Retail Clerks Union, Local 409 v. Phillips Security Agency Inc., 1982 CanLII 1024

Retail Clerks Union, Local 409 v. Phillips Security Agency Inc.

[1982] OLRB Rep. October 1549

1412-81-R Retail Clerks Union, Local 409, Applicant, v. Phillips Security Agency Inc., Respondent.

BEFORE: Pamela C. Picher, Vice-Chairman and Board Members D. B. Archer and J. Bell.

APPEARANCES: J. McMullen and M. Fraser for the applicant; F. J. W Bickford for the respondent.

DECISION OF THE BOARD; October 27, 1982

1This is an application for certification.

2The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

3The union has applied to be certified as the exclusive bargaining agent for "all employees of the respondent employed in the City of Thunder Bay, other than those employed as guards protecting the property of employers, save and except supervisors, persons above the rank of supervisor and office staff'. The persons covered by this proposed bargaining unit are by-law enforcement officers who spend most of their time enforcing parking by-laws, and, where warranted, ticketing cars.

4The respondent raised a preliminary objection to the union's application. It maintains that the Board does not have jurisdiction to certify the union to represent the persons in the bargaining unit described above because, in its view, the by-law enforcement officers are members of a police force within the meaning of section 2(d) of the Labour Relations Act which provides as follows:

2. This Act does not apply,

(d) to a member of a police force within the meaning of the Police Act.

5At the Board's initial hearing counsel for the respondent further argued that the by-law enforcement officers covered by the instant application were security guards within the meaning of section 12 of the Act. He asserted that for this reason as as well the Board was precluded from certifying the applicant union as their bargaining agent. In argument, however, counsel did not pursue this argument and the Board, particularly in view of its decision in Metropol Security Limited, [1980] OLRB Rep. Dec. 1755, concludes that it has been withdrawn.

6Previous to the instant application for certification the Board, in Metropol Security Limited, certified the applicant union for a group of employees which counsel for the respondent acknowledges included employees who performed the same duties as the persons falling within the bargaining unit applied for by the union in the instant application. In its Metropol decision, the Board referred to these employees as "Category I: The By-Law Enforcement Officers for the City of Thunder Bay." At paragraph 10 of its decision the Board reached the following conclusion:

With respect to the persons in Category I ... the answer to this question [of whether they are employed as guards to protect the property of an employer] is quite obvious. The persons in Category I, that is the By-Law Enforcement Officers, do not in the course of their duties protect any property at all. Therefore, they are not affected by section 11 [(now section 12) of the Labour Relations Act].

Accordingly, the Board certified the applicant union as their bargaining agent.

7In the Metropol case, however, the respondent employer did not argue that the by-law enforcement officers were precluded from being certified because they were members of a police force. It is this argument that now comes before the Board.

8Through an interim decision dated November 25, 1981, the Board appointed one of its officers to inquire into and report to the Board on all matters pertinent to determining whether the individuals in question are members of a police force including their duties and responsibilities, the basis of their appointments, if any, as by-law enforcement officers and any matters relevant to determining whether Philips Security Agency Inc. is in fact their employer.

9Pursuant to his appointment, the Officer met with the parties. Through the following letters, however, the parties agreed to waive his examination and to accept both the Report of the Board's Officer and the Board's factual determinations in the Metropol case, supra. The letter filed by the union is dated January 12, 1982 and provides,

Re: Phillips File 1412 -81-R

This letter will serve to confirm our telephone conversation to-day wherein the Union has agreed to waive the examination in this application and to proceed with the hearing on the basis of the evidence and testimony received from the previous application in Metropol Security, your file number 2252-79-R.

Trusting this meets with your approval, I remain,

Yours truly,

Jeff McMullen.

The letter from counsel for the employer is dated February 8, 1982 and reads as follows:

Re: Phillips Security Agency Inc. Application for Certification Retail Clerks Union Board File No. 1412 -81-R

Further to my letter of January 12, 1982, I wish to confirm my telephone conversation with Mr. Bowman on Friday, February 5th, 1982 when I advised him that we are prepared to treat the transcript of the Examinations conducted during the Metropol case as determinative of the present duties of by-law enforcement officers employed by Phillips Security and as well, we accept and will not contest any of the findings of fact found by the Board in the Metropol case including paragraph 4.

Although we will not challenge any of the findings of fact in the Metropol case, we trust that we will be able to make any representations with respect to the duties of the by-law enforcement officers vis-a-vis the police force provided that such representations do not challenge any findings of fact by the previous Board.

Yours very truly,

WElLER, MALONEY, NELSON

PER:

F. J. W. Bickford

10The findings of fact of the Board in the Metropol case which the parties in the instant case accept as applicable to the by-law enforcement officers applied for in the instant application are as follows:

1. The service performed by the company's by-law enforcement officers is supplied under contract to the City of Thunder Bay on behalf of its parking authority.

2. The contract calls for a number of enforcement officers to write tickets for parking violations.

3. These by-law enforcement officers are uniformed and patrol given areas of the City.

4. They are all licenced security guards.

5. Further supplied pursuant to the contract with the City of Thunder Bay are services relating to parking garages. The by-law enforcement officers operate toll booths for the parking garages.

6. The only duty of the by-law enforcement officer is to complete tickets with respect to violations of parking by-laws. This does not extend to traffic laws.

7. If anything beyond the writing of a ticket occurs, the by-law enforcement officers are clearly instructed to call the police as would any citizen.

11Section 2(d) of the Act provides that the Act does not apply to members of a police force within the meaning of the Police Act. Section 23(1) of the Police Act, R.S.O. 1980. c. 381 as amended by S.O. 1981, c. 55 provides as follows:

23 (1) Every person employed in a police force shall be deemed to be a member thereof.

Other relevant provisions of the Police Act and Regulations made thereunder are set out below:

1. In this Act,

(c) "board" means a board of commissioners of police;

(d) "Commission" means the Ontario Police Commission;

PART I

DIVISION OF RESPONSIBILITY

2.- (1) Every city and town is responsible for the policing of and maintenance of law and order in the municipality and for providing and maintaining an adequate police force in accordance with the police needs of the municipality.

3.- (1) The Ontario Provincial Police Force is responsible for policing al [that part of Ontario that is not in a municipality or part of a municipality referred to in section 2, but the Ontario Provincial Police Force is not responsible for policing any part of Ontario in which a municipal police force is maintained.

(2) For the purpose of subsection (1), municipal law enforcement officers shall not be deemed to be a municipal police force.

PART II

MUNICIPAL POLICE FORCES

8.- (1) Notwithstanding any special Act, every municipality that provides and maintains a police force and that has a population of more than 15,000 according to the last municipal census shall have a board, …

14.- (1) Subject to subsection (3) and to clause 42(l)(g), the police force in a municipality having a board shall consist of a chief of police and such other police officers and such constables, assistants and civilian employees as the board considers adequate, and shall be provided with such accommodation, arms, equipment, clothing and other things as the board considers adequate.

(2) Every board shall, on or before the 1st day of March in each year, prepare and submit to the council or each council responsible for maintaining the force, for its consideration and approval its estimates of all monies required for the year to pay the remuneration of the members of the police force and to provide and pay for the accommodation, arms, equipment and other things for the use and maintenance of the force.

(3) Where the council does not agree with the board on the estimates or on the adequacy of the number of members of the police force or the accommodation, arms, equipment or other things for the use and maintenance of the force, the Commission shall determine the question after a hearing. R.S.O. 1980, c. 381, s. 14.

15. The members of the police force in a municipality having a board shall be appointed by the Board. R.S.O. 1980, c. 381, s. 15.

17.- (1) Notwithstanding section 2, the board is repsonsible for the policing and maintenance of law and order in the municipality and the members of the police force are subject to the government of the board and shall obey its lawful directions.

(2) Every member of the police force of a municipality, however appointed, is, from and after the passing of a by-law establishing a board, subject to the government of the board to the same extent as if appointed by the board. R.S.O. 1980, c. 381, s. 17.

20.- (1) Where a municipality that has established a police force does not have a board, the council shall appoint the members of the police force.

(2) Subject to clause 42(1)(g), the members of a police force referred to in subsection (1) shall consist of one or more constables and such other police officers, assistants and civilian employees as the council considers adequate, and the council shall provide and pay for such accommodation, arms, equipment, clothing and other things as the council considers adequate.

23.- (1) Every person employed in a police force shall be deemed to be a member thereof

PART VI

GENERAL

56. Every chief of police, other police officer and constable, except a special constable or a by-law enforcement officer, has authority to act as a constable throughout Ontario. R.S.O. 1980, c. 381. s. 56.

57. The members of police forces appointed under Part II, except assist2nts and civilian employees, are charged with the duty of preserving the peace, preventing robberies and other crimes and offences, including offences against the by-laws of the municipality, and apprehending offenders, and commencing proceedings before the proper tribunal, and prosecuting and aiding in the prosecuting of offenders, and have generally all the powers and privileges and are liable to all the duties and responsibilites that belong to constables. R.S.O. 1980, c. 381, s. 57.

58.- (1) The Ontario Police Commission or any member thereof designated by the chairman may investigate, inquire into and report upon the conduct of or the performance of duties by any chief of police, other police officer, constable, special constable or by-law enforcement officer….

66.- (1) Every person appointed to be a chief of police, other police officer or constable shall before entering on the duties of his office, and every special constable when thereunto required, take and subscribe the following oath:

I, ..., do swear that I will well and truly serve Her Majesty the Queen in the office of constable (or as the case may be) for the ... of... without favour or affection, malice or ill-will; and that, to the best of my power, I will cause the peace to be kept and preserved, and prevent all offences against the persons and properties of Her Majesty's subjects; and that, while I continue to hold the said office, I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to the law. So help me God.

Sworn, etc.

(2) The oath of every chief of police, other police officer and constable of a municipal police force shall be deposited in the office of the clerk of the municipality or of the secretary of the board of the municipality for which he is appointed. R.S.O. 1980, c.381, s. 66.

69.- (1) Subject to section 56, a county court judge , a district court judge or a provincial judge may, by written authority, appoint any person to act as special constable for such period, area and purpose as he considers expedient.

(3) Every appointment as a special constable is subject to the approval of the Commission.

(5) Every authority appointing a special constable shall require him to take and subscribe an oath similar to that set out in subsection 66(1).

70. The council of any municipality or the trustees of any police village may appoint one or more municipal law enforcement officers who shall be peace officers for the purpose of enforcing the by-laws of the municipality or police village. R.S.O. 1980, c. 381, s. 70.

From Regulation 791, R.R.O., 1980,

29. Except with the consent of the chief of police, granted in accordance with the by-laws of the board or council, as the case may be, no member of a police force shall engage directly or indirectly in any other occupation or calling, and he shall devote his whole time and attention to the service of the police force. R.R.O. 1970, Reg. 680, s. 29.

QUALIFICATIONS

32. No chief of police, constable or other police officer shall be appointed to a police force unless he,

(a) is a Canadian citizen or a British subject;

(b) is eighteen years of age or over;

(c) is certified by a legally qualified medical practitioner to be in good health, mentally and physically, and fit for duty as a member of a police force;

(d) produces satisfactory proof of having successfully completed at least two years secondary school education or its equivalent; and

(e) is of good moral character and habits. O. Reg. 970/74, s. 1.

UNIFORM AND EQUIPMENT

33. All articles of uniform and equipment necessary for the performance of duty shall be provided by the municipality, but, where damage or loss occasioned by the fault of a member of a police force, the cost of replacement shall be borne by him. R.R.O. 1970, Reg. 680, s. 33.

OATH OF AUXILIARY MEMBER

35. The oath to be taken and subscribed to by an auxiliary member of a police force shall be in Form 3. R.R.O. 1970, Reg. 680, s. 35.

[emphasis added]

12Section 14(1) of the Police Act provides that a police force in a municipality having a board of commissioners of police shall consist of, among others, assistants. Counsel for the employer argues that the by-law enforcement officers are "assistants" within the meaning of section 14(1) of the Police Act and are, therefore, members of the police force. Respondent counsel points to article 23(1) which provides that every person employed in a police force shall be deemed to be a member thereof.

13Mr. Walter Ellicock, the manager of Metropolitan Investigation and Security (Canada) Ltd. (to be read as "Phillips Security Agency Inc." for the purposes of the instant decision) testified to the employment framework of the by-law enforcement officers. The Corporation of the City of Thunder Bay passed a by-law to regulate parking on the highways of the City of Thunder Bay. The by-law established parking meter zones and provides that parking meters will be established in those parking meter zones. It further stipulates that no person shall park a vehicle in one of those zones except in compliance with the by-law. Part II of the by-law entitled "ENFORCEMENT AND PENALTIES" provides in section 7(1)(a) that where a vehicle is found parked standing or stopped in contravention of the by-law, the "Police Officer, By-Law Enforcement Officer, Municipal Law Enforcement Officer or other person duly appointed to enforce this by-law" shall ticket the vehicle. The by-law then provides that the ticket should be delivered to the parking authority of the City of Thunder Bay.

14The relevant provisions of the parking by-law are set out below:

THE CORPORATION OF THE CITY OF THUNDER BAY

BY-LAW NUMBER 158-1977

A By-law to regulate parking on the highways of the City of Thunder Bay.

WHEREAS Section 460(8) of the Municipal Act provides that the councils of all municipalities may pass by-laws for erecting, maintaining and operating on any highway or portion of a highway automatic or other mechanical meters or devices, with the necessary standards for the same, for the purpose of controlling and regulating the parking of any vehicle on the highway and measuring and recording the duration of such parking, for requiring drivers of every vehicle parked on such highway to make use of such meters or devices, and to pay for parking such vehicle on the highway a fee according to the amount or scale prescribed by the by-law and as measured by the meter or device, and for prohibiting parking of vehicles on such highway or portion of a highway unless such meter or device is made use of and such fee is paid, and for limiting the right of parking of vehicles on such highway to such drivers as do make use of such meters or devices and pay such fees.

PART I - PARKING METERS AND PARKING METER ZONES

1. Establishment of Parking Meter Zones

Subject to the provisions of The Municipal Act, R.S.O. 1970, Chapter 284, and amendments thereto, the streets or portions of streets more particularly set forth in Schedule "1" are hereby designated and established as Parking Meter Zones; …

2. Parking Time in Metered Zone

Legal parking time in the areas established or designated as Parking Meter Zones shall be as more particularly set forth in Schedule "2" hereto.

3. Method of Operation

(a) Parking meters shall be placed in all Parking Meter Zones as closely as is practicable to the individual parking spaces governed by such meters....

4. Illegal Parking in Parking Meter Zones

No person shall park a vehicle on any street or part of a street designated as a Parking Meter Zone except in compliance with the provisions of this By-Law.

PART II - ENFORCEMENT AND PENALITIES

7. (1) (a) Where a vehicle is found parked, standing or stopped in contravention of the provisions of this By-law, the Police officer, By-law Enforcement Officer, municipal law enforcement officer or other person duly appointed to enforce this By-law so finding the vehicle shall place upon or attach to the vehicle a parking ticket in the form of a serially numbered notice stating:

(i) The permit number and a concise description of the vehicle;

(ii) That the vehicle is unlawfully parked, stopped or standing as the case may be;

(iii) The date, time and place of the alleged offence;

(iv) That the owner or operator thereof may make a voluntary payment in the manner set forth in Clause (c) hereof;

(v) That in the event of his failure to make such payment a Summons will be issued under The Summary Convictions Act;

(vi) The addresses of the Parking Authority payment depots.

(b) The ticket shall be completed in duplicate and the Police officer, By-law Enforcement Officer, municipal law enforcement officer or other person duly appointed to enfoce this By-law shall attach one copy to the vehicle and deliver the other copy to The Parking Authority of The City of Thunder Bay.

15To implement this by-law the City of Thunder Bay, at thirty month intervals, invites tenders for the supply of a complete parking meter patrol service. In 1976 Metropolitan Investigation and Security (Canada) Ltd. submitted the successful tender for the supply of the parking meter patrol service. In 1978 they again obtained the contract. Subsequently, however, presumably in 1980, the contract for the supply of the complete parking meter patrol service was given to Phillips Security Agency Inc., the respondent to the instant application for certification.

16The form of tender for the supply of the complete parking meter patrol service for the City's Parking Authority is established by the City of Thunder That form was submitted into evidence and reads in part as follows:

FORM OF TENDER 26/81

SUPPLY A COMPLETE PARKING METER PATROL SERVICE

• FOR THE PARKING AUTHORITY -

I/We, the undersigned, do hereby tender and offer to enter into contract with the Corporation of the City of Thunder Bay for the SUPPLY OF COMPLETE PARKING METER PATROL SERVICE in accordance with the attached "City Standard Terms and Conditions for Tenders and Contracts" and all the specifications and terms of the Corporation's tender which are set forth below and attached at the prices indicated in the space provided for that purpose, all to the entire satisfaction of the City Director-Administrative Services or his appointed agent.

I/We estimate that Patrol Service can be started within ___ days after notification has been received of the award of tender.

I/We understand that the terms of the contract shall be for thirty months at 5,000 hours (more or less) as stated in the paragraph "Length of Contract, Renewal, Termination", on page three.

I/We hereby submit our charge for Patrol Service, including supervision, for the total estimated hours for the term of two years will be $_____ per hour, per patrol officer, and $_____ per hour, per patrol officer in vehicles.

SPECIFICATIONS & CONDITIONS - IN GENERAL

The object of this tender is to provide uniformed parking meter patrol service for a period of thirty months for the City of Thunder Bay for all meters under the control of the City Park Authority.

IN DETAIL

PERSONNEL - A QUALIFIED SUPERVISOR shall be supplied who will be directly responsible to the Manager-Secretary of the Parking Authority.

METER ATTENDANTS who may be either male or female shall be of good health, capable of understanding by-laws and regulations related to parking and traffic, and shall be able

(a) to deal with the public efficiently in an authoritative yet courteous manner

(b) each successful applicant must pass a driving test using a 3-wheeled Cushman patrol cart as supplied by the Parking Authority under this contract.

(c) ALL applicants are subject to approval by the Parking Authority prior to their being retained by the successful tenderer.

To provide TWO ONLY PATROL OFFICERS IN THE NORTH AND TWO IN THE SOUTH DOWNTOWN CORES to patrol meters between the hours of 9:30 a.m. and 5:30 p.m. daily except Sundays and City claimed holidays. All officers to be in uniform attire. While operating the Cushman Carts, the officers must wear an approved "police style" crash helmet. All officers are to be sworn in as by.law enforcement officers by the Clerk of the City of Thunder Bay.

To provide ONE ATTENDANT in each of two parking garages located in the KESKUS-SHOPPING MALL, and ONE IN THE VICTORIA PARKADE. Responsibility of the attendant will be to collect monies for parking, maintain a weekly collection report and prepare deposits. The attendant in C-l at Keskus will also be responsible for accepting payments for monthly parking and fines and making daily report sheets on these. Hours of coverage will generally be:

8 A.M. -7 P.M. MONDAY - SATURDAY

7 P.M. - 9:30 P.M. THURSDAY AND FRIDAY

Relief time will be the responsibility of the supplier.

A courier system must be provided by the supplier to transport the daily deposit from C-l and C-2 garage to the City's bank. The supplier must also deposit the receipts from the Victoria Parkade in the City's bank.

The Parking Authority will provide four (4) Cushman motorized patrol carts. Two (2) will be stored in the Keskus Garages and two (2) in the Victoria Parkade. The Parking Authority will provide all insurance and maintenance on these units. The successful tenderer must provide a minimum of $3,000,000.00 liability insurance on these units, naming the City as an insured party. The successful tenderer must also assume the cost to repair any damages to the units resulting from negligent operation by one of their security personnel.

The Parking Authority will provide a working schedule which it would like to discuss with the successful tenderer.

The following schedule for rates of pay must be adhered to:

1981 - Minimum pay per

hour per officer $5.00

Jan. 1, 1982 - Minimum pay per

hour per officer $5.50

Jan. 1, 1983 - Minimum pay per

hour per officer $6.05

The form of tender set out above is the one that was applicable to Phillips Security Agency Inc. The one responded to by Metropolitan Investigation and Security (Canada) Ltd. leading to their contract for the supply of the parking meter patrol service is only slightly different.

17Certain fundamental conditions of employment are established by the terms of the tender set by the City of Thunder Bay: the company supplying the parking meter patrol service must have a qualified supervisor who will be directly responsible to the manager-secretary of the Parking Authority. The applicants for meter attendants are subject to the approval of the Parking Authority. The officers must be in uniform and they are to be sworn in as by-law enforcement officers by the clerk of the City of Thunder Bay. The tender further establishes the time during which the patrol officers will patrol the meters as well as their minimum rate of pay. With respect to discharge, Mr. Ellicock states in his evidence that if the Parking Authority does not like one of the by-law enforcement officers and were to recommend that she be removed from the job, she would be.

18Mr. Ellicock testified that when his company first got the contract from the City for the supply of the parking meter patrol service, Mr. Brown, the manager-secretary of the Parking Authority, instructed the by-law enforcement officers hired by Metropolitan on their powers and duties. It would appear that at the same time they were all sworn in as by-law enforcement officers.

19The Board concludes on the evidence that the persons hired as meter attendants by Metropolitan take the following oath administered by someone acting on behalf of the City. The following oath was submitted into evidence by counsel for Phillips Security Agency Inc., and is virtually identical to the one filed as an exhibit in the Metropol case.

BY-LAW ENFORCEMENT OFFICER

I, __________________________, do swear that I will well and truly serve Her Majesty the Queen in the office of By-law Enforcement Officer for the enforcement of all City of Thunder Bay By-laws for the Municipality of the City of Thunder Bay without favour or affection, malice or ill will and that while I continue to hold the said office, I will, to the best of my skill and knowledge discharge all the duties thereof faithfully, according to the law: — SO HELP ME GOD

Sworn before me this ____ day of ________________________ 1981

H. T. Kirk

City Clerk

Presumably this oath was taken pursuant to the parking by-law which requires law enforcement officers to be "sworn in" by the Clerk of the City of Thunder Bay. The oath taken by the by-law enforcement officers, however, is significantly different from the oath set out in section 66 of the Police Act, which in any event is applicable only to a chief of police, other police officer, constable, and special constable. As well, the oath taken by the by-law enforcement officer is different from the oath taken by an auxiliary member of a police force as referred to in section 35 of the Regulation 791. There is no oath of office specially established by the Police Act either for by-law enforcement officers or "ass ist"assistants".

20On a number of occasions the Board has been called on to interpret section 2(d) of the Labour Relations Act as well as its predecessor sections. In Canadian Westinghouse Co. Ltd. 47 CLLC ¶16,492 the union applied to be certified for all watchmen in the employ of the respondent company. Section 10 of the Act [now section 2(d)1 provided that the Act was not applicable to "members of any police force". The persons the union had applied to represent included special constables appointed under the Constables Act, R.S.O. 1937, c. 140 [repealed by the Police Act, 1946, c.72]. In concluding that the special constables were not excluded from the coverage of the Act, the Board reasoned as follows at p. 1227 of its decision:

When the case came before the Board, there was some question in our minds whether the status of those watchmen who have been sworn in was such as to bring them within the terms of section 10 of the Labour Relations Board Act [Ont. ¶10,2101. That section provides that the Act is not applicable to "members of any police force" (among others). We believe that the exclusion was intended to apply only to public police forces established under provincial authority, and not to individuals appointed as special constables for the specific purpose of acting as such under the instructions of a private employer. We do not concede that because the appointments in question are neither limited in point of time to the period of employment of the appointee with the respondent company nor limited territorially to the premises of the respondent company, the individuals concerned are members of a police force. Accordingly, we find that the employees concerned are not members of a police force within the meaning of the Labour Relations Board Act and are therefore not excluded from the operation of the Act.

Similarly, in Ford Motor Company of Canada Limited, [1959] OLRB Rep. May 68 the Board concluded that employees of the respondent who were sworn in as special constables were not members of a police force within the meaning of section 2(c) (now 2d) of the Act. (See also Walker Metal Products Limited, [1963] OLRB Rep. Aug. 276.)

21In The Police Commission of the City of Sudbury 60 CLLC ¶ 16,161 the union applied to represent "all office employees of The Police Commission of the City of Sudbury". The respondent, however, objected to the application on the ground that the persons concerned were members of the police force and thus excluded from the coverage of the Act. In accepting the respondent's position the Board reasoned as follows at p. 850:

Under the Police Act, a police force is differently composed in a municipality having a board of commissioners of police than in a municipality not having such a board. Where there is a board of police commissioners, section 12 of The Police Act provides that the police force shall consist of "a chief constable and as many constables and other police officers and such assistants as the council may deem necessary, but not fewer than the Board reports to be required". In a municipality not having a board, the police force consists of "one or more constables or other police officers". As Anglin J. said in Williams v. Box, (1910) 1910 CanLII 42 (SCC), 44 S.C.R. 1, "to treat any part of a statute as ineffectual, or as mere surplusage, is never justifiable if any other construction be possible. The rejection or excision of a word or phrase is permissible only where it is impossible otherwise to reconcile or give effect to the provision of the Act". Applying this canon of construction here, the phrase "such assistants" must be taken to mean persons other than a chief constable, constables or other police officers. Although the term "assistants" is not defined in The Police Act, it is not without significance, in the light of sections 13 and 17 of that Act, that the employees concerned in this application were appointed by the board of police commissioners and that the estimates submitted by that board to the council included estimates for the remuneration and other expenses of the civilian employees of the respondent. In our opinion the word "assistants" in section 12 of The Police Act must be construed to include the office employees of the respondent whom the applicant seeks to represent in these proceedings and we find accordingly that these employees are members of a police force within the meaning of the Police Act.

[emphasis added]

In The Board of Commissioners of Police of the City of London, [1961] OLRB Rep. July 135 the Board, relying on its decision in The Police Commission of the City of Sudbury,. supra, held that the garage employees of the respondent were "assistants" of the police force and therefore members of a police force for the purposes of the Labour Relations Act. (See also The Corporation of the City of Cornwall, [1969] OLRB Rep. June 379 where the Board held that by virtue of section 2(d) of the Act employees of the police department were not eligible for inclusion in the bargaining unit).

22In The Board of Commissioners of Police for the City of Windsor, [1964] OLRB Rep. Feb. 650, the Board considered whether the respondent's garage employees who were responsible for repairing and servicing police vehicles were members of the police force. These employees were appointed by the board of police commissioners and were included in the budget estimates submitted by the Board to the municipality. Following the Board's earlier decisions in The Police Commission of the City of Sudbury, supra, and The Board of Commissioners of Police of the City of London, supra, the Board held that the garage employees of the Board were "assistants" within the meaning of the Police Act and were, therefore, members of a police force and excluded from the scope of the Labour Relations Act.

23On appeal,the High Court of Justice overturned the Board's decision: Regina v. Ontario La1 our Relations Board, Ex parte Canadian Union of Public Employees, Local 543, 1964 CanLII 272 (ON HCJ), [1964] 2 O.R. 260. At pp. 263—64 of its decision the Court reasoned as follows:

The question to be decided here is "Are the employees in this case members of a police force within the meaning of such Act and by reason thereof excluded from the application of The Labour Relations Act". If they are to be so regarded as such members, it must be by virtue of the words "such assistants".

It is acknowledged that such employees are employed by the Board and paid by it from funds provided by the City but that their work is confined to that of motor mechanics and that they are not authorized nor do they attempt to exercise the powers or functions of a police officer or constable. The words "such assistants" should be interpreted ejusdem generis with the words "constables and other police officers". The purpose of excepting a member of a police force from the provisions of the Labour Relations Act must be that such officer or constable shall always be free to fulfil his duties in the maintenance of law and order; as the only part that the employees herein play in such a responsibility, is the maintenance of the vehicles used by police officers, it would appear to be beyond the purposes of the Act to exclude them therefrom.

Police officers are not in any event employees of the municipality which engages or pays them but are public servants or officers of the Crown sworn to preserve the peace and exercise duties on their own responsibility free of interference from the municipal authorities: Bruton v. Regina City Policemen's Ass'n, Local No. 155, supra; The RCing v. Labour Relations Board (N.S.), 1951 CanLII 313 (NS CA), [1951] 4 D.L.R. 227, 29 M.P.R. 66; A.-G. N.S.W v. Perpetual Trustee Co., [1955] A.C.

The sections of the Act above quoted are helpful in the interpretation of the word "assistants" and go to show that the employees in the present case are not members of a police force. One would not refer to the hiring of such mechanics as being "appointed by the board" as in s. 14; there would be no occassion for a Board to make "regulations for the government" of mechanics as in s. 15 nor would they ordinarily be "subject to the government of the board" as provided by s. 16(1) above. Section 47 charges members of police forces with the duty of preserving the peace, preventing robberies and other crimes and offences, including offences against the by-laws of the municipality, apprehending offenders, and laying information before the proper tribunal, and prosecuting and aiding in the prosecuting of offenders, and have generally all the powers and privileges and are liable to all the duties and responsibilities that belong to constables. Such obligations are entirely foreign to the mechanics in this case.

The word "assistants" is defined in the Shorter Oxford Dictionary as, inter alia, "one who is present, one who takes part; a helper". The Webster Dictionary defines the word as "one who assists or serves in a subordinate position; a helper". Such word does not normally convey a meaning which would justify regarding a mechanic working in such a garage as an "assistant" to the police officer. If the Legislature had meant such a group of employees to be excluded from the Act, it would have used more apt language, such as the word “employees”.

I have come to the conclusion that the employees in question are not "assistants" within the meaning of s. 13 of the Police Act and consequently are not members of the police force within the mean­ing of such Act; it follows that they are not excluded from the provisions of the Labour Relations Act, …

[emphasis added]

Subsequent to this decision the Police Act was amended by s. 6(1) of The Police Amendment Act, 1965, S.O. 1965 c., 99 and the following section was added as section 22 [now section 23(1)] of the Act:

Every person employed in a police force shall be deemed to be a member thereof.

[emphasis added]

This amendment would appear to be responsive to the Court's statement that if the Legislature had intended to exclude people such as the garage mechanics it would have used a word such as "employees". Accordingly, the legislative amendment breathes life back into the decision of the Board that was quashed by the Court in Regina v. O. L. R. B., ex parte C. U. P. E., supra, as well as the Board's earlier decisions which were affirmed in that case.

24A number of decisions referred to the Board by counsel for the respondent deal solely with the question of whether a police officer should be considered a municipal employee and not with the issue before us of whether a particular group of persons are members of a police force. (See, for example, Re St. Catharines Police Association and Board of Police Commissioners for the City of St. Catharines (1970), 1970 CanLII 351 (ON HCJ), 15 D.L.R. (3d) 532 (Ontario High Court) and The King v. Labour Relations Board ('N.S.), 1951 CanLII 313 (NS CA), [1951] 4 D.L.R. 227 (N.S.S.C.).

25We turn to determine whether the by-law enforcement officers in dispute are "assistants" within the meaning of the Police Act and therefore members of a police force for the purpose of section 2(d) of the Labour Relations Act.

26Section 2(1) of the Police Act imposes a responsibility on every city to provide and maintain an adequate police force. Section 8(1) of the Act requires that every municiplaity that provides and maintains a police force and that has a population of over 15,000 have a board of commissioners of police. The evidence of Mr. Ellicock establishes that the City of Thunder Bay does in fact have a board of commissioners of police.

27Section 15 of the Police Act provides that "the members of the police force in a municipality having a board [of commissioners of police] shall be appointed by the board". The by-law enforcement officers in dispute, however, were not appointed by the Board. They were hired by Phillips Security Agency (subject to the approval of the City's Parking Authority) to fulfill a contract that Phillips Security had entered into with the City of Thunder Bay for the supply of a parking meter patrol service. The circumstances of this matter, therefore, are readily distinguishable from the facts in The Police Commission of the City of Sudbury, supra, where the employees who were found by the Board to be "assistants" had been appointed by the board of commissioners and police. In Reference Re Power of Municipal Council to Dismiss a Chief Constable or other Police Officer Without a Hearing, (1915) 1957 CanLII 110 (ON CA), 7 D.L.R. (2d) 222 the Court of Appeal of Ontario considered this section of the Police Act and stated at p. 223:

The members of a police force in a municipality having a Board [of Commissioners of Police] must be appointed by the Board....

[emphasis added]

The by-law enforcement officers in question were not appointed by the board of commissioners of police. Accordingly, having regard to the clarity of section 15 of the Police Act, it would appear that on this basis alone the by-law enforcement officers cannot be considered members of the police force for the purpose of section 2(d) of the Labour Relations Act. Although section 20(1) of the Police Act anticipates a municipal council appointing members of a police force, the section is only applicable to a municipality (unlike the City of Thunder Bay) that does not have a board of commissioners of police.

28Numerous other sections of the Police Act support the conclusion that the by-law enforcement officers in dispute are not members of the police force. Section 14(1) of the Police Act provides that a police force in a municipality having a board "shall consist of a chief of police and such other police officers and such constables, assistants and civilian employees as the board considers adequate, and shall be provided with such accommodation, arms, equipment, clothing and other things as the board [of commissioners of police] considers adequate" (emphasis added). Counsel for Phillips Security Agency maintains that the traffic by-law enforcement officers fall into the category of "assistant". There is no evidence, however, to suggest that the board of commissioners of police directed its mind in any way to the appointment of the by-law enforcement officers or considered whether they should be included in the police force. The determination of the number of meter by-law enforcement officers required was made by the City as reflected and set out in the form of tender established by the City. Moreover, there is no evidence to suggest that the by-law enforcement officers are supplied with clothing or equipment deemed adequate by the board of commissioners of police as would be the case pursuant to section 14(1) of the Police Act if they were members of the police force. Instead, as spelled out in the tender document, they are supplied with the clothing and equipment deemed necessary by the City of Thunder Bay.

29Section 14(2) requires every board of commissioners of police to submit to the council its estimates of all monies required for the year to pay the remuneration of the members of the police force. Unlike the circumstances in The Police Commission of the City of Sudbury, supra, The Board of Commissioners of Police of the City of London, supra, and The Board of Commissioners of Police for the City of Windsor, supra, where the employees in question were found to be "assistants", there is no suggestion in the instant matter that the board has budgeted remuneration for the by-law enforcement officers or submitted an estimate to cover them. The by-law enforcement officers are paid by Phillips Security Agency in accordance with the minimum rates of pay established by the City. Input by a council is provided for in section 14(3) of the Police Act. Such input, however, occurs when the council does not agree with the estimates of the board of commissioners of police. There is no evidence before this Board of any such disagreement between the two bodies.

30Section 20(2) of the Police Act refers to the police force consisting of such "assistants" (among others) as the "council considers adequate" and states that "the council provide" such pay and equipment as the "council considers adequate". As clearly stated in section 20(1), however, these provisions are only applicable to those municipalities, unlike the City of Thunder Bay, that do not have a board of commissioners of police.

31Section 17(1) of the Police Act provides that "the members of the police force are subject to the government of the board [of commissioners of police] and shall obey its lawful directions." There is nothing in the evidence to establish that the by-law enforcement officers receive any direction whatsoever from the board of commissioners of police or even have any contact with it. As reflected by the form of tender issued by the City, it is the City, not the board of commissioners of police that broadly establishes such things as the by-law enforcement officers' hours and days of work, their clothing requirements and their minimum wages. This Board cannot conclude on the evidence that the by-law enforcement officers in dispute are subject to government of the board of commissioners of police within the meaning of section 17 of the Police Act, thus further supporting the conclusion that they are not members of the police force for the purpose of section 2(d) of the Labour Relations Act.

32Counsel for Phillips Security maintains that the persons in dispute fall into that category of the police force described in section 14(1) of the Act as "assistants". It is interesting, however, that section 57 of the Police Act provides that,

The members of police forces appointed under Part II, except assistants and civilian employees, are charged with the duty [among other matters] of ... preventing ... offences against the by-laws of the municipality....

[emphasis added]

Clearly the by-law enforcement officers in issue are responsible for preventing offences against the City's parking by-law. If they were members of the police force, therefore, there may be some questions as to whether they would fall into the category of "assistants" as argued by the respondent.

33Sections 56 and 58(1) of the Police Act specifically refer to by-law enforce­ment officers and section 70 refers to municipal law enforcement officers:

Section 56

Every chief of police, other police officer and constable, except a special constable or a by-law enforcement officer, has authority to act as a constable throughout Ontario.

Section 58(1)

The Ontario Police Commission or any member thereof designated by the chairman may investigate, inquire into and report upon the conduct of or the performance of duties by any chief of police, other police officer, constable, special constable or by-law enforcement officer the administration of any police force, the system of policing any municipality, and the police needs of any municipality,

(a) at the request of the council of any municipality, in which case the municipality, unless the Solicitor General otherwise directs, shall pay the cost of the investigation, including the cost of reporting and transcribing the evidence; or

(b) without the request of the council of a municipality, in which case the cost of the investigation, including the cost of reporting and transcribing the evidence, shall be paid out of the Consolidated Revenue Fund.

Section 70

The council of any municipality or the trustees of any police village may appoint one or more municipal law enforcement officers who shall be peace officers for the purpose of enforcing by-laws of the municipality or police village.

[emphasis added]

Standing on their own these references do not establish that every by-law enforcement officer, however appointed, is a member of a police force. In Board's opinion, section 70 does not indicate that when a city council appoints a "municipal law enforcement officer" that person becomes a member of the police force. Rather the provision enables the council of a municipality to appoint persons who are not members of the police force as municipal law enforcement officers for the purpose of enforcing the by-laws of the municipality. Perhaps the City of Thunder Bay may be viewed as having taken this action when it called for tenders for the supply of a full meter patrol service and swore people in as by-law enforcement officers. As evidenced by section 57 of the Police Act, persons who are clearly members of the police forces are also charged with preventing offences against the by-laws of the municipality. It does not follow, in other words, that the failure of a City to appoint its own by-law enforcement officers means that a City's by-laws go unenforced. In our view, the exercise of the right bestowed on a municipality through section 70 of the Police Act to itself appoint municipal law enforcement officers does not automatically render those appointees members of the municipal police force.

34The Board's interpretation of section 70 of the Police Act is supported by section 3 of that Act. Section 3(1) provides that the O.P.P. force is not responsible for policing any part of Ontario where a municipal police force is maintained. It is responsible for policing those parts of Ontario where there are no municipal police forces. Subsection 2. of section 3 stipulates, however, that municipal law enforcement officers, e.g. those appointed pursuant to section 70 of the Police Act, shall not be deemed to be a municipal police force for the purposes of responsibilities of the O.P.P. The appointment of by-law enforcement officers by a municipal council does not, therefore, standing alone, render them part of a municipal police force.

35Moreover, while sections 56 and 58 refer to by-law enforcement officers they do not, in this Board's opinion, suggest that the persons in dispute are members of a police force. Section 56 simply provides that by-law enforcement officers do not have the authority to act as constables throughout Ontario. Section 58 stipulates, in part, that at the request of the council of a municipality, (which under section 70 has the authority to appoint by-law enforcement officers) the Ontario Police Commission, at the expense of the City, may investigate the conduct of a by-law enforcement officer. That the conduct of a by-law enforcement officer appointed by a municipal council may be investigated by the Ontario Commission of Police does not itself make that person a member of a police force for the purpose of section 2(d) of the Labour Relations Act.

36Counsel for Phillips Security Agency Inc. relied particularly on section 23(1) of the Police Act to argue that the by-law enforcement officers are members of a police force:

23.- (1) Every person employed in a police force shall be deemed to be a member thereof.

It is abundantly clear on the evidence, however, that the by-law enforcement officers in dispute are not employed in a police force. Apart from being informed as to which streets are to be kept open during snow removal, they have no contact with the police in the regular performance of their work. The by-law enforcement officers in dispute are employed by Phillips Security to perform a contract for the City of Thunder Bay to supply a meter patrol service. Unlike the circumstances in The Police Commission of the City of Sudbury, The Board of Commissioners of Police of the City of London and The Board of Commissioners of Police for the City of Windsor, they are not employed either in or by a police force. Accordingly they cannot be deemed to be a member thereof by virtue of section 23(1) of the Police Act.

37For all of the reasons set out above the Board concludes that the by-law enforcement officers for whom the union seeks to be certified are not members of a police force within the meaning of section 2(d) of the Labour Relations Act and may therefore be the subject of an application for certification brought before this Board.

38The Board finds all employees of the respondent employed in the City of Thunder Bay, other than those employed as guards protecting the property of employers, save and except supervisors, persons above the rank of supervisor and office staff, constitute a unit of employees the respondent appropriate for collective bargaining.

39The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made, were members of the applicant on October 19, 1981, the terminal date fixed for this application and the date which the Board determines, under Section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

40Accordingly, a certificate will issue to the applicant.