Court ruling blocking Kitchener, Ont., encampment eviction could affect cases across Canada, say legal experts

An Ontario court's decision that blocks the eviction of a Kitchener encampment could affect municipalities across Canada that are contending with tent cities of their own, according to legal experts. 

The Ontario Superior Court of Justice decision released Friday says the Region of Waterloo isn't allowed to evict people living in tents on one if its vacant lots, at 100 Victoria St., because its shelter system didn't have enough beds for people experiencing homelessness.

In his 51-page decision, Justice M.J. Valente said clearing encampments without sufficient shelter spaces would infringe on their constitutional rights.

Homelessness is a growing concern in Waterloo region, with other encampments in Kitchener, including one on Roos Island in Victoria Park, as well as in Waterloo and Cambridge. It's also an issue of growing concern in communities — including smaller ones — across Canada. 

For that reason, Martha Jackman, who teaches in the faculty of law at the University of Ottawa, says the Ontario court's recent decision will have a far reach and sets a "really important precedent."

"Many, many towns and cities across Canada are confronting this. Why? Because we have a housing crisis, combined with lack of services around substance use and mental health," Jackman told CBC News.

Homelessness used to be viewed as a problem mostly in big cities like Vancouver or Toronto, but Jackman said it's also an issue in smaller communities.

"Bottom line is why are these encampments springing up?" Jackman said. "I think each judge looking at a case like this, of course in our common-law system, will look back at what other judges have decided, and the weight of these cases now is becoming pretty great."

'A really significant decision'

The encampment at 100 Victoria St. was established at the end of 2021. It sits on a gravel parking lot about 2,000 square metres in size — a property Waterloo region plans to use for parking for a future transit hub sometime in 2024.

The encampment grew to about 50 people and 70 tents in the summer of 2022. On Monday, there were about 20 tents as snow fell.

Last summer, the region filed an application with the Superior Court of Justice to evict encampment residents, arguing they were breaking a local bylaw. 

The region planned to use the eviction order as a precedent for clearing other local encampments, court documents show.

In his decision, Valente said individuals living at 100 Victoria St. were not in violation of the bylaw, and evicting them would violate Sec. 7 of the Canadian Charter of Rights and Freedoms. The section guarantees the life, liberty and personal security of all Canadians.

Shannon Down, executive director of the Waterloo Region Community Legal Services and a lawyer who represented some of the encampment residents, called Valente's ruling "a really significant decision."

During a three-day hearing in November, Down argued that the region wouldn't have enough shelter beds to accommodate residents if they're evicted, and that would infringe on their charter rights.

In his written decision, Valente agreed. 

Down said: "I think it sets a precedent not just for our community, our municipalities, but other municipalities across the province —and potentially across Canada."

Precedent would apply to similar cases

"It's a very persuasive, well-written decision," said Samuel Trosow, a London, Ont., councillor and a law professor at Western University. "I read a lot of decisions, and I think it's on very solid ground. And I think it would be unlikely for it to be disturbed on appeal." 

He said that for the ruling to set a precedent in future cases, the same circumstances that led to the 100 Victoria St. decision would need to be met — namely, there aren't enough accessible or adequate shelter spaces for encampment residents.  

"I was not surprised at all," Trosow said of Valente's decision, "because this is the direction that we've seen Canadian jurisprudence going in this field."

Valente said that if the Region of Waterloo can show its bylaw is no longer in violation of the encampment residents' charter rights — if enough shelter space becomes available for the region's entire unhoused population — the region can apply to terminate his declaration.

The Region of Waterloo has not said if it will appeal the decision, and a spokesperson did not respond when asked if the region planned to reapply to the courts to proceed with evictions if shelter space can meet local needs.

A statement from the region said it "will consider next steps and the impacts of this decision."