By Avreet Jagdev
On May 21, 2026, Justice Gibson of the Ontario Superior Court of Justice released his landmark decision in The Regional Municipality of Waterloo v Named Respondents and Persons Unknown (“Waterloo v Respondents“), in which he recognized homelessness as an analogous ground of discrimination under Section 15(1) of the Charter.
Section 15(1) and Homelessness
S.15(1) enshrines the right to equality in Canada’s Constitution. It states that: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
Importantly, the grounds of distinction enumerated in s. 15 are not exhaustive or closed. Courts have the jurisdiction to recognize additional grounds of discrimination that are analogous to those listed in the provision. An analogous ground must be a personal characteristic that cannot be changed, or that can only be changed at an unacceptable cost to personal identity. Over years of s. 15 jurisprudence, the Supreme Court of Canada has recognized non-citizenship, sexual orientation, and marital status as analogous grounds of discrimination, among others.
While the Supreme Court has no express guidance on the point, lower courts have previously found that homelessness is not an analogous ground. In the 2013 case Tanudjaja v Canada (“Tanudjaja”), the Ontario Superior Court of Justice held that homelessness and “being without adequate housing” do not form analogous grounds of discrimination under s. 15 (para. 137). The court found that a lack of adequate housing is neither a personal characteristic nor a fact that can be objectively determined, making it difficult to define the parameters of the analogous group. In coming to this conclusion, Justice Lederer stated the shared characteristic between the applicants, who were several individuals who had experienced homelessness and inadequate housing, was poverty. However, lower courts have found that poverty is not a recognized analogous ground under s. 15. Since the claim in Tanudjaja was struck at a preliminary stage and later resolved on justiciability grounds on appeal, the question of whether homelessness constitutes an analogous ground was never fully decided.
Case Background
In Waterloo v Named Respondents, Justice Gibson took s. 15 a significant step forward by recognizing homelessness as an analogous ground of discrimination. The case concerned an encampment located on a private parking lot owned by the Regional Municipality of Waterloo (“Waterloo”), which has been a sheltering space for homeless persons since 2021.
In 2023, Waterloo applied to the Superior Court of Justice for permission to clear the site. The court declined this request because it determined that it would unjustifiably deprive the encampment residents of their Section 7 Charter rights. Since the release of that decision, homelessness has more than doubled in Waterloo, while the shelter system has capacity to accommodate only 15% of the homeless population.
Two years later, Waterloo returned to the court in Waterloo v Named Respondents. This time, it sought to clear the site for construction of a major transit hub project, which it described as vital to its economic and social growth. Waterloo maintained that the encampment site was the only land it owned that could accommodate the project, with no existing alternative. Accordingly, it passed By-law Number 25-021, which states its intention to obtain vacant possession of the encampment site, and authorizes it to take steps to vacate and restrict access to the site. Waterloo subsequently applied to the court seeking, among other forms of relief, a declaration that their by-law complies with the Charter. The respondents, who are homeless people who shelter at the encampment, initiated a cross-application seeking a declaration that the by-law violates their ss. 7 and 15(1) Charter rights.
Among the eleven issues before the court was whether homelessness constitutes an analogous ground under s. 15. Justice Gibson, in dismissing Waterloo’s application and granting the respondent’s cross-application in part, declared that the by-law violated their ss. 7 and 15(1) rights in a way that could not be justified by s.1 of the Charter.
Justice Gibson’s Reasoning
In conducting the first step of the s. 15(1) test, which requires identifying a distinction based on an enumerated or analogous ground, Justice Gibson held that “the time has come that homelessness be recognized as an analogous ground for the purposes of s. 15 of the Charter” (para. 204). In coming to this conclusion, he drew support from Chief Justice Wagner’s concurring reasons in Quebec (Attorney General) v. Kanyinda, a recent s. 15 decision in which the Supreme Court of Canada found that the exclusion of refugee claimants from eligibility for subsidized daycare infringed their s. 15 right to equality, because it discriminated against women refugee claimants.
In his concurring remarks, Chief Justice Wagner described indicators developed by the Supreme Court that can be used to identify an analogous ground. These indicators include “the violation of human dignity and freedom resulting from a distinction based on a stereotype”, historical disadvantage suffered by a group, a group’s “vulnerability and marginalization”, the “‘immutable’ nature of an individual’s personal characteristics”, and “recognition by legislators and jurists that a ground is discriminatory”.
Justice Gibson held that homelessness shares many of these attributes: First, distinctions based on homelessness violate the dignity of those with homeless status. Second, Justice Gibson held that homelessness is a constructively immutable characteristic because it is not within an individual’s control and cannot be readily altered by conscious action due to the many factors that may result in a person becoming homeless. Third, the homeless are a historically disadvantaged group. Fourth, the homeless are a vulnerable and marginalized group in society. Fifth, international instruments and organizations support the recognition of homeless status as an analogous ground.
On this basis, Justice Gibson concluded that the first step of the s. 15(1) test was satisfied, as Waterloo’s by-law created a distinction on the basis of homeless status. Justice Gibson held that the second step, which asks whether the distinction has the effect of reinforcing, perpetuating, or exacerbating a claimant’s disadvantage, was also satisfied because Waterloo’s distinction denied a benefit in a discriminatory manner.
Justice Gibson further held that the by-law resulted in a disproportionate impact on homeless individuals who are women, disabled, and Indigenous, all recognized grounds under s. 15. With a s. 15 infringement established, Justice Gibson found that Waterloo’s By-Law could not be justified under Section 1 of the Charter because it was not minimally impairing, and its deleterious effects outweighed any salutary ones. Therefore, Justice Gibson concluded that the by-law was unconstitutional, and therefore of no force or effect.
To fulfill its Charter obligations, Justice Gibson explained that Waterloo would need to include an alternative encampment site or tenting protocol that would facilitate access to the current level of services and healthcare the encampment has. He welcomed Waterloo to return before the court once it promulgated these options to request a review or further discretion.
Looking Forward
This case has received significant acclaim and has been described by housing advocates as “one of the most important court decisions on homelessness in recent Canadian history”. However, it has also faced backlash, with Ontario Premier Doug Ford supporting Waterloo’s decision to appeal the decision.
It remains to be seen whether the appeal will succeed. For the encampment residents, the decision means that they will be able to stay put for the time being. But in the words of Justice Gibson, “No one should romanticize or be starry-eyed about the Encampment. It is a miserable and desperate place. But it represents the only remaining safety valve for the Region’s homeless as a refuge of last resort” (para. 249).
Avreet Jagdev is a rising 2L JD Candidate and Summer RA at the Asper Centre.