Conflict of Laws

Canada Post Corporation v. Hamilton (City), 2016 ONCA 767 (CanLII)

[7] Relying on this authority, Canada Post promulgated the Mail Receptacles Regulations, SOR/83-743 (the “Regulation”). Section 3 of the Regulation provides that Canada Post “may install … in any public place, including a public roadway, any receptacle … to be used for the collection, delivery or storage of mail.” Section 4 further provides that no person may relocate or remove a mail receptacle without Canada Post’s prior authorization.

[8] These provisions authorizing Canada Post to place mail receptacles on municipal roads continue in Canada Post a power that was previously enjoyed by the Postmaster General. Under The Post Office Act, 1867, c. 10, s. 10(14), the Postmaster General was authorized to place mail receptacles “in the streets … or other public place where he may consider such Letter Box to be necessary” (emphasis added). A later version of that statute was more explicit in the grant of discretion: “the Postmaster General shall administer … the Canada Post Office, and … provide and arrange for the erection of letter boxes or other receptacles at such locations as he deems appropriate” (emphasis added): The Post Office Act, S.C. 1950-51, c. 57, s.5(f). The power to install mail receptacles on municipal roads is a power that has been exercised by Canada Post and its predecessors from Confederation.

[17] The City adopted the recommendation, and on April 15, 2015, the City enacted By-Law No. 15-091, regulating the installation of equipment on City roads.

[18] Section 3.1(1) of the By-Law prohibits any person from undertaking any “work” (defined to include any installation of equipment on a road) without first obtaining a permit in accordance with the By-Law and the City’s “Roads – Equipment Installation Manual” (the “Manual”). There was a problem, however, in that the existing Manual did not address above-ground equipment and so there were no criteria in place to govern the permitting of CMBs.

[22] Canada Post successfully challenged the By-Law on six grounds, and the application judge declared it to be inapplicable and inoperative with respect to the installation of CMBs by or on behalf of Canada Post.

[23] First, the application judge held the By-Law was inoperative in respect of CMBs on the basis of vagueness.

[24] Second, he held that the By-Law was of no effect insofar as CMBs were concerned as it contravened s. 14(1) of the Municipal Act, 2001, S.O. 2001, c. 25. Section 14(1) renders a by-law in conflict with a federal Act or regulation of no effect. The application judge concluded there was a conflict because the By-Law frustrated the purpose of the Regulation, which he characterized as “the time sensitive need for [Canada Post] to carry out its mandate with respect to delivery of mail on a self-sustaining financial basis.”

[25] Third, the application judge characterized the subject matter of the By-Law as in pith and substance the control of the location of CMBs, which he concluded is “ultra vires the authority of the City, even though it is within an aspect, i.e. roads, that the City has jurisdiction.” The application judge’s conclusion on vires was influenced by his view that the By-Law was adopted as a means to stop the transition to CMBs: “[t]he by-law was purposely created by councillors with the avowed intention of stopping the transition of home delivery to CMBs, an intention expressed in a by-law which essentially takes over [Canada Post’s] decision making in choosing a business model.”

[26] Fourth, he held the By-Law intruded into the core federal jurisdiction over the postal service, and was inapplicable to Canada Post by operation of the doctrine of interjurisdictional immunity.

[27] Fifth, he held that Canada Post was not bound by the By-Law on the basis of Crown immunity.

[28] Sixth, although the application judge concluded that the By-Law was ultra vires, had he concluded otherwise, he would nevertheless have held it to be inoperative vis-à-vis Canada Post due to the doctrine of paramountcy.

[42] Once the matter of the challenged legislation is ascertained, the next step is to determine whether the matter comes within one of the heads of power allocated to the enacting legislative body by s. 91 or s. 92 of the Constitution Act, 1867. If not, the legislation is ultra vires and void.

[43] Legislation will not be ultra vires, however, simply because its subject matter, for another purpose, could have fallen under the jurisdiction of the other level of government under a different head of power. The double aspect doctrine provides that “subjects which in one aspect and for one purpose fall within sect. 92, may in another aspect and for another purpose fall within sect. 91”: Hodge v. The Queen (1883), 9 A.C. 117, at p. 130 (P.C.). Accordingly, the doctrine contemplates that some subjects will fall equally under two distinct heads of power, one federal and one provincial: Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, 397 D.L.R. (4th) 611, at para. 50.

[44] This double aspect raises the possibility of conflict between valid federal and provincial laws that both deal with the same subject matter. The doctrine of paramountcy stipulates that such conflict is to be resolved in favour of federal legislation: Canadian Western Bank, at para. 32. Where there is a conflict, federal legislation is paramount and the conflicting provincial legislation is inoperative to the extent of the conflict.

[45] The Supreme Court has recently clarified its jurisprudence on what is required for a conflict: Alberta (Attorney General) v. Moloney, 2015 SCC 51, (2015) 3 S.C.R. 327, at paras. 17-29. It summarized when a conflict will occur, at para. 29:

[I]f the operation of the provincial law has the effect of making it impossible to comply with the federal law, or if it is technically possible to comply with both laws, but the operation of the provincial law still has the effect of frustrating Parliament’s purpose, there is a conflict.

[87] I therefore conclude that there is a conflict between the By-Law on the one hand, and the CPCA and the Regulation on the other, and the application judge made no error in so finding. The By-Law is thus inoperative to the extent of the conflict, including both the permitting and moratorium provisions as they apply to Canada Post.

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