IN THE MATTER OF AN ARBITRATION

BETWEEN :

THE INGERSOLL POLICE SERVICES BOARD

(the wEmployerw)

- AND -

THE INGERSOLL POLICE ASSOCIATION

(the 88AssociationN)

AND IN THE MATTER OF AN ASSOCIATION GRIEVANCE RE SURVIVOR BENEFITS

SOLE ARBITRATOR:

APPEARANCES :

FOR THE EMPLOYER:

R. D. JOYCE

D. B. LABORD - COUNSEL B. RICHARDS OTHERS

FOR THE ASSOCIATION: I. ROLAND - COUNSEL D. JAMES OTHERS

A hearing into this matter was held in Ingersoll, Ontario, on November 6, 1996.

AWARD

Constable Scott Rossiter of the Ingersoll police Service was

killed on September 19, 1991, while on duty. He is survived by

his wife and two children, now ages nine and six.

The collective agreement which was in effect in 1991 did not

include a Survivor Benefits provision. The Town Council, by

resolution, decided to continue health and dental benefits for

Mrs. Rossiter and the children, until December 31, 1992.

Prior to the signing of the 1992 colllective agreement, the

insurance company, in a letter dated February 19, 1992, wrote to

the Town, as follows (in part):

This letter will confirm that First North American Insurance Company has agreed, effective October 1, 1991, to extend coverage to the Insured Dependents of former Insured Employee SCOTT ROSSITER. MRS. PENNI ROSSITER and her Eligible Dependents shall remain insured for Extended Health Care and Dental Care Expenses. Insurance will automatically cease on the earliest of the following:

a) December 31, 1992; b) the date insurance coverage is obtained elsewhere; c) remarriage of the spouse; d) the date an Insured Dependent child attains the age limit as defined under Section 1.17 in the above-named policy; e) the date premium payments cease; or f) the date the policy cancels.

Insurance for such Insured Dependents will be subject to all other terms and conditions of the abolve-named group policy.

Pertinent provisions of the collective agreement follow:

ARTICLE 20 - HEALTH AND WELFARE 20.01 The Board agrees to pa~y 100% of the cost of

the Employees Health Tax and 100% of an approved Group Major Medical Plan in force from time to time or t.he successor of such

Major Medical Plan, sai'd plan to contain 10120 deduction clause.

20.02 The Board agrees to provide a dental health plan ......................................

20.05 The Board agrees to provide a vision care plan ....................................

ARTICLE 27 - SURVIVOR BENEFITS 27.01 In this article,

(a) lgspousew shall mean either of a man or woman who,

(i) are married to each other,

(ii) not being married to each other have cohabited continuously for a period of not less than five years, or in a relationship of some permanence where there is a child born of whom they are the natural parents and have so cohabited within the preceding year.

(b) "dependent childgg shall mean a member's child who is:

(i) an unmarried person under the age of 18,

(ii) an unmarried person over the age of 18 years but less than 25 years of age and is in full- time attendance at a school, community college, university or other'educational institute,

(iii) a person over the age of 18 years who, by reason of mental or physical disability, is unable to earn a livelihood, and includes

( iv) any child of whom the member stood in loco parentis at the time of his death.

27.02 Where a member is killed or dies as a direct result of injuries received in the performance of his duties as a police officer, leaving a spouse and/or any dependent child or children, the Board

shall pay to such spouse and/or dependent child or children, as the case may be, benefits specified in this Agreement for Health Services, Private Ward Hospital Accommodation, Comprehensive Medical Protection, Vision Care, and Dental Care.

27.03 Effective January 1993, the Survivor's Benefits shall be reviewed by the Board, together with the Chief of Police and the Ingersoll Police Association every 24 months.

27.04 If one or more of a deceased member's dependent children is or are below the age of majority or otherwise under legal disability the Board may, in its discretion, pay the benefits herein provided for either to the guardian or other legal representative of such child or children or to the Public Trustee for the benefit of such child or children.

To be retroactive back to January 1991.

In a letter to the insurance company dated February 23, 1993, the

Town advised the carrier that the Board had agreed to continue

the survivor's coverage to December 31, 1994. In response, in a

letter dated April 14, 1993, the carrier advised the Town as

follows (in part):

As the insurance carrier, we have the right to approve or deny any such extension of coverage past the contractual time limits. We will agree to extend the coverage to December 31st, 1994 but I must advise you that coverage past this date will not be allowed.

If the Police Services Board wishes to continue coverage past December 31st, 1994, they must make a written request to do so, and at that time we will review the situation and confirm whether we will continue the coverage past 1994.

The Town responded to the above-noted letter on April 28, 1993,

(in part) :

I am writing your company as per paragraph five of your

correspondence, requesting that c:overage be extended beyond December 31, 1994 until notified by the Police Services Board. We will certain1.y continue to live up to our obligations and submit premiums to you on behalf of Mr. S. Rossiterts widow and dependents.

A letter from the insurance company, dated May 11, 1993, reads,

in part:

At this point in time, our positi.on is that we will not extend coverage past December 31~1t, 1994. The intent of my letter was to state that just prior to December 31st, 1994, you should again ask if we would reconsider our position. We may at that time consider a further extension.

A letter from the insurance company, dlated May 21, 1993, confirms

that Mrs. Rossiterts coverage will cealse as of December 31, 1994,

subject to the various conditions which were stipulated in the

company's letter of February 19, 1992.

On March 21, 1994, the Police Services Board advised the

~ssociation as follows:

Please be advised that the Board will be maintaining the benefits as listed in 27.03 for the Rossiter family for a further 2 year period subject to Article 27.

A letter from the insurance company dated October 31, 1995,

reads, in part:

A letter dated May 21, 1993 from North American Life had continued the coverage until December 31, 1994 but we neglected to terminate the coverage and have subsequently agreed to extend the coverage until December 31, 1995. Any further extension of coverage is not possible.

I have taken the necessary steps to have the coverage terminated and the individual removed from the billing effective December 31, 1995.

The insurance companyCs letter of November 16, 1995, confirms

Mrs. Rossiterrs coverage to December 31, 1995, and repeats the

conditions stipulated in that companyts letter of February 19,

1992.

The Chief of Police, on instructions from the Ingersoll Police

Services Board, wrote the Treasurer of the Town on November 27,

1995, (in part) :

This matter has been discussed with the Ingersoll Police Services Board on November 27, 1995. I have been instructed to commence an appeal of North Americants callous attitude of terminating the widow's benefits and her children while she lay in a hospital bed at Peel Memorial Hospital.

Ms. Rossiter is intending to re-marry in October 1996 (health permitting). At this time her benefits and her dependentst benefits would be covered by her spousest employer. Please advise the appeal process as soon as possible, as I am sure you can appreciate some urgency to this matter.

A letter from the insurance company, dated December 27, 1995,

reads as follows (in part):

First let me briefly recap what has transpired to date. When Mr. Rossiter died the contract did not allow for continuation of coverage for the surviving dependents of a deceased employee. Upon your request we agreed to administratively continue coverage until December 31, 1994.

Because of an oversight, coverage was not cancelled December 31, 1994, as agreed to by both parties and rather than retroactively termhate coverage we further agreed to extend coverage until December 31, 1995.

At this point, regardless of the! circumstances, we cannot agree to extent (sic) coverage on an insured basis.

Mrs. Rossiter was informed by the Town that her coverage would

cease as of January 1, 1996. A letter from the Chairman of the

Police Services Board to the Association, dated February 2, 1996,

responded to a grievance filed by the Association, as follows:

Please be advised that as a result of our joint meeting on February 1, 1996, to review th,e Rossiter Benefits, as per Articles 27.02 and 27.03 of the Ingersoll Police Association Collective Agreement and the Police Associationfs grievance concerning the same issue, the Ingersoll Police Services Board h,as made the following decision :

The Ingersoll Police 8ervicets.Board will not continue the benefit coverag/e for a further two year period.

The evidence is that Mrs. Rossiter, along with her two children,

began living with a member of another Police Service in 1995, and

became eligible for coverage under tha,t Forcefs plan, probably in

May 1996. The plan has equal or better benefits than the

Ingersoll plan. Mrs. Rossiter has certain health problems but as

at the time of the hearing she is adequately covered.

[Note: There is a difference between the parties as to when Mrs.

Rossiter first became eligible for the benefits under her new

plan but this is not relevant to the before us.]

The Association does not seek compensaltion for any benefits for

her for the period January 1996 when she was informed that she

was no longer eligible for coverage, and May 1996 when she became

eligible for her present benefits. Th~e Association does,

however, seek a ruling that the present Ingersoll collective

agreement guarantees that she and her children will be covered in

the event that she becomes ineligible for coverage under her

current plan, or if in future for some reason she becomes

eligible for another plan which has inferior benefits to those of

the Ingersoll collective agreement. Her eligibility for the

current plan could cease in the event of her present relationship

ending, or if her common-law husband left his employment, or

died. The terms of the coverage of her present plan includes

Survivor Benefits, but only for one year following an Officer

being killed or dying as a direct result of injuries received

while on duty.

It is the Associationls position that the benefits provided under

article 20 do not have any temporal or other restrictions on

payment of survivorls benefits so long as the spouse and children

meet the definitions found in the article. Rather, at issue is

the purpose to be attributed to article 27.03:

Effective January 1993, the Survivorls Benefits shall be reviewed by the Board, together with the Chief of Police and the Ingersoll Police Association every 24 months.

The parties are in agreement that the difference before us is not

a dispute between the Association and the insurer, or between

Mrs. Rossiter and the insurer. Rather, the difference is between

the Association and the Police Services Board as to the correct

interpretation of the collective agreement. It is the

Association's position that the collgctive agreement requires

that the stipulated benefits be provided and if an insurer will

not provide them, then the BoardITown .must do so directly.

The Association notes that while it is entirely possible that

Mrs. Rossiter will not require the instant benefits, the

determination found in this award will apply to future cases if

such need ever arises.

It is the Associationls further position that the Police Services

Board did not have the unilateral right to cancel the benefits

under the terms of article 27.03. The evidence of one member of

the ~ssociation pertaining to this article is that following the

initial proposal of the Association (which the witness could not

identify), his recollection of the discussion with the Board is

that the-then Chairman of the Board said that as long as the

present Board was in place, Mrs. Rossiter would never have to

worry about her benefits being discontinued. When the witness

said thanks, but you may not be in this position eternally, it

was agreed that the current language, proposed by the Board,

would be included in the collective agreement. It was the

understanding of the witness that the benefits would be continued

for the rest of Mrs. Rossiterfs life, and the life of the

children for the period they were classified as dependants. In

discussions the-then Chairman said that the purpose of the review

was to ensure that the children continued to come under the

definition of "dependantv and to review Mrs. Rossiter's

employment and living arrangement status where she was in receipt

of equal or better benefits than those provided under the

collective agreement. The possibility that she might require the

benefits for many years was discussed but there was no discussion

about the possibility that she might become eligible for equal or

better benefits at some time, then later become ineligible, for

whatever reason.

The evidence of a second Association witness is that the purpose of article 27.03 was discussed at the negotiations, that purpose

being to see if Mrs. ~ossiter continue!d to require the benefits,

and that the Board, the chief of Police, and the Association

representative(s) would make that deci.sion. The witness recalls

the chairman and one other Board member saying that Mrs. ~ossiter

would have the benefits available to h~er for the rest of her

life.

The person who was Chairman of the Board from January 1992 to

December 31, 1995, first identified the Associationfs initial

proposal on this subject [to be reviewed]. The current language

was included in the collective agreement because it was

understood that Mrs. Rossiter would soon begin working for the

provincial Government and in that event her benefit package would

be superior to the Ingersoll plan. so the instant coverage would

not be required. To the knowledge of the witness, reinstatement

of the coverage, once it ceased for any reason, was not

discussed. He does not believe any statement such as a Itpromise

for lifem was made but he would have said that as long as he was

Chairman he would do everything in his power to provide benefit

coverage. He is certain he would not have promised, "in

perpetuity." As a member of the Board he would have fought

Council and the insurance company for benefit continuation, but

it never entered his mind that benefit coverage would cease, then

be reinstated. The review process was simply to consider changed

circumstances. The Board was not looking for a way to cut off

the benefits for as long as Mrs. Rossiter needed them. In

response to the question in cross-examination, "If she took

employment with the Government and lost her job in three months,

she would need the benefits?It, the witness responded, "Yes, she

would.

The position of the Employer is that when officer Rossiter was

killed in 1991 there was no provision in the collective agreement

for Survivor Benefits but these were made available to Mrs.

Rossiter and her children. The purpose of article 27.03 was to

review the need for benefit coverage during a transition period

from the time of her husband's death to the time she was, for whatever reason, not in need of the benefits. When it became

known that her circumstances changed in early 1995 the Employer

attempted to review the matter but the Association refused,

taking the position that the next review could not take place

until 1996. When it came time for the review the Board decided

that coverage would not be continued, for two reasons. First,

Mrs. Rossiter had equal or better coverage elsewhere and second,

the insurance company refused to insure her.

The Board and the Chief of Police decided that her coverage would

cease. The Association disagreed with the decision and filed a

grievance on January 3, 1996.

It is the position of the Employer that there is no dispute

between the parties that the cessation of benefit coverage is

proper while Mrs. Rossiter is adequately covered elsewhere. This

being a given the Association is asking for a ruling on some

future event that may or may not occur, with no facts in front of

us. Article 27.02 defines the scope of the coverage while 27.03

provides for temporal limits. To say there are no temporal

limits in that provision is to say that the clause has no

meaning. The article states that the Benefits shall be reviewed

by the Board, together with ..... The provision does not say

there is to be a unanimous tripartite decision and in this regard

it is instructive to note there is no dispute resolution process

included in the article. It is also important to note that the

words mutual consentw or wconsentwt are not used, as they are in

other [cited] articles of the collective agreement where, indeed,

mutual agreement is required. There would be no purpose to the

review if a decision could not be made and the article provides

the Board with the power to revise any decision which was made

two years earlier.

The contention of the Employer is that the initial proposal of

the Association reveals the intent of the parties was to have

benefits discontinued when a person became a spouse by law. That

proposal read:

The benefits provided for in Section 28.02 shall continue until the spouse remarries and in the case of dependent children until they cease to be dependent as herein defined.

The Employer asks, why would the Association have proposed the

discontinuance of benefits on remarriage if the understanding was

that benefits could be reinstated following that remarriage?

In the Employer's submission what the Association seeks is a

ruling that benefits could be reinstated three weeks from now, or

40 years from now. The parties did not turn their minds to the

matter of reinstatement and as there is nothing in the article

about reinstatement of benefits after being properly

discontinued, those words cannot be added at this time.

I agree that once the Survivor Benefit plan has been properly

discontinued for the spouse of an Officer who has died in action,

there is no provision for that benefit plan to be reinstated.

That, however, is not the question. Rather, the question is,

does the collective agreement provide the Ingersoll Police

Services Board with the authority to unilaterally cancel the plan

for a given person and his/her family,, for whatever reason?

When the parties negotiated this provision they could have

stipulated that the plan would be discontinued in the event the

covered person remarried, or entered a common-law relationship,

or obtained a job elsewhere, etc., etc:., where equal or better

benefits were provided. Or, they coulld have added a stipulation

that while the spouse would not be covered in such circumstances

the dependent children would continue to be covered if and when

required. The parties could also have placed a time limit on the

availability of the coverage. This they did not do, even though

the ~ssociation proposal, if accepted,, would have provided a firm

cut-off, though in limited circumstanc:es. Rather, the parties,

through discussion and with understandable compassion, elected to

leave the subject wide open, with a review of all circumstances

to take place every two years.

How is that bi-annual review to be finalized? The Employer takes

the position that it is solely for the Board to decide, after

consulting with the Chief of Police and the Association. Other

sections of the collective agreement are referenced, where the

words "mutual agreementu are used. The Association, on the other

hand, takes the view that the agreement of the three parties is

required, taking the position that the words "together withN

cannot be read in any other way than the Board, and the Chief of Police and the Association must make the decision.

My view is that the Association's position prevails. This is a

collective agreement and the clearest of language is required

before unilateral decisions are to be made. The parties could

have said that the Board would make the decision after

consultation with the chief of Police and the ~ssociation. To

say Vogether withv cannot be read in any other way but that a

unanimous decision is required before a change in coverage can be made.

Quite apart from the language of article 27.03, I find the

resum~tion (as opposed to reinstatement) of benefits is quite

appropriate in the circumstances. We are not talking here of an

employee who quits his/her job, or is dismissed, or who retires.

We are talking about a non-employee who has lost his/her spouse

as a result of his/her death as a direct result of having been on

duty, and of children who have lost their father. To say for

example, that person and his/her children would be deprived

forever of the benefit package because of e.g., taking another

job and then losing it after a period of time, or of entering a

relationship that did not work out would be to place the person

in a position of fear of taking a job or entering a relationship

when the cost to his/her self and children could be enormously

high. Had the parties negotiated those or similar restrictions,

so be it, but I do not think that is in the spirit of the instant

collective agreement provision which the parties so purposely and

loosely left for further joint conside!ration.

In the result, the benefit package found in article 20 continues

to be available to the spouse, to be a~vailable to her and her

dependent children in the event that she does not have equal or

better coverage elsewhere. The covera,ge can be provided through

an insurance company or if that is not possible, the Board/Town

remains responsible for the cost of th~e equivalent of the

stipulated benefits.

Dated at Toronto, Ontario, thisZa&.ay of November, 1996.

R. D. J yce' Arbitra t or