On May 21, 2026 the Ontario Superior Court of Justice released a precedent setting ruling in the ongoing battle over an encampment of vulnerable homeless individuals located at 100 Victoria Street in Kitchener. This long-standing encampment has served as a sheltering refuge of last resort for chronically homeless individuals who cannot find indoor shelter in circumstances where the homeless population has continued to grow dramatically but accessible housing remains woefully scarce.
Lawyer Mercedes Perez of Perez Procope Leinveer LLP, who has acted as counsel in other precedent setting encampment eviction cases, was appointed by the court to act as amicus curiae on behalf of homeless persons who reside at the encampment but may not have the capacity to retain counsel. She was assisted by lawyers Jen Danch (Swadron Associates) and Karen Steward (Pro Bono Ontario) following a motion to intervene brought by the Mental Health Legal Committee.
The named respondents – all homeless individuals who reside or have resided at the encampment – were represented by lawyers at the Waterloo Region Community Legal Services. The Canadian Civil Liberties Association, Aboriginal Legal Services, the Charter Committee on Poverty Issues, and The National Right to Housing Network were granted intervener status in the litigation.
The Ontario Superior Court had rejected a similar attempt by Waterloo Region to clear the encampment three years ago in a landmark decision. Justice Valente’s 2023 decision can be accessed at this link: The Regional Municipality of Waterloo v. Persons Unknown and to be Ascertained, 2023 ONSC 670 (CanLII).
This time around, Waterloo Region issued a new site specific by-law with the purpose of clearing the encampment so that Metrolinx could begin some work related to the construction of the Kitchener Central Transit Hub. Timelines for the start of the Metrolinx portion of this infrastructure project continue to be delayed and remained subject to change throughout the litigation process.
Justice Gibson’s 88 page ruling contains many significant findings that are important to the encampment residents and homeless individuals generally, but that also advance Charter jurisprudence in this area. His decision can be accessed at this link: The Regional Municipality of Waterloo v. Named Respondents and persons Unknown, 2026 ONSC 2971
Ultimately, Justice Gibson agreed that a site specific by-law enacted by Waterloo Region to clear the encampment violated the Charter rights of homeless persons who have no choice but to sleep outdoors when there continues to be an ever growing mismatch between the number of homeless and the number of available and accessible housing alternatives. Some highlights from Justice Gibson’s ruling are summarized here:
- Justice Gibson recognized that there is a homelessness crisis in Ontario and that the homeless population is expected to double by 2035.
- He also recognized that homelessness is an “extraordinarily difficult problem to grapple with”, that it is a “fact on the ground”, that “it is not going away in the proximate future” and that “an ostrich approach will not suffice”. Justice Gibson noted that “solutions to the homelessness crisis will require increased resources from all levels of government and other stakeholders, time to implement the required strategies, and a clear recognition of and focus upon the constitutional rights involved”.
- Justice Gibson highlighted efforts made by Waterloo Region to address homelessness over the last 3 years, including doubling its budget for homelessness services, adopting a human rights approach to solving the homelessness crisis, and taking steps to ameliorate the living conditions at the encampment. Unfortunately, the number of homeless in the Region has ballooned from 1085 people in September 2021 to 2371 in October 2024.
- He recognized that homeless individuals who sleep or reside at the encampment “live in extreme poverty” – some have no income at all and many struggle with physical and mental health challenges. Importantly, he recognized that any solutions to homelessness “must be informed by one primary thought: The homeless are not Other. They are Us. They are rights bearers no less entitled than any other Canadian citizens to the full benefit and protection of the Charter”.
- Justice Gibson made clear that this is not a case about property rights or “squatters’ rights”. Instead, it is a case about homeless individuals seeking not to be deprived of the ability to erect temporary outdoor shelter (such as tents) to protect their own health and safety when they cannot access indoor shelter alternatives.
- He noted that the distinction between positive and negative rights can be a “false dichotomy” because “no right can exist without some form of corresponding obligation”. Waterloo Region had voluntarily committed itself to taking a human-rights based approach to homelessness and the site specific by-law might not violate Charter rights if the necessary consultation process had been used to develop alternatives approaches such as enactment of a safe tenting protocol that could apply on other Region owned property.
- With respect to specific Charter violations, Justice Gibson found that evicting homeless individuals from the encampment violates their section 7 rights to life, liberty and security of the person in ways that are grossly disproportionate to any competing State objective. This mirrored the finding by Justice Valente in 2023.
- In a prededent-setting ruling, Justice Gibson also found that the site specific by-law violates the section 15 equality rights of chronically homeless individual who are least likely to be able to access indoor shelter, specifically women, gender diverse, disabled and/or Indigenous persons. This is the first time that a court has found a section 15 equality violation in an encampment case anywhere in Canada.
- Another precedent-setting finding was that “homelessness” is an analogous ground under section 15 of the Charter – the first time this has been recognized in a Charter case.
- Justice Gibson went on to conclude that the section 7 and 15 Charter violations are not saved by section 1, rejecting Waterloo Region’s argument that the court should take a deferential approach because, according to the Region, the site specific by-law is a “complex regulatory response” to the social problem of homelessness. Instead, Justice Gibson found that the by-law is far from a complex regulatory response – it does not seek to balance competing objectives or regulate encampment conditions in the public interest. Effectively, it simply amounts to a bare outdoor sheltering prohibition.
- Justice Gibson wrote: “The Encampment is currently the only place in the Region where it is not illegal for homeless people to set up a tent or structure. The Region has clearly stated that if the Encampment is cleared, it is not prepared to allow homeless people to shelter outdoors anywhere on Region property. The extremity of this position is what ultimately drives the findings that the infringements are not saved by section 1. No one should romanticize or be starry-eyed about the Encampment. It is a miserable and desperate place. But it represents the only remaining safety valve for the Region’s homeless as a refuge of last resort”.
- Justice Gibson explained that Waterloo Region could return to court for further direction and to terminate his Charter rulings once it has created a plan to address the need for outdoor sheltering options of last resort, such as a safe tenting protocol or by providing an alternative outdoor encampment site where outdoor sheltering is permitted.
Media reporting on the litigation and Justice Gibson’s decision can be found at the following links:
Eviction bylaw is not Charter-compliant, Kitchener encampment lawyers argue
Region of Waterloo can’t remove residents of Kitchener encampment, court rules
Ontario court bars Waterloo region from removing encampment residents
Region’s plans to clear encampment ruled unconstitutional – again
Region of Waterloo loses legal bid to clear Kitchener encampment