By Mshutterstock_511296298ark Mancini, University of New Brunswick

In late 2016, the Ontario Court of Appeal in Canada Post Corporation v Hamilton (City)[1] had an opportunity to revisit the doctrine of federal paramountcy in the context of the most exciting of subjects: community mailboxes. The case got relatively little attention, but it is an important comment on the relationship between the doctrines of pith and substance and paramountcy in the division of powers analysis. Below, I review the facts of the case, and argue that the law should have been held invalid rather than inoperable.

Canada Post, in its ongoing effort to cease door-to-door delivery, began to place community mailboxes (“CMBs”) in downtown Hamilton. Hamilton, which opposes CMBs,[2] passed By-Law No 15-091 which gave the city authority to regulate the placement of CMBs. Part of the regime included a permit process which compelled the payment of fees. Part 4 of the Bylaw imposed a moratorium, specific to Canada Post, which prohibited the introduction of CMBs until the City developed “appropriate standards.”[3] At first instance, the application judge found the bylaw invalid through a pith and substance analysis.

On appeal, the Ontario Court of Appeal found the law inoperative because it frustrated the federal purpose of Canada Post to develop a self-sustaining mail service.[4] The Court did not find the law invalid on a pith and substance analysis. The failure to nullify the law on a pith and substance analysis, in my view, introduces uncertainty into the predictable pith and substance analysis. The Court, speaking through Mr. Justice Miller, decided that the application judge erred by confusing the principles of “motive” and “purpose.” As the Supreme Court has previously noted, the motives of a government or individual government members to achieve an end other than the legal end created by the impugned legislation is not relevant for a pith and substance analysis.[5] The purpose and effects of the law, on the other hand, are relevant to the constitutional analysis.

But Justice Miller made too much of the distinction between purpose and motive, particularly on Part 4 of the Bylaw. The constitutional problem with this approach is simple: it ignores the link between a valid consideration of extrinsic evidence and the light that the evidence may shed on the purpose and effects of the bylaw. It was common knowledge that Hamilton City Council opposed CMBs, and in fact, Part 4 of the By-Law was “occasioned by the pending wide-scale installation of CMBs.”[6] In this sense, the extrinsic evidence and the leadup to the adoption of the Bylaw, particularly Part 4, materially indicate that this part of the bylaw may be merely tacked on to the rest of the valid legislative instrument. The bylaw is reminiscent of the colourable law found in Morgentaler, where the Supreme Court considered the legislative history and course of events leading up to the adoption of the impugned anti-abortion law to conclude that the law was actually made in relation to the criminal law power.[7] In this case, the chain of events and leadup demonstrated that it was the municipality’s overall aim to stymie the CMB rollout.

Importantly, the legal effect of Part 4 was to regulate the timelines and rollout of CMBs, which is arguably a core part of Parliament’s exclusive jurisdiction over “The Postal Service.” The application judge noted that it would be extremely difficult for Canada Post to carry out the conversion to CMBs within its timeline by following the bylaw.[8] The effect of the bylaw, therefore, was to essentially cease the rollout of CMBs. Because of Parliament’s exclusive jurisdiction over the postal service, only Parliament should be able to cease the rollout.

A critic might say that it matters not whether the bylaw was disposed of on grounds of invalidity or paramountcy. In fact, the exclusion of valid extrinsic evidence makes it much harder to find a bylaw of this sort invalid. At the same time, for a bylaw to be found inoperative, valid and subsisting federal legislation which conflicts with the bylaw must exist. By reserving his holding to paramountcy, Justice Miller has made it more difficult to find that a bylaw of this sort is constitutionally problematic, because in many cases there will be no federal legislation—in other words, the bylaw should have been found constitutionally invalid with a proper consideration of the extrinsic evidence at hand. The exclusive classes of subjects, which define the distribution of powers, prevent such colourable attempts at legislation. This result should not depend on valid and subsisting federal legislation.

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

[2] The Hamilton City Council passed a resolution which confirmed its opposition: Canada Post, supra at para 10.

[3] Canada Post, supra at para 87.

[4] Canada Post, supra at para 47.

[5] Quebec (Attorney General) v Canada (Attorney General), 2015 SCC 14 at paras 35-38.

[6] Canada Post, supra at para 62.

[7] R v Morgentaler, [1993] 3 SCR 463 at 512.

[8] Canada Post v City of Hamilton, 2015 ONSC 3615 at para 51 [Canada Post I].