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Charter - s.15 Discrimination - Evidence. Fulton v. Guan et al
In Fulton v. Guan et al (Div Ct, 2026) the Divisional Court allowed an HRTO JR, this brought against "the decision of the Human Rights Tribunal of Ontario .... dismissing his application", this grounded in disability (blindness) regarding residential accomodation. The application was denied on the HRC s.21(1) ['Residential accommodation - Shared accommodation'] exception which the applicant challenged under Charter s.15 ['discrimination'].
Here the court makes a useful point regarding the sometimes 'lack of prevalence' of social science evidence regarding Charter s.15 discrimination:(iii) Whether the tribunal erred in equating a lack of prevalence with a lack of adverse impact
[74] I also find that the tribunal erred in equating a lack of prevalence with a lack of adverse impact. I have referred in paragraph 62 above to paragraph 54 of the tribunal’s reasons, where the tribunal expressed its dissatisfaction with Mr. Stapleton’s statistics. In that same paragraph, the tribunal made it clear that in its view, the prevalence of people with disabilities in s. 21(1) housing was an essential, and missing, piece of evidence. This was an error.
[75] As the tribunal notes, there were no reliable available data about prevalence of disabled people in s. 21(1) housing. However, even if there were data that showed a lack of prevalence of this population in s. 21(1) housing, the available qualitative data suggest that this may be precisely because people with disabilities are discriminated against when seeking s. 21(1) housing or other shared housing. As the applicant points out, in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, women comprised only 5% of firefighters. However, this low prevalence did not mean the aerobic fitness standard that was being challenged had no adverse impact on women. Presumably, the low prevalence of women from the profession could be seen as a result of that very standard.
Conclusion
[76] The tribunal’s focus on statistical evidence, the lack of disaggregated data, and the lack of evidence of prevalence of disabled people in s. 21(1) housing, when all parties agreed that disaggregated statistical evidence did not exist, created an insurmountable hurdle for the applicant. In failing to consider the inferences available to it from the evidence before it, the tribunal failed to adopt the required flexible approach tailored to the circumstances of this case, and failed to consider whether the evidence demonstrates the type of “built-in headwinds” referred to by the Supreme Court in Fraser. . Fulton v. Guan et al
In Fulton v. Guan et al (Div Ct, 2026) the Divisional Court allowed an HRTO JR, this brought against "the decision of the Human Rights Tribunal of Ontario .... dismissing his application", this grounded in disability (blindness) regarding residential accomodation. The application was denied on the HRC s.21(1) ['Residential accommodation - Shared accommodation'] exception which the applicant challenged under Charter s.15 ['discrimination'].
Here the court considered the nature of evidence required to ground Charter s.15 'discrimination':[64] In a s. 15(1) analysis, no specific form of evidence is required, and the causal connection may be satisfied by reasonable inference. While both statistical evidence of disparity and evidence of broader group disadvantage may demonstrate disparate impact, statistical evidence may not exist, and neither type of evidence is mandatory: Fraser, at paras. 61, 66 and 67; Sharma, at para. 49, Kanyinda, at paras. 52 and 54. The particular evidentiary burden will depend on the claim: Sharma, at para. 49; Kanyinda, at para. 54. To require statistical evidence – in this case disaggregated statistical evidence - where none exists is to place an impossible burden on the applicant.
[65] The tribunal treated the absence of disaggregated statistical evidence as fatal to Mr. Fulton’s application. It found that because there were no specific, disaggregated statistical data available about disabled people in s. 21(1) housing, there was no basis upon which it could draw conclusions or base inferences. The tribunal erred in creating a “rigid evidentiary requirement” (Kanyinda, at para. 60) by insisting on statistical data where all parties agreed none were available, and by allowing the absence of disaggregated statistics to put an end to its inquiry.
(ii) Whether the tribunal erred in refusing to draw appropriate inferences from the substantial evidence put forward by the applicant
[66] The tribunal drew only very limited inferences from the evidence. It held as follows:[73] In the record before me, I have ample evidence of the physical, social, cultural or other barriers that persons with disabilities face in the housing sector. I accept that people with disabilities experience pre-existing socio-economic disadvantage, tend to have lower incomes, and are more likely to have a core housing need. However, I do not have clear and cogent evidence that directly establishes or from which I can draw a reasonable inference, that s. 21(1) disproportionately impacts individuals with disabilities. [67] The tribunal was required to consider the inferences that flow from the evidence the parties adduced. In my view, the tribunal improperly ignored evidence it was required to consider about the “full context of the claimant group’s situation” and about “the outcomes that the impugned law or policy . . . has produced in practice”: Sharma, at para. 49. It ignored “evidence about the physical, social, cultural or other barriers which provide the ‘full context of the claimant group’s situation’”: Kanyinda, at para. 51 [internal citations omitted].
[68] For example, the tribunal wholly ignored Dr. Ignagni’s evidence. She testified that the absence of disaggregated data for people with disabilities worsens their vulnerabilities. The tribunal did not consider that, in the case of acknowledged data poverty, qualitative evidence and available inferences may take on greater importance and require close examination. The tribunal did not refer at all to the evidence of Dr. Ignagni, or Mr. Fulton, and did not consider Mr. Whitmore’s contextual evidence about disabled people’s need for and barriers to affordable housing. Yet Dr. Ignagni provided evidence that although one cannot generalize in a statistical manner from a qualitative study, one can gain insight and contextual information from it. This was important evidence that the tribunal wholly ignored.
[69] The tribunal had evidence before it that established the following: a) shared accommodation, including s. 21(1) housing, is generally the least expensive type of housing available in Ontario; b) people with disabilities are disproportionately over-represented in Ontario’s low income earners; c) people with disabilities therefore have a disproportionate need of less expensive housing options than non-disabled people; and d) people with disabilities are over-represented in housing discrimination complaints. There was also specific evidence from Mr. Fulton and Mr. LaForest about people being denied s. 21(1) accommodation because of their disabilities.
[70] Therefore, a logical inference is that people with disabilities are disproportionately affected by a provision that permits discrimination in a category of housing that includes its most affordable options. Whether other protected groups are also excluded from the Code's protections is irrelevant to the analysis: Kanyinda, at para. 44.
[71] I do not agree with the Attorney-General’s submission that the evidence proffered by the applicant was simply a proxy for poverty, assumptions based on poverty, or pre-existing socio-economic disadvantage. The evidence was not indirect and generic evidence of socioeconomic disadvantage, as was the case in Begum, a case on which the Attorney-General relies. Rather, the tribunal had evidence about the experiences of people with disabilities being reliant upon, and often unable to obtain access to, s. 21(1) housing because of their disability.
[72] I also do not accept the Attorney General’s submission that the evidence was limited to creating a “web of instincts”, which the courts cautioned against in Jacob and Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, at para. 34. Instinct is not the same as available inferences. It would be improper to rely on instinct to conclude, in the absence of evidence, that it seems that people with disabilities experience an adverse impact from permitted discrimination in a segment of affordable housing. However, it is not an error to draw inferences from a series of propositions that are grounded in the evidence to find that impact.
[73] I conclude that the tribunal erred in finding the evidence insufficient to ground inferences that lead to the conclusion that s. 21(1) causes or contributes to a distinction through its disproportionate or differential impact on people with disabilities.
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[76] The tribunal’s focus on statistical evidence, the lack of disaggregated data, and the lack of evidence of prevalence of disabled people in s. 21(1) housing, when all parties agreed that disaggregated statistical evidence did not exist, created an insurmountable hurdle for the applicant. In failing to consider the inferences available to it from the evidence before it, the tribunal failed to adopt the required flexible approach tailored to the circumstances of this case, and failed to consider whether the evidence demonstrates the type of “built-in headwinds” referred to by the Supreme Court in Fraser. . Quebec (Attorney General) v. Kanyinda
In Quebec (Attorney General) v. Kanyinda (SCC, 2026) the Supreme Court of Canada partially allowed an appeal, this brought against a Charter s.15 Quebec CA order "that refugee claimants with a work permit and residing in Quebec be “read in” to s. 3 subpara. 3 of the RCR" ['Educational Childcare Act - Reduced Contribution Regulation'], meaning that the appellant was eligible for childcare subsidy despite her ungranted refugee status.
Here the court comments on evidence useful to establish Charter s.15 discrimination:[73] Two types of evidence are particularly helpful in establishing a disproportionate impact: evidence about the claimant group’s situation and evidence about the results of the law. Neither form is required and the evidentiary burden cannot be too difficult to meet (Fraser, at paras. 56-59; Sharma, at para. 49).
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