Award Number 14-011

Individual Grievor
- and -
Leamington Police Services Board

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Award Date: 2014-09-30
Arbitrator: Trachuk, L.
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Municipality: Leamington
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Region: South West
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Classifications: Procedural Issues, Severance Pay
Grievor: Officer M
Length of Award:12 pp
Collective Agreements Cit.
Statutory Cit. Police Services Act s. 40


Procedural Issues   - Production of documents - Uniform members - Section 40 arbitration - Arbitrator appointed to determine amount of severance owing to police officer upon disbandment of police service - Estate of officer seeking production of documents and particulars - If board paid higher severance to other members, details of such severance agreements arguably relevant - Majority of documents sought by estate not relevant to the issue of quantum of severance pay owing - Preliminary award.

Severance Pay   Calculation - Uniform members - Section 40 arbitration - Arbitrator appointed to determine amount of severance owing to police officer upon disbandment of police service - Board seeking production of documents relating to M’s mitigation efforts - Documents in question arguably relevant to issue of whether M mitigated his losses - Preliminary award


In a decision dated July 27, 2010 the Ontario Civilian Police Commission permitted the disbandment of the Leamington Police Service. The arbitrator was appointed to determine the amount of severance pay to be paid to Officer M by the Leamington Police Services Board. Officer M passed away in January 2014. In advance of the arbitration hearing Officer M’s estate sought production of documents and particulars. The board also sought production of documents. This preliminary award determined those requests. Officer M was accused of wrongdoing with respect to expenses related to his position as president of the Leamington Police Association. Officer M denied any wrongdoing. On May 13, 2009 he was suspended with pay. Criminal Code charges were brought against him but were withdrawn in 2011. Officer M was also charged with discreditable conduct under the Police Services Act. However, because the service was disbanded on December 3, 2010 the hearing officer lost jurisdiction and the PSA misconduct charge could not proceed. Policing for the Leamington area was taken over by the Ontario Provincial Police who offered positions to all Leamington police officers except for M. Officer M was not offered a position with the OPP because of the outstanding Criminal Code and PSA charges. The Leamington service continued to pay Officer M until April 27, 2013. Deductions, including association dues, were made. The estate of Officer M sought production of various documents: a list of officers and their hire/seniority dates; the records of any Leamington officers who had been convicted of criminal or PSA charges who were hired by the OPP; the date when discussions began with respect to outsourcing of policing to the OPP; officers not hired by the OPP; M’s personnel file; any correspondence between the association and the board or chief concerning M; bank records with respect to association dues paid by M; PSA transcripts concerning M. By conference call in November 2013 the arbitrator ordered M to produce income tax returns, details of any job search, documents relating to any asserted inability to work due to medical reasons, and particulars of any issues other than severance that he intended to raise at the arbitration hearing on January 30, 2014.


The representative of M’s estate argued that the documents sought were relevant to the entire circumstances surrounding M’s termination from the service and thus to the level of severance that should be awarded. The board argued that most of these documents were not relevant to the assessment of severance pay. The board claimed that the monies it paid M until April 27, 2013 were his severance pay and that it overpaid him. The estate argued that M was paid wages until April 2013 but he never received any severance pay.

Award #

It was apparent that M’s family and friends felt that he was poorly treated and wrongly accused. On his behalf they sought restitution for perceived injustices. However, the arbitrator’s mandate under s. 40 of the PSA was limited to determining the amount of severance pay owed to M as a result of the disbandment of the service. Arbitration under s. 40 proceeded on the assumption that termination of employment in the context of disbandment was without cause. Arbitrators therefore approached the task of assessing severance pay entitlement using the common law reasonable notice approach. That approach considered such factors as nature of the employment, length of service, position, age, and the likelihood of finding comparable employment. Amounts earned in mitigation, such as earnings from the OPP, could be set off against severance owing from the disbanded service. There was no dispute that the PSA charges were never proved. There was likewise no dispute that Officer M was not hired by the OPP because the misconduct and PSA charges were outstanding in 2010. The board accepted that its allegations against M were not relevant to the arbitration proceeding and stated that it would not raise them. The only issue before the arbitrator was the appropriate amount of severance. The majority of the documents sought by M’s estate were not relevant to that issue. One exception was the request for names of officers not hired by the OPP. M was the only Leamington officer whose application was not accepted by the OPP. If, however, the board was asserting that it reached a binding agreement with the association with respect to severance for members, it should disclose the amount of any severance that exceeded the agreed formula, with the name[s] of individuals omitted. The board disclosed the amount of M’s association dues for December 2010 to April 2013. The board also undertook to provide the last 10 pay stubs for M. Accordingly the estate was directed to clarify the period for which it sought pay stubs: whether prior to disbandment or some other period. The board alleged that M failed to mitigate his losses by seeking comparable employment. The estate, on the other hand, alleged that M was unable to obtain comparable employment because of the outstanding charges. The arbitrator ordered that the estate produce the following documents which were arguably relevant to the issue of whether M mitigated his losses: income tax returns; any documents relating to M’s job search since December 3, 2010; and, if the estate was asserting inability to work for medical reasons, any medical documentation upon which it intended to rely.

Authorities Cited

• Point Edward Police Services Board and Leo Mayer (May 12, 2000) unreported (Kirkwood) [OPAC #00-008] • Wiarton Police Services Board and Schultz (June 24, 1988) unreported (Jackson) [OPAC #88-021]

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