Case In Point
Ontario Court Grants Injunction to End Encampment at University of Toronto
Date: July 4, 2024
The Ontario Superior Court of Justice has granted an interlocutory injunction to end an encampment on the University of Toronto’s Front Campus. The Court found that the University’s Governing Council, as the property owner, has the ultimate right to determine the land’s use. In obiter, the Court also reiterated that the Charter does not apply to the University’s decisions about how its property is used.
Background
In May 2024, due to the ongoing conflict in Gaza, protestors began occupying an encampment in an area known as Front Campus, inside King’s College Circle on the University’s downtown campus. This encampment is one of many pro-Palestinian encampments at universities across North America. After repeated attempts to negotiate failed, the University’s Governing Council issued a notice of trespass to the protestors, and later sought an injunction to remove the encampment.
Test for an Interlocutory Injunction
In University of Toronto (Governing Council) v. Doe et al, Justice Markus Koehnen held that the following three factors weighed in favour of granting the injunction:
- the University had a strong prima facie case
- the University had suffered irreparable harm and
- the balance of convenience favoured granting the injunction
Strong prima facie case
The Court held that the University demonstrated a strong prima facie case for trespass and the tort of ejectment. The encampment participants had effectively appropriated a piece of the University’s campus for 50 days, prevented others from using the space, and deprived the University of control over its own property.
Irreparable harm
The Court found that the continued loss of use of Front Campus constituted irreparable harm. The length of time that the University was deprived of the use of its property and the size and significance of Front Campus to the University were determinative factors. While negotiations were underway, the encampment participants’ refusal to leave effectively held the University ransom, making any concessions during negotiations tantamount to irreparable harm.
Balance of convenience
The Court held that the balance of convenience favoured granting an injunction. Though the Charter was not found to apply to the University’s action, the Court found that the injunction was consistent with Charter values as it preserved the right to protest. The injunction would permit encampment participants to return to campus and protest, indefinitely if they wished, so long as they began at 7 am and left by 11 pm.
Takeaways for the University Sector
For the university sector, the decision is a welcome result, affirming that university property and freedom of expression on campus cannot be unilaterally appropriated by a single group to the exclusion of others. Notably, the Court in obiter affirmed that the Charter does not apply to a university’s decisions about the allocation and use of its property for extra-curricular activities. This finding may have important implications for other universities seeking injunctions to remove pro-Palestinian encampments from their campuses. Given the broader importance of the issues raised in the proceedings, numerous groups were granted leave to intervene as friends of the court in the litigation.
Jarren Fefer is a summer student with Hicks Morley.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
