From Apr. 16 to Apr. 20, 2026, the Ontario Court of Justice heard the case The Regional Municipality of Waterloo v. Named Respondents and Persons Unknown. This case was the result of an application filed by the Region of Waterloo to determine that the Sit-Specific By-Law Number 25-021, A By-Law Respecting the Use of 100 Victoria Street North, Kitchener (as Owned by the Regional Municipality of Waterloo) to facilitate the Kitchener Central Transit Hub and other Transit Development is compliant with the Canadian Charter of Rights and Freedoms (Charter).
The encampment at 100 Victoria St. N., Kitchener, is currently the only site in Kitchener where it is not illegal to set up camp for people experiencing precarious housing situations.
This was a unique move for the Region, as it is not common for municipalities to proactively approach courts to affirm Charter compliance of a by-law.
The Named Respondents and other residents of the encampment were represented by Waterloo Region Community Legal Services (WRCLS) and Amicus Curiae.
On May 21, 2026, Ontario Superior Court Justice Michael Gibson released his decision. He found that the Site-Specific and Amended By-Laws were not constitutionally compliant with the Charter, infringing on rights guaranteed in sections 7 and 15(1). Moreover, these infringements are not justified by section 1.
Section 1:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Section 7:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Section 15(1):
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
His decision recognized the additional efforts of the Region over the last year to address homelessness, but found that these efforts did not justify the removal of residents from the encampment. He emphasized the need to treat all residents of the encampment as rights-holders worthy of respect.
“Assessing the issue of homeless encampments…ultimately needs to 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,” the decision reads.
“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,” he stated in the decision.
“The extremity of this position is what ultimately drives the findings that the infringements are not saved by [section 1],” the decision states.
Waterloo Region requires the lot at 100 Victoria St. N. as a laydown site for construction materials for the Kitchener Central Transit Hub (KCTH), which it will develop with Metrolinx. The date for when they require the lot has shifted over the last few years.
At the time of the application submitted by the Region, the date of starting construction was March 2026. At the time of the trial in April, the Region stated they required the property for June, so that construction could begin for October 2026.
The initial by-law was announced on Apr. 16, 2025 and passed on Apr. 23, 2025. It identified 40 Existing Residents—people who were present at the encampment overnight on Apr. 16, 2025—outlined prohibited activities on the property, enforced a $5,000 fine on violating those rules, prohibited entry and construction of a shelter and allowed enforcement by police on “Non-Residents”, and allowed only the Existing Residents to remain until Dec. 1, 2025.
On Aug. 20, 2025, Gibson issued an interlocutory injunction that prevented the by-laws from being enforced while the case was in court.
The amended by-law, By-Law Number 26-001, removed the offence provision, deferred the date of vacant possession to Apr. 1, 2026, and codified a transition policy. It was passed on Jan. 9, 2026.
The by-law included a commitment to provide alternative housing options for the Named Residents. They, and all other residents, would receive the support of unsheltered support workers (USWs) to create individualized housing plans (IHPs). This support was not available at the time of the previous Persons Unknown 2023 case, in which Michael Valente ruled that the Region’s Code-of-Use By-law could not be used to empty the encampment as it infringed section 7 of the Charter.
The Region also created 40 spaces within the shelter system, so that no one else is pushed further down the waiting lists.
“The region has made significant efforts to rehouse people at the encampment who are affected by the potential transit hub. That process continues. We have argued that what we have done and are going to do is sufficient to comply with the Charter,” Andrew Lokan, lawyer for the Region, said.
The Region argued that if there was not a limit on the amount of people it had to prioritize, then more people would come to the encampment, seeking the services there and preventing vacant possession, hence the recognition of the 40 Existing Residents. They also argued that the KCTH provides a larger public good.
In response, WRCLS and other cross-applicants asked that, as there are currently not enough shelter beds in the region, would the Region’s efforts to addressed the needs of a certain number of encampment residents make the by-laws compliant with the Charter? They stated that the By-laws 25-0021 and 26-001, were not compliant with the Charter.
They said the plan provided by the Region did not plan for long-term access to housing and did not accommodate the needs of the residents.
Sometimes, families, couples or pets are torn apart due to shelter rules. Gibson chose not to include motels because their availability also depends on the owners’ willingness.
Moreover, people with mental health or substance use issues, women, Indigenous people and other groups might not find appropriate shelter spaces to ensure safety and privacy.
Women and gender-diverse folks have proportionally fewer shelter spaces set aside for them within the shelter system. Most of these spaces often operate at or above capacity.
In addition, they are able to have more community, privacy and safety measures—for example, pets—in an encampment as opposed to in a shelter.
Those grounds are, in fact, protected in section 15 of the Charter.
“[If] you look at who, who’s in an encampment right now, it’s Indigenous people, it’s overwhelmingly people with disabilities—either head injuries or physical disabilities, mental health disabilities, substance use disabilities. And so those are grounds that are already protected,” Martha Jackman, an intervenor in the trial, said.
“…[The] argument that I tried to make was that homelessness should itself be recognized as a prohibited ground of discrimination,” she said.
The Region claimed that the purpose of the Site-Specific By-Law Number 25-021 and Amended By-Law Number 26-001 is more specific than the Code of Use By-law that was argued in the Persons Unknown 2023 case.
Gibson rejected this claim, saying that in both cases, the purpose of the by-laws was to obtain vacant possession of the lot at 100 Victoria St. N. for the construction of KCTH.
As such, he maintained Valente’s decision from the earlier case regarding section 7, maintaining that it was unconstitutional because of stare decisis.
In the previous case, however, Valente found that the Code of Use by-law did not violate section 15 of the Charter. Since then, other cases have changed the legal landscape.
This time, Gibson ruled that the current by-laws did violate section 15.
Doug Ford was upset about this decision. He mocked Gibson and said that there are many crazy decisions being made by courts recently. Thirty people, he told the Toronto Sun, should not dictate millions of riders’ need for commuting options.
“The cheese slipped off the cracker with this guy,” he told the Toronto Sun.
“[Gibson] comes out with this cockamamie idea that they’re hold off transit for—what? 30 people?…The craziest decision I’ve ever heard,” he said. “But there’s a lot of crazy decisions coming from our courts lately.”
Ford alluded to using the notwithstanding clause, outlined in section 33 of the Charter to ignore this ruling. However, the next course of action is unclear.
“This is the reason they put in a notwithstanding clause in section 33 of the Constitution” Ford told the Toronto Sun.
Section 33:
(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
“I’m going to give the courts another shot. We’re going to appeal it, right? Hopefully, the region’s going to appeal it,” he said.
Gibson highlighted that the encampment is not a permanent solution. Instead, it is a last resort when other options are not available for members of the community.
“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,” he said in his decision.
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