Appendix "A" to Report LSt5018

Page 1 of 6

Lenczner

Slaght

:Suite2ZOO

: 4-.6.-865-9oio_

Toronto,:ON

-a'wdifigatem

Cana-da mH.e5
Ian.Binni.

....

Direc). :line: .416-865L.3 737

Emai!

iNnfiie@litigateeem

Via E-mail
Ms...Janice AtwoodPefkovski

Cfy Sdlicitor
City ofHamilton

city Hal!
71 Main Street West
Hamilton, ON L8P 4Y5
Dear Ms, Atw.ood-Petkovski:

RE: Hamilton ats Canada Post Corporation

I acknowledge.receipt of a COpy the.Decision ofJusti:e Whiten inthe.above matterdated
June l1, 2015 holding that Hamilton City By-Law No. I5-091..in relation to the
installation of "super" community mail boxes (CMBs)on Cffy owned property by
Canada Post is "inappt}eable and inoperative". YOU. have asked whether in my opinion
an appeal to the Court of Appeal is warranted.
My view is that this .case raises Some quite complex constitutional-qUestionS which
deserve the consideration of a higher court. While the Outcome of an appeal is .not free
from doubt, it seems to me that. there is good reason to dispute the correctness of some of
Justice Whitten"s conclusions. The issues ae of considerable importance across Canada.

The clarification, ofthe applicable law by. a.hi:gher court is, I bel!eve, d esi:rable.

THE CITY OF HAMILTON V: THE HAMILTON HARBOUR

coMMIsSIONERS LITIGATION
In some ways, this iifi:gation is similar tO the lengthy battles between the City oI'Hamilton

and the Hamilton Harbour Commissioners in the 1960'S and 1970% cu.tminating in the
City's victory in the Court of Appeal in I-tarnitton vs. Hamilton H. arbour Commissioners
(1978) 2t O.R. 2"d 491 (CA). That Contest, as here, involved a 'federal undertaking",

The Commissioners: sought immuniIy from the regmlatory authority of fi!e City, They
complained that their plans for the development: of harbour lands were unduly impaired

8ahRsrms.

iCZNR St_m ROCESM GRIm tu

J ainic Atwood-Petkov.
Jtme 116.', 2015.

Appendix "A" ,to ReporLLS15018

.Page 2 of 6

Page 2
by the-C] 0 Hamilton municipal land..use by;laws. The :courts disagreed and ..concluded

thate Habour CommisSi0tiers had:exaggefated::ah,y vaid protected federa!purpose. Ii

fs ar-gtmhle "tlaat here justice Whitten .had-.simi!arty overstated the if.ederal .purpose .:and
conflated federal.consthutional power With Canada Post's business plan. In paragraph
86, he.speaks of '"/:he fight of CP ,to deliver mail in an econ0ically Viable fashion" [..the
existence of such a "right" may be questioned] and,inparagraph87:
The by-law would in effect glve .the .City e .finn say of the
location of CMBs after.a permit application process WhiehhaS
no. relationship to the temporal exigencies facing CP, iboth in
terms of satising its:existing eollecfiveagreements and. CP's
cost reduction goals to. achieve financial sustalnabili.ty in an era.
of steadily.reducing transaction mail.. [emphasis. added]

And at paragraph 57:

The effect of the permit .process eomeraptated by file by:law'is
that it jeopardizes he tlmellnes of CP. Tim:elines .established to
maintain its objective ofa:self-sustainirg financial basis .and a
level of satisfactory services to citizens. [emphasis. added]

The City, of course cannot block Canada Post from estab[lshing %uper boxes",butjust as
Canada Post trucks comply with municipal speed limits when delivering the mail wikhia
the City it i:s certainly argmabte that under the frequently endorsed principle .of
"cooperative federalism" Canada Post can achieve its plans while, fully respecting the
City's-interest in safe roads .and .good planning.. The Court of Appeal might concljade that
whether a super box is located at ane end of the block or the otheror within the required
setbacks is. unlikely to jeopardize the "economic viability" of Canada Post, Equally, the

Court of Appeal might conclude that the 120 day moratorium is prudent rather than
obstructive:

However, at this stage of the: litigation,, the only issue is. whether the Ci wishes to take
the. opporttmity to make-its arguments inthe higher court.

2.

INTER-JURISDICTIONAL IMMIJNITY

Canada Post argued here, as did the Hamilton Haboar Commissioners in the 1970's, that
provincial]municipal: .regulation. cannot invade a "core?'. federal jttrisdiction. This is

Appendix "A" to Report LS15018

Page 3 of 6

Janice Atwood-letkovski
31me 16, 201.5

Pag3
kmownas the doctrine :ofifite.r-j_ufisd!cfional immu.ni: Ho_weycr; the :Supreme COurt Of

Canada:in Canadian :Western Banks vs. Aiberta i[200 2:SCR 3, :2:0078CC 22::,rnade-lit
ete at'ifederal un4eitakings (in t.hat cas.e the Chartered bs)Cannot sdt themselves UP
as judges of what is esentia! to thei .undertakitrgs. In :Canadian Wes.tcrn Banks, the

federally regulated banks gued that pr0vineial ebnsumeriegis-lati:0n regulating the sale
of insurance did not apply to bank- when bks scrM insUranCe because banks were a
"federal .tmdert alg" .and they preferred ;not "to comply with provineia! :standards. The
court rejected the federal argument. In doing so, the :Court said that tnterrjurisdicfional
immunity "'is adoctrine oftmited application..." and:
The .Const[ttrtion, though a iegal doeumen:t, serves as a
frame:work for life:nd,for political action wi.tMn a.federal state,

in which the courts have tightly observed the importance of coo3eration among government .actorsto easure that federalism

operates flexibly, [emphasis added] (para 42)

The fact that the business plan was to improve eP rofits of the banks by selling
insurance did not expand federal jurisdiction at the expense of the provinces even when
the insurance was sold to secure bank loans. Equally, in the present case, it is certMn]y
arguable -that e laudable desire of Canada Post's business plan to_ achieve "cost
reductions" is without constitutional s!gnificance.

FEDERAL PARAMOUNTCY ORFRUSTRATION OF FEDERAL

PURPOSE

Justice Whitten references s. 14 (1) of the Municipal Act in holding that the City's by-law

is in conflict with the federal Mail Receptacle Regulation 8OR/83-743. Quie apart from
the Municipal Acl it is welt established as amatter of constitutional law that. where there
is an operational co.rct between a valid federal regulation and an otherwise valid
municipal byqaw, the ?derM regulation will prevail. However; in order for "federal
paramotmtcy' to apply, it must be impossible for Canada Post to comply with both the
federal regulation, and, at the same time, comply with the Hamilton munieipaI by-law.
Justice Whitten does not End dual compliance to be impossible but lie concludes at
paragraph 104 that the mtmicipal by-law "frustrated the purpose of the Mail Receptacles
Regulation''. If iS certair!y, arguable by the.City that there is .no such fmstmti0n. The

Appendix "A" to Report LS15018

Page 4 of 6

Jice.Atwood--Petkoys

June i6,:20t5
page,4- :

federal puOse !.s. 0 repla-e home delivery wi7"uper boxes;;. This mandate-can be
ach]ev_ed in a :num. her .of ays:itlat ftNy _eompt.y with ...the CitY,s requirements :f0r xoad
Safety and goodNanning:.
Undoubtedly it wouldbe, more. convenitit. for cahada Post. tO prooeed tO install super.
boxes wiflaout compl{ance with the City's procedures but-Canada Post':s convenience is
not the constitutional.text, tf the Court of Appeal:agrees th the City that Canada. Post
can implement its super box program: while also. complying wkh municipal regulations
then the "federal purpose' is not frustrated and the municipal by-law would not be
rendered inoperative On this ground.

4.

IS BY-LAW 15-09i OIDFOR UNCERTAINTY OR VAGLNESS?

,Iusfice WNtten concludes at paragraph 49 that .City By-Law i5-09.1 is"standardless": and
thus vague and uncertain and there!'ore invalid, However, one of the Supreme Court
authorities .on which he relies, R v Nova. Scotia .yha.rmaceuticai .Society [1992] 2 SCR
606 cautions that "the threshold for finding a law to be vague iS relatively high. The
factors tobe considered include (a) the need.for flexibility and the .interpretive role of the
courts; (b) the impossibitity of achieving abs0tute certainty .... [the] standard of

intelligibility being more appropriate and; (c)the possibilit3- that matly varying judicial
interpretations of a given dposifion mayexist and perhaps c0-exist". The Court went on
to say that a challenge on the basis of vagueness must estabiish that the law."so lacks in
precision as. not to give sufficient guidance for legal debate - that is for reaching a
conclusion as to its meaning by analysis applying legal criteria ..... no higher requirement
as to certainty, can be {mposed on taw in our modem state"i [emphasis added]

Despke finding, the Ci's approach to lack _any imelligible standards, Justice Whitten
acknowledges at paragraph 43 that Chapter 5. ol-the City's manual (Above GroundPtant,

Aboge Ground Equipment Intended to be Accessed by the Public, pages 25-16) does in
fact. address the need to ensure 'the ease of safety and of users". The installation itself,
Justice Whitten observes,
is not to be,. "oydrly intrusive" t9 neighbouring residential and
commerc!al uses. Permit expl:anatins are to explain .w.hyCAIB

Appendix "A" to Report LS150t8

Page 5 of 6

Jar/ice Atwoo&?.eflcovsld "

J.e 1.6, 20i5.
Page 5[.s6petbox] cannot.be located abutting a comer lot or non-arterial.
rood, Obvi0u.g!y the authors.are expr-essing;their preferences is
to .19cation t e utset, and shirrthe !burden ofproofto, the.:
aptJlicant 0: jusfy why. these. [YrferetiCes: eanaor be- met..

Mandatory language st!pulates basis considerations .o safety,

accessibility, illumination, ,.avoidance Of hazards, ironinterference with snow remowi, and a location. on a flaL stable.
surface. One cannot imagine any of these mandatory items

esc.alSihg ;the attention of CP, [emphasis added]

The .Court-of Appeal might-eonclude.that whil:e Canada Post shoutdthits_k of these thj'ngs,
it .mght riot. Road safety is a matter that ties within .the regulating authority ofe City
not the "business plan"' of.Canada Post.

It is"certainly arguable that :in fact- By-Law 15-091 does not fail the standard of"suNcient
guidance for :legal debate".

5.

CROWN. IMMUNITY

Finally, Justice Whitten says that Canada Post as a crown agent enjoys a level of
"immunity".fzom the municipal by-law. This argument waspursued by the Hamilton
Harbour Commissioners over many years of litigation with the City of .Hamilton and
(although those cases are not cited by Justice Whitteri), the Ontario Court. of Appeal
rejected the Hamilton Harbour Commissioners' argxmaent based on crown immunity. It
is certainly arguable that the argument should be rejected when raised by Canada Post as
well.

6.

CONCLUSION

This case raises a number of difficult constituti0na! issues dealing, with the interaction
between federal and provincial!mimic}pal enactments. Withia. the relacely succinct
reasors for judgment of 20 pages, Justice: Whi.tten deals with .complex constitutional
doctrines of inter-jurisdictional immunity, federal paramountcy and Crown immunity as
related to Canada Post. Iustice '2qitten finds that the federal and municipal reguIations
arein conllict, These are all legal questions deserving of consideration by the Ontario

Court of Appeat if not by the Supreme Court of Canada.

Appendix "A" to Report LS15018

Page 6 of 6

June 16, 2015

page 6
I_it my view,-the"Gi.lh a giialste-case'to go fo4O the"C0nrt-.of Appeal.
I oull, of.eOU.rse, begtad io responffto :any queNo.ns yq..u may ha.ye m-s regard.

IB/pc