Appeal court decision on evictions from homeless encampents takes case back to Superioi Court
Mississauga Community Legal Services is pleased to share the Court of Appeal’s decision to grant the appeal in Heegsma v. Hamilton (City) – Court of Appeal for Ontario – released on Friday.
This Charter litigation challenging the constitutionality of Hamilton’s by-laws prohibiting homeless encampments started in 2020. In December 2024, the Superior Court dismissed the application by 14 applicants who had been evicted from encampments in public parks.
Writing for the unanimous panel, Justice Favreau stated:
[4] I would allow the appeal. The application judge made a series of errors. First, the application judge excluded documents the appellants sought to have admitted without conducting any analysis of whether the documents met the public documents hearsay exception. Second, in finding that there were no evictions at night, the application judge failed to analyze the appellants’ evidence, and instead improperly relied on stereotypes regarding people with mental health conditions and addiction issues in assessing the credibility and reliability of their evidence. Third, the application judge’s ss. 7 and 15 analyses were conclusory and failed to engage with the legal tests for determining whether a Charter breach was made out. Fourth, the application judge’s Charter damages analysis applied the case law relevant to unconstitutional legislation without considering whether the same standard is applicable to unconstitutional municipal by-laws.
[40] … The issue of homeless encampments is of great public importance. It brings into play the challenging social balance between the ability of vulnerable individuals to shelter safely and everyone’s ability to enjoy public space.
The Court directed the case back to Superior Court for a new hearing.
This case was co-counselled by Sharon Crowe of Mississauga Community Legal Services, Sujit Choudhry and Mani Kakkar of Circle Barristers, and Wade Poziomka of Ross & McBride.
A copy of the decision and a joint statement from Hamilton Community Legal Clinic and Mississauga Community Legal Services are attached.