Ripplinger v. Ryan (1996), 24 C.H.R.R. D/435 (Sask. C.A.) [Eng. 6 pp.] Barrier-free access for wheelchair user -- restaurant service denied to wheelchair user -- refusal to provide barrier-free access based on economic reasons -- duty to accommodate short of undue hardship-- compliance with act does not preclude human rights subscriptions violation
DISABILITY -- barrier-free access for wheelchair user -- restaurant service denied to wheelchair user -- BUSINESS NECESSITY -- refusal to provide barrier-free access based on economic reasons -- REASONABLE ACCOMMODATION -- duty to accommodate short of undue hardship --PUBLIC SERVICES AND FACILITIES -- art gallery and restaurant
APPEALS AND JUDICIAL REVIEW -- error of law in findings on the evidence -- DISCRIMINATION -- officially induced error as reasonable cause for discrimination
Summary: This is an appeal by Judith Anne Ryan from a decision of the Court of Queen's Bench. The Court of Queen's Bench overturned a decision of a Board of Inquiry which ruled that Ms. Ryan was discriminated against because of her disability because the premises of the Collections Fine Art Gallery were not accessible to persons using wheelchairs.
Ms. Ryan filed a complaint in 1991 when she learned that renovations were being made to the Collections Fine Art Gallery but there were apparently no plans to make it accessible. The renovations had the effect of joining together two structures, to make a gallery and cafe complex which allowed customers to move from one to the other indoors.
The renovations were completed in compliance with the Uniform Building and Accessibility Standards Act and with permits issued by the City of Regina, but the building was not made accessible.
The Board of Inquiry found that the fact that the renovations complied with the Uniform Building and Accessibility Standards Act did not preclude its finding that The Saskatchewan Human Rights Subscriptions was violated. The Subscriptions takes precedence by virtue of s. 44 which gives it paramountcy over other legislation. The Board of Inquiry also concluded that given the financial status of Mr. Ripplinger's business operation, making the gallery accessible was not an undue hardship.
On appeal, the Court of Queen's Bench ruled that the Board of Inquiry erred by embarking on an inquiry into the whole complex when the complaint form Ms. Ryan signed referred only to the Gallery on Smith Street. The Court also found that the Board of Inquiry deal with information regarding the business operation as a whole rather than financial information regarding the Smith Street operation, and consequently it could not properly assess whether there was an undue hardship. The Court of Queen's Bench set aside the decision of the Board of Inquiry.
The Court of Appeal finds, however, that the Board of Inquiry did not err in determining that the joined buildings were to be treated as one business undertaking. Ms. Ryan's complaint was made after she saw renovations being made to the Gallery that would join the two buildings together. She was complaining that Mr. Ripplinger failed to make the whole complex accessible. The respondent was aware of this and was not prejudiced by the Board's consideration of the whole complex.
The Court of Appeal also rejects the respondent's argument that his compliance with the Uniform Building and Accessibility Standards Act is a complete answer to the complaint. The UBAS Act states specifically that compliance with its requirements does not authorize constructing a building that does not comply with any other Act or law.
Finally, the Court of Appeal finds that the Board of Inquiry correctly ruled that Mr. Ripplinger did not prove an undue hardship. The order of the Board of Inquiry simply requires Mr. Ripplinger to cease the contravention and creates the opportunity for a negotiated settlement in consultation with the Commission.
It is conceivable that if a negotiated settlement is not concluded, the Board of Inquiry may issue an order; and Mr. Ripplinger may be able to argue that such an order creates an undue hardship. It will be up to him to prove his case at that time.
The appeal is allowed and the decision of the Board of Inquiry is restored.
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