Dated: 20020424 2002 SKCA 56 Docket: 3338 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Vancise, Gerwing Lane JJ.A. HENRY KENNETH RIPPLINGER and HKR COLLECTIONS FINE ART LIMITED and THE SASKATCHEWAN HUMAN RIGHTS COMMISSION COUNSEL: Mr. Hal B. Wellsch for the Appellants Mr. Milton C. Woodard, Q.C. for the Respondent DISPOSITION: On Appeal From: Q.B.M. 492/93 Appeal Heard: April 22, 2002 Appeal Dismissed: April 22, 2002 (orally) Written Reasons: April 24, 2002 Reasons By: The Honourable Mr. Justice Vancise In Concurrence: The Honourable Madam Justice Gerwing The Honourable Mr. Justice Lane VANCISE J.A. (orally) [1] Henry Ripplinger and HKR Collections Fine Art Limited (the appellant) appeal decision of Matheson J. confirming the second decision of Board of Inquiry appointed by the Minister of Justice under The Saskatchewan Human Rights Code[1] (the Code) which found that the appellant continued to discriminate against disabled members of the public by failing to provide access and accessible services to wheelchair users and ordered the appellant to construct or renovate washrooms to meet the accessibility requirements of the National Building Code of Canada 1995.[2] The appellant appeals contending that the Board exceeded its jurisdiction in making the order that it did. [2] Henry Ripplinger was the registered owner of the property which formed the subject matter of the complaint at the time the original complaint was filed. The property was subsequently transferred by Mr. Ripplinger to HKR Collections Fine Art Limited, company of which he is the sole director and in de facto control. The Board added the company as party to the proceedings. They will be referred to collectively as the appellant in this appeal. [3] This matter began in 1991. Ms. Judith Ryan complained to the Human Rights Commission that Collections Fine Art Gallery operated at that time by Henry Ripplinger could only be entered by stairs and was inaccessible to her as wheelchair user. [4] formal inquiry into the complaint was ordered by the Minister of Justice and hearing was held in 1993. The Board rendered decision in which it concluded that the appellant’s “complex impedes physical access to the premises, facilities and services and lacks proper amenities for persons who are wheelchair-reliant”[3] [emphasis added]. The appellant was ordered to cease contravening the Code and in consultation with the Commission to take measures to ensure that the contraventions would not occur in the future. The Board of Inquiry specifically ordered that it remained seized of the matter “and the hearing will be reconvened to hear further evidence on the question of remedies and more specific orders at that time”.[4] [5] The appellant appealed that decision and it was quashed by the Court of Queen’s Bench. The Commission appealed to the Court of Appeal. The decision of the Court of Queen’s Bench was set aside and the decision of the Board was restored by this Court. [6] During those proceedings the gallery property was transferred to HRK Collections Fine Art Limited and further renovations were undertaken to the property. In April 1997, the Commission requested the Board to reconvene to consider whether the appellant had complied with the order of the Board which had been restored by this Court and to add HRK Collections Fine Art Limited as party to the proceedings. The appellant appealed that decision to the Court of Queen’s Bench. The decision of the Board was confirmed and that decision has not been appealed to this Court. [7] The Board reconvened and evidence was adduced by the Commission with respect to the renovations to the gallery complex. The appellant objected to that evidence and the objection was dismissed by the Board. [8] On May 29, 1998, the Board ordered that the appellant “construct or renovate bathrooms for both sexes, or a single washroom provided that it can be used by both sexes in accordance with public health and building regulations, which meet all the accessibility requirements of the National Building Code”. [5] [9] The appellants appealed that decision to the Court of Queen’s Bench and Matheson J. dismissed the appeal. He found that the Board did not err in adding the company HRK Collections Fine Art Limited as a party and did not exceed its jurisdiction in finding that the appellant had not complied with its original order. [10] The appellant appeals that judgment principally on the ground that Matheson J. erred in failing to find that the Board had exceeded its jurisdiction in making the order that it did. Analysis [11] The primary issue before the Court of Queen’s Bench was whether the Board exceeded its jurisdiction in finding that the appellant had not complied with the original order of the Board. The appellant contended that the original order did not include a requirement that it construct washrooms which were accessible to wheelchair reliant members of the public. Matheson J. found the appellant could not at that stage of the proceedings question the original order made by the Board in 1993 which ordered the appellant to cease impeding physical access “to the premises, facilities and services” because the issue had been previously determined and the order reinstated by the Court of Appeal. He concluded that the extent of the order and its application was the very question the Board had to decide and it did not exceed its jurisdiction in so deciding [emphasis added].[6] [12] The appellants appeal the decision of Matheson J. to this court on essentially the ground that he erred in failing to find that the Board had exceeded its jurisdiction in finding that the appellant had not complied with the original order. [13] We are all of the opinion that Matheson J. did not err in so finding. The Board acted entirely within the terms of its original order, an order in which it had retained jurisdiction, to confirm compliance with the order and which had been confirmed by this Court. The original order cannot be challenged at this late date. The Board acted within jurisdiction in hearing evidence which went to the issue of whether the appellant consulted or did not consult with the Commission and to determine whether the renovations completed by the appellant complied with the order with the result that the appellant ceased to contravene the Code. The extent of the order, that is whether it was confined to the external access of the property or to other “facilities and services” and whether it had been complied with is the very question the Board reserved jurisdiction to determine. [14] In the result the appeal is dismissed with cost on double Column V. [1]S.S. 1979, c.S-24.1. [2](Ottawa: National Research Council of Canada, 1995). [3]Ryan v. Ripplinger (1993), 20 C.H.R.R. D/427 (Sask. Bd. Inq.) at para. 81. [4]Ibid. [5]Ryan v. Ripplinger (May 29, 1998), (Sask. Bd. Inq.) at p. 11. [6](1999), 1999 CanLII 12740 (SK QB), 183 Sask. R. 139 at para.
A complaint was made in 1991 to the Human Rights Commission that the Gallery could only be entered by stairs and was inaccessible to wheelchair users. A Board of Inquiry appointed under the Saskatchewan Human Rights Code concluded in 1993 that the appellant's complex impeded physical access to the premises, facilities and services and lacked proper amenities for persons who are wheelchair-reliant. The Board specifically ordered it remained seized of the matter and the hearing would be reconvened to hear further evidence. The Court of Queen's Bench confirmed the Gallery continued to discriminate against disabled members of the public by failing to provide access and accessible services and ordered the appellant to construct or renovate washrooms to meet requirements of the National Building Code of Canada. The Court of Appeal set aside the Queen's Bench decision and restored the Board's decision. During those proceedings, the property was transferred to HKR, which undertook further renovations. In 1997 upon request by the Commission, the Board reconvened and concluded there had not been compliance, which was confirmed by the Court of Queen's Bench. This was not appealed. An appeal of the Board's 1998 order to construct or renovate the bathrooms was dismissed and it was found the Board did not err in adding HKR as a party nor exceeded its jurisdiction in finding the appellant had not complied with the original order. The appellant appealed that judgment principally on the ground of error in not finding the Board exceeded its jurisdiction in making the order as the original order did not include a requirement that it construct wheelchair accessible washrooms. HELD: The appeal was dismissed with costs on double Column V. The Queen's Bench judge did not err in finding the appellant could not, at that stage of proceedings, question the original order made by the Board in 1993 (ordering the appellant to cease impeding physical access to the premises, facilities and services). The issue had been previously determined and the order was reinstated by the Court of Appeal. The Board acted entirely within the terms of its original order. It retained jurisdiction to confirm compliance. The original order cannot be challenged at this late date.