HRTO Application to Proceed After Divisional Court Overturns Decision That Dismissed Charter Challenge to Housing Exemption

HRTO Application to Proceed After Divisional Court Overturns Decision That Dismissed Charter Challenge to Housing Exemption

A recent Divisional Court ruling has cleared the way for a human rights challenge to proceed on shared housing exemptions under the Code.

Benjamin Fulton filed an application with the Human Rights Tribunal of Ontario (HRTO) alleging that a couple had refused to rent to him in their house because he is blind. Under section 21(1) of the Code, if a tenant shares a kitchen or bathroom with the owner of the property or a member of the owner’s family there is an exemption to the usual protections against discrimination in housing.

Fulton challenged this Code exemption, arguing that excluding such housing from Code protection violated his rights under section 15 of the Canadian Charter of Rights and Freedoms by having an adverse impact on individuals with disabilities. He provided the HRTO with expert evidence to show that individuals with disabilities are more reliant on shared accommodation as they are disproportionally lower income and shared accommodation tends to be more affordable than self-contained dwellings.

In May 2025, the HRTO dismissed his Charter challenge (Fulton v. Guan, 2025 HRTO 1109), finding that Fulton’s evidence was not sufficient to establish adverse impact discrimination. Fulton filed an application for judicial review of this decision to the Divisional Court, arguing, in part, that the HRTO’s assessment of his evidence was unreasonable.

In August 2026, the Divisional Court found the HRTO’s decision was unreasonable (Fulton v. Guan 2026 ONSC 2757).

First, the Court found there was sufficient evidence for the HRTO to find the Code exemption has a disproportionate impact on people with disabilities. The evidence showed that shared accommodation is the least expensive form of housing and individuals with disabilities are disproportionally lower income.

Second, the Court found the HRTO erred in dismissing the Charter challenge because of the lack of specific types of evidence, such as precise statistical evidence or evidence showing the prevalence of people with disabilities in shared accommodation. The Court noted that no specific form or type of evidence is required for a section 15 Charter analysis.

As a result of the Court’s decision, Fulton’s application will be sent back to the HRTO and Fulton will have the opportunity to argue the remainder of his Charter challenge to the Code exemption.