Fulton v. Guan et al, 2026 ONSC 2757
In this case, the Court found that the Tribunal had not conducted a fair and appropriate analysis of a Charter challenge to section 21(1) of the Code.
Section 21(1) exempts housing in which tenants share a kitchen or bathroom with the owner or the owner’s family from the Code’s protection against discrimination.
The applicant, Benjamin Fulton, is blind. At the time of the events that led him to file an Application with the Tribunal, he was a student with limited income. His experience was that when potential landlords found out he is blind, they refused to rent him accommodation. This sort of discrimination is prohibited by the Code, but section 21(1) exempts housing where the tenant shares a kitchen or bathroom with the owner or owner’s family. Because of his limited income, this was the sort of accommodation that Mr. Fulton was most likely to find that he could afford. Before the Tribunal, he argued that section 21(1) infringed his rights under section 15(1) of the Charter of Rights and Freedoms.
The Court noted that the first part of the test of whether section 21(1) infringes section 15(1) of the Charter, required Mr. Fulton to establish that the provision creates a distinction based on disability.
The Tribunal heard expert evidence related to that question. The Court found that the Tribunal completely ignored evidence that was supportive of Mr. Fulton’s position and was critical of a lack of other statistical evidence that all the parties agreed did not exist.
The Court found that “the HRTO erred and, applying proper principles, the applicant’s evidence meets the first part of the s. 15(1) test, sufficient to demonstrate that s. 21(1) has a disproportionate impact on him.”
The case was sent back to the Tribunal to undertake the next step in the analysis under the Charter.