Numéro de sentence arbitrale 99-024

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Award Date:	1999-10-15
Arbitre:	Burkett, K. Voir les prix par Burkett, K.
Municipalité:	Goderich Voir les prix а partir de Goderich
Région:	South West Voir les prix а partir de South West
Classifications:	Acting Assignments, Severance, Remedies, Disbandment
Plaignant:	G. Lonsbary and K. Brownlee
Comparutions:	D.S. Thompson, pour l'Association B.A. Jetten and others, pour l'employeur
Longueur:	14 pp
Référence conventions collective
Référence législative	Police Services Act section 40, 124

Sommaire

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Acting Assignments   Arbitration pursuant to Section 40 of Police Services Act - Former Chief and Sergeant – Concept of reasonable notice not applicable where there is continuity of employment.

Severance   Section 40 arbitration – Former Chief and Sergeant accepting positions of lower rank with O.P.P. but at higher salary – Grievors awarded severance allowance based on present value of pension loss at age 60, plus legal costs, less present value of salary gain to age 60.

Remedies   Arbitration pursuant to Section 40 of Police Services Act – Former Chief and Sergeant not represented by Association and thus incurring costs of legal representation – Arbitrator has discretion to award legal costs – Appropriate in this case to award grievors costs of representation incurred in pursuit of their severance claims where grievors not represented by Association.

Disbandment   Arbitration pursuant to Section 40 of Police Services Act - Former Chief and Sergeant – Concept of reasonable notice not applicable where there is continuity of employment.

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Réalités

The Goderich Police Service disbanded effective April 6, 1998. Policing for the area was assumed by the O.P.P. The arbitration was held pursuant to section 40 of the Police Services Act to determine severance entitlements of former Chief Lonsbary and Sergeant Brownlee.

The Chief, age 53, had an employment contract with the Board which provided an annual salary of $61,825 at the time of disbandment. The Chief was hired by the O.P.P. at the rank of Staff Sergeant with an annual salary of $68,433 ($69,425 effective Dec. 1/98, and $72,043 effective April 1/99). The present value of Lonsbary's pension loss, as a result of not remaining in OMERS until age 60, was $41,820. The agreed present value of his wage gain (as a result of transferring to the O.P.P.) to age 60 was $53,000.

Sergeant Brownlee, age 47, was hired by the O.P.P. at the rank of Senior Constable. The present value of his pension loss was $29,850. His wage gain (present value to age 60) was $14,685. The pension loss included a spousal survivor's benefit, which the Board argued shouldn't be included, because Brownlee wasn't married at the time of disbandment.

Both grievors sought legal fees (costs) in the calculation of severance.

The issues were: whether the grievors were entitled to the equivalent of both notice and severance; in the case of Brownlee, whether the spousal survivor's benefit should be included in the present value of pension loss; whether salary gains should be offset against pension losses; whether severance should include an amount for loss of rank; and whether severance should include legal fees.

# de sentence arbirale

The Arbitrator accepted that the common law principles of unjust dismissal were applicable. However where, as here, there was continuity of employment, the concept of reasonable notice had no application. The caselaw established that severance must be limited to forseeable and reasonable economic consequences of termination. The Arbitrator referred to the necessity of weighing the "complete economic package" when assessing loss. Further, the duty to mitigate meant that losses should be offset by amounts earned through alternate employment. In this case, that meant that the higher salaries paid by the O.P.P. were an economic gain that had to be used to offset other losses.

While the grievors suffered a loss in rank, they gained in salary as a result of their transfer to the O.P.P. There was no quantifiable loss associated with loss of rank.

The fact that Brownlee wasn't married at the time of disbandment was no reason to deduct the value of the spousal survivor's benefit from his pension, since he might marry at any time, and since he would have been covered by a pension that included this benefit, had the force not disbanded.

The grievors were not represented by the Association at the arbitration hearing. Thus they incurred legal costs which were compensable. While section 124(6) of the Police Services Act contemplated that each "party" would bear its own share of the costs of arbitration, the statutory reference was to the institutional parties - viz. the Employer and the Association. The Arbitrator had discretion to order costs since s. 40 incorporated s. 124 "with necessary modifications." It was appropriate that the grievors be made whole for the costs of representation incurred in the pursuit of legitimate claims for severance.

The Arbitrator ordered that the grievors be paid severance of:

1. present value of pension loss at age 60, plus
2. reasonable costs of legal representation at the hearing, less
3. present value of salary gain to age 60.

Autorités cité

* Re Orillia Police Association and Orillia Police Services Board [OPAC # 97-0015] (June 12, 1997) unreported (Jackson)
* Re Kingsville Police Association and Kingsville Police Services Board [OPAC # 99-008] (May 3, 1999) unreported (Knopf)
* McGregor on Damages, 16th ed. (1997) pp 185-6, 188, 219
* Waddams, S.M. The Law of Contracts, 4th ed. (1999) pp 552-554, 558-559
* Waddams, The Law of Damages, 2nd ed., updated looseleaf, pp. 5-54 to 5-55, 5-58
* Red Deer College v. Michaels [1976] 2 SCR 777
* Neilson v. Vancouver Hockey Club Ltd. [1988] 51 DLR (4th) 40 (BCCA) leave to appeal to SCC refused (1988) 92 NR (note)
* Wilson v. Crown Trust Co. [1992] 44 CCEL 123 (Ont. S.C.)

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