID-19 assessment, and none of them had tested positive.
In Toronto shelters, 649 people have tested positive for COVD-19 since the beginning of the pandemic.
City’s support during COVID-19
Jake Aikenhead, director at The Salvation Army Gateway, said that adapting to the COVID-19 restrictions and rules went “very smoothly” for the shelter.
“The City of Toronto, the Shelter Support and Housing Administration specifically, have been really helpful to us. I don’t think it would have been possible for us to decrease the number of shelter residents as drastically as we have without their support,” Aikenhead said.
“With their help, we have been able to open up hotel programs at the Salvation Army, and that’s where a number of our previous residents have gone to create more space [in The Gateway].”
He also said the city’s administration has sent to the shelter “thousands and thousands” of surgical masks, which were very beneficial since the residents are now required to wear a face covering.
“We can provide each of them with a new mask every day, and we have enough to get through the end of December,” Aikenhead said.