Document Sample

B e t w e e n:


                                                                         (the “Association”)

                                              - and -


                                                                           (the “Employer”)

and in the matter of a grievance relating to James Sheahan.

Russell Goodfellow -        Sole Arbitrator


                 Jacques Emond


                 Lawrence Greenspon (on November 3 and December 8, 2000, and March 2, 2001)
                 Susan Ballantyne (on January 25 and June 21, 2000)

Hearings were held in this matter in Ottawa on January 25, June 21, November 3 and
December 8, 2000 and March 2, 2001.

              This award arises out of a grievance filed on behalf of Sergeant James

Sheahan by the Nepean Regional Police Association. The representation rights formerly

held by that entity are now held by the Ottawa-Carleton Regional Police Association (the


              The case was argued on the basis of an agreed statement of facts and some

additional oral and documentary evidence. The agreed facts are as follows:

                         AGREED STATEMENT OF FACTS

       1.	 Jim Sheahan joined the Gloucester-Nepean Police Service as a
           constable in 1962. In 1965, the two Townships separated, and he
           continued with the Nepean Police Service.

       2.	 In 1967, he was promoted to detective. In 1972, he returned to
           uniform as a patrol sergeant and in 1975 was promoted to senior
           sergeant. In 1979, he returned to the CID (Detective Office).

       3.	 Between March and December 1984, Sheahan went on sick leave,
           using credits from his sick leave bank.

       4.	 In December 1986 Sheahan went on sick leave again, using banked

       5.	 He submitted a claim to the WCB for both absences. His claim was
           denied. When his sick leave credits were exhausted (after three
           months, according to Sheahan), he received long term disability
           benefits. These benefits continued for twenty months until November,

       6.	 He then applied for an OMERS disability pension and began receiving
           it in January 1989 (retroactive to November, 1988). His OMERS
           disability pension was roughly half the salary he was earning when he
           went off work in 1986. The pension is indexed annually and he has
           continued to draw it throughout the period, up to the present time.

7.	 When his WCB claim was denied, Sheahan appealed the decision.
    The WCAT reversed the WCB and in November 1991 determined that
    he was entitled to temporary total compensation benefits for the period
    between March and December, 1984, and also for the period beginning
    December, 1986. The WCAT found that his absences from work were
    related to stress. The sick leave credits that Sheahan had used to cover
    the period of those absences were reinstated. The Nepean Police
    Service paid him a “top up” to full salary, in accordance with the
    collective agreement, for the period up to January, 1989. Sheahan
    advises that this payment was made in 1993.

8. The Nepean Police Service appealed the WCAT’s ruling.

9.	 At the end of the WCAT appeal process, it was determined that
    Sheahan was entitled to temporary total compensation benefits. In
    addition, he was granted a 15% permanent partial disability award and,
    in accordance with the legislation, two pension supplements. The total
    monthly amount of the pension and the two supplements is $981.16.
    Sheahan has been specifically advised that the pension is subject to
    review. If the WSIB decides to discontinue the legislation (sic), the
    supplements will be discontinued as well. In addition, Sheahan
    advises that he has been in receipt of a CPP disability pension since
    1988 or 1989. This pension is in the amount of roughly $800 a month
    and OMERS offsets a percentage of this against the disability pension
    it pays Sheahan.

10. In 1993, the Nepean Police Association, on behalf of Sheahan, claimed
    that the collective agreement entitled him to a top up of his WCB
    benefits to the level of his full salary for the period subsequent to
    January, 1989, as well as compensation for lost statutory holidays,
    vacation, accumulated sick leave credits and other claims. The matter
    was eventually referred to arbitration.

11. Effective January 1, 1995, under the provisions of Bill 143, the Polices
    Services of Gloucester, Nepean and Ottawa were amalgamated into
    one Ottawa-Carleton Regional Police Service and a new Ottawa-
    Carleton collective agreement became effective in 1995, replacing
    those of the three former Police Services.

12. A consent order (without Sheahan’s consent) was issued by arbitrator
    Jackson in July, 1996. A copy is attached.

13. As part of the consent order, Sheahan was to be paid $67,451.45 less
    statutory deductions. The order stipulates that this was in recognition
    of the collective agreement obligation to top up the WCB payments to

   the level of his regular net salary for the period from January 1989 and
   included the cash equivalent of 60 days accumulated vacation leave
   credits. No breakdown was provided. Sheahan received
   approximately $13,700 in May, 1997 and the balance in July, 1999.

14. In addition, the consent order required the employer to reinstate 640
    hours to Sheahan’s sick leave credit bank. The employer advises that
    this has been done. As soon as administratively possible after
    termination of his employment relationship on May 26, 2000, Sheahan
    will receive a payment of his sick leave credits up to a maximum of
    130 days in accordance with the collective agreement.

15. The consent order also provided that “… all remaining accumulated
    vacation and statutory holiday entitlements” would be disposed of by
    providing Sheahan a paid leave to be taken immediately prior to
    retirement. The employer advised that the paid leave period was to
    commence August 1, 1998 and would continue until May 26, 2000
    (Sheahan’s 60th birthday). While the consent order provided that the
    paid leave period would be considered as pensionable time, Sheahan
    advised that he did not want this. The employer and the Ottawa
    Carleton Regional Police Association were prepared to accommodate
    Sheahan in this, and OMERS has been so advised. He continued to
    receive his OMERS disability pension throughout this period. Periods
    of time during which an OMERS pension is received cannot be
    regarded as pensionable time. Sheahan was put on paid leave in July,
    1999 and at that time received a payment of leave credits retroactive to
    August 1, 1998. This paid leave will continue until May 26, 2000.

16. The consent order indicated that at that time, the expectation was that
    Sheahan could be returned to ongoing employment. Sheahan did
    return, to modified duties, in April 1995. He worked until March 6,
    1996, at which point he stopped work and filed a further WCB claim.
    His claim was approved, for the period beginning March 9, 1996 to
    February 1, 1997. The employer paid the top up they were required to
    pay, pursuant to the collective agreement.

17. In December 1996 OMERS advised the employer that Sheahan had
    been approved under the recurrence provisions of the OMERS
    regulations. Sheahan continued to collect his disability pension with
    OMERS throughout. See attached correspondence from OMERS.

18. At the time he applied for his OMERS disability pension in 1988,
    Sheahan had 26 years of credited service and his disability pension
    was provided on that basis. In 1988, Sheahan advises that his
    disability pension was $19,862 (before the CPP offset) and $17,534.59

   (including the CPP offset). The pension has increased to _______
   (before the offset) and $22,680 (including the offset) through indexing.

19. Article 15.02 of the former Nepean collective agreement provided as

         “The Employer will ensure that a member’s normal
         pension shall not be adversely affected as a result of an
         Employee receiving Worker’s Compensation benefits.”

     This provision came into effect on January 1, 1990 and was still in
     the collective agreement at the time of the amalgamation in 1995.

20. Sheahan’s Position

     Had Sheahan’s career not been interrupted by his work related
     illness, and had he continued to work during the entire period, he
     could expect to receive a pension of approximately $42,800 at age
     60. As it is, though, he will only be receiving $22,680.00. It is
     Sheahan’s position that article 15.02 requires the employer to
     compensate him for this shortfall.

21. The Employer’s Position

     It is the employer’s position that Sheahan’s pension was not
     adversely affected by his receiving WCB benefits. He was not
     credited with pensionable service during the time because he had
     elected to take an OMERS disability pension. If Sheahan had not
     taken his OMERS disability pension, beginning in 1988, or if he had
     repaid part or all of his pension, he could have accrued additional
     credited service with OMERS throughout the period in question.
     This is in accordance with an OMERS regulation to that effect and
     has nothing to do with WCB. For the period in question to count as
     pensionable service, Sheahan would have to reimburse OMERS for
     the pension payments made during the period. The employer will
     also argue the applicability of 15.02.

22. The Issue

     The sole outstanding issue is whether there is any entitlement owing
     to Sheahan under article 15.02 of the former Nepean Collective
     Agreement and, if so, the extent of any such entitlement.

     The parties hereto agree to refer this sole issue to final and binding
     arbitration and to confer jurisdiction to decide it on arbitrator

             Goodfellow. The parties also agree that Jackson is no longer seized
             with any aspect of the July 1996 consent award.

       23. All parties acknowledge that subject to the employer providing the
           payments set out below, the employer has met all its obligations to
           Sheahan and all issues pertaining to his employment and employment
           relationship have been resolved.

           (i)         The employer will continue the bi-weekly payments of
                   (amount to be specified) less statutory deductions, to Sheahan
                   during the remainder of the paid leave period to May 26, 2000.
                   There is a dispute whether these payments for the year 2000 should
                   be adjusted by any salary increases that become effective prior to
                   May 26, 2000.

           (ii)        As soon as is administratively possible after termination of his
                   employment relationship on May 26, 2000 the employer will pay
                   out Sheahan’s sick leave credits to him (in accordance with
                   paragraph 14 of this Agreed Statement). It is agreed that this
                   payment will be for 130 days and will be calculated as follows:
                   130 days x daily rate. There is a dispute whether the daily rate for
                   the year 2000 should be adjusted by any salary increases that
                   become effective prior to May 26, 2000.

           (iii)       As soon as administratively possible after termination of his
                   employment relationship on May 26, 2000, the employer will pay
                   out all other outstanding leave credits accumulated to date of
                   termination which is agreed to be 35 days.

           (iv)         After termination of his employment relationship on May 26,
                   2000 the employer will provide the required monthly payments
                   towards the costs of extended medical and hospital coverage for
                   retirees, pursuant to article 20.01 of the collective agreement.

The agreed statement was signed and dated January 25, 2000 by representatives of the

Association and the Ottawa-Carleton Regional Police Service (the “Employer”), and by

Sergeant Sheahan. The information represented by the blank space in paragraph 18 of

the agreed statement was not provided at the hearing.

               On behalf of the Association, Sergeant Sheahan and his wife, Linda

Sheahan, gave evidence. Cathy Frederick, the former Director of Human Resources of

the Employer, and David Tomalty, the former Director of Staff Relations at the former

Nepean Police Service (“Nepean”), testified for the Employer.

               As noted in the agreed statement, the only issues in the case are whether

Sergeant Sheahan is owed any monies by the Employer under article 15.02 of the

collective agreement that was in force between Nepean and the former Nepean Police

Association and, if so, how much. The critical portion of article 15.02 is set out in the

agreed facts. However, article 15 states in its entirety:

            Article XV


           15.01 All members of the bargaining unit shall be covered by the
                     Workers’ Compensation Act regardless of rank or assigned

           15.02	 Where a member is absent from duty by reason of an injury or
                  illness sustained in the performance of his duties, the Board
                  shall award the member such salary as is necessary to ensure
                  that the member’s salary and benefits are not reduced by reason
                  of compensation payment while the members is unable to
                  perform such duties.

                   The Employer will ensure that a member’s normal pension
                   shall not be adversely affected as a result of an Employee
                   receiving Worker’s Compensation benefits.

               The essence of the Association’s position is that Sergeant Sheahan is owed

monies under article 15.02 because his normal pension (i.e. the pension that he would

have received had he continued working) was adversely affected because he was required

to apply for and accept OMERS disability benefits because of Nepean’s opposition to his

workers’ compensation claim. As a result of that opposition, the payment of workers’

compensation benefits was delayed for several years and Sergeant Sheahan was driven by

economic necessity to receive OMERS disability benefits. Thus, while, strictly speaking,

the reason that Sergeant Sheahan is not receiving a normal pension is not that he received

workers’ compensation benefits but because he received OMERS disability benefits, the

Association urges me to read article 15.02 expansively. The Association submits that

“fairness” should govern the interpretation and application of the provision and that any

ambiguity in its language or uncertainty in its application should be resolved in Sergeant

Sheahan’s favour. In particular, the Association submits that where a member suffers a

work-related disability and, because of the employer’s behaviour, is forced to seek out

and accept an alternate form of benefit to the type of benefit that would have triggered the

application of the provision, the provision should be deemed to apply. The employer

should not be entitled to do indirectly that which it cannot do directly.

               In support of its position the Association relies on the testimony of David

Tomalty which, it submits, establishes that the relevant portion of article 15.02 was

introduced into the 1989-90 collective agreement to ensure that employees who are

unable to work due to a work-related illness or injury receive no greater or lesser pension

than they would have received had they continued working. Relying on the award of

arbitrator Weatherhill in Firestone Canada Inc. and United Rubber Workers, dated June

20, 1980 (unreported), the Association adds that when the consequences to an employee

of a particular form of collective agreement interpretation are drastic, the language ought

to be interpreted strictly against the employer. The Association asserts that article 15.02

goes further than the second of the four categories of benefit obligations recognized in

Brown and Beatty, Canadian Labour Arbitration, 3rd ed., and amounts to a guarantee

that employees will not suffer financially as a result of injuries incurred on the job. The

Association refers to the following authorities: Canada Post Corporation and The

Canadian Union of Postal Workers, dated April 29, 1983 (Burkett); Green Valley

Fertilizer Ltd. and UFCW, Local 1518 (1991), 22 L.A.C. (4th ) 417 (Hope); W.R. Grace

and Company of Canada Ltd. and USWA, Local 2784 (2000), 85 L.A.C. (4th ) 156

(Mikus); The Board of Commissioners of Police for the City of North Bay and The North

Bay Police Association, dated August 1, 1991 (unreported) (Knopf).

               The Employer submits that article 15.02 has no application to the facts of

this case. Sergeant Sheahan’s normal pension is not being adversely affected as a result

of his having received workers’ compensation benefits but because he chose to receive

OMERS disability benefits and because an employee cannot accrue service towards an

OMERS pension while in receipt of such benefits. Article 15.02 does not deal with the

receipt of OMERS disability benefits and its effects on the receipt of an OMERS pension,

and the evidence of David Tomalty does not suggest otherwise. According to Mr.

Tomalty, the second sentence of article 15.02 was introduced as part of a change to the

first sentence that was intended to address a problem that had arisen in relation to

Nepean’s obligation to top- up workers’ compensation benefits. It has nothing to do with

the payment of OMERS disability benefits.

                 As for the allegation that Nepean acted improperly or that the Employer is

somehow responsible for the reduced pension, the Employer responds in two ways. First,

Sergeant Sheahan’s award of workers’ compensation benefits for post-traumatic stress

disorder was either the first or one of the very first of its kind in what was a highly

controversial and hotly debated area. Nepean was simply exercising its legitimate legal

rights to oppose a claim for benefits that it believed did not fall within the scope of the

legislation and its position was initially accepted by the Workers’ Compensation Board.

Second, Sergeant Sheahan must accept responsibility for his own choices. Even if it can

be said that these choices did not include the initial decision to apply for and accept

OMERS disability benefits, they certainly include the decision to continue receiving such

benefits after being in receipt of other funds (including workers’ compensation benefits)

in full knowledge of the consequences to the retirement pension and to decline to “buy­

back” any pensionable time with the various funds received. Indeed, in respect of the

period 1988-1993, between the payment of workers’ compensation benefits, the “top- up”

to full salary and the receipt of OMERS disability benefits, Sergeant Sheahan actually

received more money than he would have received had he been working; so also he

continued to receive OMERS disability benefits while returning to work in 1995-1996 on

full salary. This amounts to an over-payment or windfall benefit that Sergeant Sheahan

chose to keep.

               Finally, the Emp loyer notes that article 15.02 came into force after

Sergeant Sheahan began receiving OMERS disability benefits and that it was

discontinued well before the date of his retirement. As a result, and for that reason alone,

the Employer submits that it owes no obligations to Sergeant Sheahan under article


               In reply, the Association submits that the Employer’s “windfall” argument

has been rejected in the case law: see The Board of Commissioners of Police for the City

of North Bay, supra. As for the assertion that Sergeant Sheahan was, in effect, the author

of his own misfortune, the Association notes that Mrs. Sheahan tried actively, but failed,

to get OMERS to stop making disability payments in the last half of the year that

Sergeant Sheahan returned to work. Thereafter, when Sergeant Sheahan was again

forced to go off work, it did not make economic sense to stop receiving the OMERS

disability benefits and to accrue credited service given the relatively small amount that

would have been added to the retirement pension.

               Finally, the Association submits that I ought not to entertain the argument

that article 15.02 cannot apply to Sergeant Sheahan because of the period of its operation.

According to the Association, the Employer did not identify this argument in the agreed

statement of facts or at any time prior to closing submissions. Nevertheless, and rather

than choosing to deal with the argument at a later date, the Association asserts that

Sergeant Sheahan is subject to the article because it was in force at the relevant time.

               The Association urges me to conclude that article 15.02 applies and to

order the Employer to make the necessary financial arrangements to ensure that Sergeant

Sheahan’s normal pension is not reduced and that he is provided with full compensation

for any losses that he may have suffered in the interim.


               I am unable to find that article 15.02 applies to Sergeant Sheahan’s case.

               The provision is crystal clear. It provides that a member’s normal pension

shall not be adversely affected as a result of the employee receiving workers’

compensation benefits. Perhaps regrettably, that is not what happened here. Sergeant

Sheahan’s normal pension is not being adversely affected because he received workers’

compensation benefits but because he received OMERS disability benefits and because

persons in receipt of such benefits cannot accrue pensionable service. With the greatest

of respect to the Association’s position, that is the beginning and end of the matter. The

obligation assumed by Nepean under article 15.02 was not to ensure that persons who

suffer work-related illnesses or injuries, or who apply for and receive OMERS disability

benefits, do not experience reduced pensions but, rather, that such effects do not result

from the employee receiving workers’ compensation benefits. Article 15.02 confers a

specific and limited form of protection that has nothing to do with the facts of this case.

               The Association seeks to overcome the plain wording of the provisio n,

however, in two ways: first, by arguing that Nepean caused the claim for OMERS

disability benefits and, therefore, the reduced pension by opposing Sergeant Sheahan’s

claim for workers’ compensation benefits; second, by arguing that article 15.02 should be

interpreted expansively, or strictly against the Employer, and in accordance with

considerations of “fairness”. In connection with the second argument, the Association

relies on the evidence of David Tomalty and a statement from the Firestone award,


               Taking these points in the reverse order, I begin by noting that evidence

given by a witness that would seek to vary the meaning of a clear and unambiguous term

of a collective agreement is, strictly speaking, inadmissible. However, even were I to

consider Mr. Tomalty’s evidence, I would not have found it to be of assistance to the

Association’s case. The uncontradicted evidence of Mr. Tomalty – a witness called by

the Employer – was that the sentence in question was added to article 15.02 because of a

change in language that had been requested and obtained by Nepean to the first sentence

of the article. Mr. Tomalty testified that under the former language situations had arisen

in which employees received, or were deemed to be entitled to receive, more pay while

on workers’ compensation benefits than they would have received had they been

working. Apparently, this was because Nepean was required to top-up an employee’s

workers’ compensation benefits to gross pay and because of the non-taxable nature of

such benefits. As a result, Nepean negotiated a change to the first sentence of the

provision that was intended to clarify that its top- up obligations were only to net pay and

that this, in turn, led to the addition of the second sentence which was meant to ensure

that a member’s retirement pension would not be adversely affected as a result.

                Despite Mr. Greenspon’s best efforts in cross-examination to separate Mr.

Tomalty’s statement as to the nature of the protection (no reduction in pension) from the

cause stated in the article (the receipt of workers’ compensation benefits), this evidence

was unshaken. At no time did Mr. Tomalty suggest that the pension protection provided

by article 15.02 was tied to anything other than the payment of workers’ compensation

benefits. That, of course, is consistent with the heading of the article and the rest of its

subject matter. Thus, while, for the reasons given, I do not rely on Mr. Tomalty’s

evidence in support of the Employer’s position, I find that it provides no support for the

Association’s case.

                With respect to the further assertion that I should interpret the language of

the collective agreement expansively, or strictly against the Employer, and having regard

to considerations of “fairness”, two things must be said. First and foremost, the

jurisdiction of a rights arbitrator under a collective agreement is limited to interpreting

and applying the provisions of the agreement. An arbitrator has no jurisdiction to, in

effect, alter, amend or vary the terms of the agreement in accordance with his or her own

notions of fairness. Where the language of the collective agreement is clear and

unambiguous, as it is in this case, an arbitrator cannot fail to give it its natural effect.

               The Firestone award of arbitrator Weatherill and the Canada Post award

of arbitrator Burkett do not suggest otherwise. Neither award advocates or employs the

kind of free-wheeling approach to collective agreement “interpretation” that the

Association would have me apply here. The issue in those cases was whether the word

“days” should be interpreted as “working days” or “calendar days” for purposes of a

“deemed abandonment” clause. There is no such ambiguity on the face of article 15.02

and none was established in the evidence.

               Second, even if I were to evaluate the claim on the basis suggested by the

Association, I am far from certain that I would come to the conclusion that it proposes.

On the evidence, there is support for the Employer’s assertion that the Sheahans mus t

accept some measure of responsibility for the choices that they made and for the

consequences to Sergeant Sheahan’s pension.

               There can be no doubt that the Sheahans found themselves in exceedingly

difficult economic circumstances in 1988. Sergeant Sheahan was under the care of a

physician and unable to work, his short and long-term disability benefits had run-out, his

health coverage had ceased and the Workers’ Compensation Board had refused his claim.

In an effort to support themselves and their fo ur daughters, the Sheahans were forced to

cash- in available insurance policies, re-mortgage their home and accept whatever form of

benefits they could find. No one could fail to understand or fault the Sheahans for the

choices that they made at this time, including the receipt of OMERS disability benefits.

                What is more difficult to understand, however, is the decision to continue

to receive OMERS disability benefits and, perhaps, to later refuse to buy-back

pensionable time, after the workers’ compensation benefits and other forms of payment

came on-stream. While there can be no suggestion that the Sheahans were “living high

off the hog” at that point, the initial cause of the claim for OMERS disability benefits

upon which the Association relies to und erpin its theory of the case – the absence of

workers’ compensation benefits – ceased; yet, the Sheahans chose to continue to receive

OMERS disability benefits in full knowledge of the consequences to Sergeant Sheahan’s

retirement pension. While it is true that Mrs. Sheahan sought to have the benefits

terminated after Sergeant Sheahan had been back at work for six months and in receipt of

full pay, this effort was abandoned when Sergeant Sheahan again went off work 6 months

later. Thus, even leaving aside the fact that Sergeant Sheahan ultimately received more

money in respect of certain years than he would have received had he been working, and

his receipt of OMERS disability benefits during the year that he was back at work on full

pay, the Sheahans appear to have run the risk that Sergeant Sheahan would later be able

to accumulate sufficient credited service in order to claim his full pension. The fact that

this did not pan-out does not provide a basis for shifting the burden of responsibility to

the Employer.

                I must reiterate, however, that this grievance fails for the reasons already

given and that this line of inquiry – which the Association invites me to undertake – is

not contemplated by the wording of the collective agreement. Whether it was Nepean’s

position in respect of Sergeant Sheahan’s original workers’ compensation claims, the

Sheahans’ own choices, or some combination of the two, that led to the reduced pension

is neither here nor there for purposes of the collective agreement. Artic le 15.02 simply

does not apply to the terms of this dispute and it cannot be made to apply by an inquiry

into the alleged causes of the receipt of the OMERS disability benefits.

               Finally, in light of the foregoing, I find it unnecessary to address the

Employer’s further argument concerning the timing of the operation of article 15.02. In

fairness to Mr. Emond, however, I would note that not only does paragraph 21 of the

agreed facts state that “the Employer will also argue the applicability of 15.02” but a

review of my notes reveals that the issue was raised squarely in the Employer’s opening

statement – albeit a statement that was delivered prior to Mr. Greenspon being counsel on

the case.

               In the result, the grievance is dismissed.

               DATED at Oakville this 10th day of September, 2001.

                                       Russell Goodfellow - Sole Arbitrator

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