Niagara Region Police Association v. Niagara Regional Police Services Board, 1997 ONCPC 1161

Citation: Niagara Region Police Association v. Niagara Regional Police Services Board 1997 ONCPC 1161

IN THE MATTER OF an application under section 116 of the Police Services Act, R.S.O. 1990, c. P.15 as amended

Applicant

Respondent

Presiding Members:

Murray W. Chitra, Chair

Raymond J. Silenzi, Member

Appearances:

Michael Pratt, Administrator, Niagara Region Police Association

Ian Roland, Counsel for the Police Association of Ontario

Michael Kyne, Counsel for the Niagara Regional Police Services Board Michael Hines, Counsel for the Ontario Association of Police Services Boards Robert Sauder, Administrator, Niagara Regional Police Senior Officers Association

Hearing Date: April 29, 1996 and September 6, 1996

This is an application by the Niagara Region Police Association pursuant to section 116 of the Police Services Act, R.S.O. 1990, c. P.15 as amended (the "Act") to determine the status of five positions. The titles of the positions in question are Licencing Enforcement Officer, Licencing Clerk, Board Clerk, Confidential Board Secretary and Board Manager. All of these positions are held by single individuals with the exception of Licencing Enforcement Officer which is currently occupied by three persons, for a total of seven individuals.

The Parties:

This application was originally brought forward by the Niagara Region Police Association. In the normal course of events the Niagara Regional Police Services Board would have been the Respondent and the Niagara Regional Police Senior Officers Association an interested party.

However, because of the scope of some of the issues raised by this proceeding, the

Commission notified the Police Association of Ontario, Ontario Association of Police Services Boards, Ontario Association of Chiefs of Police and Ontario Senior Officers

Association and invited their participation.

Mr. Roland appeared on behalf of the Police Association of Ontario and Mr. Hines on behalf of the Ontario Association of Police Services Boards. It was determined that both their clients had a direct and substantial interest in this hearing. As a result, they were granted full standing to present evidence, cross-examine witnesses and make submissions on behalf of their respective clients.

The Positions:

During the course of the hearing we heard detailed oral testimony from Ms. Wendy Southall, Board Manager, concerning the five positions. As well, we received numerous related exhibits. These included position descriptions, organizational charts, budget material, organization studies, resolutions, contracts, by-laws and various memorandums and other correspondence.

There appears to be little dispute about what functions the positions perform, how the positions are paid for, their history or current reporting relationships.

Broadly speaking, the essential elements of the positions focus around by-law enforcement, the issuing of licences, and the provision of clerical, secretarial and administrative support to the board. There are different degrees of overlap among the functions of the various positions.

The primary duties of the three Licencing Enforcement Officers are to inspect second hand stores, dealers, adult entertainment parlours, taxis, sightseeing vehicles, tow trucks, limousines, caleches, cartage vehicles and wrecking and salvage yards. The purpose is to ensure compliance with municipal licencing by-laws. In the event that a violation of the by-laws is identified, Officers take all the necessary steps to initiate prosecution and attend court to present evidence.

Secondary duties appear to include maintaining records and statistical information, acting as board courier, and transporting licence collection fees.

The main responsibilities of the Licencing Clerk relate to the processing and issuing of licences for the types of activities identified above. These include receiving applications and fees, initiating criminal records checks, preparing documentation, maintaining files and records, responding to general inquiries and preparing a monthly list of applicants to be forwarded to the board for approval.

The Board Clerk performs a range of traditional secretarial and clerical functions. These include: the processing of mail, the answering of phones, the preparation of correspondence and charts, maintaining attendance records, arranging deliveries, faxing and photocopying and coordinating meetings.

In addition to the above, the Clerk would appear to have responsibilities for the preparation of some records relating to by-law enforcement (e.g. by-law books). Further, the Board Clerk assists the Licencing Clerk in processing the large number of applications at licence renewal time.

The Confidential Board Secretary has a range of duties which relate to board meetings and decision making. These involve preparing board agendas, transcribing board proceedings, distributing motions, scheduling hearings, coordinating board records, assisting in budget preparation, arranging travel, processing invoices and maintaining petty cash funds, processing expense accounts, preparing purchase requisitions and maintaining office supplies. The Secretary also advises the board when called upon to do so, concerning appropriate means to meet board objectives.

With respect to by-law matters, the Secretary prepares various licencing reports for the board and correspondence flowing from board decisions, supervises licence fee accounts, and maintains licence waiting lists. Generally, the Secretary acts as the contact on licencing matters between the board and members of the service and public.

The Board Manager function is described in the job description as "dual capacity". The two capacities are "board manager and issuer of licence". The Manager oversees both the day-to-day operations of the board and Licencing Department. In effect, six of the individuals in question report to the Manager.

With respect to the board itself, the Manager provides advice, prepares and monitors the annual board budget, assists in the development of new policies and the reviewing of existing policies, represents the board at various committee meetings, conducts research, hires board staff, liaises with the chief of police and other members of the service and assists in the orientation of new board members.

Many of the functions of "issuer of licence" parallel those set out above. They include the development of licencing policy, reviewing the budget of the Licencing Department, interviewing licence applicants, and coordinating appeal hearings, hiring licencing staff, liaising with the chief and other members of the service with respect to licencing matters and meeting regularly with "the licenced industry to resolve issues".

There are a number of factors concerning these five positions worth noting. First, all job descriptions are issued by the Niagara Regional Police Services Board. The direct reporting relationship of the Licencing Enforcement Officers, Licencing Clerk, Board Clerk, and Confidential Board Secretary is to the Board Manager. The board, through the Manager, hires and fires, sets the work for these individuals and approves the manner in which it is scheduled.

The Board Manager reports directly to the Niagara Regional Police Services Board. This is reflected on the organizational chart of the Niagara Regional Police Service. The salaries of all seven individuals are paid by the board from a specific board account for this purpose. The board provides all the necessary tools and equipment for these persons to perform their jobs.

Further, this overall arrangement is not new. The licencing function has taken place under the board's direction since 1972. In the early days this function was performed by police clerks operating out of three local detachments. In the mid-1980s the work was "civilianized" and consolidated to operate out of board offices. It has remained that way since then.

None of the seven individuals belong to nor have they belonged to either the Senior Officers Association or Police Association. They do not pay dues. They are not covered under the terms of any collective agreement.

The Law:

(A) The Police Services Act

This is a hearing under section 116 of the Act. It provides:

116(1) If there is a dispute as to whether a person is a member of a police force or a senior officer, any affected person may apply to the Commission to hold a hearing and decide the matter.

(2) The Commission's decision is final.

At issue is the status of the seven individuals whose positions have been described above. The essential question to be answered is, are they members of a police force?

The answer to this question is not simple. It can only flow from an understanding of the legislative scheme for the operation and governance of municipal police services and the role of police services boards in this structure.

Section 38 of the Act provides a general statement that "A municipal police force shall consist of a chief of police and such other police officers and other employees as the board considers adequate, and shall be provided with the equipment and facilities that the board considers adequate."

The specific responsibilities of police services boards are set out in section 31(1) of the

Act. It reads:

31(1) A board is responsible for the provision of police services and for law enforcement and crime prevention in the municipality and shall,

(a) appoint the members of the municipal police force;

(b) generally determine, after consultation with the chief of police, objectives and priorities with respect to police services in the municipality;

(d) recruit and appoint the chief of police and any deputy chief of police, and annually determine their remuneration and working conditions, taking their submissions into account;

(e) direct the chief of police and monitor his or her performance;

(f) [repealed];

(g) receive regular reports from the chief of police on disclosures and decisions made under section 49 (secondary activities);

(h) establish guidelines with respect to the indemnification of members of the police force for legal costs under section 50;

(i) establish guidelines for the administration by the chief of police of the public complaints systems under Part VI;

(j) review the administration by the chief of police of the public complaints system and receive regular reports from him or her on that subject.

To these ends, section 31(6) empowers the board with the authority to "by by-law, make rules for the effective management of the police force." Under section 30(1) a board is also given the authority to "contract, sue and be sued in its own name".

In summary, the board has a duty to provide adequate and effective policing in its community. It accomplishes this objective, by hiring the necessary uniformed and civilian staff, supplying them with the required equipment, recruiting a chief of police, establishing the service's objectives and priorities, and setting the necessary rules, guidelines and performance review mechanisms.

The actual day-to-day responsibility for the administration of the police force itself rests exclusively with the chief of police. In particular, section 41 states:

41(1) The duties of a chief of police include,

(a) in the case of a municipal police force, administering the police force and overseeing its operation in accordance with the objectives, priorities and policies established by the board under subsection 31(1);

(b) ensuring that members of the police force carry out their duties in accordance with this Act and the regulations and in a manner that reflects the needs of the community, and that discipline is maintained in the police force;

(d) administering discipline in accordance with Part V;

(e) administering the public complaints system under Part

VI;

(f) [repealed];

(g) in the case of a municipal police force, reporting to the board at regular intervals on public complaints.

(2) The chief of police reports to the board and shall obey its lawful orders and directions.

It is the chief who directs the members of a municipal police force and ensures that they uphold the law and preserve the peace within the parameters of the policy direction set by the board. Indeed, section 31(4) states: "The board shall not direct the chief of police with respect to specific operational decisions or with respect to the day-to-day operation of the police force."

The separation of the function of the chief and board is one of the cornerstones of the Act and policing in Ontario. The chief occupies a statutory office with explicit authority for day-to-day decisions with respect to law enforcement. The board performs the functions of oversight, priority setting and policy direction. In this respect, it provides civilian governance.

The line can sometimes be a fine one. As section 31(2) provides, members of a police force, "whether they were appointed by the board or not, are under the board's jurisdiction". However, perhaps more to the point is section 31(3) which states: "The board may give orders and directions to the chief of police, but not to other members of the police force, and no individual member of the board shall give orders or directions to any member of the police force."

(B) Municipal Act

The source of the board's authority with respect to municipal licencing is not found in the Police Services Act. It lies elsewhere.

Historically, Part XVII of the Municipal Act, R.S.O. 1990, c. M.45 as amended, authorized both town councils and police services boards to pass by-laws for the licencing, regulating and governing of various classes of local businesses.

These provisions were amended in 1996 to vest this authority more clearly with municipal governments. Notwithstanding this, S.O. 1996, c.1, Sch. M, s. 22 retained a provision in the Municipal Act which read:

257.4 The council of a city may pass a by-law to delegate to the police services board the power to licence, regulate and govern a business specified in the by- law for all or that part of the city over which the police services board has jurisdiction and, for that

purpose, this Part applies with the necessary modifications to the police services board.

This section of the Municipal Act was also made applicable to regional municipalities, like Niagara, by S.O. 1996, c.1, Sch. M, s. 35(2).

On December 7, 1995, the Regional Municipality of Niagara formally delegated this by-law enforcement function to the board. This delegation essentially appears to have allowed the continuation of the existing arrangement.

Applicant's Arguments:

Mr. Pratt argues that all seven individuals in question fall within the definition of "member of a police force" found at section 2 of the Act. That section defines member as "a police officer, and in the case of a municipal police force includes an employee who is not a police officer".

As such, he suggests they must belong to either the Niagara Region Police Association or Niagara Regional Police Senior Officers Association.

He states that the Act does not specifically authorize the board to create a class of employee who is not a member. He suggests that given that the board is a creature of statute, in the absence of clear legislative authority, it has no such power. He argues that merely because the individuals in question may have operated in a particular fashion for a number of years does not mean that this situation meets the requirements of the Act.

Mr. Pratt reviewed the various sections in the Act which describe the roles of the different parties in the provision of police services. He states that to find that the employees in question were not members would create a number of anomalous situations. It would mean that there would be a category of employees not subject to the general disciplinary provisions of the Act, who could strike, unionize, refuse to perform duties during an emergency or cooperate with the Special Investigations Unit.

He suggests that the only logical conclusion supported by a coherent reading of the Act is that the legislature never intended to permit such a situation. He concludes that while having the seven individuals in question assigned to the various associations and reporting to the chief may not be the most efficient way of conducting business from the prospective of the board, it can indeed work and must, given that it is the only scheme contemplated by the Act.

Respondent's Arguments:

Mr. Kyne, on behalf of the Niagara Regional Police Services Board asserts that the seven individuals in question are not members of the force, but rather are employees of the board.

He states that in law, the board is a separate entity from the force with significant statutory authority and duties. He argues that, in order to perform those duties effectively, the board requires independent, objective, confidential and candid advice, research, clerical and secretarial support. He points particularly to matters concerning labour relations, collective bargaining, the appointment of special constables, setting budgets and the hiring, monitoring and discipline of the chief.

He notes that the board and the chief will not always agree. He suggests that the work of the board cannot realistically be performed by board members alone, or through the good graces of members of the force acting under the chief's direction.

He states that not only does the board require an independent administrative arm in a practical sense, but that such an arrangement is contemplated by the Act. He finds this authority in the overall scheme of the Act and particularly in section 30(1) which gives the board the authority to contract. He argues that this must entail the power to enter into contracts of employment.

As a factual matter, Mr. Kyne notes that the seven individuals in question presently work exclusively for the board, report directly to the board, are employed at the discretion of the board, are paid for out of a separate board budget item and receive all the tools of their trade from the board.

He highlights the fact that the board has historically directed the licencing function. The transfer of the actual work performance was moved to board offices in the mid-1980s to promote efficiency. These employees have never been members of any association.

He suggests that the mere nature of the function performed by the licencing staff (quasi- law enforcement) should not dictate status as members of the force. He points to the board's agreement with the Niagara Parks Commission as a clear example of a situation where enforcement duties are being performed within the Niagara Region by board appointed special constables employed by the Commission. They are not considered members of the Niagara Regional Police Service.

Finally, Mr. Kyne draws our attention to four Commission decisions. The first two relate to proceedings under section 40 of the Act. They are Town of Kirkland Lake (August 14,

and City of Orillia (January 17, 1996). The others are prior rulings under section

They are Orillia Police Services Board (August 4, 1993) and Regional Municipality of Niagara Police Services Board (January 16, 1996).

Intervenor's Arguments:

(A) Niagara Regional Police Senior Officers Association

Mr. Sauder indicates that he supports Mr. Pratt's submissions. He states that in his view, the board had no authority to employ individuals who were not members of the force. He notes the evidence presented to the effect that it would not be "impossible" for the board to continue its functions with all seven positions reporting through the chief of police.

Mr. Sauder also acknowledges that there will be special cases where the board requires confidential advice. He suggests, however, that in such situations the board is free to retain legal counsel or enter into short contracts with consultants. In normal or routine matters, the board need only have access to the expertise of the members of the force through the chief.

(B) Police Association of Ontario

Mr. Roland characterizes this proceeding as a jurisdictional dispute. The main issue he argues is how the law applies to a specific group of individuals. He states that this question must be correctly determined by us on the basis of the law as it exists and is not subject to resolution as a simple policy dispute.

Mr. Roland notes that the board is a creature of statute. He states that it does not have the status of juridical or legal being, person or corporation. As such, it only has those powers provided to it by its enabling legislation. In support of this proposition he cites Canadian Pacific Ltd. v. Matsqui Indian Band (1995), 122

D.L.R. (4th) 129 at page 174 (S.C.C.), Windsor Roman Catholic Separate School Board v. Windsor (City) (1988), 49 D.L.R. (4th) at page 579 (Ont. C.A.), Somerset Ridge Development Corp. v. Middlesex Condominium Corp. No. 134 (1991), 87

D.L.R. (4th) 708 at page 295 (Ont. Div. Ct.) and Mahoney v. Newcastle Board of

School Trustees (1966), 1966 CanLII 493 (NB CA), 61 D.L.R. (2d) 77 at page 87 (N.B.C.A.).

He states that the board is authorized by law to employ two types of individuals: police officers and non-police officers (i.e. civilian staff). He argues that this authority flows exclusively from the power to appoint found at section 31(1)(a) of the Act. All those who are so appointed receive the status of "members" of a police force.

Mr. Roland asserts that the necessary statutory authority for an agency to employ can flow from a power to appoint. He argues that the verb 'appoint', while somewhat broader in scope, does encompass the notion of 'hire' or 'employ'. To this end, by way of example, he draws to our attention a number of statutory provisions. These include: Ontario Labour Relations Act, S.O. 1995, c. 1, Sch. A, s.

110, Education Act, R.S.O. 1990, c. E. 2, s. 171, Municipal Act, R.S.O. 1990, c. M.

45 as amended, s. 170, Radiological Technicians, R.S.O. 1990, c. R. 3, Regulated Health Professions Act, S.O. 1991, c. 18, Sch 2, s. 2 and 9, Liquor Licencing Act, R.S.O. 1990, c. L.19, s. 2, Liquor Control Act, R.S.O. 1990, c. L. 18, s. 2 and3, Funeral Directors and Establishments Act, R.S.O. 1990, c. L. 18, s. 3 and4,

Stockyards Act, R.S.O. 1990, c. S. 25, s. 3 and4, Ontario Energy Board Act, R.S.O. 1990, c. O. 13, s. 4 and Ontario Food Terminal Act, R.S.O., c. O. 15, s. 2.

He argues that the general power to contract in section 30(1) is limited or circumscribed by the scheme of the Act and does not create a power to employ. He states that the Commission's earlier decisions in Town of Kirkland Lake and City of Orillia are incorrect on this point. He cites our decisions in Town of New Liskeard Police Services Board (October 17, 1983) and Hamilton-Wentworth Police Services Board (June 24, 1992) for the proposition that in the absence of a factual foundation, the Commission cannot use a section 116 proceeding to "direct" someone to be an employee. This must be the case, whatever past practices may have existed with respect to the treatment of particular workers.

Like Mr. Pratt, he points out what he views to be a number of anomalies which would arise if the seven individuals were not found to be members. Most relate to the absence of protections that these individuals would enjoy under the Act. He argues that the present Act does not contain or contemplate managerial or confidentiality exclusions for any member. He draws our attention to Re Brockville Police Association and Board of Commissioners of Police for the City of Brockville et al (1992), 1992 CanLII 8483 (ON CTGDDC), 87 D.L.R. (4th) 103 (Ont. Gen. Div.) and Re Brockville Police Association and Board of Commissioners of Police of the City of Brockville et al (1995), 125 D.L.R. (4th) 776 (Ont. C.A.).

Finally, Mr. Roland insists that the Act does provide the board with a number of means to obtain whatever assistance they require. This includes contracting for lawyers and consultants and directing the chief to provide any other necessary support.

Mr. Hines characterizes the issue at this proceeding as purely a question of statutory interpretation.

Police services boards, he states, have many important functions. He describes them as falling into two broad categories: governance and regulation. In order to perform these functions effectively, the board requires support.

Mr. Hines argues that the essence of the governance function is the exercise of independent civilian control over a quasi-military agency. Given the reality that boards and chiefs will not always agree, this independence would be frustrated if the board could not perform the smallest task without his or her forbearance.

The second function that the board performs, Mr. Hines suggests, is regulation. This he argues is a duty and authority which flows from the Municipal Act and must be seen as distinct from law enforcement or policing. It entails setting rules (i.e. enacting by-laws) and ensuring their compliance. In particular, the rule making function is a duty which cannot be delegated to the chief of police.

Mr. Hines brings to our attention section 28(b) of the Interpretation Act, R.S.O.

1990, c. I.11. It states:

In every Act, unless the contrary estimation appears …

(b) where power is given to a person, officer or functionary to do or to enforce the doing of an act or thing, all such powers shall be understood to be also given as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing.

Mr. Hines notes the board's power to contract found in section 30(1). He states that on a plain reading of the section, this power to contract is unrestricted. He acknowledges however, that it must be exercised in accordance with the purposes of the statute.

He suggests that the power to hire staff to assist a board in the performance of its independent duties and to prevent their potential frustration is a reasonable objective which can be extracted from the purpose which the Act seeks to accomplish. For this proposition he cites Dreidger on the Construction of Statutes (3rd ed), Butterworths, Canada, at pages 80, 81, and 85. He describes this as a proper curing of under-inclusive legislation.

Mr. Hines argues that the power to "appoint" found at section31(1)(a) is only a power to designate and not to employ. Put another way, the board employs under section 30(1) and designates the necessary employees as members of the service under 31(1)(a). Not all employees need be so designated.

He states that the current arrangement is not an attempt to end run the collective bargaining provisions found at Part VIII of the Act. He brings our attention to our decision in Town of Kirkland Lake and suggests that the logic in that case is just a short step from the situation under review.

Mr. Hines spoke to a number of the anomalies identified by Messrs. Pratt and Roland. He indicates that there are anomalies no matter which approach we adopt. He suggests that much of the difficulty arises from the awkwardness of the Act itself, its history and piecemeal construction. He describes many of them as nagging curiosities and imperfections which do not relate to fundamental issues.

Decision:

This case raises difficult issues. It is made complex for a number of reasons. First, the statutory provisions are less than clear. Those which do exist present some obvious internal inconsistencies. Second, there is an absence of precedents.

It is further complicated by other factors. In particular, a number of the positions in question combine both administrative support and by-law enforcement functions. As well, it is evident that practices vary throughout the province.

In some parts of Ontario, boards receive their administrative support from staff in the office of the chief. Most of these individuals would be members of the local Senior Officers Association. In contrast, we were presented with evidence that in Metropolitan Toronto the board receives its support from 18 individuals who report directly to the board and are "excluded" from membership in any association.

Similarly, by-law enforcement practices vary. Some municipalities exercise the appointment power found at section 15 of the Act and undertake by-law regulation internally; that is, separate and apart from the police force. Others use the authority found at section 257.4 of the Municipal Act to delegate the role to police services boards. Enforcement activities are then undertaken by members of the police force under the direction of the chief.

Finally, we have the situation in Niagara, which appears to be unique. The by-law enforcement function has been delegated to the board by the municipality. It is then performed directly by the board, separate and apart from the police force and the operational direction of the chief of police.

Some of these differences may have arisen historically. Others may flow from confusion as to the scope and effect of the board's power to 'appoint' as contrasted to its authority to 'contract'. In our view, the latter is at the heart of this particular dispute.

Under the Act the board has a broad power to appoint for a number of different purposes. It may appoint police officers, auxiliary members, special constables and approve the appointment by the chief of police of police cadets.

The act of appointment entails the vesting of an office. In this sense, The Shorter Oxford English Dictionary (Vol. 1), Clarendon Press, Oxford, 1987 at page 92 defines the term to mean "The act of nominating to, or placing in, an office; the office itself". The type of nomination results in the granting of certain powers, duties, obligations and accountabilities.

An appointment to office does not by itself create the status of employee. There are a number of examples of this in the Act. For instance, the board may appoint auxiliary members of a police force under section 52. Auxiliary police officers are volunteers who may exercise police officer powers in prescribed circumstances. As volunteers they are not paid. By any definition they are not employees.

Further, it would seem that the act of appointment by a board does not necessarily confer membership in a police force. For example, section 53 of the act permits a board to appoint special constables. These individuals receive some of the powers of a police officer for specific purposes. Many special constables are employees of universities,

federal and provincial ministries or agencies and are appointed by boards to exercise limited law enforcement functions. They do not fall within the definition of "member of a police force" found at section 2 of the Act.

In summary, as a matter of general principle, appointment by a police services board to an office is not synonymous with either employment or membership in a local police force.

That being said, there is one class of appointment under the Act which appears to presume both employment and membership. We refer to the office of police officer. Section 43 of the Act sets out the minimum qualifications for appointment as a police officer. The marginal note describes this as "criteria for hiring".

Section 44 speaks to a police officer's 'probationary period'. It commences on the date of the officer's appointment. Further, section 44(3) states "A board may terminate a police officer's employment at any time during his or her probationary period …." Thus, at least for police officers, the notion of appointment seems to be inextricably bound to employment.

The same can be said for the concept of membership. Indeed, at one time the status of member and appointment to the office of police officer or constable appear to have been analogous. Section 45 of the Police Act, R.S.O. 1950, chap. 279 read:

The members of police forces appointed under Part II shall be charged with the duty of preserving the peace, preventing robberies and other crimes and offences, including offences against by-laws of the municipality, and the apprehending of offenders, and laying informations before the proper tribunal, and prosecuting and aiding in the prosecuting of offenders, and shall have generally all the powers and privileges and shall be liable to all the duties and responsibilities that belong to constables.

Historically, it would seem that the undertaking of enforcement functions (including by- laws), appointment as a police officer, employment and membership in a force were linked.

The status of civilian employees is less clear. They are not appointed to an office. They have no historical claim to membership. There are no provisions in the act like sections

43 and 44 which speak to their hiring or probationary period. What then is the source of a board's authority to employ such individuals?

This brings us to section 30(1) of the Act. It reads "A board may contract, sue and be sued in its own name."

This provision was introduced to the Act by S.O. 1967, chap. 76, s. 4. It is interesting to observe that this occurred after the question of a board's capacity as a statutory entity

to undertake certain actions was raised in various courts. An example of this can be found at Board of Commissioners of Police of Corporation of Township of London v. Western Freight Lines Ltd. and Ulch, (1962) 1962 CanLII 169 (ON CA), O.R. 948 (Ont. C. A.).

What is the scope of this statutory authority, particularly as it relates to the power to contract?

There is little doubt that the foundation of any employment relationship is contractual. The very agreement of a person to do certain work and the agreement of another to pay for that work, constitutes a contract. Thus, on the face of it, the plain and natural reading of section30(1) is that the board may enter into employment contracts for civilian employees. In our view, this power is clearly vested by law in boards.

This authority however, is not unfettered. It must be seen within the context of the purpose and objectives sought to be accomplished by the Act. It cannot be used to frustrate that purpose.

We have heard a number of examples of how this might occur. Read in its broadest sense section 30 would permit a board to directly employ civilian staff to perform enforcement functions under its instruction. In essence, the board could create an operational arm which could undermine a chief of police's role under section 41.

In our view, this would be clearly improper. The role of a board is set out in section 31. It is exclusively in the business of civilian governance. Its role is policy direction, priority setting, and ensuring that the necessary resources are available to provide adequate and effective policing. The board is not in the business of directly providing operational enforcement.

In a very real way, that is what we have here with the by-law enforcement function. While we appreciate that the source of the board's authority in this matter flows from a delegation under the Municipal Act we see nothing in that statute which alters the general scheme of the Police Services Act nor should section 30 be read in such a manner to permit this to occur.

It is our view, that if a by-law enforcement mandate is to be vested in the board, this function is properly performed by members of the police force acting under the operational direction of the chief of police. The board's role should be limited to regulation setting and policy direction with respect to enforcement. Accordingly, it is our determination that the Licencing Enforcement Officers and Licencing Clerk must be members of the Niagara Regional Police Service under the operational control of the chief of police.

At the other extreme, if section 30 is read in its narrowest sense, a board would not be able to hire any civilian employee for any other purpose than membership in a police force. Given the application of sections 31(3) and (4) the board would only be in a position to give orders to one person - the chief. The board would not even be able to direct that a letter be typed.

In a very practical sense, such a reading of the Act could frustrate the board's ability to perform the independent governance functions assigned to it. It could undermine the purpose and objective set for the board, by the statute.

For this reason we feel that a plain and natural reading of section 30, in the context of the general scheme of the Act, permits a board to directly employ individuals to exclusively perform clerical, secretarial, and administrative functions relating to the specific duties assigned to it by section 31.

Accordingly, it is our conclusion that the Board Clerk and Confidential Secretary are not members of the Niagara Regional Police Service.

The position of Board Manager is more complex in that it appears to be equally divided between administrative support and enforcement responsibilities. It is our view that unless the by-law enforcement responsibilities are divested, this position should call for membership in the police force.

The above is a sensible interpretation of section 30, which the words of that provision can readily bear. It allows for a practical and workable result which avoids the absurd consequences of either a very broad or restricted reading of this section.

In this regard we are very much mindful of the words of Estey J. in Berardinelli v. Ontario Housing Corporation (1978), 1978 CanLII 42 (SCC), 90 D.L.R. (3d) 481 (S.C.C.). Specifically, at page

495 of that decision he stated: "Where one interpretation can be placed upon a statutory provision which would bring about a more workable and practical result, such an interpretation should be preferred if the words invoked by the Legislature can reasonably bear it."

By way of conclusion we wish to make a few observations. This decision is not meant to suggest that boards and chiefs that have for many years shared support services are obliged to change the nature of these arrangements. Nor frankly, can we foresee much scope for altering the status of the members of forces currently undertaking these functions.

However, that being said, we do find authority in the Act for a board that so desires to directly hire a small number of support staff for the exclusive purpose of providing clerical, secretarial and administrative research services to assist a board in meeting its mandate under section31. This should not be viewed as a means to frustrate the provisions of the Act (i.e. infringe on the operational role of the chief of police or collective bargaining). It is not meant as a confidentiality exclusion or a comment on the scope of the powers of section 10 boards.

Further, assuming all of the above criteria are met, in order for such staff to be excluded from membership, they must also meet all of the normal requirements of employment. By way of example, the board must set the job description, pay any salary from a board account, and directly control the performance of duties.

Finally, we wish to express our appreciation for the excellent presentations of Messrs. Pratt, Roland, Kyne, Hines, and Sauder. Their insight and understanding of the Act assisted us greatly in our difficult task.

DATED THIS 21ST DAY OF MARCH 1997.

Murray W. Chitra

Chair, OCCPS