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Judge strikes down Hamilton's bylaw to regulate Canada Post super-mailboxes

Justice Alan Whitten has declared the city of Hamilton's bylaw regulating the placement of community mailboxes "inapplicable and inoperative."

Justice Alan Whitten declares city bylaw 'inapplicable and inoperative'

In December 2013, Canada Post announced it will phase out urban home delivery, replacing it with the community mailbox system over the next five years. (CBC)

In a decision released Thursday, Ontario Superior Court Justice Alan Whitten declared the city of Hamilton's bylaw regulating the placement of community mailboxes "inapplicable and inoperative."

The judge said the bylaw was an effort by the city to "thwart" an unpopular move by Canada Post to end door-to-door delivery, and said the program was well within Canada Post's mandate to deliver the mail. 

Canada Post is entitled, the judge wrote, to make such decisions for the benefit of its survival, and to do so "untrammelled as it were by interference from those who do not share their power nor jurisdiction in such specific areas of competence." 

The case has been watched around the country as cities grapple with the end of door-to-door delivery and with who has jurisdiction when a federal corporation wants to make such a dramatic change.

Lost on every point

But the judge emphasized in court the case would not decide the propriety of door-to-door delivery. The case was focused on a much narrower slice of jurisdiction: Who has the right to control where mailboxes for carrying out federally mandated postal delivery should go?

The court just found that that was fairly and precisely within the core power of the federal government as given to Canada Post.- Municipal law expert John Mascarin, Osgoode Hall Law School

Municipal law expert John Mascarin, an adjunct professor at Osgoode Hall Law School, said Hamilton lost on every point of its argument because they all fell under the main finding: Canada Post has the right to decide how it delivers the mail. 

"The main substance of the bylaw was to attempt to regulate where community mailboxes go," Mascarin said. "The court just found that that was fairly and precisely within the core power of the federal government as given to Canada Post. Once you make that determination, everything falls behind it."

He believes the decision is an important one because a number of municipalities were prepared to follow the city's lead if it had been successful.

Now the question becomes, will Hamilton keep up its fight?

"I suppose since Hamilton went so strong against Canada Post that it has to be seen as continuing the fight," said Mascarin. "You might see a lot of other municipalities now want to potentially intervene and buttress the Hamilton's position."

'Acting within its authority or power'

The city acknowledged the case has garnered "heightened interest" in cities around the country, and it is "reviewing the decision with a constitutional specialist," said city spokesman Mike Kirkopoulos. City lawyers aim to report to the city's general issues committee next Wednesday.

The postal service issued a statement shortly after the decision was released. "Canada Post is pleased that the corporation's legal authority to install community mailboxes on municipally-owned property has been upheld. This is a long-standing authority, but not one we take for granted."

It reiterated it has always tried to work collaboratively with municipalities. Canada Post carried on with its program during the proceedings and says installation of the initial units to serve 36,000 homes would be completed soon.

The judge's decision comes after three hearings culminating last week in which the city argued it had the right, as the owner of local roads, to require the postal service to apply for special permits about the location of the super-mailboxes, and to charge Canada Post $200 per box it wanted to install.

After Canada Post had applied for 500 super-boxes, the city also wanted to impose a 120-day moratorium on applying for any more.

This is not a picture of an efficient process.- Justice Alan Whitten, on the city's bylaw regulating Canada Post

Canada Post argued as a federal entity, its mandate gave it broad discretion to place the boxes without the city's formal oversight. Canada Post said the city refused to participate in its process in fall 2014 when it submitted proposed locations to city staff.

"The core question," the judge wrote, "is whether or not a municipality is acting within its authority or power in enacting such a bylaw which profoundly affects the operation of a federal Crown corporation." 

Among the problems the judge found with the bylaw is that it would affect Canada Post's timeline for rolling out the transition to super-mailboxes. Whitten also criticized the number of people at the table.

"The desire of the city to bring control of the locations of the [community mailboxes] within its own bureaucracy would inevitably inflate the number of personnel who contribute to the decision," he wrote. "This is not a picture of an efficient process."

'Nothing he can do about it'

Coun. Terry Whitehead, Hamilton city's council's loudest Canada Post opponent, said the judge "misapprehended" the bylaw and set a terrible precedent.

"This means Canada Post could literally rip out our urban forest and replace it with super-mailboxes," he said. "This means Canada Post could put a super-mailbox right in the middle of that judge's driveway and there's nothing he can do about it." 

Whitehead said the case was not a waste of time.

"We've got locations that are hazards and inevitably will cause an accident and somebody will die," he said. "Don't think that's something I'm willing to turn my back on."

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