Reconsidering the Test for Interlocutory Injunctions Affecting Homeless Encampments: A critical assessment of BC case law

Abstract

Using a 2020 decision in which a judge granted an interlocutory injunction evicting a homeless encampment from an unused, unfenced, publicly-owned parking lot in the midst of the COVID-19 pandemic as a springboard, I present the first comprehensive survey of British Columbia homeless encampment injunction decisions, revealing a whopping 85% success rate when governments seek interlocutory injunctions against encampments. The stakes are high: Interlocutory injunction applications dominate homeless encampment litigation, exposing encampment residents to continual displacement and elevated risks of isolation, illness, violence, and death. I argue that courts hearing applications for interlocutory injunctions against homeless encampments on publicly-owned land should apply the full three-pronged RJR-MacDonald framework; apply a strong prima facie case standard to the first prong; avoid prejudging complex, contested evidential or legal issues at the interlocutory stage, on the basis of affidavit evidence alone; and raise the bar for interlocutory injunctions to a height that reflects the fundamental interests at stake in homeless encampment cases.