Court File and Parties

Court File No.: CV-25-00000750-0000

Date: August 20, 2025

Ontario Superior Court of Justice

Between:

THE REGIONAL MUNICIPALITY OF WATERLOO Applicant/Responding Party on Motion for an Injunction

– and –

PERSONS UNKNOWN AND TO BE ASCERTAINED Respondents/Moving Parties on Motion for an Injunction

Counsel

For the Applicant/Responding Party: Andrew Lokan, Kartiga Thavaraj, and Greta Hoaken

For the Respondents/Moving Parties: Shannon K. Down, Ashley Schuitema, and Joanna Mullen

For the Amicus Curiae, Mental Health Legal Committee: Mercedes Perez, Jen Danch, and Karen A. Steward

For the Intervener, Attorney General of Ontario: Andrea Bolieiro and Sara Badawi

Heard: August 8, 2025

Before: M.R. Gibson J.

Reasons for Decision

Motion for an Interlocutory Injunction

Overview

[1] Homelessness poses significant challenges to our contemporary society. It is an extraordinarily difficult problem to grapple with. It presents a complex multi-faceted phenomenon of diverse origins not susceptible to facile resolution. There is no prevailing academic or policy consensus about the best way to address it. What is clear is that all levels of government, and other actors in the public and private sectors, including healthcare, mental health and addiction supports, the justice system, charitable and religious organizations, and others, are required to work together to address this challenge. It highlights chronic public policy tensions between unhoused individuals who are amongst the most disadvantaged in society (and their advocates), and other citizens who tire of the violence, drug use, squalor and derogation from public order that often attends homeless encampments, the disruption to neighboring residents and businesses, the significant expenditure of public funds in attempting to mitigate these, as well as the impediments to projects of significant public importance and benefit which may arise from them. It requires a compassionate, empathetic and respectful response, one worthy of the aspirations and values of our Canadian society and duly attentive to the dignity and rights of the unhoused, but also one that is clear-eyed in attempting to achieve the appropriate balance between rights of individuals and the broader public interest. This litigation throws this tension into sharp relief.

[2] Waterloo Region, along with many other municipalities in Ontario, has experienced the manifestation of these issues on the ground with increasing acuteness. The severity of the problem here may well have come in tandem with the rapid population growth which the Region has experienced in recent years. This has particularly crystallized around the property at 100 Victoria Street West in Kitchener ("100 Victoria" or "the Property"), which has become a flashpoint of controversy. There has been an encampment of unhoused persons on this location since 2021 ("the Encampment"), and it has already been the subject of significant public interest litigation in The Regional Municipality of Waterloo v. Persons Unknown and to be Ascertained, 2023 ONSC 670 ("Persons Unknown 2023").

[3] In addition to Persons Unknown 2023, there have been several other significant cases in Ontario in recent years which have also dealt with the question of homeless encampments: The Corporation of the City of Kingston v. Doe, 2023 ONSC 6662; Poff v. City of Hamilton, 2021 ONSC 7224; Heegsma v. Hamilton (City), 2024 ONSC 7154; Church of St. Stephen et al. v. Toronto, 2023 ONSC 6566; and Black et al. v. City of Toronto, 2020 ONSC 6398. The decision in Heegsma, in which Ramsay J. dismissed an application by 14 homeless individuals who applied for a declaration that the City of Hamilton's enforcement of its parks by-law breached their s.7 and s.15 Charter rights, is currently under appeal to the Court of Appeal for Ontario. The Court of Appeal is not expected to hear that appeal until February 2026.

[4] There have been cases engaging similar issues in other provinces as well, including Matsqui-Abbotsford Impact Society v. Abbotsford (City), 2024 BCSC 1902, and Clinique juridique itinérante c. Procureur général du Québec - Ministère des Transports et de la Mobilité durable du Québec, 2025 QCCS 2087.

[5] Two other recent cases are of particular import to this decision. Notwithstanding that they did not deal with the issue of homelessness, they address the assessment of the relevant criteria in injunction cases concerning contentious social issues: Cycle Toronto et al. v. Attorney General of Ontario et al., 2025 ONSC 2424, and The Neighbourhood Group et al. v. HMKRO, 2025 ONSC 1934.

[6] Since Persons Unknown 2023 was argued in 2022, the Region has more than doubled its operating budget for homelessness programs and services, from $30.9 million to $65.5 million, with corresponding increases in capacity. The Region has made significant efforts – perhaps more than any other Ontario municipality – to address the needs of people experiencing homelessness. Despite this, the challenges have continued to grow. In a September 2021 point-in-time count ("PIT Count"), 1,085 people were counted as experiencing homelessness in the Region, with 75% classified as experiencing chronic homelessness. By October 2024, those numbers had increased to 2,371 and 78% respectively.

[7] The Region has a long-term plan to address chronic homelessness by 2030, together with community partners and other levels of government. This plan, adopted in April 2024, is known as the Plan to End Chronic Homelessness ("PECH"). The PECH was developed in consultation with stakeholders, calls for action from the other key partners in the fight against homelessness, and has the Region's full support.

[8] The present case, however, is more limited in scope than Persons Unknown 2023, which sought the approval of the Court for a By-Law which the Region intended to be of general application to all its property in Waterloo Region. The Region and its contractual partner Metrolinx require 100 Victoria Street North for the specific purpose of constructing the Kitchener Central Transit Hub ("KCTH") for the benefit of the entire population of the Region. Site remediation is scheduled for December 2025, to prepare for construction commencing March 2026.

[9] Accordingly, on April 23, 2025, the Region passed a site-specific by-law ("the Site-Specific By-law") to provide for vacant possession of 100 Victoria by December 1, 2025, accompanied by a plan ("Plan") to provide alternative accommodation for those residing at 100 Victoria as of the date notice of the By-law was given ("Existing Residents"). Unlike all previous encampment cases, the present case considers a site-specific by-law with a specific purpose, rather than a general by-law.

[10] Under the Region's Plan, the approximately 40 Existing Residents will be offered alternative accommodation over a 7-month period by the Region's team of licensed professional unsheltered support workers ("USWs"), who will work with the residents to develop individual housing plans ("IHPs") for them, tailored to their specific needs. The Region has allocated additional funding to try to ensure that they have a place to go. The Region indicates that it is confident that they can be transitioned to alternative accommodations by December 1, 2025. As of July 31, 2025, 20 of the original 40 Existing Residents have made this transition (and 7 of the Existing Residents have left the Encampment of their own accord).

[11] The Applicant in the present case, the Regional Municipality of Waterloo (the "Region"), initiated an application on June 9, 2025 seeking various forms of relief, including a declaration that its 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 (the "Site-Specific By-law") complies with the Canadian Charter of Rights and Freedoms ("Charter"). The By-law contains prohibitions respecting 100 Victoria Street, a vacant lot that is the site of an outdoor encampment of vulnerable unhoused individuals. Prohibitions include a ban on erecting temporary structures (such as tents). Contravening the By-law constitutes an offence with a penalty upon conviction of fines up to $5,000.00. The By-law permits immediate enforcement of its provisions by police upon "Non-Residents" of the Encampment, defined as individuals who are assumed to have started residing on the property after April 16, 2025, the Public Notice date of the By-law, regardless of whether such individuals have alternative housing available to them. "Existing Residents" of the Encampment (those persons assumed to have already been residing on the property as of April 16, 2025) cannot be removed until December 1, 2025, the date that the prohibition against all persons from entering onto, residing on or occupying 100 Victoria, takes full effect.

[12] As with Non-Residents, eviction from the Encampment of Existing Residents on December 1, 2025 can occur regardless of whether housing has been secured for them elsewhere.

[13] The Moving Parties are all unhoused individuals struggling with dire life circumstances, including intersecting vulnerabilities caused by extreme poverty, social and economic marginalization, and co-morbid disabilities. Of the 22 named respondents, some are Existing Residents of the Encampment, but most are not.

[14] The Moving Parties have initiated a responding application and notice of constitutional question seeking, inter alia, a declaration that the Site-Specific By-law violates their s. 7 and 15(1) Charter rights.

[15] They also seek an interlocutory injunction restraining the Region from enforcing or acting on any part of the By-law until their Charter claims are finally determined by the Court. This motion for an interlocutory injunction is the subject of these Reasons for Decision.

[16] This motion is brought by 22 named respondents (the "Moving Parties") who are chronically homeless persons sheltering on a vacant lot owned by the Region. They are among the Region's most vulnerable and marginalized. They shelter at the encampment during periods they cannot access indoor shelter that meets their needs.

[17] Persons have been sheltering at this location since 2021. In 2023, the Region applied to the Superior Court of Justice for permission to clear the site pursuant to a by-law prohibiting temporary structures on Region-owned lands (the "Code of Use By-Law"). In Persons Unknown 2023, Valente J. declined this request. Justice Valente declared that By-Law constitutionally inoperable in relation to the site, "insofar, and only insofar, as it applies to prevent the residents of the encampment from living on and erecting temporary shelters without a permit on the Property when the number of homeless persons exceeds the number of available accessible shelter beds in the Region".

[18] Since then, the Region has provided basic services to the encampment such as waste disposal and portable toilets. Chronically homeless residents could count on it being available for no-barrier shelter of last resort. However, the Region has now enacted a new by-law with the specific objective of clearing this site by November 30, 2025, so that it can be converted for use as a "lay-down" site for the equipment needed to construct a transit hub (the "Site Specific By-Law"). That construction is tentatively scheduled to begin in March 2026, though the date is subject to change. The Region does not propose to permit outdoor sheltering anywhere else after the encampment is closed. The Moving Parties contend that they will be left with nowhere to go when they cannot access indoor shelter that meets their needs. In the compelling words of one encampment resident: "[we] are at the bottom and now [they] are just taking away the bottom."

[19] The Moving Parties submit that this Court should grant the interlocutory injunction because each element of the relevant legal test weighs in favour of doing so. They assert that there are serious issues to be tried, both with respect to the constitutionality of the By-Law and its legality. With respect to constitutionality, the conditions that led the Court to declare the Code of Use By-Law constitutionally inoperable in relation to this site have, they say, only worsened since 2023. The Region is candid that its homeless population continues to exceed its shelter spaces. With respect to legality, the Moving Parties assert, the Region's failure to follow its own consultation process in developing the Site-Specific By-Law gives rise to an inference of illegality for the purpose of s. 273 of the Municipal Act, 2001. The Moving Parties will suffer irreparable harm, they say, if the encampment is converted to a construction site before this Court can determine the constitutionality and legality of the By-Law. The Region asserts it will offer alternative accommodation to those persons who were physically present at the encampment on April 16, 2025, referred to by the Region as the "Existing Residents". It is unclear how many of the 22 Moving Parties are "Existing Residents", but only four of the 15 Moving Parties who provided affidavits are deemed "Existing Residents". The By-Law does not make the eviction of Existing Residents contingent on alternative accommodation being offered, and even they will be left with no shelter of last resort to return to if accommodation offered by the Region is only temporary. The Region has not made any formal commitments to the remaining 11 Moving Parties that provided affidavits, who will, they assert, have nowhere to go if evicted. Eviction will have serious physical and psychological consequences for these vulnerable people, which cannot be remedied through damages. In contrast, the Moving Parties submit, there is no evidence in the record that the Region will incur prejudice if a brief interlocutory injunction is granted, causing the balance of convenience to weigh in favour of the Moving Parties.

[20] The application hearing is currently scheduled for November 19 - 21, 2025, making it likely this Court will determine the constitutionality and legality of the By-Law after November 30, 2025, but well in advance of the tentative March 2026 construction date. While an injunction could potentially delay construction by a matter of months, the Moving Parties submit, given time required to remediate the site, there is no evidence that such a minor delay would cause meaningful prejudice to the Region.

[21] The Region opposes the motion for an interlocutory injunction. The Attorney General of Ontario, who is acting as an Intervener on the motion, and who will also do so on the hearing of the Applications in November, also submits that the motion for an interlocutory injunction should be dismissed.

[22] An Amicus Curiae, counsel for the Mental Health Legal Committee, has also been appointed to represent the interests of "those persons living in the encampment whose capacity may be in issue and who have not retained counsel". The Amicus' position on the motion for an injunction is generally aligned with that of the Moving Parties.

[23] These Reasons for Decision explain why the motion for an interlocutory injunction will be granted.

Facts

The Regional Municipality of Waterloo

[24] The Region is an upper-tier municipality under the Municipal Act, 2001. The total population of Waterloo Region is estimated at 678,170 as of year-end 2024. The territory over which the Region has jurisdiction includes the cities of Cambridge, Kitchener, and Waterloo, and adjacent rural townships. The Kitchener-Waterloo-Cambridge metropolitan area is projected to have a population of 600,000 in 2025. The Region's responsibilities include public health, community services, public transit, and waste management. The Region does not have jurisdiction beyond its territory, or over the overall provision of healthcare services, education, social assistance, interest rates and monetary policies, or many other key policy areas which affect homelessness.

The 100 Victoria Property

[25] The Encampment site is a gravel parking lot located at 100 Victoria Street in the City of Kitchener. The Region owns the Property at 100 Victoria, which is on the corner of Victoria and Weber Streets in downtown Kitchener. VIA Rail/GO Transit and bus stations are to its east, with a commercial plaza to the west, a Metrolinx-owned rail corridor to the north, and a variety of businesses and a church to the south.

The Kitchener Central Transit Hub

[26] 100 Victoria is also the site of activities to be undertaken as part of the construction of the Kitchener Central Transit Hub ("KCTH"), a significant public transportation project. The Region says that Metrolinx requires the Property for construction set to begin in March 2026, and the Region requires vacant possession of the site by December 1, 2025, to carry out preparatory work, including site remediation.

[27] The Region says that the KCTH is a landmark project that will create significant economic and social growth for residents of the Waterloo region. Once completed, the KCTH will act as a gateway to the Waterloo area, serving current and future residents, as well as visitors, and will redefine how people connect, commute, and experience the Waterloo community. The Region says that the KCTH is vital to the economic and social growth of the Region, and a key part of the Region's strategic priorities. It will combine numerous services, including ION light rail transit, Grand River Transit, expanded rail and bus GO Transit, VIA Rail, inter-city busy service, passenger vehicles and car shares, and cyclists and pedestrians, into one central and convenient transit hub in the heart of the region. A reduction in commuter times across the region will constitute a significant service to its residents. This is especially true for those who rely on public transit daily, including those who commute for work, seniors, students, lower-income residents, and people with disabilities.

[28] Metrolinx has advised the Region that it requires use of the Property for construction staging and laydown purposes. Staging and laydown are critical preparation activities for the construction of a physical project. They involve positioning and organizing construction materials (such as steel, concrete, bricks, wood), equipment and tools (including large construction machines and vehicles) and other items such as temporary structures for access during a project, to ensure worker safety and maintain workflow. The proximity, size and grade of a staging and laydown site are important factors to consider in choosing such a site. Since large construction equipment and materials are transported from the laydown site to or from the construction site, a laydown site that is even a short distance away can increase the chance of worker injury by increasing the distance materials or equipment needed to travel. On similar rail construction projects, workers have been injured by equipment falling over while traversing a grade raising or on shaky ground. This can also, on aggregate, add significant additional time to a project.

[29] The Region submits that 100 Victoria is the only space owned by the Region that is proximate to the construction work to be conducted by Metrolinx, of an adequate size, and on-grade with the construction site. The Region must provide the Property to Metrolinx in a condition fit for use, which means the Region will require time to engage in remediation and preparation of the Property prior to turnover to Metrolinx. This may include clean up, investigations, geotechnical testing, soil testing and scraping, removal of hazardous materials, and/or groundwater monitoring. It will take the Region up to three months to complete this work.

[30] The Region has considered whether it could provide Metrolinx with an alternative site but has determined that no other site can be used. All other properties owned by the Region within 1 kilometer of the work are either properties that are already being used for the KCTH site or the Region's other works, have active ongoing uses, or are not on-grade or large or proximate enough for Metrolinx's purposes. The option of purchasing additional land is impractical because the cost of acquiring suitable land that is proximate to the construction site is prohibitively high and the types of land available in close proximity are not suitable for construction purposes. Further, the time required to identify, purchase, and prepare new land would delay the project timeline. Given that construction work will be taking place on all sides of the Property, including rail work, road work, and (most critically) demolition work, the Region is also concerned with the health and safety risks to anyone residing nearby while construction work is ongoing. The risks of heavy machinery or other fatal accidents must be taken into account.

Encampment and its Residents

[31] Homeless persons began erecting tents on the site in or around December 2021. However, the number of persons sheltering at the encampment varies, as chronically homeless persons gain and lose other forms of shelter. Encampment residents rely on essential services near the encampment site. There is a drop-in space across the street where residents can access coffee, water, showers, and laundry. There is also a soup kitchen nearby where residents can have a daily meal and use the telephone. Health and harm reduction services are provided on-site by Sanguen Health. Community volunteers attend regularly to provide clothing, firewood, blankets, food, and water.

[32] The Moving Parties' backgrounds reflect those of the Region's homeless. All of the Moving Party affiants have disabilities - eleven have mental health or cognitive disabilities, eight have substance use disabilities, and at least four have mobility impairments. Four of the affiants are Indigenous. A further four identify as LGBTQ2S+. Seven of the affiants affirm to having survived childhood physical and sexual abuse, domestic violence, and/or sexual assault. Three shelter together with their partners. Six are women or identify as gender-diverse.

[33] The Moving Parties live in extreme poverty – some have no income at all, and others receive social assistance. Circumstances that cause the Moving Parties to rely on the encampment vary.

Court Refused Region's Previous Application to Clear the Encampment

[34] This Encampment was the subject of an earlier application in Persons Unknown 2023. In January of 2023, Valente J. dismissed the Region's application to evict encampment residents under By-law number 13-050 (the "Code of Use By-law"), which prohibited persons from erecting temporary shelters on Region-owned property without a permit. At that time, the Region advised that it ultimately intended to use the 100 Victoria site as a "laydown" area for equipment during the construction of a transit hub nearby. Justice Valente found that prohibiting sheltering deprived encampment residents of their life, liberty, and security of the person when insufficient sheltering options left them "with no alternative but to sleep outside". At that time, available shelter spaces fell short "by some 50% of what was required to shelter the Region's homeless". In arriving at that count, Valente J. found it was not appropriate to include motel spaces in the count, in part "because their availability is at the discretion of the motel operators". He also held that it was "simply not a matter of counting the number of spaces". Options needed to meet the "diverse needs" of the encampment residents to be accessible to them. Justice Valente directly rejected the Region's argument that it need only establish sufficient capacity to shelter current encampment residents in order to establish it would be constitutional to prohibit sheltering on Region property:

[94] Finally, I reject the Region's submission that, at the end of the day, in order to grant the relief it seeks, I need only be satisfied that there is sufficient capacity in the system to accommodate the Encampment residents. I reject this proposition because of the fluctuating and variable capacity of the system based on the Region's own numbers. Furthermore, were I to be guided by this principle, and satisfied that there is a sufficient bed capacity for the Encampment residents on any given day, how does this approach respond to the many other vulnerable homeless individuals in the Region? It does not. The approach is particularly problematic in my view because the Region intends to be guided by this decision in its treatment of other encampments. Were I to accede to the Region's submission, it seems to me I would be helping to create an immediate disadvantage for those who are homeless and living outside encampments. I am not prepared to do that. […]

[35] Justice Valente held that these deprivations of the s.7 Charter rights to life, liberty, and security of the person were not in accordance with the principles of fundamental justice because enforcement of the Code of Use By-Law against residents of this encampment site was overbroad and grossly disproportionate in relation to the By-Law's objectives. Those objectives included preventing disruption to the Region's operations and promoting use and enjoyment of Region premises. Justice Valente declared the By-law constitutionally inoperative insofar as it applied to prevent encampment residents from living on and erecting temporary shelters at the site, under circumstances where the number of people experiencing homelessness exceeded the available and accessible shelter beds in the Region. However, he directed that the Region could apply for an order to terminate the declaration upon it being in a position to satisfy the Court that the Code of Use By-law no longer violated the s. 7 Charter rights of the encampment residents. The Region has not done so, nor did the Region appeal the decision.

[36] The Encampment remains in place while other sheltering sites have been cleared. Following that decision, the Region has continued to provide basic services to the encampment, including waste disposal and portable toilets. Meanwhile other encampment sites in the Region have been closed, including sites on Regional land and land owned by lower-tier municipalities. An encampment at 150 Main Street in Cambridge was closed by the Region in August 2023. An additional site at Soper Park in Cambridge was cleared by the City of Cambridge in September of 2023. An encampment at Roos Island in Kitchener was closed by the City of Kitchener in spring of 2023.

Homelessness and Accessible Shelter in the Region

[37] Homelessness has more than doubled in the Region since the decision in Persons Unknown 2023 was released, and the Region's shelter system has not kept pace. One measure of homelessness in a municipality is the "Point in Time Count", which is a count of persons experiencing homelessness on a single night. The September 2021 Point in Time Count that the Court relied on in Persons Unknown 2023 recorded 1,085 persons experiencing homelessness, including 412 who were "living rough", and 191 who were accessing emergency shelters. However, by October of 2024, the Region recorded 2,371 homeless, 1,009 of whom were "living rough", 446 in emergency shelters, and 153 in Region-funded motels.

[38] Effective June 6, 2025, the Region's Commissioner of Community Services affirmed the Region's emergency shelter capacity was 377. Taking the 2,371 homeless in the Region and the 377-shelter capacity effective June 6, 2025, this only covers 15% of the Region's homeless population, falling short by 85% of what is required. Accordingly, the Region has acknowledged that it cannot ensure that the number of homeless persons will not exceed the number of shelter spaces in 2025, even leaving aside whether available spaces meet the needs of encampment residents.

[39] The majority of the Region's homeless move in and out of homelessness. Of the 2,371 homeless persons captured by the 2024 Point in Time Count, 78% were "chronically homeless", which the Ontario Association of Municipalities defines to include persons in "prolonged or repeated periods of homelessness". This accords with the experience of the Moving Parties, who have moved in and out of the encampment as they lose and gain shelter alternatives.

Region's Plan to End Chronic Homelessness ("PECH")

[40] Approximately 15 months following the decision in Persons Unknown 2023, the Waterloo Regional Council passed a Plan to End Chronic Homelessness ("PECH"). Region staff had developed this document over more than a year, in collaboration with a Lived Expertise Prototyping Cohort and a group of "cocreators" consisting of system leaders and service staff. The Report is co-authored by the Region and the Social Development Centre Waterloo Region ("Social Development Centre"), an organization that facilitates inclusion of lived experience in policy development. The contributions of the Social Development Centre were facilitated by David Alton. The PECH prescribes a "human rights approach" to homelessness, where "people experiencing homelessness are treated as rights holders" and "the Region has a duty of care for their housing needs". It requires the Region to ensure that national and international human rights law are "appropriately prioritized amidst other legal obligations such as those regarding property rights, privacy and liability". This "human rights approach" is set out in detail through the principles articulated in the UN Special Rapporteur on the Right to Adequate Housing's "National Protocol for Homeless Encampments in Canada", including Principle 2: Meaningful engagement and effective participation of homeless encampment residents, which provides that residents are entitled to meaningful participation in the design and implementation of policies, programs, and practices that affect them. Ensuring meaningful participation is central to respecting residents' autonomy, dignity, agency, and self-determination. Engagement should begin early, be ongoing, and proceed under the principle that residents are experts in their own lives. The views expressed by residents of homeless encampments must be afforded adequate and due consideration in all decision-making processes. The right to participate requires that all residents be provided with information, resources, and opportunities to directly influence decisions that affect them.

Region Passes Site-Specific By-Law

[41] On April 16, 2025, the Region provided public notice of the Site-Specific By-Law by posting a copy on its website. It did not post notice of the By-Law at the encampment site. The Site-Specific By-Law states that it is intended to "specifically regulate and govern 100 Victoria Street and to obtain vacant possession as of December 1, 2025." A Report to Council upon the introduction of the By-Law specified the By-Law would "facilitate remediation of the property commencing December 1, 2025, and Metrolinx's use of the property by March 2026" for the purpose of constructing the Kitchener Central Transit Hub. Council passed the Site Specific By-Law on April 23, 2025. Effective upon its April 23, 2025 adoption by Council, the By-Law prohibits anyone who does not meet the definition of "resident" from sheltering at the encampment. It defines "resident" to mean persons "residing at 100 Victoria Street as of the date that notice of this bylaw is provided through the posting of the agenda for the Council meeting at which this By-law will be considered". It further provides that "[c]ommencing on December 1, 2025, no person shall enter onto, reside on, or occupy 100 Victoria Street or any part thereof". Persons contravening that provision will be guilty of an offence and liable for a fine of up to $5,000.

[42] The By-Law authorizes the Region to, among other actions, erect fencing around the site to prevent entry, remove persons' personal property from the site, and take steps under the Trespass to Property Act to enforce the By-Law. The Region's Commissioner of Community Services affirms that the Region recognizes "approximately 40" persons as having resided in the encampment on April 16, 2025, that being the date "notice" of the By-Law was given. This count includes only four of the 15 Moving Parties that provided affidavits (the "Existing Residents").

[43] Council also directed staff to add $814,333 to the regional housing budget in order to "implement a plan for alternative accommodation" for "current residents" of the encampment. Of this new funding, $466,083 would go to "motels with social supports", $77,000 to "site remediation", and $271,250 to new supportive housing units. The funding for "motels with social supports" would be "temporary" and its continuation beyond 2026 is not specified. The Report to Council summarized a "transition plan" for the encampment, entailing Region staff providing "enhanced site support by focusing efforts and resources on current residents for available housing and shelter options and ongoing site management". This "operational effort" will "wind down before November 30th".

[44] Enforcement of the By-Law is not conditional on any encampment resident being offered alternative accommodation. The By-Law may be enforced whether or not residents are housed.

Issues

[45] The Moving Parties seek an interlocutory injunction restraining the Region from enforcing the Site-Specific By-Law while the decision on the merits of their application is pending.

[46] This requires the Court to consider whether:

(i) there is a serious issue to be tried;

(ii) the Moving Parties will suffer irreparable harm if the injunction is refused; and

(iii) the balance of convenience favors the Moving Parties.

Law

The Test for Interlocutory Injunctions

[47] Section 101 of the Courts of Justice Act provides that an interlocutory injunction may be granted where it appears to a judge of the court to be just or convenient to do so. In RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 ("RJR"), the Supreme Court of Canada articulated a three-part test for injunctions in Charter cases where the interim relief sought involves the execution or enforceability of legislation. The motion judge must determine: (a) whether there is a serious issue to be tried, (b) whether irreparable harm will be suffered by the moving parties if the injunction is not granted; and (c) whether the balance of convenience favours granting or refusing the injunction. In addition, where a Charter remedy is sought, as is the case here in the main Application, s.24(1) of the Canadian Charter of Rights and Freedoms permits a court to grant an interlocutory injunction "to preserve the rights of the parties pending a final resolution of constitutional rights": RJR, at p. 332.

[48] The RJR criteria are not watertight compartments and are not to be rigidly applied. Strength in one part of the test can make up for weakness in another.

[49] The onus is on the moving party to establish the above criteria.

Serious Issue to be Tried

[50] While there are no specific requirements that need to be met to satisfy the first branch of the RJR test, the Supreme Court has stated that the threshold is low. The determination of whether the threshold of a "serious issue to be tried" is met is based on common sense and an extremely limited review of the case on the merits – a prolonged assessment is unnecessary and undesirable. The complex nature and sizeable evidentiary record of Charter litigation generally means that most motions courts will be unable, in the time required, to engage in a careful and thorough review of the merits. In most cases, the Court need only be satisfied that the moving party's claims are neither vexatious nor frivolous – even if the Court is of the opinion that the moving party is unlikely to succeed at trial. There are two exceptions to the general rule that a motion judge should not undertake an extensive review of the merits. The first is where granting the interlocutory motion will amount to a final determination of the action. In these cases, the judge must consider whether the moving party has established a strong prima facie case – such a finding will then be weighed in the analyses of the second and third steps of the injunction test. The second exception arises where the constitutional question presents as a simple question of law that can be determined by the motions judge. These two exceptions, however, are extremely rare. Neither apply here.

Will the Moving Parties Suffer Irreparable Harm?

[51] Irreparable harm is established where there is a risk that, if the injunction is denied, the Moving Parties will suffer personal injury or psychological harm that is more than transient or trifling if the injunction is not granted. Absolute certainty is not required – the test is relative and flexible - rather, the evidence must establish an increased risk that goes beyond speculation and satisfies the balance of probabilities. "Irreparable" refers to the nature of the harm, not its magnitude – it is understood as harm that cannot be compensated or cured monetarily. Under this branch of the injunction test it is only the risk of harm to the Moving Parties that is considered; any alleged harms to the public interest are weighed in the balance of convenience analysis.

Where Does the Balance of Convenience Lie?

[52] The balance of convenience requires a determination of which party will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits. The factors to be considered in assessing "balance of convenience" will vary with each case. Where a moving party seeks injunctive relief in the form of the suspension of a law, a Court assessing the balance of convenience must assume that the law was enacted to further the public good and therefore serves a valid public purpose: Harper v. Canada (Attorney General), 2000 SCC 57, at para. 9. A public authority is presumed to be acting in the best interests of the public: City of Waterloo v. Persons Unknown, 2025 ONSC 1572, at para. 28. However, this is a rebuttable presumption. Government does not have a monopoly on the public interest: The Neighbourhood Group et al. v. HMKRO, 2025 ONSC 1934, at para. 50. The presumption of the public good does not prevent injunctive relief in all cases: Cycle Toronto et al. v. Attorney General of Ontario et al., 2025 ONSC 2424, at para. 20. In RJR, the Supreme Court confirmed that the "public interest" includes both the concerns of society generally and the particular interests of identifiable groups and that, as a result, the public interest will not always favour the enforcement of existing legislation. In particular, in balancing the assumed good of the legislation against the public interest in preventing harm, the potential harm to the constitutional rights of the Moving Party must be considered: Cycle Toronto, at para. 32.

[53] It is important to distinguish between a suspension and an exemption order when considering the balance of convenience. As noted by Callahan J. at para. 47 in The Neighbourhood Group:

[47] It is important to distinguish between a suspension and an exemption order when considering the balance of convenience. These public interest considerations will carry less weight in exemption cases than in suspension cases: RJR, at p. 348-349. An exemption is where certain people are exempt from the impact of the new law, whereas a suspension stays the implementation of the law. The public interest in favour of the legislation is said to be less important in exemption cases, as the law would still be generally enforceable. Nevertheless, the public interest must not be discounted in exemption cases; it continues to be a pressing concern, especially in cases involving wide application of the impugned legislation: Thibault v. Attorney General of Ontario, 2024 ONSC 3168 (Div. Ct.), at paras. 68-69, citing Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Drug Act (Canada), [1985] 1 S.C.R. 563, at p. 14.

Positions of the Parties

Position of Respondents (Moving Party on the Motion for an Injunction)

[54] The Moving Party Respondents submit that they have established all three prongs of the RJR criteria. They contend that there is clearly a serious issue to be in relation to s. 7 of the Charter. Even leaving aside the issue of s. 15, they contend, in Persons Unknown 2023 Valente J. has already held that application of a municipal By-Law to restrict sheltering at this very site deprived encampment residents of their life, liberty, and security of the person in a manner that was overbroad and grossly disproportionate, and therefore not in accordance with the principles of fundamental justice, and that he further found that the resulting infringement of s. 7 of the Charter was not justified by s. 1 of the Charter. Since that time, the conditions that led the Court to find a deprivation of life, liberty, and security of the person have only worsened. It is true, they note, that the principles of fundamental justice at issue - overbreadth and gross disproportionality - turn on assessing the infringement to life, liberty, or security of the person against the objectives of the By-Law. The Moving Parties recognize that the Region's new By-Law has a new objective. It specifies that it is enacted "to specifically regulate and govern 100 Victoria Street and to obtain vacant possession as of December 1, 2025", whereas the Code of Use By-Law was intended to "prevent disruption to the Region's operations", among other purposes. However, at issue in the Persons Unknown 2023 decision was whether the Code of Use By-Law permitted the Region to obtain vacant possession of the site so that it could ultimately be used as an equipment lay-down site for construction of the transit hub. This is the very use that is to be before this Court in the underlying application. In this context, the issue of whether it would violate s. 7 to apply the Site-Specific By-Law to evict the Moving Parties is far from "frivolous" or "vexatious". Rather, given the previous declaration, there is a strong case that the Site-Specific By-Law violates s. 7 of the Charter. This factor weighs heavily in favour of the granting of an interlocutory injunction. The Region should not be permitted, the Moving Parties insist, to use an unconstitutional By-Law to remove vulnerable persons from their shelter of last resort.

[55] The Moving Parties also contend that there is a serious issue in relation to By-Law illegality. Nor is the issue of the By-Law's illegality under s. 273 of the Municipal Act, 2001 frivolous or vexatious. A by-law is "illegal" for the purpose of s. 273 if it is passed in "bad faith", which will be indicated where the by-law is enacted "without the degree of fairness, openness, and impartiality required of a municipal government". Indicia of bad faith may include a failure to consult on the by-law, and a failure to provide meaningful notice to affected stakeholders. The Moving Parties assert that these indicia are established here based on, among other factors, the Region's failure to advise encampment residents of the By-Law in a manner sufficient for them to provide meaningful input, and the Region's failure to comply with the consultation processes approved by Council. Based on the record, the Moving Parties contend that their assertion that the indicia of bad faith are present is not frivolous or vexatious.

[56] The Moving Parties also assert that they will suffer irreparable harm. "Irreparable harm" refers to the nature of the harm suffered, rather than its magnitude. Harm is "irreparable" if it cannot be quantified in monetary terms or if it cannot be cured if the eventual decision does not accord with the decision on the interlocutory motion. The Court need only be satisfied that refusing an injunction will increase the risk of a moving party incurring irreparable harm. It need not be certain the harm will occur. They cite Clinique juridique itinérante c. Procureur général du Québec - Ministère des Transports et de la Mobilité durable du Québec, 2025 QCCS 2087, in which the Quebec Superior Court found irreparable harm based on evidence that an encampment eviction could cause residents to experience: a. social marginalization; b. loss of trust in authorities; c. significant stress impacting mental health; and d. distress, destabilization, and trauma.

[57] Courts have also found irreparable harm where the conduct sought to be enjoined increased the risk that: moving parties with substance dependence would use drugs alone, leaving them more vulnerable to fatal overdose, moving parties would face physical injury or assault, or moving parties could incur psychological harm that was more than transient or trifling. In Black et al. v. City of Toronto, 2020 ONSC 6398, the Court recognized that encampment eviction would result in irreparable harm, in part because the City of Toronto's status as a municipality prevented an award of damages unless there was underlying or intentional wrongdoing. All of the Moving Parties submit that they will suffer irreparable harm if, effective December 1, 2025, the Region is permitted to remove them from their shelters, dispose of their belongings and erect a fence around the site to prevent their return. The Moving Parties who are not deemed Existing Residents by the Region further assert irreparable harm if the Region is permitted to restrict them from the encampment leading up to December 1, 2025. The irreparable harm the Moving Parties assert includes: (a) loss of emotional and physical support of their community; (b) loss of access to mental health, addiction, food, and housing supports; (c) increased risk of overdose, dehydration, and starvation arising from being forced to relocate to remote locations to avoid detection; (d) increased risk of assault, frostbite, sunstroke, and loss of life and limb arising from sleeping outdoors without the benefit of the belongings removed by the Region under the By-Law; and (e) a loss of trust in authorities, exacerbating the Moving Parties' social exclusion and increasing their reluctance to seek health and social supports.

[58] The Moving Parties submit that it is important for municipalities and municipal actors to recognize that forced evictions of encampments make people more unsafe and expose them to a greater risk of violence and harm a person's safety, health, dignity and may even cost them their life. Evictions destabilize people, remove them from their support systems, and cause them to lose the tools and equipment they need to survive. These harms are irreparable because, as in Black, they cannot be adequately remedied through an award of damages. In Matsqui-Abbotsford Impact Society v. Abbotsford (City), the British Columbia Supreme Court commented, with respect to similar harm, that "[t]he Court must take these claims seriously, acknowledging that forced displacement can result in irreversible consequences, particularly for vulnerable populations". This is not a case like Poff v. City of Hamilton, they submit, where irreparable harm did not arise from encampment eviction because the five moving parties had all been offered alternative accommodation. Here, only four of the Moving Party affiants have been prioritized for accommodation plans, and no such plans existed for them as of the date they swore their affidavits. Further, in Poff, the Court was not in a position to consider the circumstances of residents other than the five moving parties because other residents were not represented before the Court. Here, however, the Persons Unknown are represented through Amicus. Nor is this a case, they submit, like Church of Saint Stephen et al. v. Toronto, where all encampment residents had been offered motel spaces prior to eviction and the Court accepted that they could remain at the motels throughout the winter. The Moving Parties have not been provided with motel accommodation in this case, let alone accommodation that meets their needs. However, more significantly, the Court's determination in Saint Stephen is contrary to this Court's finding in Persons Unknown 2023 that motel accommodation in this Region is subject to discretion of motel operators. It is also contrary to the evidence before this Court, evidence which does not appear to have been before the Court in Saint Stephen, that motel accommodation is unreliable for persons who have disabilities that make it likely they will be evicted from motels. Finally, this case is not analogous to Matsqui-Abbotsford Impact Society v. Abbotsford (City), where the "serious" risks that the Court recognized encampment residents would face from eviction could be mitigated by the City taking steps to gradually relocate existing residents while at the same time preventing new arrivals to the encampment. In that case, the City of Abbotsford sought to enforce trespass notices against residents of an encampment located outside its City Hall. Significantly, Abbotsford permitted outdoor sheltering in other areas of the City, and, at the time City staff served the notices, they also provided residents with a list of locations where outdoor sheltering was permitted. In that context, the irreparable harm could be mitigated by providing accessible accommodation to only counted residents because chronically homeless residents who had not been counted could still access other outdoor shelter of last resort. Unlike in this case, the City of Abbotsford had not "taken away the bottom." Further, in Abbotsford, the encampment residents were in a position to enforce the mitigation terms ordered by the Court because these formed part of the Court's order. Here, however, the By-Law does not require the Region to take any steps to mitigate the harms eviction will cause. The By-Law sets no consequence for the Region failing to meet its assurances. The approach put forward by the Region is insufficient, the Moving Parties contend, to mitigate the irreparable harm By-Law enforcement will cause.

[59] The Moving Parties further submit that the balance of convenience favours granting the injunction. The Court may consider harm to non-parties to this injunction motion when addressing the balance of convenience, including the Region's homeless population at large. The presumption of public interest in a still-valid law may also be overcome where a moving party has a particularly strong case and will suffer irreparable harm, or where it can demonstrate compelling and competing public interests other than those asserted by the government. Where the application of a law is at issue in an injunction motion, the Court may consider whether temporarily suspending the law would simply preserve the status quo when assessing balance of convenience. In Cycle Toronto, this was relevant where, as here, refusing the injunction would effectively grant ultimate success to the government party, permitting it to move ahead with construction. Here, the irreparable harm asserted by the Moving Parties includes increased marginalization, which Callahan J. at para. 53 in The Neighbourhood Group recognized as a "significant public interest" in "avoiding further marginalization of those with disabilities and other vulnerable people." They submit that the Region has not tendered evidence that there would be any particular harm to the public interest if construction of the transit hub is briefly delayed until the Court can determine the constitutionality and legality of the By-Law. The underlying application is to be argued November 19 - 21. The Court will therefore be in a position to determine the application well in advance of the March 2026 date currently set for construction to begin. At most, having regard to time required for remediation, an interlocutory injunction may delay the commencement of construction by a matter of months, should Metrolinx adhere to the March 2026 date. Even this minor delay would only arise if Metrolinx were in a position to meet the March date, which it has advised is subject to change.

[60] Courts have granted injunctions temporarily suspending the implementation of a law for periods where there was no evidence that doing so would have a negative effect on the public interest. The Region implies it will be prejudiced if it cannot prevent new residents from entering the encampment leading up to November 30, 2025 because it is focused on transitioning the Existing Residents to alternative accommodation and "an influx of new residents" makes the Region less able to meet those needs. The Moving Parties say that this is an indication of the inadequacy of the Region's plan in meeting the needs of its homeless, who are not limited to the persons the Region counted on April 16. It is not a factor that properly weighs against injunction. Given the insufficient public interest considerations on the side of the Region and the significant harms caused by displacing unhoused residents, the Moving Parties contend, the balance of convenience favours granting the injunction.

[61] The Moving Parties seek an exemption to the requirement that Moving Parties on a motion for an injunction provide an undertaking as to damages in the event that their application fails. The Moving Parties seek this exemption as they are homeless and clearly not in a viable pecuniary position. Exemptions are typically reserved for rare or exceptional cases. However, courts have held that greater flexibility ought to be granted in cases such as this one which have broader public interest significance, which concern human rights as opposed to commercial and pecuniary interests, and which include Charter-based relief.

Position of the Region (Responding Party on the Motion for an Injunction)

[62] The Region submits that the Site-Specific By-law is fundamentally different in its purpose, scope, and context from the Code of Use By-law before Justice Valente in Persons Unknown 2023. In particular: (a) The Code of Use By-law applies to all Region-owned property throughout the Waterloo region. The By-law in this case applies only to 100 Victoria. (b) The Region took the position in Persons Unknown 2023 that it would use the court's order as a precedent for other encampments across the Waterloo region, and relied upon the generic purpose of the Code of Use By-law for the s.7 analysis. In this case, the s.7 analysis turns on the specific purpose of the Site-Specific By-law. (c) The Region had not taken any specific steps to provide for the encampment residents in Persons Unknown 2023. The USW team did not yet exist (having been created in 2023), and there were no IHPs for the residents. In the present case, the Region says it is confident that it will be able to transition the willing Existing Residents successfully to alternative accommodation before December 1, 2025. (d) In Persons Unknown 2023, the court found that the existing emergency shelter capacity was likely less than the number of encampment residents (53) at the time. In the present case, the Region has provided net new funding to create additional capacity to accommodate the 40 Existing Residents as part of its Plan. (e) At the time that Persons Unknown 2023 was argued, it was anticipated that the Region would require possession of 100 Victoria at some future point for KCTH construction, but there was no firm date. In the present case, there is a fixed date by which the Region requires possession of the Property, in order to conduct site remediation and hand over the Property to Metrolinx for construction commencing in March 2026. (f) At the time Persons Unknown 2023 was argued, the Region had taken some significant steps to address homelessness, but not on the scale of its recent efforts. Between 2022 and 2025, the Region's operating budget for homelessness programs and services more than doubled, from $30.9 to $65.5 million. From the Encampment's establishment in 2021, it has almost tripled (from $23.1 million).

[63] The Region enacted the Site-Specific By-law on April 23, 2025. Public Notice of the By-law was given on April 16, 2025. The By-law only purports to regulate activity on 100 Victoria, unlike the Code of Use By-law at issue in Persons Unknown 2023. The Region proactively seeks the guidance of this court on its plan to close the encampment. It is unusual, if not unprecedented, the Region says, for a government to seek a declaration that a duly enacted law complies with the Charter. In broad outline, the By-law, in the context of the Region's Plan, has these features: (a) The date by which the approximately 40 Existing Residents must leave is set for December 1, 2025, more than 7 months after the By-law was enacted, giving the Region time to work with them to transition them to alternative accommodation. (b) In the interim, the Region's team of USWs (licensed professionals comprising social workers, social support workers, and a registered nurse) has been attending the site daily to meet with encampment residents and develop IHPs with them, to tailor their housing solutions to their specific needs. (c) The Region has budgeted an additional $814,333 in net new funding in 2025 alone, to ensure that there are additional resources for housing solutions for the residents who will need to transition to other accommodations because of the anticipated closure. This is intended to ensure that other unhoused people in the Waterloo region are not negatively affected (e.g., displaced or moved further down waiting lists) by the closure. (d) While the $814,333 is nominally allocated specifically among additional rent supplements, motel rooms, and supportive housing, Region staff have the discretion to move funds between these categories to meet the specific needs of residents. The Region recognizes that the needs of residents are diverse, and some may be more suited to one form of accommodation rather than another. The By-law prohibits the carrying out of defined "Prohibited Activities" on the Property, including residing on the Property. However, the By-law makes two key distinctions which affect its application: first, between Existing Residents and those who are not Existing Residents and, second, between the transitional period of April 16, 2025 to November 30, 2025 (the "Transitional Period") and from December 1, 2025 onwards. The By-law defines an individual who was residing at the Property as of the date of Public Notice of the By-law (April 16, 2025) as a "Resident". Only Residents (also referred to as "Existing Residents") are entitled to remain at the Property during the Transitional Period. The Transitional Period and the By-law's prohibition on new individuals joining the Encampment are motivated by the need to assist Existing Residents, who are already at the Property, to find alternative shelter for when the Property is no longer available.

[64] As the Moving Parties' own evidence indicates, the Region submits, evictions that are rushed and on short notice can be damaging for individuals living in encampments. By providing over 7 months' notice for Existing Residents to find alternative shelter arrangement with the help of USWs – and enabling the Region to prevent newcomers from joining the Encampment in the interim who are not prioritized for the additional resources and would not be able to benefit from this same lengthy period before the Encampment must close – the Region has designed the By-law to be responsive to the very concerns raised by the Moving Parties. After the Transitional Period ends, all unauthorized individuals, be they Existing Residents or not, may be removed from the Property under the By-law. This reflects the fact that the Region requires vacant possession of the Property by December 1, 2025, to ensure that it can deliver the Property to Metrolinx ready for use by March 2026.

[65] The Encampment has existed on the Property since approximately December 2021. Given the inherent dangers of Encampment living, the Region has taken significant steps to ameliorate the living conditions on the site. This includes hiring on-site security and pest control, arranging for regular cleaning of the Property and waste-bins onsite to address the significant garbage that accumulates at the Encampment, and installing and servicing onsite portable toilets. Despite the Region's significant efforts, the evidence before this court, the Region submits – including that of the Moving Parties themselves – demonstrates that the Encampment continues to be a site of widespread public drug use, potentially volatile self-policing and physical violence, and fires.

[66] There have been five reported deaths at the Encampment since January 2022. This likely underreports the true number of deaths related to the Encampment because it does not include cases where an individual is found at the Encampment but pronounced dead in hospital, or where long-term health effects that contribute to a death are related to the Encampment but the deceased passes away off-site. Deaths also occur in the shelter system, but it appears that they may occur at a lower rate.

[67] The Region has documented the following risks to residents and the broader public arising from the Encampment environment: (a) overcrowding and congestion on the site; (b) evidence of drug paraphernalia that has not been properly disposed of, including syringes and needles; (c) barbecues, propane tanks, and the presence of significant debris on the site, which create significant fire risks; (d) security incidents on the site, including violent altercations between residents of the Encampment; (e) significant clutter and garbage on the Property; (f) evidence of rodent activity on the site, including rodent feces; (g) the presence of human urine and feces; and (h) construction of semi-permanent structures out of sandbags, with no building permits and no apparent adherence to any building standards.

[68] While the Region has devoted significant resources to improve health outcomes at the Encampment in the interim, its public position has always been that the Encampment will not be permitted to exist in perpetuity. This is consistent with guidance from the National Working Group on Homeless Encampments, that encampments "should not be understood as a solution to homelessness and should not be permanent", and with the PECH. This has been underscored by the Region's publicized need to use the Property for KCTH construction, a fact that has been publicly advertised for years. However, as set out above, the Region only received confirmation from Metrolinx in December 2024 of the date by which it required vacant possession of the site.

[69] This motion is much more limited in scope than the Application, the Region insists, which will be fully heard on the merits in November. At that time, the court will have a much better understanding of the case, based on the full record and full argument of the issues. All that the court must decide now, the Region submits, is whether interlocutory injunctive relief is needed pending the November hearing, and if so, on what terms. Issues as to whether the court should grant injunctive relief beyond the November hearing dates are best left to that hearing. No injunctive relief was needed for the 3 months from enactment of the By-law to the present, and there is no reason why such relief is required in the remaining 3 months, the Region asserts, before the November hearing. There is no pressing problem that the court needs to fix.

[70] On the RJR test, the Region submits that the Moving Parties have not demonstrated a serious issue as to the By-law's validity. The Region maintains that the By-law does not infringe the Charter and is not illegal under s.273 of the Municipal Act, 2001. The By-law has a fundamentally different purpose, scope, and context than the general region-wide Code-of-Use By-law at issue in Persons Unknown 2023, which changes the s.7 analysis. Measured against the specific purpose of obtaining possession of 100 Victoria for construction of the KCTH, the By-law (in light of the Plan for residents) is neither overbroad nor grossly disproportionate to the substantial public benefit that the KCTH will bring to the entire region. The By-law does not contravene any principle of fundamental justice under s.7. It also cannot be bad faith, the Region submits, for the Region to enact a By-law that it promptly brings to the court for guidance as to whether it contravenes the Charter.

[71] The Region further contends that the By-law will not cause any irreparable harm to the Existing Residents before the November hearing. Nor – in light of the Region's commitment to offer services to all unhoused people and the "light touch" approach that the Region has taken to enforcement – will it cause any irreparable harm even to those who have come to the encampment since the By-law was enacted.

[72] Moreover, the Region contends, the balance of convenience favours denying the motion. An injunction is not needed at this point. Many of the Moving Parties' complaints are about the Region's management of the site. However, the Region has an obligation to maintain safety and order for the benefit of all residents and the general public. Existing Residents have the right under the By-law to remain until after the November hearing, if they choose. For newcomers who have come to the site since April, the Region's USWs have worked and will continue to work with them to establish IHPs. Although they have lower priority than Existing Residents for additional resources under the Plan, they are engaged with the Region's housing stability system and the Region will do whatever it can to find solutions for them. Likewise, unhoused persons who are not at the site remain eligible for the full array of programs and services that the Region offers. They cannot shelter at 100 Victoria, but they are in no worse position than they were before the By-law. Further, nothing in the By-law itself prevents them from sheltering elsewhere. On the other hand, if an injunction is granted preventing the Region from enforcing the By-law, the Region will be unable to carry out an orderly wind-down of the encampment. Newcomers will likely come to the encampment up until the last moment, and the Region's USWs will not have time or resources to develop IHPs with them. The Region will be unable to contain or respond to dangerous activities at the site, exposing its residents to risk. The USWs will be impeded in their work.

[73] The Region requests that the motion be dismissed. It submits that an order that allows for a continuing influx of new residents up until the day of closure would not permit the Region to carry out its obligations and find individually tailored solutions for these new residents. Rather, it would create the very harm that the Moving Parties claim they wish to avoid – the possible negative effects of a closure on those residents without proper planning and resources being in place.

Position of the Intervener Attorney General of Ontario

[74] The Attorney General of Ontario ("Ontario") intervenes in this matter as of right pursuant to s. 109 of the Courts of Justice Act. Ontario intends to make further submissions on the merits of the constitutional arguments at the hearing on the merits.

[75] Ontario submits that interlocutory injunctions against still-valid laws are granted "only in clear cases." While a constitutional challenge is pending, the court should rarely restrain the enforcement of duly enacted laws that are presumed to further the public good. This is particularly true where the court does not have all the evidence and argument on the constitutional issues, and where the claimant is asserting novel Charter claims.

[76] This is not, Ontario submits, a "clear case" for interlocutory relief. The Moving Parties' request for interlocutory relief is premature and does little to serve the public interest nor would an injunction contribute to the maintenance of the status quo. Both the By-law itself and the Region's enforcement activities to date are designed to maintain the status quo at the encampment until the application can be heard on the merits.

[77] Any claim that the Charter prevents the Region from stopping new individuals from joining the encampment is novel, has little support in the case law, and does not outweigh the public interest in enforcing the By-law. Ontario submits that this Court should not grant interlocutory relief without the benefit of a full record and full arguments on the merits.

[78] Ontario submits that the motion for interlocutory injunctive relief should be dismissed. Any further requests for injunctive relief should be directed to the hearing of the application on the merits.

[79] Ontario takes no position on steps 1 and 2 of the RJR test. However, Ontario submits that at step 3, the balance of convenience strongly favours that presumptively constitutional laws stay in force while a constitutional challenge is pending. The court should grant injunctive relief against still-valid laws "only in clear cases." Where the strength of the claimant's case and the nature and extent of the potential harm do not outweigh the public interest in the enforcement of the law, an interlocutory injunction is not warranted.

[80] Ontario submits that the Moving Parties have not presented a clear case demonstrating why interlocutory relief should be granted before the return of the application. Any such relief is premature, harms the public interest in the continued operation of the By-law, and risks exacerbating health and safety conditions at the encampment. Neither the By-law itself nor the Region's enforcement activities to date implicate the Moving Parties' Charter rights in a manner that necessitates interlocutory relief against the By-law before the return of the application. The By-law currently authorizes only limited, preliminary enforcement activity to monitor the encampment and stabilize the number of individuals living there. The By-law expressly contemplates that no existing resident living on the encampment before April 16 will be removed before December 1, after the return of the application. To the extent the By-law restricts new individuals from living at the encampment, that action is aimed at assisting the Region's efforts to find alternative accommodation for existing residents. Increasing numbers of individuals living at the encampment also exacerbates challenges relating to garbage and waste management, conflict between residents, the volume of drugs that find their way into the encampment community, the potential for overdose deaths and health crises, fires that can cause injury and destruction of property, and pest control. In any event, the Region's evidence is that enforcement to date has been limited. The Region has not removed a single person from the encampment since the By-law was enacted, including new individuals who started living at the encampment after April 16. Existing residents and visitors are permitted to come and go from the encampment and donations of supplies may continue to be dropped off on site or at the adjacent parking lot. Paramedic services can still access the site in the case of an emergency. Both the text of the By-law and the Region's limited enforcement activities are aimed at maintaining, rather than altering, the status quo at the encampment until this Court hears the application.

[81] Ontario submits that, to the extent the Moving Parties argue that individuals not already living at the encampment have a Charter right to come and live there, that is a wholly novel claim that does not outweigh the public interest in enforcing the By-law until the application is heard. The caselaw does not contemplate any Charter protection for individuals seeking a positive right to join an encampment and does not impose a positive obligation on the government to provide any person with housing.

Analysis

Serious Issue to be Tried

[82] It is patent in this case that there is a serious issue to be tried. The lower threshold serious issue to be tried standard applies in this case. The Charter and municipal law claims raised by the Moving Parties do not consist of simple questions of law and instead will require the Court to resolve complex and contested questions of both fact and law. Preserving the status quo through the granting of injunctive relief will not finally determine the Region's application. The hearing on the merits of both the Region's and the Moving Parties' applications is scheduled from November 19 to 21, 2025, well in advance of the proposed March 2026 anticipated start date for Metrolinx's use of the Encampment site for construction staging and laydown. At worst, the Region's remediation plans for the site, which purportedly require a start date of December 1, 2025, might be delayed if the Region's Application is ultimately granted. The possibility of delaying the start date of December 1, 2025 to January 1, 2026 has already been broached by the Region itself. Further, there is currently some uncertainty as to the timing of Metrolinx's plans for the Encampment site.

[83] The interests of justice and procedural fairness require a careful and meticulous review of a full evidentiary record by the Court given the vulnerability of the individuals that face forced eviction from the Encampment, as well as the complexity, importance, and evolutive nature of the Charter issues at stake. The Court will not rush to failure.

[84] The evidentiary record in this case is currently far from complete – for example, reply and expert evidence still needs to be delivered, key cross-examinations are still to be conducted, and requests for undertakings remain outstanding. A full evidentiary record, particularly expert evidence, is crucial to ensure that all factors relevant to the Charter rights of potentially incapable persons residing at the Encampment who cannot speak for themselves is made available to the Court.

[85] With respect to the lower threshold, the Moving Parties' Charter and municipal law claims are neither frivolous nor vexatious. The claims center on the fundamental human rights of vulnerable unhoused persons, some of whom may lack the capacity to retain and instruct counsel. In other cases, concerning injunctions to laws seeking to clear homeless encampments, moving parties have succeeded in establishing the low threshold of serious issues to be tried due to the nature of the Charter rights engaged.

[86] I find that the Moving Parties also meet the higher standard of a strong prima facie case. On the evidentiary record currently available, the Moving Parties' s. 7 Charter rights are clearly engaged in ways that are not in keeping with the principles of fundamental justice. Section 7 protects foundational and fundamental human rights. I agree with the submission of Amicus that the Charter accords rights which can only be fully enjoyed by people who are fed, are clothed, are sheltered, have access to necessary health care, to education, and to a minimum level of income.

[87] The s. 7 right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Liberty is engaged when state compulsions or prohibitions affect fundamental life choices and extends beyond mere freedom from physical restraint. It includes the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference and relates to matters that are fundamentally or inherently personal such that they implicate basic choices going to the core of what it means to enjoy individual dignity and independence. The right to security of the person protects both the physical and psychological integrity of the individual. This right is infringed by "serious state-imposed psychological stress", objectively measured, that need not rise to the level of nervous shock or psychiatric illness.

[88] Prohibiting homeless persons from taking measures to shelter themselves by erecting temporary structures in circumstances where there are no practical housing alternatives has been found to engage the right to life (due to exposure to risks of serious harm including death); the right to liberty (due to a significant interference with dignity and independence); and with security of the person (triggering or exacerbating anxiety, physical and psychological distress, and endangering health).

[89] In the present case, I agree with Amicus that the expert evidence of Dr. Stephen Hwang, an expert on the health impacts of homelessness and interventions to improve the health of unhoused individuals, raises a serious prospect that life, liberty, and security of the person are engaged: (a) homeless individuals who are prohibited from erecting rudimentary shelter from the elements will suffer clear and direct adverse impacts on their health, such as a risk of hyperthermia (which can lead to death), serious skin and foot diseases, respiratory diseases, severe sunburn and heatstroke, and severe disturbed and fragmented sleep; (b) forced evictions from encampments contribute to the declining health of homeless individuals by leaving them with little choice but to seek outdoor shelter in more remote public spaces. This makes it difficult for them to access pharmacies, attend medical appointments or methadone clinics, and obtain food; (c) forced removal can lead to the loss of critical survival items, such as medical supplies, food, and clothing; (d) additionally, negative interactions with law enforcement cause emotional distress and build distrust, which exacerbates social exclusion and increases reluctance to seek health and social supports; and (e) moving people against their will from encampments, even with notice and engagement (such as preparing individual housing plans) can have adverse impacts. Forced evictions, or even the prospect of forced eviction, are traumatizing.

[90] A comparison of Point in Time counts from September 2021 (1,085 persons experiencing homelessness including 412 "living rough") and October 2024 (2,371 experiencing homelessness, with 1,009 "living rough") demonstrates that the problem of homelessness, including unsheltered chronic homelessness, has significantly exacerbated over the past three years.

[91] As of June 6, 2025, the Region's overall emergency shelter capacity was 377 beds, a number that falls well short of the unhoused population's needs. The capacity of 377 also needs to be contextualized since not all shelter beds are available to every individual, some for example may only be accessible to youth or women. It was acknowledged by one of the Region's witnesses that very few of the 1,009 people "living rough" would be able to readily access a shelter bed, interim housing, or motels because these shelter options are already at high capacity. Emergency shelters are not always appropriate or available for people who lack capacity, have serious mental health, and/or substance use issues. Shelters can be destabilizing (by requiring people to move their belongings every morning) and overwhelming or overstimulating (by causing people with delusions to feel frightened or threatened). Risks in shelters include transmission of pathogens like tuberculosis and COVID-19, bed bugs, sleep deprivation, and violence. Further, if someone has previously been barred from a shelter (i.e. for behavioural issues or drug use) it is extremely difficult for them to regain access. Similarly, motels are not suitable nor safe for some people, particularly those who lack capacity, have serious cognitive, mental health, and/or substance use issues. Motels do not provide the levels of support required for high-needs individuals; behavioural issues frequently lead to eviction and unsupervised drug use can lead to overdose with no one nearby to notice or assist (a risk that may be mitigated by the "buddy system" in the Encampment). Risks at motels include sex trafficking, drugs, and violence.

[92] The Charter rights of both Existing Residents and Non-Residents are impacted by the By-law and must be considered by the Court. The Moving Parties consist of both Existing Residents and Non-Residents.

[93] The evidence to-date supports the proposition that there is a serious issue to be tried and a prima facie concern that the By-law deprives the Moving Parties' rights to life, liberty, and security of the person in ways that are not in accordance with the principles of fundamental justice, specifically in a manner that is grossly disproportionate to the By-law's object. The s.7 analysis is only concerned with the question of whether the impugned law or State action infringes – or risks infringing – the Charter claimant's rights. As stated by the Supreme Court, "[t]he question of justification on the basis of an overarching public goal is at the heart of s.1 but it plays no part in the s.7 analysis": Canada (Attorney General) v. Bedford, 2013 SCC 72, at para. 125. Further, gross disproportionality is not concerned with the number of people who experience grossly disproportionate effects; a grossly disproportionate effect on just one individual is sufficient to violate the norm: Bedford, at para. 122. The inquiry into the purpose of the law therefore focuses on the nature of the object, not on its efficacy.

[94] The primary purpose of the Region's By-law is to obtain vacant possession by December 1, 2025 of the property where Existing Residents of the Encampment, vulnerable homeless individuals, have erected temporary shelters in circumstances where housing options are unavailable and/or inaccessible to them. Another purpose of the By-law is to prohibit Non-Residents, who are also vulnerable homeless individuals, from erecting temporary shelters at the property after April 16, 2025. As noted above, the risks to the Encampment residents include lack of stability, difficulty accessing services, increased health problems, exacerbation of mental health challenges, and risk of death. Amicus submits, and Justice Valente in Persons Unknown 2023 accepted, that these consequences are more severe for Encampment residents who suffer from mental illness or substance abuse to the extent that they may lack capacity to understand the legal consequences of the By-law's enforcement.

[95] Although not necessarily conclusive, a judgment already rendered on the merits will be a "relevant and weighty consideration" in determining whether a serious issue to be tried exists: RJR, at p. 348. The decision in Persons Unknown 2023 considered similar by-law prohibitions against erecting temporary shelters specifically in the context of the 100 Victoria Street encampment. Justice Valente held that (a) the by-law violated the encampment residents' s. 7 Charter rights to life, liberty, and security of the person in ways that were not in accordance with the principles of fundamental justice, and (b) that the violations could not be saved by s. 1 of the Charter. The Court declared the by-law in that case inoperative insofar as it applied to prevent residents of the encampment from residing and erecting temporary shelters without a permit on the property while the number of homeless persons continued to exceed the number and accessibility of shelter beds in the Region. Justice Valente's ruling included an order that the Region could apply to terminate the declaration "upon it being in a position to satisfy this Court that the By-law no longer violates the section 7 rights of the Encampment residents." The Region has not applied to terminate the previous declaration of inoperability in the Persons Unknown 2023 decision. It acknowledges that the number of homeless individuals continues to significantly exceed available and accessible housing and related supports and that this in turn has fueled an increase in encampments since the decision was rendered.

[96] Given the low threshold to be applied under this part of the RJR test, the evidence to-date combined with the prior decision in 2023 supports the conclusion that the Moving Parties have met their onus. Although not necessary, I find that the Moving Parties have also meet the higher prima facie standard.

There is a Serious Issue Respecting the Legality of the By-law

[97] Pursuant to s. 273 of the Municipal Act, 2001, the court may quash a municipal bylaw, in whole or in part, for illegality. Bad faith is a ground for quashing a by-law under this provision. Bad faith in the municipal law context does not require proof of malice, wrongdoing, or desire for personal advantage; rather, bad faith connotes a lack of candor, frankness, and impartiality. Indictors of bad faith include questionable timing; decisions made under false pretenses; improper motives; lack of notice; the usual practices and procedures are set aside; the parties most affected are kept in the dark; or the law targets one individual or property: Bertrand v. Ramara (Township), 2024 ONSC 7291, at para.170.

[98] In the present application, the Moving Parties have raised a serious issue of bad faith on the part of the Region, regarding timing, motivation and notice, that meets the applicable low threshold as neither frivolous nor vexatious. The Region passed the By-law one week after it was posted online. Many Encampment residents do not have regular or any access to the internet, nor would they have known that they should be monitoring the Region's website for notices that might apply to them. A physical copy of the By-law was not posted at the Encampment.

[99] The evidentiary record to date is insufficient to make any definitive findings on this issue at this time (and I do not do so). But it is apparent that it is sufficient to preclude the assertion being deemed frivolous and vexatious.

Irreparable Harm

[100] The evidence in the application record to date includes evidence of risk of serious physical and/or psychological harm that may be inflicted by operation of the By-law upon an already physically, mentally and emotionally vulnerable population of Existing residents and Non-Residents of the Encampment. This is not harm that can be compensated or cured by monetary means or costs. It meets the necessary threshold of irreparable harm to satisfy the second prong of the RJR criteria.

The Balance of Convenience Favours Granting the Interlocutory Injunction

[101] Amicus submits, and I agree, that protecting Existing Residents and Non-Residents from the adverse impacts of the By-law is itself a significant matter of public interest and therefore serves a public good. The Supreme Court of Canada has repeatedly recognized that disabled individuals suffer from historical and ongoing disadvantage, are negatively stereotyped and subjected to social, cultural, and economic prejudice requiring Charter protection and ameliorative action by the State. The fact that temporary suspension of the By-law will itself serve the public interest as it relates to vulnerable individuals, weighs heavily in favour of granting the injunction.

[102] The risk of irreparable harm in this case includes risk of serious deteriorations in mental and physical health, increased marginalization, and risk of death. In the circumstances, the second irreparable harm branch of the RJR test, along with the first serious issues to be tried branch, merit a heavy weighting within the balance of convenience analysis.

[103] When considering the impact of suspending the By-law on other public interests, courts have considered the issue of urgency and what harm would be caused to the assumed public good if the impugned law is suspended: Cycle Toronto, at para. 34. Here, the Moving Parties have requested that the injunction only last until a decision is rendered in the merits application. Further, as explained above, the Region has already suggested that it might be possible to delay the December 1, 2025 deadline for commencing remediation of the Encampment site and further, there is some uncertainty as to whether Metrolinx will actually require the site by March 2026.

[104] Due consideration should be given to the observation of Goodman J. at para. 249 in Poff that "the complex and challenging social, economic and policy issues affecting homelessness "ought to be left to elected officials, health care and other professionals, social agencies and experts who are best equipped to address the welfare and needs of the homeless." Their expertise should not be lightly discounted. But it must be counterbalanced against the autonomy, dignity, agency and self-determination of the Encampment residents.

[105] I am alive to the inherent public-interest function of Council as a democratically-elected body and the need to respect decisions made by those bodies in the appropriate balance of the Legislative, Executive and Judicial arms of government in our democratic society in Canada. Each has its proper role, and appropriate ambit of jurisdiction: in popular parlance, its "own lane." Questions of the constitutionality of municipal enactments are clearly within the proper ambit of the Court's jurisdiction to assess. Moreover, it must be noted that in the present case, it was the decision of the Region to proactively seek guidance and a declaration from the Court as to the constitutionality of the Site-Specific By-Law. It initiated the Application that is before the Court.

[106] And I am cognizant of the guidance of the Supreme Court of Canada in Harper that there is a presumption that presumptively constitutional laws stay in force while a constitutional challenge is pending, and that courts should grant injunctive relief against still-valid laws only in clear cases. But this is a rebuttable presumption. The unique and salient factor that distinguishes the present case is the existence of Valente J.'s prior decision in Persons Unknown 2023. This found, in respect of the very same Property, that the Region's efforts to evict homeless persons from the Property would violate s.7 and not be saved by s.1 of the Charter under circumstances where the number of people experiencing homelessness exceeded the available and accessible shelter beds in the Region. The evidence on this motion very clearly indicates that this continues to be the situation.

[107] The status of and weight to be given to Justice Valente's determination in Persons Unknown 2023 regarding the application of s.7 of the Charter will be a key factor in the forthcoming hearing of the contending applications in November 2025. It was not appealed by the Region and has not been discounted by any subsequent appellate guidance in Ontario. As I indicated to all counsel on the hearing of this motion, a key issue will be whether horizontal stare decisis applies to this decision, in light of the guidance of the Supreme Court of Canada in R. v. Sullivan, 2022 SCC 19: is Justice Valente's decision now binding upon this Court, or merely persuasive authority?

[108] Suspension of the By-law does not suspend the Region's efforts to develop individual housing plans for both Existing Residents and Non-Residents of the Encampment, regardless of whether Non-Residents commence residing at the Encampment after April 16, 2025. That necessary and positive work may continue.

[109] Granting the injunction will not prevent the police, paramedics, or the fire department from accessing the Encampment if there are concerns about safety.

[110] Harms to other individuals who are not parties to the litigation can be considered when assessing the balance of convenience: The Neighbourhood Group, at para. 50. Accordingly, this Court may also consider the public interest of other homeless persons in the Region who have no other accessible place to go, other than the Encampment. Homeless persons with mental health, cognitive and/or capacity issues, or drug or alcohol dependencies may find themselves barred from shelters, motels, or other types of housing.

[111] Weighing all these factors, I find that the balance of convenience weighs in favour of granting an interlocutory injunction staying enforcement of the Site-Specific By-law until the applications have been finally determined by this Court.

[112] I agree with the submission of the Moving Parties that, in the circumstances of this case, they should be exempt from the usual requirement that a party seeking injunctive relief provide an undertaking in damages.

Conclusion

[113] The motion for an interlocutory injunction will be granted.

[114] The import of this decision to grant an interlocutory injunction until the full hearing of the applications in November 2025 should not be misconstrued. It is intended to preserve the status quo until a hearing on a full evidentiary record can be accomplished, when the Court will be in a position to give a full and measured consideration of all of the issues. The constellation of legal and factual issues here is complex and not amenable to final determination in the necessarily circumscribed and time-compressed context of a motion for an interlocutory injunction. A case can look very different when it is fully argued on a full record. The materials filed on this motion are not the full record that will be before the court on the Applications, nor has all the evidence been fully tested through cross-examination.

[115] The issues before the Court on this motion are complex, difficult and of vital significance to the lives of many of the people involved. The situation is fluid. The pressures which drive the issue of homelessness in Waterloo Region, and at the Encampment in particular, are not static. The Court will be in a much better position to address them upon a more fulsome evidentiary record at the hearing of the applications in November. There are inevitably some sharply differing views about the best way ahead. What is apparent to me at this stage however is that all parties should resist any temptation to caricature the positions or the motives of those with opposing views.

[116] This injunction will only be in place until the conclusion of the hearing on 21 November 2025. I will provide further direction at that time as to whether and for how long it will continue to be in effect.

[117] I wish to express my appreciation to all counsel for their valuable assistance and the quality of their written and oral submissions.

Order

[118] The Court Orders that:

1. There shall be an interim injunction restraining the Applicant, its servants, employees, agents, assigns, officers, directors and anyone else acting on its behalf from enforcing or acting on any part of the Site-Specific By-Law, including but not limited to:

i) directly or indirectly evicting the Moving Parties from the Encampment;

ii) preventing the Moving Parties' entry to or use of the Encampment site, directly or indirectly, including without limitation the use of fences or other barriers;

iii) preventing the Moving Parties from relocating their temporary shelters to another part of the Encampment site;

iv) prohibiting entry onto the premises of non-residents, including prohibiting vehicle access to the premises; and

v) disposing of or removing any personal belongings, real or personal property belonging to the Moving Parties and located at the Encampment.

2. The implementation of the Site-Specific By-Law is stayed until the conclusion of the hearing on November 21, 2025. I will provide further direction at that time as to whether and for how long it will continue to be in effect.

Costs

[119] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at mona.goodwin@ontario.ca and to Kitchener.SCJJA@ontario.ca. The Moving Parties may have 14 days from the release of this decision to provide their submissions, with a copy to the Responding Party; the Responding Party a further 14 days to respond, with a copy to the Moving Parties; and the Moving Parties a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the Moving Parties initial submissions, I will consider that the parties do not wish to make any further submissions and will decide on the basis of the material that I have received. There shall be no costs ordered against or in favour of Amicus or the Intervener the Attorney General of Ontario.

M.R. Gibson J.

Date: August 20, 2025