The Lawyers Weekly - May 18, 2012

door-to-door policy was not ignored by
the General Manager, as the door to the
store itself was within the radius, with the
door to the 45-foot adjoining hallway out-
side of the radius. Termination of the
relocation application was thus reason-
able. It was reasonable to refuse recon-
sideration, as the General Manager was
functus upon making a final decision to
terminate the application.
Scimtar Enterprises Ltd. v. British
Columbia (General Manager, Liquor
Control and Licensing Branch), [2012]
B.C.J. No. 640, British Columbia
Supreme Court, J.M. Gropper J., March
30, 2012. Digest No. 3203-008
referred to the arbitrator for determina-
tion of any compensation issues.
Canada Post Corp. v. Canadian Post-
masters and Assistants Assn., [2012]
N.J. No. 120, Newfoundland and Labra-
dor Supreme Court, Trial Division -
General Division, W.G. Dymond J.,
March 28, 2012. Digest No. 3203-009
REAL PROPERTY LAW
LABOUR ARBITRATION

HUMAN RIGHTS AND PRIVACY
ISSUES – Discrimination – Duty to
accommodate – Undue hardship – Dis-
ability – Awards – Reinstatement.
Application by the employer, Canada
Post, for judicial review of a grievance
arbitration decision. The grievor was a
postmaster represented by the respond-
ent, the Canadian Postmasters and Assist-
ants Association. The grievor worked for
the employer from 1981 onward and had
been employed in the Post Saunders office
since 2004. She was injured at work in
2006 and was approved for temporary
earnings loss (TEL) benefits in September
2007 based on pain and a reduction in
mobility in her hand and shoulder. A pro-
posed return to work plan was recom-
mended, which included a list of accom-
modations including a reduction in hours.
In 2008, the grievor was advised that she
was entitled to extended earning loss
(EEL) benefits due to a conclusion that
she had reached her maximum medical
recovery and was unable to increase her
hours. The employer advised the grievor
that it would implement a stand-alone
16-hour weekly position to accommodate
her work restrictions. The grievor’s status
was consequently changed from a full-
time to part-time employee with a con-
comitant change in benefits. The grievor
took early retirement and a grievance was
filed alleging a failure to accommodate the
grievor’s disability. The arbitrator ruled
that the employer failed to sufficiently
accommodate the grievor and ordered
reinstatement to full-time status. The
employer sought judicial review.
HELD: Application allowed in part.
The arbitrator’s finding that the employer
did not accommodate the needs of the
grievor was reasonable. The change in
status from full-time to part-time occurred
prior to completion of the recommended
workplace modifications. The change in
the grievor’s status was properly found to
be premature. There was no evidence to
indicate that the remaining accommoda-
tions would have caused undue hardship.
The arbitrator was not incorrect in declar-
ing that the grievor was entitled to be
considered a full-time status employee up
to the time she voluntarily retired. The
change in status would have been reason-
able had it followed implementation of all
of the recommended workplace modifica-
tions and been based on a current medical
evaluation showing that the grievor was
unable to increase her hours. However,
the arbitrator erred in reinstating the
grievor to her position, as post-retirement
reinstatement was not sought in the griev-
ance and the validity of the resignation
was not challenged. The matter was
CONDOMINIUMS – Purchase and
sale of – Interests in land – Joint estates
– Tenancies in common – Partition.
Petition by Mowat and others under
the Partition of Property Act for an order
for the sale of Cypress Gardens, a condo-
minium complex. Cypress Gardens was a
condominium development, comprising
177 apartments and townhouses owned by
135 different owners. Each of the petition-
ers and the respondents was an owner of a
unit in Cypress Gardens. The petitioners
wanted to sell the entire complex, believ-
ing that the 9. 5 acres of land upon which
the housing development was built was
worth more as bare land than it was with
the buildings on it. They wished to find a
buyer for the entire complex who would
demolish the buildings and redevelop the
land with new buildings at a higher
density. The respondents wished to con-
tinue living in the homes they owned at
Cypress Gardens. The relief sought in the
petition had the formal support of the
owners of 54 of the 177 units. The peti-
tioners claimed that it did not matter
whether their plan to sell the entire com-
plex had wide support among the owners
or not. They submitted that since each
petitioner was a co-owner of Cypress Gar-
dens, each petitioner had a prima facie
right to obtain an order for sale of the
entire complex under the Partition of
Property Act. They claimed the complex
was in need of costly repairs and they
could not sell their individual interests for
as much money as they expected could be
realized by selling the entire complex and
distributing the proceeds.
HELD: Petition dismissed. It would
have been unjust to make an order for sale.
The petitioners did not establish that a
majority of the owners of the property were
requesting the court to direct a sale. There
was evidence that many of the respondents
would suffer hardship if there was an order
for sale of the land. An order for sale would
have forced particularly vulnerable people,
including young children, single parents,
the elderly, the infirm, and people of very
limited financial means, out of their homes.
The evidence established that a substantial
number of residents at Cypress Gardens
would have been unable to purchase com-
parable replacement homes for the amount
of money they would have likely realized
from a court-ordered sale. Moreover, many
of the respondents would not have been
able to finance the additional cost of pur-
chasing replacement accommodation, with
the result that they would have lost their
homes and be forced either to rent or to
move to a different municipality, far from
their work, their friends, and their chil-
dren’s schools. The Cypress Gardens User
Agreement did not deal with sale of the
entire interest in the property. However, it
did contain provisions that set out how
owners could dispose of their o wn undivided
interests. This was not a case in which the
petitioners had no way to dispose of their
ownership interests unless they had
recourse to the courts. On the contrary, they
could sell their interests at any time in the
same way that they had purchased them in
the first place. Cypress Gardens was mar-
keted in such a way as to encourage pro-
spective purchasers to believe that what
they were buying was the functional equiva-
lent of a statutory condominium. Purchas-
ers were led to believe that they were buy-
ing individual homes, and not merely a
fractional interest in 9. 5 acres of land and
buildings that could be sold out from under
them any time a minority of owners, or
even a single owner, decided to bring a peti-
tion under the Partition of Property Act.
The respondents reasonably believed that a
sale of the kind sought by the petitioners
could only come about through a demo-
cratic process expressing the will of a sub-
stantial majority of the owners, by way of a
process similar to that in the Condominium
Act, namely, a special resolution of at least
75 per cent of the owners.

WORKPLACE HEALTH, SAFETY
& COMPENSATION LAW
WORKERS’ COMPENSATION –
Appeals and judicial review – Boards
and tribunals – Limitation periods.
Petition by Demings and her late hus-
band’s estate for judicial review of deci-
sions made over the course of 30 years by
various statutory entities of the workers’
compensation regime. In 1980, the peti-
tioners applied for dependants’ relief in
respect of the death of their son in a
workplace accident on the basis that their
son had been paying room and board and
was expected to do so for a further five
years. The Board found that the petition-
ers did not establish entitlement to com-
pensation, as they were not dependants.
The Board of Review dismissed their
appeal in 1980, agreeing with the finding
that the son’s contributions did not con-
stitute support, but merely covered
expenses. The petitioners failed to appeal
the 1980 decision within the limitation
period. No further steps were taken for 17
years. Meanwhile, significant legislative
amendments were made to the appellate
regime. In 1997, new counsel for the peti-
tioners wrote to the Board seeking an
extension of time to make a dependants’
claim. Counsel was referred to the 1980
decision. Counsel wrote to the Appeal
Division, suggesting that the husband
had not pursued a dependency claim
based on the lost possibility of the son
taking over his business. The Appeal Div-
ision advised that it did not have jurisdic-
tion to reconsider decisions by the Boards
of Review. In 1998, the Review Board
declined to set aside the 1980 decision,
finding no breach of natural justice. In
1999, the Appeal Division denied a
request for an extension of time to appeal
the 1980 decision. Further amendments
were made to the appellate regime. In
2007, new counsel wrote to the Appeal
Tribunal seeking reconsideration of the
1999 decision and was advised that the
Tribunal lacked jurisdiction. In 2010, the
petitioners sought reconsideration on the
basis of new evidence, but the Appeal
Tribunal rejected the evidence. The peti-
tioners sought judicial review beginning
in 2008, with the 2010 Tribunal decisions
added to the petition.

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