Homelessness Recognized as an Analogous Ground Under Section 15: Waterloo v Respondents

Posted on June 25, 2026June 29, 2026 by Student

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.

Ontario Court of Appeal Allows Appeal by Youth Climate Litigants in Charter Challenge to Ontario’s Emissions Targets

Posted on October 23, 2024 by Tal Schreier

by: Chelsea Gordon and Daniel Kiesman

For the first time in Canada, an appellate court has considered the implications of the Canadian Charter of Rights and Freedoms (“Charter”) on climate change policy. In a decision released on October 17^th, the Ontario Court of Appeal allowed the appeal in Mathur v Ontario[1] and remitted the application to be heard again by the Superior Court. In doing so, the Ontario Court of Appeal identified errors in the lower court judge’s analysis of the appellants’ case under ss. 7 and 15(1) of the Charter. This decision represents a significant win for youth climate activists.

The Asper Centre, represented by Ewa Krajewska, intervened in this case at both the Superior Court and the Court of Appeal.

Background

Superior Court Judgement

In the judgement on appeal at the Ontario Court of Appeal, a Justice of the Superior Court rejected the applicants’ constitutional challenge to the greenhouse gas emissions target set by the Government of Ontario under s. 3(1) of the Cap and Trade Cancellation Act (“CTCA”).[2]

In 2018, the Government of Ontario, through s. 3(1) of the CTCA set an emissions reduction target of 30% below 2005 levels by 2030. However, scientific research showed that to prevent serious adverse consequences, greenhouse gas emissions would need to be reduced by 52% below 2005 levels by 2030. The applicants are a group of young Ontarians who argued that the target set by Ontario was too low, leading to adverse future consequences for young people and future generations.

At the Superior Court, the applicants advanced two Charter arguments. First, by failing to set the target high enough, Ontario was authorizing and creating a level of emissions that will lead to serious adverse consequences and put the lives of Ontarians at risk, violating s. 7 of the Charter. Second, the applicants argued the CTCA violates s. 15(1) of the Charter because it distinctly encumbers young people and future generations who will endure most of the impacts of climate change.

The judge characterized the applicants’ complaint as being a positive rights claim, suggesting that the applicants were seeking a declaration that the Ontario government has a positive obligation to prevent the impacts of climate change from posing a threat to young people’s security of the person.[3]

You can read the Asper Centre’s Superior Court factum here. For a more in depth discussion of the Superior Court decision, please see the Asper Centre’s previous blog post here.

After framing this as a positive rights case, the judge went on to assume without deciding that a positive obligation arose in this case, but that Ontario did not violate the principles of fundamental justice when setting the emissions target.[4] On that basis, no violation of s.7 was found. In deciding the applicants’ s.15(1) claim, the judge applied the two-part test from R v Sharma.[5] She held that while young people are disproportionately affected by climate change, that disproportionate effect is caused by climate change itself and not by the emissions target set by Ontario.[6] On this basis, she found that the government of Ontario had not caused or contributed to the disproportionate effects of climate change faced by young people. Further, there is no positive obligation on the government to address inequalities through remedial legislation.

Arguments on Appeal

The applicants appealed the Superior Court decision alleging that the application judge erred by characterizing their ss. 7 and 15(1) Charter claims as attempts to impose positive obligations on the Government of Ontario to combat climate change. Their position was that Ontario’s chosen response to climate change knowingly permits dangerously high levels of greenhouse gas emissions, which will discriminate against youth and future generations, and that both the Target and the Plan should be reviewed for constitutional compliance.

Ontario focused its arguments primarily on the issue of remedies, arguing that the appellants’ request for a science-based greenhouse gas reduction target was outside the court’s institutional capacity to order. Further, Ontario argued that the appellants’ have not proven that Ontario has caused or contributed to the worsening impacts of climate change and that the effects claimed are not caused by the Target, Plan or the CTCA.

Asper Centre Intervention

The Asper Centre intervened on two points. First, the application judge erred by adopting a formalistic approach to causation that has consistently been rejected by the s. 15(1) jurisprudence. Second, given the complexities and the novelty of climate change, should the Court of Appeal find a Charter infringement, it ought to go beyond declaratory relief to craft an appropriate and just remedy under s. 24(1) of the Charter. You can read the Asper Centre’s factum here.

With respect to s. 15(1), the Asper Centre urged the Court of Appeal to reinforce the flexible approach to causation in the context of governmental emissions targets. The Asper Centre emphasized that the caselaw has made clear that substantive equality is at the centre of s.15(1). To achieve substantive equality, courts must adopt a flexible approach to causation and consider the actual impact of the impugned law on the claimant group. Claimants need not show that the impugned law is the only or predominant cause of the disproportionate impact. Under the proper approach to causation, the claimants need only to show that the impugned emission targets contribute to the disproportionate effects of climate change. In this way, substantive equality may be achieved by allowing s. 15(1) to remain flexible to account for pre-existing problems such as climate change.

The Asper Centre also argued that the application judges’ approach, which viewed climate change itself as the cause of the disproportionate impact on youth, harkens back to the rejected formalistic approach to equality taken under the Canadian Bill of Rights. Instead, the Asper Centre argued that the application judge should have followed the approach to substantive equality taken by the Supreme Court of Canada in cases like Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux and Quebec (Attorney General) v A.[7] These cases recognized that while the government was not responsible for the underlying inequality, all that the claimant must show is that the government action contributes to a disproportionate impact.

With respect to s. 24(1) remedies, the Asper Centre argued that if a Charter violation is found, the Court can be creative in utilizing its remedial discretion under s. 24(1). The Asper Centre argued that, in this case, declaratory relief would be insufficient since the impacts of climate change and inadequate government action present complex and novel issues for the legal system. The Asper Centre submitted that when faced with novel issues, courts are able to fashion unique remedies under s. 24(1).

For a more fulsome discussion of the Asper Centre’s intervention before the Ontario Court of Appeal, please see our previous post here.

Decision of the Ontario Court of Appeal

In a unanimous decision, the Ontario Court of Appeal held that the application judge erred in characterizing this as a positive rights case. They stated, “Ontario voluntarily assumed a positive statutory obligation to combat climate change and to produce the Plan and the Target for that purpose. Ontario was therefore obligated to produce a plan and a target that were Charter compliant.”[8] The Justices allowed the appeal owing to the errors in the lower court judgement but declined to decide the issues and instead remitted it back to the Superior Court to be heard again. They chose not to decide the issues based on the “institutional advantage” that courts of first instance have in issuing declarations and directions.[9]

Section 7

In the s. 7 analysis, the Ontario Court of Appeal found that the application judge’s incorrect framing of the issue as a positive rights claim has led to errors in her reasoning. The Court stated, “The question before the application judge was not whether Ontario’s Target did not go far enough in the absence of a positive obligation to do anything. Rather, she should have considered whether, given Ontario’s positive statutory obligation to combat climate change that it had voluntarily assumed, the Target was Charter complaint.”[10]

Section 15(1)

The Court held that the application judge had again erred by characterizing the appellants’ claim as a positive rights claim. In the case of s.15(1), this led the application judge to incorrectly conclude that the applicants sought to impose an obligation on the government to remedy inequality associated with climate change. The Court of Appeal emphasized that while s. 15(1) does not impose a general obligation on the state to remedy all inequalities, when a government has chosen to act, that legislation cannot have a discriminatory impact.[11]

The Ontario Court of Appeal held that the application judge’s analytical error in construing the appellants’ position as a positive right claim led to an improper causation analysis. The Court’s reasons indicate that the causation analysis at the first step of the s. 15(1) test should be flexible and responsive to the nature of the particular adverse impact claim. Thus, the Court of Appeal held that proper causation analysis in this instance should have gone further and considered whether, by committing itself to a greenhouse gas emissions target that fell short of the scientific consensus on what was required, Ontario has caused or contributed to a disproportionate impact.[12] Because the province has chosen to enact the CTCA, the proper analysis should have addressed whether “there was a link or nexus between the impact of the Target and the disproportionate impact based on a protected ground.”[13]

Additionally, the Court of Appeal determined that the application judge’s causation analysis was at odds with her findings under s. 7.[14] The application judge held that the appellants had met their causation burden of showing the CTCA engaged their rights to life and security of the person. The Court of Appeal noted that the causation burden under both s. 7 and s. 15(1) is the same in that a claimant does not need to show that state action is the dominant cause of the harm.[15] By finding that the causation burden was met under s. 7 and not under s. 15(1), the application judge drew conclusions which the Court of Appeal determined were inconsistent and not adequately explained.[16]

Implications Moving Forward

The Court of Appeal declined to decide the application and instead remitted the case back to the Superior Court for a new hearing.[17] Thus, the case will return to the Superior Court for the s. 7 and s. 15(1) issues to be decided on the merits and in light of this decision.

Overall, this decision is an important signal that Charter challenges of climate change legislation are not necessarily positive rights claims. In this case, the Court of Appeal made clear that while climate change is a global issue when a provincial government chooses to act to address it, the choices it makes are subject to review to ensure they are compliant with the Charter. Going forward, this case solidifies the role of the judiciary with respect to climate change and other remedial legislation. Ensuring that in the division of powers, the judiciary will maintain a role in reviewing legislation for constitutional compliance and, more than anything, leaves open the door to a finding that insufficient climate change action violates Charter rights.

This decision is also important as it is one of the first appellate decisions regarding s. 15(1) since the Supreme Court released its decision in Sharma.[18] The Court of Appeal recommitted to the flexible approach to causation that a substantive approach to equality requires. This decision makes clear that a rigid and formulaic approach to causation is improper and inadequate. Where a pre-existing societal inequity exists, and a government chooses to act to address it, courts must not focus only on pre-existing inequity at the causation stage of the analysis. Instead, as the Court of Appeal indicated in its reasons, courts must adopt a flexible approach to causation that considers the underlying contextual factors and examine whether the government action in question contributes to the inequality in question. In this instance, as the Court of Appeal concluded, the proper approach to causation necessitates an inquiry into whether the impugned emissions targets contribute to a disproportionate impact on youth.[19]

Chelsea Gordon and Daniel Kiesman are 3L JD Candidates at the Faculty of Law, and were Asper Centre Clinic students in Fall 2023, who worked on the Asper Centre’s intervention in Mathur.

[1] Mathur v Ontario, 2024 ONCA 762 [Mathur CA].

[2] Mathur v Ontario, 2023 ONSC 2316 [Mathur]; Cap and Trade Cancellation Act, 2018, SO 2018, c 13, s 3(1).

[3] Mathur, supra note 2 at paras 122-124.

[4] Ibid at para 142.

[5] R v Sharma, 2022 SCC 39.

[6] Mathur, supra note 2 at para 178.

[7] Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17; Quebec (Attorney General) v A, 2013 SCC 5.

[8] Mathur CA, supra note 1 at para 5.

[9] Ibid at para 7.

[10] Ibid at para 53.

[11] Ibid at para 40, 55-58.

[12] Ibid at para 58.

[13] Ibid at para 57.

[14] Ibid at para 59.

[15] Ibid at para 61.

[16] Ibid at para 65.

[17] Ibid at para 76.

[18] R v Sharma, 2022 SCC 39.

[19] Mathur CA, supra note 1 at para 58.