Advocates for the Rule of Law
Recently, 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. Below, I briefly review the facts of the case, and argue that the case should have been decided on the grounds of validity rather than operability. The difference matters for the Constitution.
Background
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] The application judge found the bylaw invalid through a pith and substance analysis, inoperative by the doctrine of federal paramountcy, and inapplicable through the doctrine of interjurisdictional immunity.
On appeal, the Ontario Court of Appeal found the by-law to be a valid exercise of provincial power, but held that it was nevertheless inoperative because it frustrated the federal purpose of Canada Post to develop a self-sustaining mail service.[4] While the end result was the same, the failure to nullify the law on a pith and substance analysis, in my view, introduces uncertainty into the predictable characterization analysis for no good reason. It does so in two ways: it makes too much of the distinction between “purpose” and “motive” and it does not give enough credence to the actual purpose of the law, which is a clear attempt to regulate Canada Post.
First, 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 end sought by the legislation is not relevant for a pith and substance analysis.[5] In this sense, motive refers to an intention beyond the immediate goal of the legislation—such as an intention to frustrate the other order of government. Motive is most likely to arise when considering the individual statements of members of the adopting assembly. Purpose, on the other hand, goes to the characterization of the law itself. The pith and substance of a law is its dominant purpose or leading feature. It can be ascertained through an analysis of purpose statements in the law and the text of the law itself (notably, the objects of its regulatory mechanisms). Importantly, purpose can also be ascertained through examining extrinsic evidence—Hansard evidence, as an example. Purpose thus arises from the legislation while motive exists outside of it, though extrinsic evidence can be used to shed light on both.
Analysis
In my view, Justice Miller’s decision is problematic for two reasons. First, Miller J.A. 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 purpose of the impugned bylaw. As stated above, it is fair game to consider extrinsic evidence in determining the legislature’s purpose. Justice Miller’s decision, however, suggests that extrinsic evidence only goes to motive, when at least some of the evidence was relevant to shed light on the legislative purpose.
What did the extrinsic evidence in this case have to say? It was common knowledge that Hamilton City Council as a whole opposed CMBs, and in fact, Part 4 of the By-Law was “occasioned by the pending wide-scale installation of CMBs.”[6] The Council itself, in its deliberations and a prior express motion, indicated that it opposed the rollout of CMBs. This is relevant extrinsic evidence which goes to the purpose of the bylaw—its goals and the way it accomplishes those goals. It indicates that the Council may have been aiming to actually stop or slow the rollout of CMBs. The extrinsic evidence and the lead up to the adoption of the Bylaw indicate that Part 4 of the bylaw may have been merely “tacked on” to the rest of the legislative instrument, as was the case in Westendorp.[7] Indeed, the bylaw (not in substance but in style) 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.[8] In this case, the chain of events and lead-up demonstrated that it was the municipality’s aim, through the moratorium at least, to slow-down Canada Post’s CMB rollout. This consideration of extrinsic evidence is permissible because it shows that the municipality, a creature of the province, aimed to regulate a Crown corporation.
Second, in eschewing the extrinsic evidence and relying only on the intrinsic textual evidence, Justice Miller seemed to mischaracterize the actual purpose of the law. As a part of constitutional characterization, one must have regard to the dominant and subsidiary purposes of a particular law. Professor Hogg notes an important example: the Alberta Bank Tax Reference.[9] That reference concerned the constitutionality of a provincial tax on banks. The fact that the province levies a tax “is not decisive of its characterization as a taxing measure” [10] for the purpose of a division of powers analysis. What is decisive is the actual purpose of the law in operation—whether it aims to “regulate or destroy the banks.”[11] As Lederman argues, determining what the dominant purpose of a law requires an analysis of “the full or total meaning of the rule” in relation to the “terms of the consequences of the action called for.”[12] In other words, we must go to the text of the legislation to determine what the object of regulation actually is. If the object is a matter within provincial jurisdiction, and any regulation of federal matters is simply incidental, the law is constitutional. If the object of regulation is a matter within federal jurisdiction, and any provincial object is incidental, then the law is unconstitutional.
In this case, as alluded to above, the law aims at the object of Canada Post. The text of the law on its face seeks to slow or stop the rollout of CMBs. Justice Miller discussed the text of Part 4 specifically and acknowledged that it was “occasioned by the pending wide-scale installation of CMBs.” He excused this by the fact that the law is “otherwise” a law of “general application.” With respect, this is a flawed approach. If a provision of a statute or by-law is ultra vires, it makes no difference that the remainder of the law is validly enacted (with the notable exception of whether the law is a valid exercise of the ancillary powers doctrine). While it is true that the “mere mention” of CMBs does not, in and of itself, render the law invalid, Part 4 went far beyond merely mentioning CMBs. It sought to regulate them and thus Canada Post. As Justice Miller notes, the “moratorium provision was needed to enable the City to work up the necessary infrastructure to regulate the location of CMBs” (see para. 62). Even granting the City this favourable view of the evidence, this would still amount to a regulation of the rollout of CMBs.
An analysis of the effect of the law supports the conclusion on purpose. 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.[13] The Canada Post timeline was attenuated by its own collective bargaining process and winter months, in which no work could be done.[14] Justice Miller did not pay enough attention to the fact that the municipality essentially “stepped in” to the shoes of Canada Post by altering its timelines.
Conclusion
A critic might say that it matters not whether the Bylaw was disposed of on grounds of invalidity or paramountcy. This is untrue for two reasons, one doctrinal and one practical. First, Canadian constitutional analysis on federalism grounds is, for the most part, doctrinally coherent and well-settled. It has achieved this status over generations of litigation. Predictability and coherence should be encouraged in law, particularly constitutional law. Justice Miller’s decision injects some uncertainty into the pith and substance analysis, for no good reason, by casting doubt on the relevance of extrinsic evidence. Practically, the decision expands the scope of provincial jurisdiction beyond what is envisaged by the constitutional text, since, in the absence of valid federal legislation, a city could interfere with the macro-level goals of federal agencies in other areas in the same way. As the application judge noted, the municipal interference with Canada Post in this case was not merely incidental—it was not a case of provincial highway rules incidentally applying to Canada Post.[15] This was a case where there was evidence not of motive, but of purpose: to regulate the national rollout of mail service. The principle of jurisdictional exclusivity, which is embedded and reinforced throughout sections 91 – 95 of the Constitution Act, 1867, prevent such colourable attempts to legislate within the other order’s jurisdictional sphere.
Notes
[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] See Westendorp v The Queen, [1983] 1 SCR 43. In that case, the City of Calgary amended a bylaw which was clearly aimed at prostitution. The bylaw amendment was held ultra vires because it targeted prostitution, a matter within the federal government’s competence. The amendment was of a “completely different order” than the rest of the bylaw. Part 4 of the bylaw in Canada Post is comparable.
[8] R v Morgentaler, [1993] 3 SCR 463 at 512.
[9] Reference Re Alberta Statutes, [1938] SCR 100.
[10] Peter W Hogg, Constitutional Law of Canada, (Toronto: Carswell, 2007) at 367.
[11] Ibid.
[12] WR Lederman, Continuing Canadian Constitutional Dilemmas (Butterworths: Toronto, 1981) at 239.
[13] Canada Post v City of Hamilton, 2015 ONSC 3615 at para 51 [Canada Post I].
[14] Canada Post I, supra at paras 52-57.
[15] Canada Post I, supra at para 97.
