When the Data Does Not Exist: Divisional Court Addresses “Data Poverty” in Disability Equality Claim

In Fulton v. Guan, 2026 ONSC 2757, the Ontario Divisional Court considered an important question about how adverse-effects discrimination can be proven where precise statistical evidence simply does not exist.

The Court allowed an application for judicial review brought by our client, Benjamin Fulton, challenging a decision of the Human Rights Tribunal of Ontario (“HRTO”). The Court found that Mr. Fulton had established that s. 21(1) of Ontario’s Human Rights Code has a disproportionate impact on persons with disabilities, satisfying the first stage of the equality analysis under s. 15(1) of the Canadian Charter of Rights and Freedoms.

The s. 21(1) exemption

Section 21(1) of the Human Rights Code creates an exemption from the Code’s protections against discrimination in housing. Where an occupant must share a bathroom or kitchen with the owner of the dwelling or the owner’s family, the usual protections against discrimination in accommodation do not apply.

The consequences of that exemption were very real for Mr. Fulton.

Mr. Fulton is blind. In 2017, while looking for housing, he responded to an advertisement for a room in a house. After he disclosed his disability, the landlord explicitly refused to rent the room to him because of concerns arising from his blindness.

Ordinarily, refusing housing because a prospective tenant is blind would engage the protections of the Human Rights Code. Because the proposed accommodation fell within s. 21(1), however, the HRTO found that the refusal was exempt from those protections.

Mr. Fulton challenged the constitutionality of s. 21(1), arguing that the exemption itself has a disproportionate adverse impact on persons with disabilities contrary to s. 15(1) of the Charter.

The problem of “data poverty”

A central difficulty in the case was the absence of precise statistical data.

The parties agreed that there is no reliable disaggregated data identifying how many rental units in Ontario fall within s. 21(1), or how many persons with disabilities live in such housing. The Divisional Court described this evidentiary reality as one of “data poverty.”

In the absence of those precise statistics, Mr. Fulton presented a substantial evidentiary record addressing the broader realities faced by persons with disabilities in the housing market. That evidence included expert, quantitative and qualitative evidence concerning poverty and income, core housing need, the affordability of shared accommodation, and discrimination experienced by persons with disabilities seeking rental housing.

The HRTO accepted that there was ample evidence of the barriers persons with disabilities face in the housing sector. It nevertheless concluded that there was insufficient evidence from which it could infer that s. 21(1) itself had a disproportionate impact on persons with disabilities. In particular, the Tribunal repeatedly returned to the absence of evidence establishing the “prevalence” of persons with disabilities within s. 21(1) housing.

The constitutional challenge was therefore dismissed.

The Divisional Court’s decision

The Divisional Court found that this approach imposed too rigid an evidentiary requirement.

The Court emphasized that adverse-effects discrimination under s. 15(1) does not depend upon one particular form of proof. Statistical evidence may be powerful evidence of disproportionate impact, but it is not invariably required. Depending upon the case, adverse impact may also be demonstrated through expert evidence, qualitative evidence, the claimant’s own experience, and reasonable inferences drawn from the evidentiary record.

This was particularly important in the context of the acknowledged “data poverty” surrounding s. 21(1). Requiring Mr. Fulton to produce precise prevalence statistics that did not exist risked imposing an impossible evidentiary burden.

The Court also distinguished between a lack of evidence of prevalence and a lack of evidence of adverse impact. Those are not the same thing.

Viewed as a whole, the record demonstrated the significant socio-economic and housing disadvantages experienced by persons with disabilities. It also included evidence that low-cost shared housing of the kind captured by s. 21(1) may be particularly important to people facing those economic constraints. The Court held that the Tribunal failed to meaningfully consider that qualitative and contextual evidence, together with the reasonable inferences available from it.

The Court therefore concluded that Mr. Fulton had established that s. 21(1) has a disproportionate impact on persons with disabilities and had satisfied the first stage of the s. 15(1) analysis.

Why the decision matters

Fulton provides important guidance about the evidentiary burden facing equality claimants, particularly in cases involving communities for whom comprehensive statistical data may not exist.

A lack of data does not necessarily mean a lack of discrimination. Indeed, the absence of data about marginalized communities can itself make systemic inequality more difficult to identify and prove.

The decision confirms the importance of looking at the entire evidentiary record. Courts and tribunals must consider qualitative and contextual evidence and the reasonable inferences that arise from it rather than treating the absence of a particular statistical measure as determinative.

This is particularly significant in adverse-effects discrimination cases. Systemic inequality frequently arises not because a law expressly distinguishes on a protected ground, but because a facially neutral rule operates against an existing background of social and economic disadvantage.

The question is therefore not simply who can be counted within a particular statutory category. It is also how the law operates in the real world and whether, viewed in its full social context, it places disproportionate barriers in the path of members of a protected group.

What happens next

The Court did not determine the ultimate constitutionality of s. 21(1). Its finding concerned the first stage of the s. 15(1) analysis.

The matter will now return to the HRTO to determine whether s. 21(1) imposes burdens or denies benefits in a manner that reinforces, perpetuates or exacerbates disadvantage, and, if necessary, whether any infringement can be justified under s. 1 of the Charter.

Progressive Barristers represented the Applicant in the judicial review. We are grateful to the Ontario Human Rights Commission, and particularly counsel Reema Khawja and Alisha Krishna, for its participation in support of the Applicant’s position.

The decision is Fulton v. Guan, 2026 ONSC 2757.

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Progressive Barristers regularly represents individuals and organizations in human rights litigation, administrative law matters, judicial reviews, and appeals. If you require advice or representation in a human rights, appellate, or judicial review matter, pleasecontact us to discuss how we may be able to assist.