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Evidence - Social Science. 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. . Fair Voting BC v. Canada (Attorney General)
In Fair Voting BC v. Canada (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal dismisses (IMHO harshly) a Charter s.3 ['democratic rights'] and s.15 ['discrimination'] challenge to the federal electoral system.
Here the court considers the appropriateness of social science evidence in this electoral context:The nature and relevance of the expert evidence
[19] As noted above, this application involves a voluminous record with considerable expert evidence proffered by academics, chiefly by those who study politics. Great care is required in assessing such evidence. Social science evidence may have an empirical dimension, but unlike natural science evidence it is not inherently oriented to discovering the objective truth of some matter under investigation. Not all academic disciplines can be evaluated on the same metrics, and not all research has the same methodology or even the same purpose.
[20] Social science research is concerned with human behaviour and typically has a significant normative dimension: research is often a matter of assessing arguments for competing proposals, using contested criteria. Often, what appears to be disinterested conceptual or empirical analysis is better understood as the marshalling of facts and arguments to create a case for a policy change favoured by the author. Evidence that is the product of such research must be assessed with an awareness of the researcher’s objectives, and in the knowledge that there is considerable disagreement – reasonable disagreement – amongst social science experts on everything from causation to policy preferences. All of this is to say that the policy recommendations of those within the academic community must be evaluated by the soundness of their observations and arguments, and not by the sheer fact of their academic credentials. Academic views are not entitled, a priori, to priority over anyone else’s.
[21] Although the application judge acknowledges that the question for the court is not whether the SMP electoral system is optimal according to some set of criteria fashioned by the experts, or whether a PR system would be preferable on some or other basis, he discusses these questions in considerable detail and at several points in his decision comments favourably on PR. There are many variants of PR, however, and it is misleading to talk about PR in the abstract. For example, PR systems may involve the appointment of members to the legislature from lists of candidates compiled by political parties, with seats apportioned having regard to a party’s share of the party vote, as opposed to the votes cast for individual candidates. PR systems may establish minimum vote percentage thresholds that must be reached by a party before any of its members are appointed. PR systems may involve the direct election of members to the legislature as well as the appointment of members from party lists. And so on. The many possible variations of PR preclude generalized judgments about its operation. With respect, the application judge’s comment that the appellants “have shown that PR would be a fair system” is insufficiently attentive to these nuances and is inapt. It is also irrelevant to the questions before him.
[22] These sorts of comments stray beyond the realm of legal analysis into policy analysis. The court is legitimately concerned only with the question whether the federal electoral system we have violates the Charter. Opinion evidence from academic experts as to the operation and potential benefits of a PR electoral system we do not have is not relevant to answering that question.
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