Project delivery meets constitutional scrutiny: Court recognizes homelessness as a new ground of Charter discrimination

In The Regional Municipality of Waterloo v. Named Respondents and Persons Unknown¹, the Superior Court of Ontario assessed the constitutionality of the Waterloo Region’s site-specific by-law designed to clear an encampment site for the construction of the Kitchener Central Transit Hub. The Court found the new by-law violated sections 7 and 15 of the Charter of Rights and Freedoms in a manner that could not be justified by section 1, and recognized homelessness as an analogous ground of discrimination for the first time in Canadian law.

What you need to know

• Waterloo Region’s by-law infringed section 7 of the Charter. The Court held that the by-law infringed section 7 of the Charter by depriving encampment residents of life, liberty, and security of the person in a manner that was not in accordance with the principles of fundamental justice.
• The by-law also infringed section 15 of the Charter. The Court found that homelessness is an analogous ground of discrimination for the purposes of section 15. The Court held that in the alternative, even if homelessness is not recognized as an analogous ground, the by-law is discriminatory based on its disproportionate impact on Charter-protected subgroups within the homeless population, including women, Indigenous persons, and persons with disabilities. It concluded that these breaches were not saved under section 1, since they were neither minimally impairing nor proportionate in their effects.
• A “declaration plus” remedy. In addition to declaring the by-law unconstitutional and of no force and effect, the Court issued a “declaration plus” remedy, retaining jurisdiction to allow Waterloo Region to return with a Charter-compliant approach (such as a safe tenting protocol or an alternative encampment site).

Background

The Regional Municipality of Waterloo v. Named Respondents and Persons Unknown is the latest decision concerning the longstanding encampment located at 100 Victoria Street North in Kitchener. The site has been occupied by unhoused individuals since 2021.

In a previous decision (Persons Unknown (2023))², the Superior Court held that a general municipal by-law that included the encampment violated section 7 of the Charter because it deprived encampment residents of life, liberty, and security of the person in a manner not in accordance with the principles of fundamental justice and was not justified under section 1. The by-law was therefore inoperative to the extent that it prevented the residents of the encampment from living on the property when the number of homeless persons exceeded the number of available accessible shelter beds in the Region. However, the Court in 2023 held that the by-law did not violate section 15 because homelessness was not an analogous ground under the Charter.

The current case arose because the Region required the property to construct a new project, the Kitchener Central Transit Hub. Preparations were scheduled to begin in October 2026. In April 2025, the Region enacted a new site-specific by-law aimed at clearing the encampment by December 2025. In a somewhat unusual turn of events, the Region then itself commenced an application seeking a declaration that the by-law complied with the Charter, along with injunctive relief enforcing its terms.

The respondents, chronically homeless individuals residing at the encampment, brought a cross-application seeking a declaration that the by-law violated their rights under sections 7 and 15 of the Charter in a manner that could not be justified by section 1. They argued that homelessness is an analogous ground of discrimination under section 15(1), and that eviction in circumstances of insufficient accessible shelter would expose the respondents to serious risks to their life, health, security, and dignity, and would disproportionately impact protected groups within the homeless population.

The decision

On section 7, the Court held that that horizontal stare decisis³ bound it to follow the Court’s decision in Persons Unknown (2023). The Region’s new site-specific by-laws were not meaningfully distinguishable from the earlier regime, and their purpose and effect remained the same (i.e., to clear the encampment to facilitate transit construction). It therefore remained unconstitutional to prohibit outdoor sheltering at 100 Victoria Street while the number of unhoused individuals exceeded available accessible shelter beds. The Court in Persons Unknown (2023) also did its own detailed analysis, which considered the harsh realities of homelessness and its effects on life, liberty, and security of the person, and independently came to the same conclusion.

By contrast, the Court concluded that it was not bound by the section 15 analysis in Persons Unknown (2023) in light of the Supreme Court’s intervening decision in Québec (Attorney General) v. Kanyinda⁴.

As a first step in its section 15 analysis, following the concurring reasons of the Chief Justice in Kanyinda, the Court found that “the time has come that homelessness should be recognized as an analogous ground for the purposes of section 15 of the Charter”. In doing so, the Court held that homelessness is a “constructively immutable characteristic, because it is not a situation that is within the individual’s control”. This is a first in Canadian law. The Court also emphasized the effect of homelessness on dignity, as well as the historical disadvantage, stigmatization, and the vulnerability of those affected.

The Court held the by-law was not justified by section 1, finding that while the objective of advancing transit infrastructure was pressing, the means chosen were neither minimally impairing nor proportionate in their effects, particularly given the availability of alternatives such as safe tenting protocols or alternative sites. The Court noted the existence of other, less impairing alternatives, such as the legally designated encampment zones created by the City of London and the City of Thunder Bay.

The Court also conducted an alternative section 15 analysis in which it applied the majority of the Supreme Court’s judgment in Kanyinda, taking an intersectional approach to adverse effects discrimination that focused on the disproportionate impact of the by-law on protected groups within the homeless population. The Court held that the by-law created “built-in headwinds” for subgroups including women, gender-diverse persons, persons with disabilities, and Indigenous individuals, all of whom experienced higher barriers to accessing indoor shelter. In the result, the Court found that even if homelessness is not recognized as an analogous ground, the by-law is discriminatory under section 15 due to its disproportionate impact on Charter-protected subgroups.

The Court declared the by-law to be unconstitutional and of no force and effect. It also retained jurisdiction to permit the Region to return for a review or further direction from the Court once it had promulgated a safe tenting protocol or provided for an alternative encampment site.

The takeaway

The Superior Court’s decision will not be the final word on these issues, as both the Waterloo Region and the province of Ontario have publicly announced their intention to appeal the decision. The appeal will address both the outcome of the decision and its historic finding that homelessness is a constructively immutable characteristic, rather than a transient state, for the purposes of the section 15 analysis⁵.

For the moment, the Superior Court decision provides useful guidance on how public infrastructure and other major projects can move forward where an encampment is present or a development area is otherwise occupied—particularly when Charter rights are engaged. Here, the Court recognized the importance of advancing transit infrastructure, while confirming that enforcement measures must always comply with the Charter.

Going forward, where a project requires removing encampments from property, it will be important for project proponents to work with public authorities to develop targeted, minimally impairing solutions. This may include considering the availability and accessibility of shelter, consultation with affected residents, and safety considerations. A Charter-compliant strategy can help reduce litigation risk, improve project certainty, and keep necessary public-interest projects on track.