In response to Canada Post’s announcement that it was restructuring its mail delivery and doing away with home delivery services, the City of Hamilton passed a by-law giving the City control over the installation of equipment on municipal roads, including Canada Post’s community mailbox (“CMB”) delivery systems. Last week, the Ontario Court of Appeal held that the by-law was constitutionally inoperative to Canada Post since it conflicted with the federal Canada Post Corporation Act and the Mail Receptacles Regulations. The Court of Appeal’s decision highlights a tension in the pith and substance jurisprudence between the principle of colourability on the one hand and the motive and purpose of the enacting body on the other. Furthermore, the decision reveals a preference for resolving division of powers disputes through the paramountcy doctrine, which gives rise to a narrower constitutional remedy.
The Vires Analysis
A law is said to be “colourable” where it is enacted under the guise of a head of power within the enacting body’s competence but is, in reality, in relation to a matter within the exclusive jurisdiction of another level of government. The classic example is R. v. Morgentaler. In Morgentaler, the Supreme Court held that provincial legislation prohibiting certain surgical procedures were in reality an attempt to ban abortions through use of the criminal law power reserved exclusively to Parliament.
However, in Gun Registry II, the Supreme Court distinguished between the purpose of an enactment and the motives of the enacting body. The Court held that the motives of government must be distinguished from the law’s purpose: “[a]n intention on the part of one level of government to prevent another from realizing a policy objective it disagrees with does not, on its own, lead to the conclusion that there is an encroachment on the other level of government’s sphere of exclusive jurisdiction.”
The distinction between motive and purpose is a fine one. As the Canada Post Court held, the pith and substance analysis requires examination of both the purpose and effect of the impugned law. The effect of the law includes both its legal effect and the practical consequences that result from the legislation. A law’s purpose may be discerned from both intrinsic evidence as well as extrinsic evidence, such as minutes of Parliamentary debates.
There was considerable evidence before the Court demonstrating that the Hamilton City by-law was passed in direct response to Canada Post’s decision to phase out home mail delivery and implement CMBs in their place. The extrinsic evidence included:
- A City Council resolution “advising Canada Post and the federal government that [the City] ‘oppose[d] the discontinuation of door-to-door mail delivery service’, and setting out conditions that Canada Post should meet if it nevertheless replaced door-to-door service with CMBs”;
- A City Council motion in response to Canada Post notifying the City of intended CMB locations. Among other things, the motion objected to Canada Post’s criteria for the location of CMBs and voiced concerns about their convenience, accessibility and security, purportedly in the name of the City’s jurisdiction over public highways, the protection of property, the prevention of nuisance, and health, safety and well-being of its residents; and
- A City Council staff report recommending introduction of the by-law as well as a letter from the Mayor to the Prime Minister and Minister of Transport expressing the City’s “opposition to the elimination of home mail delivery” and the immediate suspension of the roll-out of CMBs.
In terms of the intrinsic evidence, the by-law prohibited any person from undertaking a “work”, including installation of equipment on a road without first obtaining a permit in accordance with the by-law and a City road equipment installation manual. The existing manual did not address above-ground equipment, which included CMBs. To address what the Court of Appeal characterized as a “lacunae” in the manual, the by-law contained a moratorium prohibiting the City from considering any permit application from Canada Post for installing CMBs or issuing any permits to Canada Post until 120 days after Canada Post paid an upfront fee which amounted to $100,000. The by-law provided wide discretion over the granting or refusal of permits, permitting the Director of Engineering Services to refuse a permit for non-compliance with the by-law or the road equipment manual and to impose conditions that the Director “considers appropriate for the protection of a road, any property abutting a road or of any person.”
While he did not use the term “colourable”, the application judge concluded that the 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.” The application judge thus concluded that the by-law trenched on Parliament’s exclusive jurisdiction over the postal service under s. 91(5) of the Constitution Act, 1867.
In light of the circumstances leading up to the by-law’s enactment and the terms of the by-law itself, the application judge’s conclusion was understandable. Yet, the Court of Appeal held that the application judge fell into error by confusing the City’s purpose with its motive, contrary to the Supreme Court’s admonition in Gun Registry II. The Court held that the by-law created a permitting process for installing equipment on City roads and was therefore legislation “in relation to the protection of persons and property from harm occasioned by equipment installed on municipal road allowances”, a matter falling within provincial jurisdiction under ss. 92(10) [local works and undertakings] and (13) [property and civil rights in the Province] of the Constitution Act, 1867.
The Paramountcy Analysis
Rather than striking the by-law down as ultra vires, the Court of Appeal resolved the division of powers analysis through the paramountcy doctrine. The Court held that the by-law frustrated the purpose of the Canada Post Act and the Mail Receptacles Regulations, which grant sole decision-making power over the location of mail receptacles to Canada Post. Miller J.A., writing for the Court, noted that the provisions authorizing Canada Post to place mail receptacles was a power enjoyed by the Postmaster General since the time of Confederation, perhaps reflecting a constitutional originalism that animated his academic writing prior to his appointment to the bench.
Canada Post illustrates that the distinction between the purpose and motive of the enacting body is a fine one. Given the record before the Court, the Hamilton by-law could well have been characterized as a colourable attempt to regulate the location of mail receptacles, a matter falling within the exclusive jurisdiction of Parliament over the postal service pursuant to s. 91(5) of the Constitution Act, 1867.
The Court’s decision also illustrates the role of the paramountcy doctrine (particularly the purpose conflict test) in resolving division of powers disputes. It was almost 30 years ago when Dickson C.J. (as he then was) identified the “dominant tide” of Canadian constitutional jurisprudence as allowing for a “fair amount of interplay and indeed overlap between federal and provincial powers.” Dickson C.J. held that this tide favoured a “very restrained approach” to constitutional doctrines such as paramountcy and interjurisdictional immunity.
Ironically, the paramountcy doctrine may be seen to favour overlapping federal and provincial powers, at least when compared with the consequences of a finding that a law is ultra vires. A finding of paramountcy results in the provincial law being declared inoperative to the extent of the conflict only. A finding that legislation is ultra vires results in the law being declared void. In Canada Post for instance, the by-law was held inoperative only to the extent it applies to Canada Post.  The by-law was otherwise left intact. The more narrow remedy entailed by a finding of paramountcy arguably does less violence to the “dominant tide” of overlapping legislation. In an era where Courts are reticent to strike down legislation as invalid, including legislation animated by opposition to a valid initiative by another order of government, perhaps Courts will take a less “restrained approach” to paramountcy.
Byron Shaw is a Partner in the Litigation Department at McCarthy Tétrault LLP and is the co-author of Constitutional Law, 4th ed. (Toronto: Irwin Law, 2013) with Patrick Monahan and the 5th ed. (forthcoming).
Hakim Kassam is an Associate in the Litigation Department of McCarthy Tétrault LLP.
Canada Post Corporation v. Hamilton (City), 2016 ONCA 767
Date of Decision: October 19, 2016
 Canada Post Corporation v. Hamilton (City), 2016 ONCA 767 [Canada Post].
 R.S.C. 1985, c. C-10.
  3 S.C.R. 463 [Morgentaler].
 Quebec (Attorney General) v. Canada (Attorney General),  1 S.C.R. 693 [Gun Registry II].
 Ibid. at ¶ 38.
 Canada Post, supra note 1 at ¶ 32-40.
 Ibid. at ¶ 10.
 Ibid. at ¶ 12.
 Ibid. at ¶ 14.
 Ibid. at ¶ 18-21.
 Ibid. at ¶ 25, 50.
 Ibid. at ¶ 51.
 Ibid. at ¶ 74, 77 and 87.
 Ibid. at ¶ 8.
 See e.g. Bradley Miller, “Beguilded by Metaphors: The ‘Living Tree’ and Originalist Constitutional Interpretation in Canada” 2009 Canadian Journal of Law and Jurisprudence 22(2):331-354; Grant Huscroft and Bradley W. Miller, eds., The Challenge of Originalism: Theories of Constitutional Interpretation, Cambridge University Press, 2011. Available online, at SSRN: https://ssrn.com/abstract=1875052.
 OPSEU v. Ontario (Attorney General),  2 S.C.R. 2, at p. 18.
 Canada Post, supra note 1 at ¶ 5 and 71.