Send us a text

Background

- October 2023 terrorist action in Israel in which over 1,000 people were killed by Hamas has led to war in the Gaza Strip

- War has resulted in displacement of Palestinians and estimates of over 30,000 killed

- In response, there have been numerous pro-Palestinian protest and anti-war protests, including at University campuses in the United States and Canada

- Injunctions to remove protestors in Quebec had failed

- After more than a month of occupation of King’s College Circle, U of T brought an application to remove pro-Palestinian encampment on the grounds that protestors were engaged in an unlawful trespass of the university’s property

Injunction proceeding

- University is private education institution, not affiliated with government

- Property of the university is private, but with spaces open to the public 

- King’s College Circle is for use by the entire university population and is also a tourist attraction

- After attempting to engage in negotiations with protestors, U of T finally issued a Trespass Notice under provincial Trespass legislation, but police would not enforce notice

- Required U of T to go to court for an injunction

- U of T argued that protestors had caused damage and had engaged in violent actions on campus, and that occupation was simply illegal as the grounds constituted private university property

- To obtain an injunction, generally required to establish serious issue to be tried, irreparable harm and that balance of convenience favours the granting of an injunction; however, serious issue to be tried standard elevated to prima facie case where result is a mandatory injunction, like the removal of the encampment

- Court finds that U of T’s argument that protestors engaged in violent actions or were engaged in expressions of hate toward others not proven; no prima facie case on these allegations

- However, court finds that there was a prima facie case on the issue of trespass; property belonged to U of T and occupation of King’s College Circle was essentially exclusive to the pro-Palestinian protestors

- Protestors controlled entry to King’s College Circle and only permitted those sympathetic to their position entry to the King’s College Circle grounds

- King’s College Circle, however, was an area of U of T to be used by the entire University community and others such as tourists

- Protestors relied on Charter to protect themselves against removal from the encampment; contended that they had a right to freely express themselves and associate together in protest

- Court finds that Charter did not apply to protect protestor because protestors had not provided notice of constitutional question as required under law, but that Charter did not provide protection in a trespass case. In any event, Trespass Act was reasonable limit prescribed by law

- As well, court noted that protestors were actually violating free expression of others because of their control of King’s College Circle and who was permitted entry

- In connection with the injunction test, there was a clear trespass

- In most cases, a clear trespass ends the inquiry and a party is not required to prove irreparable harm or satisfy the balance of convenience test

- U of T, however, suffered irreparable harm because of damage to its property that would not be recoverable from the protestors; act of trespass on its own constituted strong irreparable harm

- U of T also suffered reputational loss because of the protest

- With respect to balance of convenience, court found that the protestors were not being absolutely prohibited from protesting; this weighed in favour of U of T who had established that it suffered harm

- Public space of campus had been taken over by pro