Toronto, ON / Traditional territories of the Mississaugas of the Credit, the Anishnaabe, the Chippewa, the Haudenosaunee, and the Wendat peoples— The BC Civil Liberties Association (BCCLA) welcomes the Court of Appeal for Ontario’s decision today to overturn the Ontario Superior Court of Justice’s flawed and discriminatory decision in Heegsma et al. v. City of Hamilton.  

This decision recognizes many errors made by the trial judge, including a failure to apply any correct Charter legal analysis, and a blanket dismissal of the evidence of unhoused individuals based on stereotypes about mental health and addiction. In particular, the court recognized that the question of Charter damages for municipalities breaching individuals’ rights deserves to be seriously legally analyzed — the question on which BCCLA had intervened — and ordered a new trial. 

In 2021, a group of individuals experiencing homelessness, who were evicted from encampments in Hamilton parks, filed a Charter challenge against the City of Hamilton. The plaintiffs argue that certain sections of the City’s bylaws used to evict unhoused residents sheltering in the municipality, as well as the discretionary enforcement conduct under those bylaws, violate sections 7 and 15 of the Charter. For s15, they argue that encampment evictions discriminate based on race and/or indigeneity, sex, disability, and marital status, either separately or in combination. They are also seeking Charter damages for the harms flowing from evictions, which have included medical harms, loss of possessions, and sexual assault. 

BCCLA intervened in the case to support the plaintiffs’ argument that they are entitled to Charter damages because the City had “clear disregard” for their Charter rights. When analyzed within the context of Supreme Court of Canada decisions on Charter damages, this is the applicable standard for municipal bylaws, and it must be recalibrated to mean a negligence standard. This would help make Charter damages more accessible to everyone whose rights are violated by municipal conduct. 

Ga Grant, Staff Counsel for BCCLA, says: 

“This decision reaffirms that unhoused people — like everyone — deserve to have their rights and their evidence taken seriously in court. It is just to overturn biased decisions like these that fail to apply Charter law and meaningfully engage with fundamental rights. We hope that the new trial will provide full and proper recognition of the violations of Charter rights these individuals have experienced.” 

BCCLA is represented by Samara Secter and Tabir Malik of Adario Law Group LLP.