Can Paralegals use the Rules of Civil Procedure to Enforce Orders?: Difference between revisions

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[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 <i>Post Office Act, 1867, c. 10, s. 10(14)</i><ref name="POA"/>, 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): <i>The Post Office Act, S.C. 1950-51, c. 57, s.5(f)</i><ref name="POA"/>. The power to install mail receptacles on municipal roads is a power that has been exercised by Canada Post and its predecessors from Confederation.
[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 <i>Post Office Act, 1867, c. 10, s. 10(14)</i><ref name="POA"/>, 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): <i>The Post Office Act, S.C. 1950-51, c. 57, s.5(f)</i><ref name="POA"/>. The power to install mail receptacles on municipal roads is a power that has been exercised by Canada Post and its predecessors from Confederation.
<b><u>[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.</b></u>
[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: <b><u>“[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.”</b></u>


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

Revision as of 15:58, 10 September 2020


Overview

The Laws

Canada Post Corporation v. Hamilton (City), 2016 ONCA 767 (CanLII)[1]

[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)[2], 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)[2]. The power to install mail receptacles on municipal roads is a power that has been exercised by Canada Post and its predecessors from Confederation.

[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.

[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.”

[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[3]. 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.


[1] [4] [2] [5] [6] [7] [8] [3]

References

  1. 1.0 1.1 Canada Post Corporation v. Hamilton (City), 2016 ONCA 767 (CanLII), <http://canlii.ca/t/gv5rm>, retrieved on 2020-07-29
  2. 2.0 2.1 2.2 Post Office Act, 1867, c. 10, s. 10(14), <https://www.canadiana.ca/view/oocihm.9_01966/2?r=0&s=1>, retrieved on 2020-07-29
  3. 3.0 3.1 Alberta (Attorney General) v. Moloney, 2015 SCC 51 (CanLII), [2015] 3 SCR 327, <http://canlii.ca/t/gm22l>, retrieved on 2020-07-29
  4. Mail Receptacles Regulations SOR/83-743, <https://laws-lois.justice.gc.ca/eng/regulations/SOR-83-743/FullText.html>, retrieved on 2020-07-29
  5. CITY OF HAMILTON BY-LAW NO. 15-091, <http://www2.hamilton.ca/NR/rdonlyres/89365AF5-8ECE-4DC5-B26C-3FD45B8F0B37/0/15091.pdf>, retrieved on 2020-07-29
  6. Municipal Act, 2001, SO 2001, c 25, <http://canlii.ca/t/54cm2> retrieved on 2020-07-29
  7. Canadian Western Bank v. Alberta, 2007 SCC 22 (CanLII), [2007] 2 SCR 3, <http://canlii.ca/t/1rmr1>, retrieved on 2020-07-29
  8. Communications Inc. v. Châteauguay (City), 2016 SCC 23 (CanLII), [2016] 1 SCR 467, <http://canlii.ca/t/gs3l3>, retrieved on 2020-07-23