Law Times

Page 10 June 29, 2015 • Law Times www.lawtimesnews.com FOCUS Mailbox dispute Hamilton has 'arguable case' in Canada Post appeal BY GLENN KAUTH Law Times hile the Ontario Superior Court of Justice has shot down the City of Hamilton's bylaw aimed at regulating Canada Post Corp.'s placement of community mail- boxes within its boundaries, at least one prominent lawyer thinks the municipality has a feasible argument to appeal the ruling. "In my view, the City has a good arguable case to go for- ward to the Court of Appeal," wrote former Supreme Court justice Ian Binnie in a June 16 letter to Hamilton city solicitor Janice Atwood-Petkovski. Binnie, now counsel at Lenc- zner Slaght Royce Smith Griffin LLP, wrote the letter in response to Atwood-Petkovski's request for an opinion on the merits of an appeal of Justice Alan Whitten's June 11 decision in Canada Post v. City of Hamilton. In that decision, Whitten declared Hamil- ton bylaw No. 15-091 to be inapplicable and inopera- tive when it comes to com- munity mailboxes planned by Canada Post. Hamilton city council voted to appeal the decision last week. The Crown corpora- tion, of course, has been moving to phase out mail delivery to individual homes in response to fi- nancial pressures and de- clining mail volumes. The plan has drawn fire from several cities, including a group of Montreal-area municipalities that are joining a legal challenge launched by the Canadian Union of Postal Workers. Hamilton chose to reg- ulate the issue through its bylaw that subjects Canada Post to a permit acquisition process at the discretion of the di- rector of engineering ser- vices with the public works department or a designate. The bylaw, which regulates the installation of equip- ment, placed a morato- rium on new community mailboxes that would run for 120 days from when- ever Canada Post paid the city a permit applica- tion fee that Whitten said would add up to $100,000. The bylaw followed concerns raised by city councillors after Canada Post provided municipal officials with 1,000 com- munity mailbox loca- tions in three wards. The councillors then directed staff to prepare a report to pre- vent the installation of the mail- boxes pending an agreement with the Crown corporation on locational criteria and other issues. A subsequent update to the city's equipment installation manual prohibited locations that encourage illegal parking, obstruct residents' view or in- terfere with their privacy. It also said the equipment shouldn't be overly intrusive on neighbour- ing residential and commercial uses and permit applications should explain why a commu- nity mailbox couldn't abut a corner lot or non-arterial road. The key question was wheth- er the city had the authority to enact the bylaw in light of issues such as federal paramountcy. Canada Post challenged the by- law, arguing it was invalid under both municipal and constitu- tional law. Among other things, it suggested the bylaw was void for vagueness and uncertainty; conf licted with the Canada Post Corporation Act and the mail receptacles regulation; was in- applicable to community mail- boxes due to the doctrine of interjurisdictional immunity; and was of no effect under the doctrine of paramountcy. "When I looked at the bylaw, it clearly seemed to conf lict di- rectly," says John Mascarin, a partner at Aird & Berlis LLP who notes the court showed "disdain" for the city's position. Among other things, Whit- ten found the bylaw would cre- ate significant difficulties for Canada Post given the tight timelines it faces in convert- ing to community mailboxes. Among other things, it has to carry out a volume count be- fore restructuring its routes, a two-week process that, under Canada Post's collective agree- ment with its workers, can't take place in July, August, December or any two-week period that contains a statutory holiday. "One can readily see how the indeterminate application pro- cess and the moratorium would wreak havoc with these time- lines," wrote Whitten, noting the Crown corporation can't in- stall the community mailboxes during the winter. As a result, he found the effect of the permit process " jeopardizes the time- lines" of Canada Post. On the issue of vagueness, Whitten found the city's lan- guage around the standards it would consider for the place- ment of community mailboxes to be "generic and imprecise." The result, he wrote, would be an "open-ended process" depen- dent on what the city's director considers appropriate. "Even after the permit is issued, pur- suant to 6.4 the Director on his own initiative can alter, revoke or impose new terms." When it came to the conf lict with federal law, Whitten found against the city as the bylaw gave it a final say over the location of Start with Practical Law Canada. Save time with straightforward, up-to-date resources such as: • Public M&A: Overview Practice Note • Roadmap to Multilateral Instrument 61-101 Practice Note • Confidentiality and Non-Disclosure Agreements: M&A Practice Note • Plan of Arrangement Toolkit Our lawyer-editors create and maintain hundreds of practical resources so you don't have to. Sign up for a FREE TRIAL now at practicallaw.ca 00229IF-A50336 A BLANK CANVAS IS INSPIRING BUT NOT FOR LEADING PUBLIC M&A DEALS. W Municipalities are joining the legal battle against the plan to convert to community mailboxes. Photo: Travis Manley/Shutterstock See Cities, page 11

• Cover