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Disability - Housing. 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 reviews evidence submitted in this Charter s.15(1) case regarding the connections between disability, poverty and housing availability:[27] The HRTO noted that to succeed on his s. 15(1) argument, the claimant was required to demonstrate two things. First, he had to show that, on its face or in its impact, s. 21(1) creates a distinction based on enumerated or analogous grounds. Second, the claimant must show that the impugned law imposes a burden or denies a benefit in a way that reinforces, perpetuates, or exacerbates disadvantage: R. v. Sharma, 2022 SCC 39, [2022] 3 S.C.R. 147, at para. 28.
[28] The HRTO found that s. 21(1) is facially neutral because it applies equally to all Ontarians regardless of their Code-enumerated grounds. The tribunal reasoned that s. 21(1) makes no distinction between those with and without disabilities and therefore does not directly discriminate against the applicant. Section 21(1) defines the scope of the guarantee from discrimination in housing. The provision excludes a certain kind of dwelling, not a particular class of persons.
[29] Having found the provision to be facially neutral, the HRTO went on to consider whether s. 21(1) has a disproportionate impact on people with disabilities.
[30] The HRTO noted that to establish adverse effect discrimination, the applicant was required to present sufficient evidence to prove that the law creates or contributes to a disproportionate impact on the basis of a protected ground.
[31] Among other evidence put forward at the hearing, both the applicant and Ontario called expert witnesses.
[32] The first of the applicant’s experts was Esther Ignagni, a university professor who was qualified to provide opinion evidence “in the area of disability studies and the barriers to accessing adequate housing faced by disabled people.” Dr. Ignagni testified that disabled people, particularly those who occupy multiple marginalized social positions, are disproportionately affected by housing policies that limit their housing options. However, there are few quantitative analyses examining disabled Canadians’ housing conditions. There is a poverty of data in this regard. The absence of disaggregated data for people with disabilities worsens their vulnerabilities. Dr. Ignagni testified that one cannot generalize in a statistical manner from a qualitative study, but such a study can provide insight and contextual information.
[33] The tribunal then heard from John Stapleton, a senior researcher who was qualified as an expert on statistical analysis, social assistance policy, and poverty issues. Mr. Stapleton’s evidence was that to the best of his knowledge, there is no independent research or academic literature that tracks quantitative data on the prevalence of owner-shared housing in Ontario’s housing market. While boarding houses are not necessarily s. 21(1) housing, in the existing data, they are a close proxy to demonstrate that lower income Ontarians with disabilities tend to disproportionately rent housing that is shared with other people.
[34] Next, the applicant called Adam LaForest, a community support worker and registered social worker. Mr. LaForest was qualified as an expert in the low-income housing market in the catchment area of the Scarborough Community Legal Services and the Greater Toronto Area and the housing needs of low-income individuals in these areas. Mr. LaForest provided evidence about the difficulties faced by his disabled clients in renting housing, and about this population’s need for affordable accommodation, which is often a shared room in owner-occupied housing.
[35] Fourth, the applicant tendered the evidence of Dale Whitmore, the Director of Strategic Litigation for the Canadian Centre for Housing Rights, who was qualified as an expert in housing and human rights issues, including with respect to systemic barriers to housing faced by disadvantaged groups. The tribunal excluded a portion of Mr. Whitmore’s affidavit, which provided contextual evidence about the need for and barriers to affordable housing for disabled people, among others. While the tribunal stated it would provide reasons for excluding this evidence in its final decision, it failed to do so. Mr. Whitmore provided evidence that clients who share a kitchen or bathroom with their landlord are more likely to experience discrimination on the basis of Code-protected grounds, including disability, compared to clients who do not live with their landlord, and that any discrimination in the rental housing market disproportionately affects Ontarians on social assistance and Ontarians with disabilities.
[36] The Attorney-General adduced evidence from two experts. First was Frank Clayton, who was qualified as an expert in urban and real estate economics. Mr. Clayton’s evidence was that housing affordability in Ontario would be increased by a significant increase in housing supply. He opined that Mr. Stapleton’s evidence did not provide meaningful information on occupants of s. 21(1) housing.
[37] The Attorney-General also led evidence from Nathaniel Lauster, a sociologist and housing scholar who provided his opinion about the potential impacts on the rental market if s. 21(1) housing were no longer available.
[38] In considering the evidence before it, the HRTO noted that there was ample evidence of barriers in the housing sector that exist for people with disabilities.
[39] The tribunal accepted that people with disabilities experience socio-economic disadvantage, tend to have lower incomes, and are more likely to have a core housing need, which exists when people do not live in acceptable housing or pay a disproportionate share of their income for inadequate shelter. However, the tribunal found there was not clear and cogent evidence before it to support a finding or an inference that s. 21(1) has a disproportionate impact on individuals with disabilities including the applicant.
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