Law Times

Law Times • June 29, 2015 Page 11 www.lawtimesnews.com the mailboxes. One notable issue in Whitten's find- ings on that question was his emphasis on Canada Post's need to carry out its busi- ness plan due to financial pressures. "As mentioned declining mail usage in the face of electronic communications at the same time as an increase in the number of resi- dences has made door-to-door delivery of transactional mail the most expensive form of delivery," he wrote, citing Canada Post's need to reduce its labour force and meet its goal of carrying out its mandate on a self- sustaining basis. In his opinion on the merits of an ap- peal, Binnie made reference to the ques- tion of Canada Post's financial viability and suggested it's not necessarily determinative of the constitutional issue. "The Court of Appeal might conclude that whether a su- per box is located at one end of the block or the other or within the required setbacks is unlikely to jeopardize the 'economic viabil- ity' of Canada Post," he wrote. And on the question of interjurisdic- tional immunity, he referred to the Supreme Court of Canada's 2007 ruling in Canadian Western Banks v. Alberta that dealt with ar- guments by federally regulated banks that provincial consumer legislation regulating the sale of insurance didn't apply to them because they were a federal undertaking. "The fact that the business plan was to improve the profits of the banks by selling insurance did not expand federal jurisdic- tion at the expense of the provinces even when the insurance was sold to secure bank loans," wrote Binnie. "Equally, in the present case, it is certainly arguable that the laudable desire of Canada Post's business plan to achieve 'cost reductions' is without constitutional significance." In addition, Binnie raised questions about the arguments dealing with federal paramountcy or frustration of a federal purpose. "Quite apart from the Municipal Act it is well established as a matter of con- stitutional law that where there is an opera- tional conf lict between a valid federal regu- lation and an otherwise valid municipal bylaw, the federal regulation will prevail. However, in order for 'federal paramount- cy' to apply, it must be impossible for Cana- da Post to comply with both the federal reg- ulation and, at the same time, comply with the Hamilton municipal bylaw," he wrote. "It is certainly arguable by the City that there is no such frustration," he added, suggesting Canada Post could potentially implement community mailboxes while complying with the city's requirements for road safety and good planning. "Undoubtedly it would be more conve- nient for Canada Post to proceed to install super boxes without compliance with the City's procedures but Canada Post's con- venience is not the constitutional test," he wrote. Ultimately, Binnie found the case raises several "difficult constitutional issues" when it comes to the interaction of federal and municipal enactments. "These are all legal questions deserving of consideration by the Ontario Court of Appeal if not by the Supreme Court of Canada," he wrote, suggesting that while there's no guarantee of success, there's good reason to challenge some of Whitten's conclusions. Mascarin, however, believes Hamilton went too far with its bylaw. Noting Canada Post has set up a mechanism to consult with communities on its new mailboxes, he says that process should cover its obligations in that regard. "If Canada Post had not had any con- sultation process, it might have been a little different," he says, noting the case ref lects municipalities' legitimate concerns as the Crown corporation moves from installing the community mailboxes in subdivisions planned around such a system to placing them in existing urban areas. "I certainly see where the cities and municipalities are coming from," he adds. "It's something that's a real municipal issue." The conf lict between actions in the fed- eral sphere and municipal concerns isn't new, however. As Mascarin points out, mu- nicipalities have long conf licted with fed- eral agencies over issues such as railways, airports, and telecommunications. "Now, it has just taken itself into a different realm here," he says. In his opinion, Binnie made reference to such a dispute involving the City of Hamil- ton many years ago. The Canada Post case, he wrote, is simi- lar to the lengthy battles between the city and the Hamilton harbour commissioners in the 1960s and '70s. In that case, he noted, the commissioners sought immunity from the city's regulatory authority over con- cerns that municipal land-use bylaws im- paired their plans to develop harbour lands. But unlike in the Canada Post matter so far, at least, the city in that case was victorious, he pointed out. LT FOCUS EARLY BIRD ENDS SEPT. 4 Register online at www.lexpert.ca/cpdcentre For more information, please contact Lexpert® Events at 1-877-298-5868 CLOUD 2.0 – DRAFTING AND NEGOTIATING EFFECTIVE CLOUD COMPUTING AGREEMENTS Cloud 2.0 is here and as customers grow more sophisticated, Cloud computing agreements are evolving to meet regulatory and legal environments and increasing customer needs. However, as the cloud market matures, not all Cloud computing agreements are created equal. 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Untitled-1 1 2015-06-22 3:20 PM Cities have long battled feds over planes, trains Continued from page 10 statutory authority and that in this case, the minimum main- tenance standards don't specify road salt as the only way to com- ply. As such, it recommended municipalities consider options such as ensuring proper road- side drainage, inspecting and maintaining culverts, reviewing road-salt concentrations, and using snow fences in order to manage risk. "While [the asso- ciation] is disappointed that an appeal was not possible, we sup- port and respect Frank Cowan Company's decision," said asso- ciation president Tom Bateman. The focus now, then, is on a push for legislative change to address the statutory issues noted in the ruling as well as by the insurer. In its response to the appeal inquiry, the insurer noted options include amend- ing the Municipal Act to give municipalities protection from nuisance claims related to the escape of road salt. Stirton, too, raises the idea of legislative change to address the tension between the statutory duty to maintain roads and the potential for nuisance exposure for doing so. "I think there is probably a need for legislative change," she says. LT Continued from page 8 Appeal not possible

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