Frapporti: There are court decisions that resolve disputes between parties. And then there are decisions that reveal something larger about the moment we are living through.

By Lou Frapporti

May 24th, 2026

BURLINGTON, ON

 

There are court decisions that resolve disputes between parties. And then there are decisions that reveal something larger about the moment we are living through.

The Regional Municipality of Waterloo v. Named Respondents and Persons Unknown, 2026 ONSC 2971, released Thursday, is one of those cases.

The case centred on legal efforts by the region to dismantle an encampment on public lands on the grounds that the parking lot where individuals are sheltering is needed to allow for construction to begin on the Kitchener Central Transit Hub later this year. The hub is set to provide bus and light rail service, a GO Transit station and a Via Rail stop.

In his very lengthy reasons for decision, Justice Michael R. Gibson found that a local bylaw created to allow the region to remove the homeless living on the site violates their rights under the Charter of Rights and Freedoms.

The Premier of Ontario was asked about this decision and was having none of it. Ford said that the Court’s decision was “the most ridiculous ruling I’ve ever seen” … putting the rights of …. “a few dozen people over millions of future transit riders.”

At one level, the decision dealt with a very specific issue: whether the Region of Waterloo could remove an encampment from municipally owned land in the absence of sufficient available and accessible shelter spaces for the people living there.

At another level, the case speaks to a much larger problem now confronting municipalities across Ontario: the growing inability of public authorities to manage public space, enforce public order, protect property, support neighbourhoods, and advance revitalization efforts without first being caught in a morass of litigation, process, political fear, and moral paralysis.

For anyone who owns property, invests in urban renewal, manages a business, leads a municipality, or simply cares about the future of our downtowns and communities, the decision represents yet another headwind to revitalization and deserves careful attention.

What the Court Decided

In plain terms, the Court concluded that where people are homeless and have no realistic indoor alternative, enforcing bylaws in a way that prevents them from sheltering themselves outdoors can breach their rights under section 7 of the Canadian Charter of Rights and Freedoms — the right to life, liberty and security of the person.

It is important to note that the Court did not say that the homeless have a permanent right to occupy public property, or private property, for that matter. But it did say that, on the facts before it, the Region could not simply remove people from the encampment when the evidence did not establish that there were sufficient low-barrier, accessible shelter spaces available to them.

That is the legal core of the decision. And not something I propose to remark on beyond that. I’ll leave that to other commentators. I am more interested in the broader societal implications of the decision and what our immediate future holds for us and our children in the absence of a re-ordering of these priorities.

For many readers, the human instinct behind this result is understandable. No serious person wants vulnerable people pushed from place to place with nowhere to go. Homelessness, addiction, mental illness and poverty are real. The suffering is real. The need for housing, treatment and support is real.

But that is not where the analysis can end.

Because the broader consequence of this decision — and the broader policy culture it reflects — is that the burden of systemic failure is increasingly being transferred onto municipalities, local residents, property owners, business owners and investors who had no role in creating the crisis and often have no practical power to solve it.

Why Property Owners Should Be Concerned

Property ownership – indeed our entire societal structure – depends on a basic social bargain: that public authorities will enforce the rules that make investment, safety and civic life possible. As a young university political science student in the 1980’s we were reminded that life was “nasty, brutish and short” in the absence of that order.

The Waterloo Region decision, and a good deal of well intentioned public policy that is centred on an empathic response to historically disadvantaged individuals or groups, tends to view the broader societal implications of prioritizing the interests of these individuals as abstract and theoretical. But when public spaces or private property become encampments, when disorder becomes normalized, when business entrances, parks, sidewalks, trails, laneways or development lands become sites of unmanaged occupation, the impact is not theoretical.

It affects insurance. It affects financing. It affects leasing. It affects customer traffic. It affects employee safety. It affects construction timelines. It affects neighbourhood confidence. It affects whether private capital will take the risk of investing in places that badly need renewal.

And when courts make enforcement conditional on the state’s ability to provide a sufficient menu of alternatives — shelter, housing, supports, treatment, mental-health care — the result may be morally attractive but operationally paralyzing.

The municipality cannot create supportive housing overnight. The property owner cannot build the mental-health system. The business owner cannot solve addiction. The police cannot supply treatment beds. The investor cannot repair decades of failed housing policy.

Yet all of them are increasingly expected to absorb the consequences.

That is the imbalance at the heart of this issue.

Why Government Should Be Concerned

Government should be concerned for a different reason: the decision exposes the widening gap between rights-based litigation and practical governance.

Municipalities are now being asked to solve problems they did not create, with tools they do not fully control, under legal standards that may make action extremely difficult unless every upstream system is functioning.

But those systems are not functioning.

Ontario is short of housing. It is short of supportive housing. It is short of treatment capacity. It is short of mental-health resources. It is short of low-barrier shelter options. And many municipalities are confronting public-space issues that are immediate, visible and deeply destabilizing.

The public sees the result every day.

As I’ve written here previously, permitting encampments is not a substitute for housing policy. Open drug use is not compassion. Public disorder is not dignity. The surrender of civic space is not social justice.

The widespread news coverage of encampments across Ontario, the appeals from mayors for stronger tools, and Premier Ford’s public comments on the issue all reflect the same basic reality: local governments are under extraordinary pressure to respond, and the current legal and policy framework is not producing the confidence, safety or order that communities need. In 2024, a group of Ontario mayors asked Premier Ford for additional powers, including use of the notwithstanding clause, to deal with encampments; the province later moved forward with legislation aimed at giving municipalities and police stronger tools to address encampments and public drug use.

Whether one agrees with those specific tools or not, the political reaction is not surprising. It is the predictable consequence of a system that has made visible disorder harder to address while failing to deliver the housing and treatment infrastructure that would make enforcement less necessary.

The Problem of Extreme Empathy

As I referenced in an earlier article, the deeper issue is cultural. There is now enormous organizational and institutional momentum exhorting compassion and empathy for the disenfranchised. This can be seen in the plethora of organizations, associations and interested parties that intervene in support of the homeless and others in litigation of this kind. Or who influence municipal policy or spending.

But compassion for various designated disenfranchised groups, whether in the form of judicial fiat or government policy, that elevates their interests at the expense of our broader society, however well intentioned – and it is well intentioned – ultimately leads to the complete unravelling of the social compact that underpins the very existence of our civil society. A phenomenon that Canadian author Gad Saad terms as “Suicidal Empathy” in his new New York Times best selling book by the same name.

What about the senior who no longer feels safe walking to the library? What about the family whose local park is no longer usable? What about the small business owner whose storefront becomes a site of disorder? What about the charitable organization trying to serve people in a setting that has become unsafe? What about the investor being asked to take a chance on a downtown that public authorities appear unable to manage? What about the broader community that depends on revitalization, employment, tourism, tax base, housing supply and civic confidence?

A society cannot function if empathy for one group requires indifference to the rights of everyone else. Particularly when those rights are the very foundation of our founding constitutional compact of “Peace, Order and Good Government”.

And as we are increasingly experiencing, when that takes hold, society does not become more humane. It becomes paralyzed.

The Revitalization Problem

This matters profoundly for communities like Hamilton, Burlington, Waterloo Region and other urban centres trying to attract investment and rebuild confidence in their downtowns.

Revitalization is not an abstraction. It requires capital. It requires risk. It requires belief. It requires entrepreneurs, institutions, developers, lenders, cultural organizations, residents and governments to act in alignment.

But investment does not flow into uncertainty. It does not flow into places where disorder is tolerated indefinitely. It does not flow into environments where public authorities appear legally or politically unable to enforce basic standards.

The tragedy is that the very communities most in need of investment are often the ones most damaged by paralysis.

We cannot say we want housing and then make development harder. We cannot say we want downtown renewal and then tolerate conditions that repel visitors and investors. We cannot say we support vulnerable people while allowing public spaces to become places of danger, addiction and despair. We cannot say we believe in compassion while refusing to build the systems that make compassionate enforcement possible.

A Better Balance

The answer is not cruelty. It is not indifference. It is not pretending homelessness can be solved through bylaw enforcement alone.

But the answer is also not surrender.

We need more housing. We need more treatment. We need more supportive housing. We need more shelter capacity that is actually usable by the people who need it. We need better mental-health interventions. We need provincial and federal governments to fund the systems municipalities cannot build alone.

These changes take time. Political will. And a good deal more. But we cannot undermine the broader interests of public safety and economic necessity in the interim. In my view we need to restore the principle that public space belongs to the public pending broader reform.

The Waterloo decision should be read carefully and fairly. It reflects real legal principles and real human facts and an earnest effort by a well regarded jurist to apply the law to the facts before him. But it should also be understood as a warning.

If senior levels of government do not act to address these difficult issues urgently, the courts will intervene in a manner that may not reflect the views of the broader electorate or the best interests of society. And when that happens, government loses the ability to govern and communities lose the confidence required to renew themselves.

That is the real concern.

Not that courts are wrong to care about vulnerable people.

But that we have created a society where policy failure, and the instinct to compassion, untethered from responsibility and balance, increasingly creates paralysis.

And paralysis is not compassion.

It is surrender.

Lou Frapporti is a purpose – driven lawyer at Gowling WLG and business owner dedicated to elevating communities and fostering positive social impact.