Award Number 14-003

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Award Date: 2014-01-14
Arbitrator: McLaren, R.
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Municipality: Meaford-Thornbury
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Region: Central
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Classifications: Disbandment, Severance
Grievor: S. Birchall
Appearances: D.M. Bryce, for the Association
K. Kort, for the Employer
Length of Award:7 pp
Collective Agreements Cit.
Statutory Cit. Police Services Act, s. 40


Disbandment   Arbitration pursuant to s. 40 of Police Services Act commenced in 2002 – Hearing adjourned because certain facts unknown at the time - Two conditions precedent to continuing with hearing now satisfied - Incumbent on parties to proceed to complete hearing.

Severance   Disbandment of municipal police force - Hearing of severance claim of former acting chief commenced in 2002 - Proceeding adjourned because of uncertainty surrounding whether applicant would remain on LTD or receive employment offer from OPP - Applicant since transitioned from LTD to pension - Uncertainty removed - No impediment to proceeding under s. 40 of Police Services Act.


This arbitration hearing arose from the disbandment of the Meaford-Thornbury Police Service. The applicant, Stephen Birchall, had been acting chief of the police force since 1997. Birchall became ill and in February 2002 he was placed on long term disability benefits (LTD). The municipality decided to outsource policing functions to the OPP. When the s. 40 arbitration hearing was convened in November 2002 Birchall was still an employee of the service although he was on LTD. At that time there was a possibility that he might remain on LTD until 2004. There was also a possibility that he might receive an employment offer from the OPP. However, that could only happen if he a) was no longer on LTD; and b) provided satisfactory medical evidence that he was fit to return to duty as a police officer. Because those contingencies were unknown at the time of the hearing, the arbitration was adjourned sine die. In an interim award dated December 23, 2002 [OPAC #02-022] the arbitrator retained jurisdiction to continue the hearing in the event that the facts became “sufficiently clear to enable the parties to proceed with the arbitration”. In May 2011 the municipality of Meaford informed Birchall that as of July 13, 2011 (his 60th birthday) he was no longer eligible to receive LTD. Birchall transitioned to an OMERS pension. Afterwards, he requested that the adjourned arbitration hearing be reactivated.


The respondents, the municipality of Meaford and the town of Blue Mountains, submitted that the conditions precedent in the interim award had not been satisfied because since 2002 Birchall had never been medically capable of performing the duties of a police officer. In the alternative, the respondents submitted that Birchall was precluded from a determination under s. 40 of the Police Services Act because he had not been terminated and had not suffered any loss. Birchall, the applicant, argued that the conditions precedent in the interim award had been satisfied. He submitted that his employment was terminated with the disbandment of the service, and that he had a credible claim for economic loss.

Award #

The respondents raised a new allegation: that Birchall was never terminated and thus was not entitled to any compensation. However, as indicated in the interim award, the parties agreed that the arbitrator had jurisdiction to make a final and binding determination of the matter. Accordingly the matter of termination was decided and the respondents were estopped from claiming otherwise. The first condition from the interim award was satisfied: Birchall was no longer eligible for or receiving LTD. The second condition required him to demonstrate fitness to return to work during the period in which the OPP might offer him employment. That period had now expired upon Birchall’s retirement and the discontinuance of his LTD benefits. No uncertainty surrounding the contingencies identified in the interim award remained. Thus the two conditions precedent to the continuation of the hearing had been satisfied. There was no impediment to proceeding under s. 40 of the PSA. An arbitrator possessed jurisdiction under s. 40 only following a termination and an unresolved severance dispute. The service was disbanded by decision of the Ontario Civilian Commission on Police Services (OCCPS). The effect of the disbandment was that members of the service, including Birchall, were terminated. The OCCPS disbandment decision directed that the matter of compensation for Birchall proceed to arbitration. Accordingly it was incumbent on the parties to proceed to complete the hearing commenced in 2002.

Authorities Cited

Prescott (Town) v. Ontario Civilian Commission on Police Services (2003), 233 D.L.R. (4th) 93 (SCJ-Div. Ct.), leave to appeal refused March 17, 2004 [2004] OJ 1245 (OCA) Point Edward Police Services Board and Point Edward Police Association (Sept. 21, 1999, Welling) Point Edward Police Services Board v. Leo Mayer (May 12, 2000, Kirkwood) Town of Wiarton and Chief Schultz (June 15, 1988, Jackson) Kingsville Police Services Board and Kuipers(Nov. 15, 1999, Knopf) Cunningham v. Wheeler, [1994] 1 S.C.R. 359

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