An Important Appeal

I am not a lawyer.  In my experience those with legal training are laser focussed and decisive. Me, at breakfast I dither over the choice of multi grain or whole wheat bread. 

Given my lack of credentials some may find it inappropriate for me to be critical of court rulings.

But I can’t help myself when it comes to Heegsma v. Hamilton (City), 2026 ONCA 726

I just read the appeal on this case.  The appeal judges were quite critical of the judge who oversaw the initial case which dealt with so-called homeless encampments in the City of Hamilton.

As we are all aware many people are forced to live in woefully inadequate circumstances

Cities are challenged on how to deal with the issue. Several years ago, after considerable debate, Hamilton adopted a by-law that prohibited the installation of tents and sleeping in its public parks.

There were protocols in place and requirements for officials to refer people to appropriate housing.  That makes sense if there was appropriate housing but as has been determined in other court cases in Kitchener (to name one) there is not housing available.

So, in 2020 a group of fourteen people who were unhoused and living in encampments in Hamilton began a challenge the City of Hamilton’s by-law.  They also disputed the City’s actions in removing them from public parks in Hamilton at various times between August 2021 and August 2023. The appellants argued they have rights under the Charter of Rights and Freedom.

Superior Court Judge James J. Ramsay disagreed. He found that the City’s by-law and actions did not violate the appellants’ Charter rights. And that, even if the municipality did, the Group of Fourteen would have no entitlement to damages unless the city had acted wrongly, in bad faith or in abuse of power, which he found it had not.

As I mentioned I am not a lawyer but the Appeal Court seemed to say that the judge did a poor job.  Here, according to the Appeal Court, are just a few examples of the judge’s shoddy work. 

1. His conclusions were stated without providing facts or evidence needed to support those conclusions.  His comments lacked the required depth of analysis. 

2. Judge Ramsay should have done a document-by-document analysis of the admissibility of various public documents. He should have assessed whether the documents themselves or other evidence in the record would allow the court to determine whether they could be admitted as public documents.

3. Evidence from people with mental health conditions and addiction issues was found to be unreliable based on impermissible stereotypes.

4. The judge assessed the credibility and reliability of the appellants’ evidence on a group basis with no analysis of their specific evidence.

5. The trial judge erred in his analysis of Section 7 of the Canadian Charter of Rights and Freedom.  He misapplied the law and did only a “cursory expression of his disagreement with the appellants’ position with very little analysis or engagement with the evidence.”

6. In spite of evidence to the contrary, Judge Ramsay found that none of the appellants were forcibly removed from a public park at night.

7. The judge simply did not do what was required to determine whether the City breached the appellants’ Section 15 Charter rights.  In particular the equality rights of the appellants who are Indigenous, women, or persons with a disability was not applied.     

To be a judge in Ontario you need to have been a lawyer for ten years.  This judge was a criminal prosecutor for 25 years.  He was appointed to the bench in 2007 and has issued more than 400 decisions.  And yet the Appeals Court has concluded his ruling was “lacking depth of analysis, relied on “impermissible stereotypes”, a “cursory expression of his disagreement” - these are serious concerns. 

Now here is a problem.

The appeals court isn’t prepared to make a ruling on whether the appellants’ Charter Rights were breached. The Group of Fourteen asked for that ruling and asked for damages

“This would require the court to make findings of fact that should have been made by the application judge,” the Court wrote.  But given the errors made by the application judge, it would not be appropriate for this court to substitute its own decision on the merits. 

What is needed is another court case before a different judge. Resolving the issues in that case will require fact-finding, including findings of credibility, that are not appropriate for the Appeals Court.

I am not a lawyer.   There were twenty of them involved in the appeal.  The appellant had four.  The City had two.  The City of Toronto was represented by three.  Kingston had one.  There were other civil liberty and human rights groups who had standing as well.  

You don’t have to be a lawyer to see this case is along way from being settled.  The issue of how to deal with encampments and the larger issue of the need for more stable, affordable housing, won’t be solved in the courts

It is a political issue. There are well known remedies.   Senior levels of government need to step up.

Will they?

As I write this piece, the Hamilton Spectator is reporting that mayor-elect Keanin Loomis is “reversing a decision to build affordable housing on a Stoney Creek parking lot amid an unprecedented housing crisis.”

Parking lots trump people’s needs apparently.  

Encampment Precedent

Here is a longer version of an article I wrote that was published in the Hamilton Spectator on March 25th.  You may find it at https://www.thespec.com/opinion/contributors/2023/03/25/kw-encampment-precedent-could-apply-in-hamilton.html

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Last year in Hamilton a judge ruled that an encampment could be cleared from a city park as there were enough shelter spaces in the system to accommodate those living in the encampment.

It was a different judicial result in Kitchener when a ruling came down in January.
Justice M.J. Valente of the Ontario Superior Court of Justice ruled that the Region of Waterloo can’t evict people living in tents from a vacant lot the Region owns. It is believed that the ruling is precedent setting.  

You can read Justice Valente’s 51-page decision at https://www.thepublicrecord.ca/wp-content/uploads/2023/01/2023-ONSC-670-Ruling.pdf

The issue revolved around a vacant lot at 100 Victoria Street in Kitchener’s downtown.

The Region wants to use the space for a lay-down area for the construction of a transit  hub. 
Back in December 2021, Waterloo had evicted tenants from an encampment on Stirling Street East using steps they believed “were consistent with the requirements of a by-law.”

They did concede that “the manner in which these actions were carried out did not reflect the dignity of those living at the encampment.”  No kidding!  Staff enlisted the help of a road maintenance crew with heavy equipment to clear the Stirling Encampment. 

As a result, the Region felt the need to clarify how it might enforce its legal rights and so brought an application to seek the direction of the Court.

It was the Region’s opinion that the conditions at the encampment posed a risk to the health and safety of encampment residents as well as to that of others. As a result, the Region determined that the encampment had to be disbanded. 
What is it like in that encampment?  

Every individual will have their own story but one that Justice Valente heard from 32-year-old Kathryn Bulgin, homeless for approximately 6 years, is instructive.   Ms. Bulgin is a victim of both physical and sexual assault and currently suffers from drug addiction.   Before living at the Victoria street encampment, she slept in hotel rooms, shelters, behind dumpsters and couch surfed. 

For her and many others shelter bed accommodation can be “very stressful” because there (is) no certainty if a bed (will) be available.  Ms. Bulgin (does) not have a watch or phone.”  The result is that she can’t always return at a designated time to claim a bed. If evicted from the encampment Ms. Bulgin would simply move to another campsite.

This is an important issue that Justice Valente explores in considerable detail. Shelters don’t work for many people.

Dr. Andrea Sereda is a physician practicing at the London Intercommunity Health Centre in London, Ontario. In testimony, she cited five reasons why encampments have advantages over shelter use.  Encampments decrease isolation and risk of fatality and decrease forced transiency that increases the odds that the unhoused can maintain a connection to outreach services. They give people a sense of community. minimize sleep deprivation and provide physical and mental rest.

Interestingly staff challenged Dr. Sereda’s value as an expert because she had not talked to any residents of the encampment.  Staff’s contact with residents was far from comprehensive.  

As local governments are inclined to do, the Region developed policies and procedures that would apply to the estimated 1,100 individuals considered homeless in Waterloo..  Justice Valente had some praise for their work; he had some criticisms as well. For example, it seems staff presented data in a way that would justify their opinion.  Small actual increases in incidents calculated as part of a risk assessment at the encampment site looked a lot more concerning when presented as percentage increases.  

Advocates have long argued that housing is a basic human right.  In fact, the government of Canada supports the progressive realization of the right to adequate housing as part of their National Housing Strategy.

Section 7 of the Charter states that  “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Justice Valente took a look at the fairly extensive litigation that has occurred regarding the right to shelter as it relates to Section 7 of the Charter.  His conclusion can be summarized in a few words.  

The individuals encamped at 100 Victoria St. have a right to be there under Section 7. 

“Because the By-Law prohibits the erection of shelter protection that is necessary to protect homeless individuals from risk of serious harm, and there is currently inadequate shelter beds in the Region, I conclude that it violates the Charter protected right to life,” writes Valente.

Shelter Beds

Municipalities have made this argument for years.  It goes like this: “There are vacancies in the shelter system.  So people are able to stay in shelters.”  

But the actual number of shelter beds available or not available is contentious. 
Justice Valente picks this up recognizing “that it is not just the number of available indoor sheltering spaces that frames the right but also whether those spaces are truly accessible to those sheltering in parks.”

The Region made two other arguments that were rejected.

First, they contended that the Charter doesn’t apply because the encampment residents were looking to protect property rights, which are not Charter protected.  Not so, said Justice Valente.  They weren’t making such a claim.  Encampment residents just preferred to be close to services they regularly use.

Another Regional argument was that previous Ontario court decisions supported evictions.  But those decisions dealt with parks, where the broader public had an interest in using, not a vacant lot such as the site in question.

If evicted from the encampment where will residents go, Valente wondered. Likely to live rough or set up camp somewhere else.  What choice do they have?  Creating shelter to protect oneself is, a “matter critical to any individual’s dignity and independence.” By preventing this, the Region interferes with the “choice to protect itself from the elements and is a deprivation of liberty within the scope of section 7.”

Waterloo Region has decided not to appeal the ruling. 

Sharon Crowe, a lawyer involved in the Hamilton case,, is optimistic that the decision will be a catalyst for change.
  
“Not only are they not appealing, they are investing $163 million into housing and homelessness.”

The City of Hamilton is now back at the table talking with advocates. Hopefully, others will follow suit. 

You can Fight those Predatory Lenders at City Hall

In 2017, new provincial legislation in Ontario gave municipalities more power to regulate predatory loan businesses.  The new rules allowed local governments to take leadership where senior levels of government have faltered.  Here is what one municipality did.

Hamilton Steps Up

The City of Hamilton had a population of 536,917 in 2016. Hamilton bills itself as “the best place to raise a child and age successfully.”  Community advocates have long been concerned about the economic violence inflicted by predatory lenders on individuals, families and the community as a whole. 

Tom Cooper, Director of the Hamilton Roundtable for Poverty Reduction, was one such advocate. 

Tom Cooper 

“Profiteering is a derogatory term applied to those in business who make profits through methods that, while not illegal, could certainly be considered unethical,” says Cooper.  “Payday lenders sure seem to fit the description of profiteers.”

  

In 2015 Cooper decided to try to shine a bright light on the industry in Hamilton.

Cooper began to work with city council and particularly Councillor Matthew Green whose downtown Ward was home to many payday loan businesses.  In fact, Green calls the targeting of inner city neighbourhoods by the payday loan industry “pernicious.” 

“We had more payday loaners in some kilometres than Tim Hortons,” Green told local media in 2015.  Estimates of the numbers operating in Hamilton were as high as 35.  

Cooper and Green worked together to bring in the province’s first municipal licensing of payday loan outlets in Hamilton. That meant these lenders were required to provide city sanctioned information on credit counselling to anybody coming in their doors.  The new licensing required lenders to display large posters that contrasted the actual interest rates of a payday loans with the interest rates of chartered bank loans. They also had to pay a licensing fee. 

But more was needed. Cooper and Green strategized. Then, early in 2018, Green brought forward a motion to restrict these businesses to 15 in total (one per ward) but grandfathered existing locations.  He received strong support from council colleagues.

The by-law was amended.

https://www.thespec.com/news-story/8044206-new-bylaw-to-cap-payday-lenders-at-15-in-hamilton/

Here is what it said. 

The Hamilton By-law in a Nutshell

Licensing

• Every payday loan business shall hold the applicable current and valid licence. Before a licence is issued, every applicant shall submit: 

(a) a current and valid licence as a lender or loan broker under the Payday Loans Act. 

(b) accurate, scale representations of the posters that will be displayed.  

(c) the credit counselling information that will be given. 

• No new payday loan business shall be issued a licence for a location where payday loan businesses were located when the by-law was passed. 

• No more than15 payday loan business licenses shall be issued and no more than one payday loan business licence shall be issued per ward.

Rates Poster

Every payday loan business shall display a poster at each office, approved in advance by the Issuer of Licences. The poster shall be in English and visible to any person immediately upon entering the office.

The poster must be a minimum size of 61 centimetres in width by 91 centimeters in length; and must lay out the amount of the payday loan business’s annual interest rate and rates of chartered banks. 

Credit Counselling Poster and Information

A Credit Counselling Poster must be displayed that lists specific contacts with their respective telephone number and email addresses.

Every business shall ensure that each person who attends at its offices is given, immediately upon him or her expressing an interest in a loan, approved credit counselling information.

Here is the bylaw in full https://d3fpllf1m7bbt3.cloudfront.net/sites/default/files/media/browser/2018-03-02/18-042-as-amended.pdf

What You Can Do?

• Consider contacting a member of your local city or town council. Ask them to initiate a similar bylaw in your town.  

• Advocate for alternatives.  For example, the Hamilton Community Legal Clinic has called for a return to postal banking where basic financial services, like credit, could be available without exorbitant fees charged by payday loan companies at the Post Office.