Back to Square One: Court of Appeal Orders New Hearing in Hamilton Encampment Case

The Court of Appeal for Ontario’s decision in Heegsma v. Hamilton (City)[1] is the latest in a series of cases considering the legality of municipal bylaws and their enforcement in relation to encampments by unhoused individuals.

Here, the Court of Appeal found significant deficiencies in application judge’s decision holding that the City of Hamilton had not violated the Charter rights of encampment residents. As a result, the matter was sent back to the Superior Court for a new hearing.

Background

The appellants are a group of 14 people who were unhoused and living in encampments in Hamilton at various times between August 2021 and August 2023. Many have mental health conditions and/or addiction issues. Seven are Indigenous women, one is an Indigenous man, two are Black, and one is a transgender woman.

They claimed that the City of Hamilton’s by-law prohibiting installing tents and sleeping in public parks in the City, as well as the City’s actions in removing them from public parks, violated their rights under ss. 7 (life, liberty, and security of the person) and 15 (equality) of the Canadian Charter of Rights and Freedoms. They asked the court to declare that the by-law was invalid and that they should be awarded damages for the violation of their Charter rights.

The application judge dismissed the case, concluding that neither the City’s by-law nor its actions had violated the appellants’ rights in a 14-page decision. The judge found that none of the appellants had been forcibly removed from a public park at night, and that there was not a right under ss. 7 or 15 of the Charter to shelter or set up a tent in a public park during the daytime. Even if the by-law had breached their Charter rights, they would not be entitled to damages unless the City had acted wrongly, acted in bad faith, or abused its power, which it had not.

The Court of Appeal’s Decision

The Court of Appeal overturned the application judge’s decision. It found that he had made numerous errors, almost all of which were rooted in his conclusory reasons on key issues. These reasons “lacked the depth of analysis that is required when dealing with issues of this significance.”[2] The Court of Appeal noted that “[r]easons for judgment must set out a logical path to the judge’s conclusion”, which is “integral to the proper administration of justice”.[3]

The Court of Appeal dealt with five issues.

First, the application judge erred in excluding certain documents on which the appellants had sought to rely. The judge had said they could not rely on these documents because they were not attached to an affidavit. However, this was an error in the circumstances, and he should have considered whether some or all of the documents were admissible based on the “public documents exception” to the hearsay rule.

Second, the application judge erred on the facts in finding that there were no overnight evictions from Hamilton’s public parks during the relevant time period. Several of the appellants had given evidence that they were evicted from public parks at night, but he rejected their evidence primarily because all but one of the appellants had mental health and addiction issues that he concluded can affect perception and memory. It was improper to draw broad conclusions on their credibility and reliability based on this assertion. He relied on myths and stereotypes about mental illness and addiction in finding that the appellants’ evidence was not credible, which was an error in law. Because there was no proper analysis of the evidence, the finding that there were no nighttime evictions could not stand.

Third, the application judge erred in analyzing whether daytime evictions breached s. 7 of the Charter.  He did not set out the proper framework to be applied, nor did he apply it. This section of his decision also included misapplications of the law and irrelevant commentary, and reflected “a clear failure on the application judge’s part to engage with the issues before him.”[4] 

Notably, the Court of Appeal declined the appellants’ invitation to decide whether their s. 7 Charter rights were breached, as this would require it to make factual findings that should have been made by the application judge. It also declined to prescribe the appropriate approach to assessing whether by-laws or policies prohibiting unhoused people from putting up tents and structures in public parks violate their rights under s. 7.

Fourth, the application judge erred in his cursory analysis of whether the appellants’ s. 15 rights had been violated. He “simply did not do what was required to determine whether the City breached the appellants’ s. 15 Charter rights, in particular the equality rights of the appellants who are Indigenous, women, or persons with disabilities.”[5] Instead, “he made conclusory statements that were contrary to the legal framework and that failed to engage with the evidence.”[6]

Fifth, the application judge erred in finding that the City could not be liable for paying Charter damages because there was no evidence it acted wrongly, in bad faith, or abused its power in enforcing the by-law. He addressed this issue even though he had not found any Charter breach. Nonetheless, he erred in his analysis of when and whether Charter damages could be available by relying on the Supreme Court’s decision in Canada (Attorney General) v. Power, 2024 SCC 26. Power dealt with whether Charter damages should be available for unconstitutional legislation, rather than unconstitutional by-laws or the unconstitutional enforcement of by-laws.

In the Court of Appeal’s view, any analysis of whether Charter damages would be available in relation to by-laws and their enforcement must be considered under the framework set out in Vancouver (City) v. Ward[7]: (1) establishing that a Charter right has been breached; (2) showing why damages would be an appropriate and just remedy; (3) considering whether the state can demonstrate that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust; and (4) assessing the quantum of damages. The court noted that “[i]t may well be appropriate to limit the circumstances under which a municipality is required to pay damages for an unconstitutional by-law”, pointing to the Supreme Court of Canada’s recognition “that municipalities benefit from the same good faith immunity for policy-making as other levels of government.”[8] However, the court declined to resolve this and other ancillary issues, leaving them to another day.

In the result, the court remitted the matter back to the Superior Court to be reheard by a different judge, in accordance with its reasons. 

The Takeaways

The flaws in the application judge’s reasons have sent the parties back to square one in the adjudication of matters that date back more than three years. This is regrettable.

The realities of encampments and municipalities’ responses to them are complex. The Court of Appeal notes that “[t]he issue of homeless encampments is of great public importance. It brings into play the challenging social balance between the ability of vulnerable individuals to shelter safely and everyone’s ability to enjoy public space.”[9] Municipal “[b]y-laws will differ in their scope and application. The municipalities’ approaches to homelessness will differ. The availability of alternatives to sleeping in a public park or other public spaces will differ. The municipalities’ enforcement procedures will differ. The evidence regarding the impact of these contextual circumstances on the unhoused population may differ.”[10] All of this calls for careful consideration by municipalities in the drafting and enforcement of related by-laws, as well as careful analysis by the courts when challenges to these come before them.

While the Court of Appeal still has yet to consider the application of s. 7 of the Charter to the removal of unhoused persons from public parks, that may soon change. The Court of Appeal noted that the most significant appellate authority to date on this issue is the Court of Appeal for British Columbia’s decision in Victoria (City) v. Adams.[11] This case held that bylaws prohibiting erecting shelters and overnight encampments in municipal parks violated the s. 7 rights of unhoused people where there was inadequate shelter space available to them.

Adams has generally been followed in recent decisions of the Ontario Superior Court, including in The Regional Municipality of Waterloo v. Named Respondents and Persons Unknown.[12]. Both the Province of Ontario and the Regional Municipality of Waterloo have appealed that decision, and a hearing date may soon be set. In Heegsma, the Court of Appeal noted that “[g]iven the recent Superior Court decisions and ongoing cases dealing with the issue, there may well be a need for some guidance from this court, including on the issue of whether Adams should be followed in this province.”[13] We can look forward to receiving such guidance sooner rather than later.

[1] 2026 ONCA 726 [Heegsma]

[2] Ibid at para. 40

[3] Ibid at para. 41

[4] Ibid at para. 79

[5] Ibid at para. 91

[6] Ibid at para. 89

[7] 2010 SCC 27

[8] Heegsma at para. 97

[9] Ibid at para. 40

[10] Ibid at para. 86

[11] 2009 BCCA 563

[12] 2026 ONSC 2971

[13] Heegsma at para. 85