Award Number 15-001

Individual Grievor
- and -
Leamington Police Services Board

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Award Date: 2015-01-20
Arbitrator: Trachuk, L.
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Municipality: Leamington
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Region: South West
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Classifications: Severance Pay, Severance, Disbandment, Remedies, Remedies
Grievor: Officer M.
Appearances: J. Mauro and others, for Officer M, for the Association
P. Milloy and B. Sweet, for the Employer
Length of Award:22 pp
Collective Agreements Cit.
Statutory Cit. Police Services Act, ss. 10, 31, 40, 49, 89, 124; Criminal Code; Workplace Safety and Insurance Act


Severance Pay   Entitlement - Uniform members - Section 40 arbitration - Determination of severance owing to estate of deceased officer - Police service disbanded - Officer facing Criminal Code and Police Services Act charges not offered employment with OPP - Officer ’s employment extended beyond date of disbandment during period of suspension with pay - Officer’s service continued to date he was terminated, when board stopped paying him - Severance package negotiated between association and board a reasonable one - Outstanding issues with respect to life insurance, other benefits and vacation pay - Quantum of severance to be determined.

Severance   Uniform members - Section 40 arbitration - Determination of severance owing to estate of deceased officer - Officer’s employment continued during period of suspension with pay - Board terminated officer’s employment once Divisional Court found board had no authority to continue prosecution of disciplinary charges under Police Services Act - Salary paid to officer during two-year period after disbandment was not severance pay - Officer entitled to same severance package as that negotiated between association and board.

Disbandment   Uniform members - Section 40 arbitration - Determination of severance owing to estate of deceased officer - Officer continued to be paid during period of suspension beyond date of disbandment - Salary already paid cannot be retroactively changed to severance pay - Officer entitled to severance upon date of termination, when board stopped paying him.

Remedies   Damages - Uniform members - Section 40 arbitration - Determination of severance owing to estate of deceased officer - Estate argued board breached duty of care by proceeding with disbandment of service before Criminal Code and Police Services Act charges against officer were determined - Arbitrator’s jurisdiction limited to determining severance payable to officer as a result of disbandment - No jurisdiction to award damages.

Remedies   Costs - Uniform members - Section 40 arbitration - Determination of severance owing to estate of deceased officer - Estate seeking payment of legal costs incurred by officer in defending himself against Police Services Act charges and expenses related to arbitration proceeding - Arbitrator has no jurisdiction to order payment of legal costs related to disciplinary proceeding - Pursuant to s. 124(6) of PSA parties required to pay their own costs and expenses of arbitration proceeding.


The arbitrator was appointed pursuant to s. 40 of the Police Services Act to determine the amount of severance to be paid to Officer M by the Leamington Police Services Board as a result of its disbandment. Officer M passed away on January 4, 2014. In a previous award [OPAC #14-011] the arbitrator ordered production of documents relevant to severance issues. In that award she made it clear that her jurisdiction was limited to determining outstanding severance matters; it did not include any authority to remedy perceived injustices surrounding Officer M’s treatment by the board or his failure to gain employment with the OPP. Officer M had been the president of the Leamington Police Association. He was accused of wrongdoing with respect to expenses related to that position. At all times he denied wrongdoing. He was charged under the Criminal Code but the charges were withdrawn in 2011. He was also charged with discreditable conduct under the PSA and was suspended with pay indefinitely pending the resolution of the disciplinary charges. However, the charges were never determined because the service was disbanded on December 3, 2010 and the hearing officer lost jurisdiction. All Leamington officers were offered employment with the OPP except Officer M; he was not offered a position because of the outstanding Criminal Code charges. In a decision dated July 27, 2010 the Ontario Civilian Police Commission consented to the abolition of the service. The OPP was scheduled to take over policing in the municipality on December 3, 2010. On November 5, 2010 the board asked the OCPC to delay abolition of the service or to allow it to continue to operate in a limited way so that it could continue the PSA process against Officer M. Noting that the Leamington PSB had become a board under s. 10, with only the powers granted to it under s. 10, on December 2, 2010 the OCPC refused the board’s request to allow it to continue as a board under s. 31. Despite the OCPC decision the board took the position that Officer M was still under suspension, and it continued to pay him salary and benefits less statutory deductions and deductions for union dues, even though the association had ceased to exist. However, the board applied for judicial review of the December 2, 2010 decision of OCPC. Officer M filed suits against the municipality of Leamington and others. In a decision dated April 27, 2013 the Divisional Court found that with the dissolution of the service on December 3, 2010 the hearing officer lost jurisdiction to continue the disciplinary proceeding; and the Court had no authority to declare that the board, now operating under s. 10, could continue to operate under s. 31 for the purpose of completing the disciplinary matter. Officer M had asked the Court to dismiss the PSA charges. The Court found that was not possible and that the appropriate disposition was a permanent stay. The Court also declined Officer M’s request to quash the two OCPC decisions, noting that arbitration was available to resolve his outstanding severance matters. On May 13, 2013 the board wrote to counsel for Officer M, advising that salary continuation ceased on April 27, 2013 and stating its position that because of the Divisional Court’s decision, the board had no authority to employ Officer M beyond December 3, 2010. Accordingly, it regarded amounts it had paid thereafter as severance; and in light of the severance package negotiated by the association and the board for other Leamington members – 1.25 months’ salary per year of service to a maximum of 24 months – the board had in fact overpaid Officer M by paying him for 2.5 years and would be seeking repayment of the excess, some $70,000.00. On August 6, 2013 the Canada Revenue Agency ruled that Officer M was an employee of the town of Leamington up until April 27, 2013 and was eligible for employment insurance benefits thereafter. Officer M had applied for benefits under the Workplace Safety and Insurance Act but he died before he could be assessed by the Centre for Addiction and Mental Health.


The estate argued that members of the service targeted Officer M and were determined to destroy his career. The estate contended that the chief and the board timed the investigation and the laying of charges so that it would be impossible for Officer M to gain employment with the OPP. Further, the board withheld information about the charges from the OCPC until after it consented to the disbandment. The estate argued that these actions were directly related to Officer M’s termination and that they were compensable under s. 40. The estate maintained that payments received by Officer M were not severance; that Officer M was not terminated on December 3, 2010, and that the CRA decision supported its contention that Officer M remained an employee until April 27, 2013. The estate sought an amount of severance that would reflect the board’s wrongdoing: 2 months per year of service, which service included the period from December 3, 2010 to April 27, 2013. The estate also sought: vacation pay, life insurance, legal costs of $65,000.00 incurred by Officer M in defending himself against the PSA charges as well as $8,500.00 in expenses related to the arbitration proceeding; salary continuation for 11 years and damages for bad faith treatment in the manner of his termination. The board denied that its actions were improper. It contended that the estate’s allegations in that respect were irrelevant since the arbitrator’s jurisdiction under s. 40 was limited to determining appropriate severance. The board insisted that the Divisional Court’s decision of April 27, 2013 meant that Officer M had been terminated December 3, 2010. Accordingly, the amounts it paid him from then until April 27, 2013 were severance for the purposes of s. 40. The board contended that Officer M was entitled to 17 months of severance pay under the formula negotiated with the association; thus he was overpaid by $70,000.00 and the estate should repay that amount. Alternatively, if the money paid was not severance it was earnings during the severance period and he suffered no loss. The board contended that the arbitrator had no jurisdiction to award damages; and that in any case, Officer M failed to mitigate his damages.

Award #

The estate’s claims were based upon assumptions that the arbitrator was not entitled to make: that the charges were improperly laid; that the OCPC would have refused or delayed disbandment had it known about the charges against Officer M. However, under s. 40 the arbitrator’s jurisdiction was limited to determining the severance owing to Officer M as a result of the disbandment of the service. There was no jurisdiction to adjudicate disputes between Officer M and the board that predated the disbandment. The key issue was whether Officer M was terminated on December 3, 2010 or on April 27, 2013. The board contended the Divisional Court decided that issue and found it was the earlier date. However, the Divisional Court did not determine that issue in its decision. Notwithstanding its subsequent position on the issue, the board in fact continued to employ Officer M until April 27, 2013. The decision of the Court did not change the nature of the relationship retroactively; nor did the Court’s decision have the effect of converting amounts already paid as salary to severance pay. The severance period began after April 27, 2013 and Officer M’s service accrued to that date. Salary paid prior to April 27, 2013 was employment income; it was not income earned from other employment during the severance period and it could not be set off against monies owing. There was no failure to mitigate: It was highly unlikely that Officer M could have obtained employment as a police officer anywhere else; moreover, there was some evidence that he was suffering from Post-Traumatic Stress Disorder. The arbitrator had no jurisdiction to order reimbursement of costs incurred by Officer M in defending himself against the PSA charges. In addition, s. 124(6) of the PSA required parties to pay their own costs and expenses of the arbitration. Similarly, the arbitrator had no jurisdiction to order damages. The severance package negotiated between the association and the board was a reasonable one. The package included severance pay of 1.25 months’ salary/year of service as well as vacation pay and other benefits. However, there were a number of outstanding issues concerning severance, such as the possibility of entitlement to life insurance, vacation pay and other benefits. Accordingly the parties were directed to make submissions on how the terms of the severance package should be applied to Officer M; and the arbitrator remained seized.

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] • Town of Kapuskasing Police Services Board and Ohinski et. al (October 27, 1994) unreported (Marszewski) [OPAC #94-018] • Orillia Police Services Board and Orillia Police Association (June 12, 1997) unreported (Jackson) [OPAC #97-015] • Goderich Police Services Board and Lonsbury et. al (October 15, 1999) unreported (Burkett) [OPAC #99-024] • North Glengarry Police Association and Stormont, Dundas & Glengarry Police Services Board (March 22, 2001) unreported (Kirkwood) • Prescott (Town) and Prescott Police Services Board v. Ontario (Provincial Police) and Ontario Civilian Commission on Police Services, 2003 CanLII 14700 (ON SCDC) • Kingsville Police Services Board and Chief Nick Kuipers (November 15, 1999) unreported (Knopf) [OPAC #99-008] • Danyluk v. Ainsworth Technologies Inc., [2001] S.C.J. No. 49 (SCC) • Vilven v. Air Canada (2012), 222 L.A.C. (4th) 319 (FCA)

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