Note: This blog post is for general information only and does not constitute legal advice. Municipalities should consult their legal counsel regarding specific bylaws and encampment management matters.
In May 2026, the Ontario Superior Court released a decision that is already reshaping municipal approaches to encampments. In The Regional Municipality of Waterloo v. Named Respondents and Persons (PDF), Justice Michael R. Gibson ruled that Waterloo Region could not enforce a site-specific bylaw to remove residents from a long-standing encampment at 100 Victoria Street North in Kitchener.
While the case is centered on a single site, the decision has implications that extend far beyond one encampment or one municipality. Encampments are already becoming a persistent feature of a system under strain, with nearly 85,000 Ontarians experiencing homelessness and close to 2,000 encampments identified across the province (according to an Association of Municipalities of Ontario report - PDF). As these pressures grow, so too does the importance of a framework governing how municipalities can effectively respond.
Against this backdrop, the 2026 decision marks an important shift. It builds on earlier rulings while expanding the constitutional analysis, reinforcing that encampment management now sits at the intersection of municipal authority, system capacity, and Charter obligations.
From 2023 to 2026: Accessibility – A Core Principle
The Waterloo encampment has been the subject of litigation since 2022. In January 2023, Justice M.J. Valente found the Region could not evict residents under its bylaw (PDF) because doing so would violate their rights under section 7 of the Canadian Charter of Rights and Freedoms — the right to life, liberty, and security of the person. The basis for that finding was the Region's inability to demonstrate sufficient, accessible shelter alternatives for the individuals living there. See further details on that decision in our February 2023 blog.
That ruling established a principle that continues to anchor encampment policies: Municipalities cannot prohibit individuals from sheltering on public land where there are insufficient accessible alternatives.
The 2026 Decision: What’s Changed, and What's New
The 2026 case arose from a site-specific bylaw (PDF) introduced in 2025 to clear the encampment to support construction of the Kitchener Central Transit Hub, a major regional infrastructure project. The court addressed two key Charter issues:
Section 7: A Continuation of Existing Principles
On section 7, the court largely reaffirmed earlier findings. It concluded that:
- The encampment remained effectively the only location where individuals could shelter
- Eviction without viable alternatives would expose residents to harm
- Legitimate municipal objectives—such as advancing major infrastructure—do not override Charter protections in the absence of alternatives.
The court did, however, identify a potential path forward. It suggested that municipalities may be able to proceed with relocations where alternative encampment sites or managed “tenting protocols” are in place, pointing to emerging approaches in other Ontario jurisdictions.
Section 15: A Significant New Development
The most notable shift in the 2026 court decision lies in its section 15 analysis. Unlike the 2023 ruling, which declined to find discrimination, in 2026, the court:
- Recognized homelessness as an analogous ground under section 15 – a first in Ontario
- Found that the site-specific bylaw had a discriminatory effect on groups disproportionately represented among the unhoused population, including Indigenous individuals, persons with disabilities, women, and gender-diverse people.
The distinction between these two analyses is important. A section 7 inquiry is, at its core, a question about capacity; are accessible alternatives available at this moment? A section 15 inquiry asks a broader question: whether enforcement measures, in practice, reinforce or worsen existing disadvantage experienced by already-vulnerable groups. This adds a layer of complexity to municipal decision-making that will need to be assessed with legal input.
The Provincial Framework: The Safer Municipalities Act, 2025
The 2026 decision does not exist in isolation from provincial policy. Since the 2023 ruling, the provincial government has moved to expand the tools available to municipalities to address encampments.
The Safer Municipalities Act, 2025, introduced new enforcement authorities aimed at addressing encampments and related public safety concerns, alongside additional investments in housing and shelter capacity. The intent of the legislation is to give municipalities greater ability to respond to encampments, particularly where there are concerns related to safety and the use of public space.
The Waterloo decision highlights a key constraint: enforcement tools do not, by themselves, satisfy the constitutional conditions that courts have required. In many cases, individuals living in encampments have limited financial means, so fines may be difficult to impose or collect. Increased reliance on enforcement can also place additional pressure on already strained systems, including courts, policing, and correctional services.
Key Considerations for Municipalities
The 2026 Waterloo court decision highlights several practical considerations for municipalities managing encampments or developing related policies:
- Encampments are increasingly a system-wide issue: Encampments are no longer an isolated, site-specific issue. According to the Association of Municipalities of Ontario (AMO) data, an estimated 84,973 people experienced known homelessness in Ontario in 2025 - a 7.8% increase from the previous year. With homelessness rising across Ontario, the legal principles emerging from Waterloo are likely to apply broadly. Municipalities of all sizes may face similar constraints where housing supply and shelter capacity lag behind demand.
- Charter considerations are becoming more complex: Municipalities must be attentive to both Section 7- whether enforcement is possible in the absence of accessible alternatives - and Section 15 - whether enforcement measures disproportionately impact vulnerable groups. This dual analysis requires decisions to be assessed not only on operational or safety grounds but also through a broader constitutional lens, and with appropriate legal advice.
- Accessible alternatives remain the central threshold: Courts have clearly rejected simple shelter bed counts as sufficient. The key question is whether available options are realistically usable, considering factors such as substance use rules, safety, curfews, and the ability to accommodate individuals with complex needs. Municipal administrators—particularly in housing and social services—should be able to accurately characterize the real-world accessibility of their systems, as this evidence has been consistently central to legal scrutiny.
- Equality considerations add a new dimension: The introduction of section 15 analysis means municipalities must assess whether enforcement actions may reinforce existing disadvantage, particularly for groups overrepresented among the unhoused population. Encampment management is no longer solely a shelter-capacity issue—it now requires a broader consideration of equity and impact, often with legal input.
- Integrated responses are increasingly necessary: Courts are treating encampments as the result of interconnected system pressures—housing supply, health services, income supports, and social infrastructure. As a result, enforcement-only approaches are unlikely to resolve encampments durably and may generate legal risk where system capacity is insufficient. Municipal responses will increasingly need to be coordinated and cross-sectoral, linking housing, health, social services, and enforcement functions.
What Happens Next
The 2026 decision has also prompted renewed discussion about section 33 of the Charter—the notwithstanding clause. Section 33 allows provinces to pass legislation that operates notwithstanding certain Charter rights, including sections 7 and 15, for renewable five-year periods. In the context of encampments, its potential use has been raised to address legal barriers to enforcement. With the legislature on extended summer break, no legislation can be introduced, and as an initial step, the Province has announced that it will appeal the decision jointly with the Region of Waterloo.
The 2026 Waterloo decision represents a meaningful evolution in Ontario’s encampment landscape. It reinforces established principles around accessibility while introducing a broader equality-based analysis that municipalities have not previously had to navigate. Taken together with rising rates of homelessness, the growth of encampments across the province, and an active provincial policy agenda, the decision reflects a moment of genuine complexity for municipal administrators.
Navigating that complexity will require municipalities to invest in accurate information about their shelter systems, engage legal counsel proactively on encampment-related decisions, and build the cross-sectoral relationships needed to respond in a coordinated way. The legal and policy environment will continue to develop — and the municipalities best positioned to respond will be those that understand both what the current framework requires and where it is still taking shape.