Appeal Court sends a message that a local government is unable to regulate mailbox placement.

A local government has lost its fight to regulate the location of Canada Post’s proposed community mailboxes (CMBs). In Canada Post v Hamilton (City), 2016 ONCA 767, the Ontario Court of Appeal upheld the finding that a bylaw establishing a municipal permit system for the placement of CMBs on municipal roads frustrated the purpose of federal law.

The Bylaw was a response to Canada Post’s announcement to introduce CMBs as a replacement for urban door-to-door mail service. By passing a Bylaw on the location of these CMBs, the City of Hamilton attempted to reconcile a significant shift in federal government services with existing regulatory policies and infrastructure. Under the Bylaw, Canada Post was required to apply for a permit, subject to approval by the City’s Director of Engineering, prior to placing any CMBs along municipal roads. The Bylaw also included a $100,000 permit application fee, covering all proposed locations, and a moratorium on new placements intending to run for 120 days from the payment of the fee.

Canada Post filed an application to quash the Bylaw. At trial, the Court found that the Bylaw conflicted with federal law, was ultra vires the City’s jurisdiction, violated the doctrine of interjurisdictional immunity, was subject to the doctrine of paramountcy of federal law, and was pre-empted by Crown immunity. A determining factor in the trial decision was the judge’s opinion that the Bylaw was an attempt to stop Canada Post from ending door-to-door delivery. The City appealed.

On Appeal, the Court focused on a paramountcy analysis in evaluating the validity of the Bylaw. It first considered whether the Bylaw was within the jurisdiction of the municipality, and then whether it frustrated the purpose of federal law.

On the first point, the Court disagreed with the trial judge, finding that the Bylaw was within the local government’s authority. The trial judge had accepted that the circumstances around the passing of the bylaw, including statements made by councillors about their intention to “derail” the implementation of CMBs, indicated that it was outside of the local government’s jurisdiction.

The Court determined that a better approach to establishing the purpose of a Bylaw is to distinguish between the Bylaw’s motive and its purpose. In considering the subject matter of a Bylaw, the key consideration is its legal effect, or a change in legal rights and obligations. Here, the permit provisions focused on issues such as accessibility of equipment for people with disabilities, vehicular and pedestrian safety, and setbacks. These provisions were a valid way for a municipality to protect against the risks of harm to property and people using municipal roadways. They did not address the efficiency or method of mail delivery. The Court also found that the moratorium on issuing permits was an indirect prohibition in the service of the permitting process. The Court accepted that the moratorium was needed to enable to City to work up the necessary infrastructure to regulate the location of the CMBs. Finally, the Court also held that the Bylaw was of general application. Although Canada Post and CMBs were specifically mentioned in the Bylaw, it was a comprehensive ordinance regulating the installation of equipment on City roads.

On the second point, the Court agreed with the trial judge, finding that the Bylaw frustrated the purpose of federal law. Although the federal Regulation did not set out criteria to govern the location of CMBs, it did provide a blanket ability to use public roads for this purpose, and Canada Post had a long legislative history of having this power. It also had policies and standards in place for site selection. The Court read these policies as giving Canada Post overriding authority on the location of individual mailboxes, on public roads at least.

Canada Post’s plan to replace door-to-door delivery with CMBs is currently on hold, however, this decision establishes that local governments will likely not be able to determine where future CMBs should be placed, although there may be some room for consultation in this regard.

Stefanie Ratjen

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