Court decision refusing eviction of encampment residents raises bar for municipalities - Part III


The Jan. 27 decision, Waterloo (Regional Municipality) v. Persons Unknown and to be Ascertained 2023 ONSC 670 which addresses the enforceability of a Region of Waterloo bylaw that prohibited the erection of camps on municipality-owned properties, including on a one-half acre vacant gravel parking lot in Kitchener where approximately 50 residents had erected tents without the Region's permission was outlined and analyzed in parts one and two of this article. This final part will explore outstanding questions and our thoughts on the implications of this case.

Outstanding Questions 

This case answers a number of questions related to homeless encampments, but also raises a number of new questions. Below are some of these questions (without the answers) that may be addressed in future cases. 

a. Property rights

What rights does a municipality have as property owner when seeking to evict encampment residents? The Trespass to Property Act, on which the Region was relying to enforce its rights, does not seem to apply in these situations. This creates a tension between the traditional property rights of landowners and meeting the Charter rights of those in encampments. For example, 

• since the ruling would not apply to a private landowner, if the Region had received an offer to buy the land, would they have been permitted to sell the land, knowing that such a sale would inevitably require evictions of the encampment residents?;
• how would the analysis be different if the municipality had been ready to start construction on the encampment; and

• would it make a difference if the municipality promised to use the funds from the sale of the land for a new shelter?

The case presents a conflict between the residents' individual Charter rights and the property rights of the Region. It finds in favour of the individual Charter rights, but that does not destroy the Region's, and inherently, the public's interest in the property. 

The individual rights of the residents of the encampment won out in this case because the property is not a public park and there was no intervention from other citizens to suggest that their lives were negatively impacted by the encampment or its residents. To a certain extent, the case is trapped in those facts, and could be distinguished in the case of a park encampment, because the risk assessment would need to include the impact on the broader community. 

b. Obligations

What are the municipalities' obligations for providing services on the property? The Region had indicated that its monthly costs associated with the encampment were $80,000 for security services, garbage pickup and janitorial services to clean a local bathroom. What would happen if the municipality were no longer to provide these services? Presumably, someone being hurt on the property would have a claim against the municipality under the Occupiers Liability Act. 

There is also an issue of what obligations the municipality has in enforcing fire safety and other laws. If the encampment creates fire safety hazards, would that compel or be justified grounds for the municipality to evict the residents? What level of fire safety (or any other hazard) is a greater risk to homeless individuals than being evicted from the encampment and being exposed to the elements? 

To a certain extent, the municipality is damned if it does and damned if it does not. If it evicts on the grounds that the safety of the residents is at risk, it risks being found to have acted too hastily and contrary to the rights of the encampment residents. If a fire occurs in the meantime, the municipality risks being held responsible, at least in the public eye, for any injury. Absent low barrier shelters, municipalities may be in a no-win situation as they can neither evict, nor turn a blind eye. 

c. Boundaries

If a municipality is allowed to evict an encampment's residents, they must have sufficient spaces in their shelters to meet the individual needs of the homeless individuals. Some immediate questions arise here. 

How far afield can the municipality look to rehouse encampment residents? Presumably, it is the boundaries of the particular municipality, but can a municipality rely on excess space in an adjoining municipality? There may be situations where the encampment is closer to the shelter system of a neighbouring municipality than those of the municipality in question. In that scenario, does an encampment resident have a right to say "no"? Or, does low barrier accommodation import accessibility to the services a resident has become accustomed to? In other words, had the Region found low barrier accommodation for one family in London, the adjacent municipality, could they have evicted that family if they did not want to live in London? 

To meet the criteria for having sufficient shelter spaces, the spaces must be accessible, meaning that there has to be low barriers for the residents to attend. As stated earlier, municipalities need to understand the individual needs of the homeless people within their boundaries. What does this mean for municipalities in practical terms, and what do they need to do to assess such requirements? 

What's Next? 

The Region has announced that it will not be appealing this case. Therefore, this case is precedent law for similar facts in Ontario. 

However, we must be careful in not overstating the case. The judgment does not create a "right to housing." Nowhere in the decision is that statement mentioned, and the encampment residents were not claiming ownership rights over the encampment property. What this case does provide is a reiteration that the Charter principles apply where there are evictions of residents of encampments on non-public property owned by a municipality. 

Furthermore, the case adopts the reasoning of various British Columbia court decisions regarding requirements that municipalities must meet before enforcing encampment evictions. In particular, the municipality must ensure that there are sufficient accessible shelter spaces available for homeless individuals in the boundaries of the municipality before evicting residents from an encampment. 

It is tempting to get caught up in the conflicting rights at play here: the public right to use its own asset, an individual's right to life, liberty and security of the person, and the community's interest in not having an encampment that leads to more dire results as we have seen in some American cities. 

But, for many people in the encampment, the encampment reflects a lack of supportive housing that is capable of supporting them. This is where the focus should lie - on the creation of housing. The government of Ontario is heavily focused on the supply of new housing at one end of the housing spectrum - to increase housing affordability for the "missing middle." This case will undoubtedly be used by municipalities to seek help from senior governments to create housing at the other end - to create deeply affordable housing for homeless and low-income individuals. 

Since we live in a world of short-term solutions, the case presents an unusual dilemma in that the long-term solution - better housing options - is obvious, but the short-term solution is not.