Canada: Hamilton City's Attempt to Stamp Out Community Mail Delivery Ruled Unconstitutional (Sort Of)

Last Updated: November 2 2016
Article by Byron Shaw

Most Read Contributor in Canada, September 2018

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 held1 that the by-law was constitutionally inoperative to Canada Post since it conflicted with the federal Canada Post Corporation Act2 and the Mail Receptacles Regulations.3 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.4 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,5 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."6

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.7

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";8
  • 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;9 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.10

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."11

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."12 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.13 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.14 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,15 perhaps reflecting a constitutional originalism that animated his academic writing prior to his appointment to the bench.16


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."17 Dickson C.J. held that this tide favoured a "very restrained approach" to constitutional doctrines such as paramountcy and interjurisdictional immunity.18

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. 19 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.

Case Information

Canada Post Corporation v. Hamilton (City), 2016 ONCA 767

Docket: C60687

Date of Decision: October 19, 2016


1 Canada Post Corporation v. Hamilton (City), 2016 ONCA 767 [Canada Post].

2 R.S.C. 1985, c. C-10.

3 SOR/83-743.

4 [1993] 3 S.C.R. 463 [Morgentaler].

5 Quebec (Attorney General) v. Canada (Attorney General), [2015] 1 S.C.R. 693 [Gun Registry II].

6 Ibid. at ¶ 38.

7 Canada Post, supra note 1 at ¶ 32-40.

8 Ibid. at ¶ 10.

9 Ibid. at ¶ 12.

10 Ibid. at ¶ 14.

11 Ibid. at ¶ 18-21.

12 Ibid. at ¶ 25, 50.

13 Ibid. at ¶ 51.

14 Ibid. at ¶ 74, 77 and 87.

15 Ibid. at ¶ 8.

16 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:

17 OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at p. 18.

18 Ibid.

19 Canada Post, supra note 1 at ¶ 5 and 71.

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions